The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Law
http://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse University
http://bbi.syr.edu
July 30, 2014
Volume 11, Issue 5
The Disability Law & Policy Newsletter is a monthly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Dear Colleague:
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to
successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information,
and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability
Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work
and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living
Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics
outside the U.S.
I. MISCELLANEOUS: News and topics may vary
J. ANNOUNCEMENTS: Books, financial aid, and events
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A. CIVIL RIGHTS
1. ADA Legacy Project Commends LBJ Presidential Library for Inclusion of Disability as Civil Right
The ADA Legacy Project, ADAPT, the National Council on Disability, and the National Disability Leadership Alliance recently commended several officials at the LBJ Presidential Library in Austin, Texas, for presenting disability rights as a matter of civil rights. Among those recognized were President Obama and former Presidents George W. Bush, Jimmy Carter, and Bill Clinton. The ADA Legacy Project is also kick starting a national tour that will begin in Houston, Texas, on July 25, 2014, and will end in Washington, DC, next July to commemorate the 25th Anniversary of the ADA.
Full story: The ADA Legacy Project,
http://adalegacy.org/celebration/ada-legacy-project-commends-lbj-presidential-library-inclusion-disability-civil-right
2. Justice Department Reaches Settlement with the City of Hubbard, Oregon
The Department of Justice (DOJ) reached a settlement agreement with the city of Hubbard, Oregon, regarding a compliance review of the city conducted under Title I of the ADA. Last summer the DOJ informed the city that it would be investigating its online job application procedures. The application included the question, "Do you have any special needs that we would need to accommodate you? Yes (check box) No (check box) If yes, explain:_____". Title I of the ADA prohibits employers from asking if an applicant has a disability and from inquiring into the nature of a disability before a conditional offer of employment is made.
The city means to implement this assurance in several ways, including not asking disability-related questions of applicants before a conditional offer of employment is made and training personnel who make hiring decisions on ADA requirements.
Full story: Press Release, Department of Justice: Office of Public Affairs, Justice Department Reaches Settlement with the City of Hubbard, Oregon, July 9, 2014,
http://www.justice.gov/opa/pr/2014/July/14-crt-716.htmlSee also: Settlement Agreement Between the United States of America and the City of Hubbard, Oregon DJ # 205-61-6,
http://www.ada.gov/hubbard-sa.htm
3. Class Action Lawsuit Claims Medicaid Home Care Service Cuts Unjust
The New York Legal Assistance Group recently filed a class action suit against the state commissioners of the Department of Health and the Office of Temporary and Disability Assistance. The suit alleges that the state is allowing the private managed care companies, now responsible for providing long term services like home care, to reduce and terminate care without giving recipients a reasonable chance to object. In 2011 Governor Andrew Cuomo shifted the responsibility of providing funds for long term care services from the state to private companies to save money and better coordinate care. But many recipients of those funds and their advocates believe the result has been that many are not receiving the care they need.
The lead plaintiff in the suit, Janie Taylor, enrolled last year in a plan provided by a private managed care company, Visiting Nurse Service New York (VNSNY), only to have her services reduced without notice or explanation. Ms. Taylor is an 84-year-old woman with diabetes, high blood pressure, and an unsteady gait. Before the change in funding she received assistance from an aide 10 hours a day, 7 days a week. Shortly after choosing a plan under VNSNY, her aid was reduced to 5 hours a day. Ms. Taylor's social worker requested an appeal, which the managed care company denied.
Another plaintiff, a teenager named Eddy LeMieux, received care 12 hours a day, 7 days a week before enrolling in Healthfirst. He requires the care because he has a congenital disorder that affects his heart, lungs, spine, and mental functioning. After enrolling, Healthfirst reduced his care to nothing, stating that the services were not medically necessary. His aunt requested a fair hearing, but the state did not order his care to continue until the New York Legal Assistance Group intervened. Even then, he was only given an overnight aide, which is less than the 12 hours he originally received, and the 24 hours he believes he needs.
Full story: Nina Bernstein, Medicaid Home Care Cuts Are Unjust, Lawsuit Says, New York Times, July 15, 2014,
http://www.nytimes.com/2014/07/16/nyregion/legal-group-sues-over-cuts-to-assistance-in-medicaid-home-care-services-.html?ref=health&_r=0
B. EDUCATION
1. Shift in Special Education Oversight Receives Mixed Reactions
On June 24, 2014, the U.S. Department of Education announced a major shift in how it will oversee states' special education programs. This new plan, known as Results-Driven Accountability (RDA), will include educational results and outcomes for students with disabilities in addition to the procedural requirements that have been used since the IDEA was enacted.
Although many disability rights advocates applaud the shift, others point out that the inclusion of test scores means that fewer than a third of states and territories will comply with federal disability law. The Department of Education has stated that it is unlikely to withdraw federal funding from states that fail to meet the law. However, the National Education Association (NEA) says that states need more financial support from Congress to provide sufficient services to students with disabilities. The new requirements use a federal funding structure that has not been updated since 2000, and this causes disparities such as 26 million students in large population districts having access to fewer resources than their counterparts living in small states.
Some experts, such as James Wendorf, executive director of the National Center for Learning Disabilities, supports the RDA as a step toward providing equal education to students with disabilities; but other experts, such as Dennis Van Roekel, president of the NEA, do not believe it is fair to expect these students to perform on the same level as students without disabilities.
Full story: Press Release, US Department of Education, New Accountability Framework Raises the Bar for State Special Education Programs, June 24, 2014,
http://www.ed.gov/news/press-releases/new-accountability-framework-raises-bar-state-special-education-programsSee also: Clare McCann, Federal Special Ed Funding Formula Needs Repair, Forbes, July 8, 2014,
http://www.forbes.com/sites/newamerica/2014/07/08/federal-special-ed-funding-formula-needs-repair/See also: Motoko Rich, Shift in Law on Disability and Students Shows Lapses, The New York Times, June 24, 2014,
http://www.nytimes.com/2014/06/25/us/shift-in-law-on-disability-and-students-shows-lapses.html?_r=0
2. GAO Releases Report on Children in Nursing Homes
The US Government Accountability Office (GAO) released a report on July 16, 2014, stating that additional federal actions could help address the unique challenges of educating children in nursing homes. The research for the report was initiated after a 2012 Florida investigation brought attention to the issue of children living in nursing homes. That investigation found that many children were offered less than one hour per day of educational activities, and this raised questions about children in nursing homes receiving educational services required under the IDEA.
This new report examined the characteristics of school children who live in nursing homes, how such children are referred for special education services and how those services are delivered, the challenges states and localities face in delivering those services to these children in the least restrictive environment, and the monitoring of the education of these children. In reporting the findings of this research, the GAO recommended that the US Department of Education "develop mechanisms to facilitate information sharing among teachers of students in nursing homes," and "jointly [with Health and Human Services] explore opportunities to use ... existing oversight mechanisms of nursing homes to help [the Department of Education] better ensure the education of such children."
Full story: US Government Accountability Office, SPECIAL EDUCATION: Additional Federal Actions Could Help Address Unique Challenges of Educating Children in Nursing Homes (GAO-14-585), July 16, 2014,
http://www.gao.gov/assets/670/664823.pdf
3. Louisiana's Diplomas for Students with Disabilities Questioned
Louisiana Governor Bobby Jindal signed a law last month, HB No. 1015, that will enable IEP teams in the state to ensure that more students with disabilities receive a diploma by exempting them from passing standardized tests. Officials at the U.S. Department of Education said this may jeopardize the receipt of federal funding if the law's implementation violates the IDEA. Additionally, officials fear the measure may result in lower expectations and results for students with disabilities. This sentiment is supported by several disability advocacy organizations, including: the National Center for Learning Disabilities, the Autistic Self Advocacy Network, and The Education Trust. These organizations wrote a joint letter to the Education Committee of the Louisiana State Senate expressing their concerns about HB 1015, saying that instead of lowering expectations the state should improve instructional methods, access to assistive devices, and early screening for learning impairments.
Full story: Shaun Heasley, Feds Concerned over Increased Leeway for IEP Teams, Disability Scoop, July 9, 2014,
http://www.disabilityscoop.com/2014/07/09/feds-concerned-leeway-iep/19496/See also: Letter to Education Committee, Louisiana State Senate, May 21, 2014,
http://www.advocacyinstitute.org/resources/GroupLtrOpposingHB1015.pdf
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Major Companies Now Using Tactile Technology
Researchers at media companies such as Disney are using tactile interfaces of vibration and electrostatic or magnetic feedback to change the experience of how users experience their products. For decades, scientists have studied how the receptors in the fingertips relay information to the brain, but the media companies are now expanding that research to include displays on iPads and remote control of robotics.
For those with visual impairments this will equal a richer more diverse way to experience programs and products. Tactile interfaces may even be the key to the technology's success. A recent study has shown that those with visual impairments perform tasks on a tactile map (i.e., a map that can be read with fingers to identify turns, mountains, etc.) better than seeing individuals who are blind-folded. Those individuals without sight used multiple fingers to navigate the map, and taught researchers that integrated tactile feedback in displays would need to support multiple fingers for optimal use.
Full story: Brave New World of Tactile Technology, Science Daily, July 1, 2014,
http://www.sciencedaily.com/releases/2014/07/140701145714.htmSee also: Imagining a New Way to Read, One 3D-Printed Book at a Time, July 3, 2014,
http://www.adasoutheast.org/news/articles.php?id=7391#content
2. Ongoing Study Researches iPad Functionality for Persons with an ASD
A recent study out of Los Angeles's Semel Institute for Neuroscience and Human Behavior showed that the language and social communication skills of children with an autism spectrum disorder (ASD) improve with the use of an iPad. The children in the study were between five and eight years old and spoke less than 20 functional words. The researchers introduced the iPad while the children played. While using the iPad, if a child mispronounced a word, the iPad would display a verbal cue and then pronounce the word correctly for the child to hear, which enabled the child to learn to say the word correctly. The research team is conducting a five-year, longitudinal study with another 200 children in four cities.
Full story: Kathleen Doheny, iPads May Help Boost Speaking Skills in Kids with Autism, HealthDay, July 1, 2014,
http://consumer.healthday.com/cognitive-health-information-26/autism-news-51/ipads-help-autistic-kids-talk-finds-study-689263.htmlSee also: Disability.Gov, July 1, 2014,
https://www.disability.gov/study-finds-ipads-may-help-increase-speaking-skills-kids-autism/
3. FCC's Annual Report to Congress on Implementing the CVAA
The Twenty-First Century Communications Video Accessibility Act of 2010 (CVAA) requires the Federal Communications Commission (FCC) to report to Congress on the implementation of mandated video description. Video description enables people with visual impairments to access video programming by audibly narrating television programs. The report found that the television industry has largely complied with the Act and its regulations, but consumers voiced a need for more availability to video programming for online television.
Full story: Federal Communications Commission Report, June 30, 2014,
http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0630/DA-14-945A1.pdf
D. HEALTHCARE / BENEFITS
1. Autism CARES Bill Moves on to Senate
The Combating Autism Act, which provides millions in funding for research, identification, and training, is set to expire in September and the House of Representatives recently approved the proposed Autism Collaboration, Accountability, Research, Education and Support (or Autism CARES) Act as its replacement. The bill will now move onto the Senate for approval, which could happen as early as July. Autism CARES reenacts many provisions of the Combating Autism Act and would provide $260 million for autism-related initiatives through 2019. It also calls for the appointing of an "autism point person" at the U.S. Department of Health and Human Services, and new reporting that focuses on youth in transition and young adults.
Full story: Michelle Diament, Autism Act Clears House, Disability Scoop, June 25, 2014,
http://www.disabilityscoop.com/2014/06/25/autism-act-clears-house/19472/
2. Disability Benefit Claims Questioned
According to the Department of Veterans Affairs (VA) inspector general's office, Linda Halliday, the VA disability system has improperly paid former service members at least $230 million over the last few years. Halliday testified in front of Congress on July 14, 2014, and added that if the problem is not corrected, taxpayers will lose an additional $371 million over the next five years. On the other hand, data released by the VA on July 8, 2014, shows that 80% of disability claims filed by Gulf War veterans for conditions related to the war have been denied, citing "inadequate and insufficient evidence" to indicate that the cancers, chronic fatigue, and migraines they suffer from are service-related.
Full story: Alan Zarembo, VA overpaid $230 million in disability claims, official tells Congress, Los Angeles Times, July 14, 2014,
http://www.latimes.com/nation/la-na-0715-va-hearing-20140715-story.html.See also: Douglas Ernst, VA denied 80 percent of disability claims filed by Gulf War veterans, The Washington Times, July 8, 2014,
http://www.washingtontimes.com/news/2014/jul/8/va-denied-80-percent-disability-claims-filed-gulf-/
3. Health Insurer to Revise Company Terminology
Parents of a ten-month old child with Down syndrome were able to make Cigna, their health insurer, agree to stop using the term "mental retardation" company wide. Kraig and Jennipher Beahn received a letter from Cigna that included the phrasing "mental retardation" and the parents wrote the company and asked them to use "intellectual disability" instead. Days later Cigna representatives contacted the family, apologized, and committed to changing their verbiage. Mark Slitt, a Cigna spokesman, said that the process to revise health plan documentation is already underway, but that some legal steps are necessary to use the new documents. Slitt said, "This will take some time, but we're committed to making the changes ... because it's the right thing to do."
Rosa Marcellino and her family also fought to have the words "mentally retarded" removed from medical documents. Their successes helped lead to the enactment of Rosa's Law in 2010, which changed the federal law's terminology from "mental retardation" to "intellectual disability."
Full story: Shaun Heasley, Family's Complaint Prompts Insurer to Drop "R-Word," Disability Scoop, June 26, 2014,
http://www.disabilityscoop.com/2014/06/26/familys-complaint-insurer-r-word/19479/
E. WORKFORCE
1. New Act Limits Sheltered Workshop Employment
On July 22, President Obama signed the Workforce and Innovation Opportunity Act into law. One of the Act's key provisions will require schools and state vocational rehabilitation agencies to improve their use of pre-employment transition services, employment plans, and career counseling services, and to limit the circumstances in which a person with a disability under the age of 24 might work for less than the federal minimum wage of $7.25/hour, such as in a sheltered workshop. For instance, state vocational rehabilitation agencies are now mandated to work with schools to provide pre-employment transition services, and at least fifteen percent of federal funding that schools receive must go to transition services for young adults with disabilities. United States Senator Tom Harkin said that the Act "will help prepare a new generation of young people with disabilities to prepare for [and] to obtain and succeed ... competitive, integrated employment."
Full story: Michelle Diament, Sheltered Workshop Eligibility May Soon Be Limited, Disability Scoop, June 26, 2014,
http://www.disabilityscoop.com/2014/06/26/sheltered-eligibility-limited/19481/See also: David S. Joachim, Obama Signs New Job Training Law, NY Times, July 22, 2014,
http://www.nytimes.com/2014/07/23/us/obama-signs-new-job-training-law.html?_r=0
2. Supreme Court Addresses Personal Home Care Employees' First Amendment Rights
The National Right to Work Foundation recently brought a case before the Supreme Court, Harris v. Quinn, on behalf of mothers who care for their children with disabilities in the home and do not want to pay union fees to the Service Employees International Union (SEIU). The issue arose after the Illinois legislature classified familial, personal home care employees as "public employees" in 2003. By law, public employees cannot be forced to join a union and pay the full dues, but according to a Supreme Court ruling made in 1977, they do have to pay "fair share" fees that are a reduced price and cover the cost of collective bargaining. Union representatives argued that their lobbying increased the wages of this demographic of personal home care employees, while those against the fees argued that these private assistants are not truly public employees. The Supreme Court held in Harris that these individuals have a constitutional right not to support a union they oppose, and making them pay "fair share" fees violated their first amendment rights.
Full story: David G. Savage, Supreme Court Rules on Disability Caregivers, Disability Scoop, July 8, 2014,
http://www.disabilityscoop.com/2014/07/08/supreme-court-rules-caregivers/19492/
3. Disability Discrimination Suit Settles for $1.35 Million
The EEOC settled a lawsuit with the Princeton HealthCare System (PHCS) for $1.35 million on June 30, 2014. The lawsuit was on behalf of PHCS employees that were wrongfully terminated for taking medical leave they were entitled to under the Americans with Disabilities Act. PHCS had applied the Family Medical Leave Act's 12-week per year limit of leave as a blanket rule, thus ignoring the case-by-case consideration required by the ADA, which sets no specific limit for employee leaves of absence.
As stated by Robert Rose, regional attorney of EEOC's New York District Office, "This case should send a clear message that a leave of absence is a reasonable accommodation under the law. Policies that limit the amount of leave, even if they comply with other laws, violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit."
Full story: Nicole Mulvaney, Princeton HealthCare System Settles $1.35M Disability Discrimination Suit with Federal Equal Employment Opportunity Commission, The Times of Trenton, June 30, 2014,
http://www.nj.com/mercer/index.ssf/2014/06/princeton_healthcare_system_settles_135m_disability_discrimination_suit_with_federal_equal_employmen.html
F. INDEPENDENCE
1. Philadelphia to Increase Wheelchair-Accessible Cabs
After three years in court, the Philadelphia Parking Authority (PPA) and Disabled in Action of Pennsylvania reached an agreement regarding accessible cabs on July 10, 2014. New regulations issued in accordance with the agreement require the PPA to issue 45 taxi medallions for wheelchair-accessible vehicles by the end of the year. In addition, the number of wheelchair-accessible cabs will increase by 15 every year until 150 are on city streets. Currently, Philadelphia has only 8 wheelchair-accessible cabs out of a total of 1,800 registered taxis.
Full story: Claudia Vargas, Phila. to Add 45 Disabled-Accessible Cabs, Philly.com, July 12, 2014,
http://articles.philly.com/2014-07-12/news/51361066_1_medallions-wheelchair-accessible-cabs-advocacy-group.
2. Self-Advocacy Tip Sheet for Young Adults with Serious Mental Health Conditions
The Research and Training Center on Learning and Working During the Transition to Adulthood has released "How to Speak Up and Be Heard: Self-Advocacy" as part of the Living Skills tip sheet series. The tip sheet identifies places where young people may need to advocate for themselves, examples for putting their self-advocacy into words, ten things to do to be heard, and guiding questions to prepare for self-advocacy.
See: Transition RTC, How to Speak Up and Be Heard: Self-Advocacy (2014),
http://labs.umassmed.edu/transitionsRTC/Resources/publications/SelfAdvocacy.pdfFor the complete set of RTC Transition "Tip Sheets & Briefs" for youths with serious mental health conditions, see also:
http://labs.umassmed.edu/transitionsRTC/Resources/publications/Tipsheets_and_Briefs.html#sthash.A2h4Ah2I.dpbs
H. INTERNATIONAL
1. Australian National Disability Insurance Scheme Rollout
The New South Wales government of Australia enacted the National Disability Insurance Scheme (NDIS) in November of 2013, which offers a national system of support for people with disabilities. The National Disability Insurance Agency (NDIA) is tasked with implementing the NDIS. The scheme is scheduled to be fully implemented by 2018. Bruce Bonyhady, chairman of the board of the NDIA, recently said that the overall delivery of the program by 2018 will not be delayed but he would like to increase the scheme's implementation in the short term. There are currently 30,000 people who can access the system and Bonyhady would like to be able to support 400,000 people within the next three years.
Full story: Paul Farrell, "No Delay" in NDIS Rollout But "Pace of Acceleration" Will Slow, Chairman Says, The Guardian, July 9, 2014,
http://www.theguardian.com/world/2014/jul/09/no-delay-in-ndis-rollout-but-pace-of-acceleration-will-slow-chairman-saysSee also: NSW Government: Family & Community Services, National Disability Insurance Scheme (NDIS), July 16, 2014,
http://www.adhc.nsw.gov.au/about_us/strategies/national_disability_insurance_scheme
2. Jamaica Likely to Pass Disability Bill
On July 22, 2014, Jamaica's Parliament passed the Disabilities Bill. It now moves to the Senate and is expected to pass quickly because of its bipartisan support. The bill, if passed into law, will reinforce and promote recognition and acceptance that a person with a disability has the same fundamental rights as any other person in Jamaica by encouraging individual dignity and individual autonomy. It also calls for full and effective participation and equal inclusion in society and preventing or prohibiting discrimination. Passage of the bill will be Jamaica's first such law since ratifying the Convention on the Rights of Persons with Disabilities in 2007.
Full story: Disabilities Bill: Better (10 Years) Late than Never, Jamaica Observer, July 24, 2014,
http://www.jamaicaobserver.com/editorial/Disabilities-Bill--Better--10-years--late-than-never_17229105
I. POP CULTURE
1. Disability Used as a Defense in Oscar Pistorius's Murder Trial
Oscar Pistorius, the South African Olympian known as the "Blade Runner" for his prosthetic legs, is currently on trial for shooting his model girlfriend Reeva Steenkamp in 2013. On July 2, 2014, he produced an expert witness that testified that he has seen "exaggerated fight or flight" responses in people with disabilities that he hasn't seen in persons without disabilities. He proposed that Pistorius was hypervigilant because of his disability and concluded that he also has post-traumatic stress disorder and suffers a lifelong anxiety disorder as a result of dealing with his amputations. Many disability rights groups, however, are not persuaded by his argument: "Frankly, I think there's a little bit of exploitation of his physical disability to say that it's linked to some mental health issue that would cause him to commit murder," said the president of the National Organization on Disability, Carol Glazer. "It's just too much of a stretch."
Full story: Sydney Lupkin, Disability Does Not Justify Pistorius Shooting, Groups Say, ABC News, July 2, 2014,
http://abcnews.go.com/Health/disability-justify-pistorius-shooting-groups/story?id=24401355See also: Oscar Pistorius Trial Hears of Amputee "Stress and Anxiety," BBC, July 3, 2014,
http://www.bbc.com/news/world-africa-28142159
J. ANNOUNCEMENTS
The staff of the Disability Law & Policy e-Newsletter welcomes suggestions for announcements incorporating a focus on disability law or policy in forthcoming issues. If you would like to bring calls for papers or proposals, conferences or events, book announcements, new resources, or scholarship, fellowship or internship competitions to our attention, please send them to dlpannounce@law.syr.edu. Thank you.
Calls for Papers and Proposals
Scholarships, Fellowships, and Events
Conferences and Events
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; Senior Editor Susan Schneider; and Associate Editors Douglas Curwin and Danielle Morrison .
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