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
January 29, 2015
Volume 12, Issue 1
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. POP CULTURE: News and topics may vary
J. ANNOUNCEMENTS: Books, financial aid, and events
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A. CIVIL RIGHTS
1. Quinnipiac University Agrees to $32,000 ADA Settlement
In early January, Quinnipiac University reached a settlement with the federal government over allegations that they violated the ADA by placing a student diagnosed with depression on mandatory medical leave without consideration of other options. The school removed the student and refused to refund her tuition. The investigation found that the school failed to consider modifying its policy to allow her to complete courses while living off campus or attending classes online. Quinnipiac University will pay the student $17,000 for emotional distress, pain and suffering, and $15,126 to compensate for tuition paid. The school further agreed to provide training to all staff on Title III of the ADA.
Full Story: Nina Bourne, Quinnipiac U Agrees to Pay Student $32,000 in Discrimination Settlement, LearnU, Jan. 13, 2015, available at
http://www.learnu.org/quinnipiac-u-agrees-to-pay-student-32000-in-discrimination-settlement/See Also: Settlement Agreement Between the United States of America and the Quinnipiac University, Dec. 12. 2014,
http://www.ada.gov/quinnipiac_sa.htm
2. ADA Lawsuit Reaches Settlement with EZEFLOW USA, Inc.
A probationary employee requested unpaid medical leave of six weeks because of seizures he experienced as a result of his military service. EZEFLOW USA had a policy that provided up to 26 weeks of paid leave for non-probationary employees. However, it did not include probationary employees and denied the employee's request. The Equal Employment Opportunity Commission alleged that such conduct violated the ADA by failing to provide a reasonable accommodation to the employee with a disability.
The EEOC reached a $65,000 settlement with EZEFLOW USA for monetary relief to the employee. Additionally, as a part of the settlement the company will revise its policy to include, as a reasonable accommodation, unpaid leave for probationary employees with disabilities and provide training on the ADA. EEOC Philadelphia District Director Spencer H. Lewis, Jr., stated, "This case is significant because it demonstrates that even probationary employees may be entitled to a reasonable accommodation under the ADA."
Full Story: Press Release, U.S. Equal Employment Opportunity Commission, EZEFLOW USA, Inc. Will Pay $65,000 to Settle EEOC Disability Discrimination Lawsuit, Jan. 9, 2015, available at
http://www.eeoc.gov/eeoc/newsroom/release/1-9-15b.cfm
B. EDUCATION
1. Obama Administration Tells States IDEA Applies to Students Who Are Incarcerated
Federal Officials have said children with disabilities are entitled to a free appropriate public education even if they are incarcerated. The Department of Education issued a letter stating that a child with a disability is not denied the substantive or procedural rights of the Individuals with Disabilities Education Act when they are incarcerated.
According to the Attorney General, approximately 20 percent of children in juvenile justice facilities have disabilities. Many of these children do not get the same services as children with disabilities who are not incarcerated. The government wished to clarify that this should not be the case. The students in these facilities have no less need for educational support than those who are in any other school district across the country.One issue that may be faced by children with disabilities who are incarcerated is providing their education in the least restrictive environment. The availability of different environments, whether more or less restrictive, may be limited in more structured facilities.
Full Story: Michelle Diament, Feds: IDEA Still Applies When Students Incarcerated, Disability Scoop, Dec. 9, 2014, available at
http://www.disabilityscoop.com/2014/12/09/feds-idea-incarcerated/19900/
2. After 18 years, Federal Judge Dismisses Class Action Special Education Suit
The Blackmon-Jones cases were initially filed in 1997. Parents in the District of Columbia claimed the city was failing to provide their children with disabilities the educational services they were entitled to. The two cases claimed the city was not implementing hearing officers' decisions in a timely manner and the schools were not meeting deadlines for holding due process hearings.
D.C. Mayor Vincent Gray believes the decision to dismiss the case shows the efforts of the city to improve the special education system in the district. However, the Federal Office of Special Education Program rated the city's system as "needing intervention" for the eighth straight year. The government has required the use of some IDEA funds to be budgeted toward administrative costs to assist their ability to meet hearing deadlines and better make student evaluations.
Full Story: Christina Samuels, Judge Dismisses Long-running Class Action Special Education Suit Against D.C., Education Week, Dec. 16, 2014, available at
http://blogs.edweek.org/edweek/speced/2014/12/judge_dismisses_class_action_s.html
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Rideshare App Allegedly Violates the ADA
The National Federation of the Blind recently filed a lawsuit against Uber Technologies, Inc., for allegedly discriminating against passengers with visual impairments. Uber created an application for mobile devices to make cities more accessible by connecting those who need transportation with a taxi, private car, or ride share. The company designed the app to expand access to transportation for everyone, including those with disabilities. However, in its complaint the National Federation of the Blind of California cited several instances nationwide where blind customers were refused rides or charged cancellation fees for having service animals.
Full Story: Joel Rosenblatt, Uber Suit Claiming Bias Against the Blind Gets U.S. Scrutiny, Denver Post, Dec. 26, 2014, available at
http://www.denverpost.com/Business/ci_27207233/Uber-suit-claiming-bias-against-the-blind-gets-US-scrutiny
2. Information and Communication Technology Internationally & the CRPD
Scientists have created an e-Dura implant that will imitate the mechanical properties of living tissue while sending electric impulses to the spinal cord to restore the ability to walk. The device has successfully enabled rats to walk again. However, scientists have reached a roadblock in their clinical trials. The implant is placed on the spinal cord, and friction caused when nerve tissues move and stretch result in damage to the device, inflammation to the area, a buildup of scar tissue, and ultimately rejection. Scientists hope eventually to be able to use the technology in individuals with epilepsy, Parkinson's disease, and persons requiring pain management.
Full Story: Lionel Pousaz, Neuroprosthetics for Paralysis: Biocompatible, Flexible Implant Slips into the Spinal Cord, ScienceDaily, Jan. 8, 2015, available at
http://www.sciencedaily.com/releases/2015/01/150108144734.htm
D. HEALTHCARE / BENEFITS
1. DOJ Reaches Settlement for Discrimination Against Women with HIV
The Department of Justice reached a settlement with Genesis Healthcare System on January 15, 2015. This settlement is based on a violation of the ADA. Genesis was accused of discriminating against a woman with HIV. Genesis operates a healthcare system that includes a hospital, a network of more than 300 physicians, and multiple outpatient health care centers throughout southeastern Ohio.
Following an investigation, the department found that Genesis discriminated against a woman with HIV when one of its primary care physicians refused to accept her as a new patient because of her HIV. Genesis refused to accept her as a patient despite that she was only seeking a general practitioner for medical care unrelated to HIV. Under the settlement Genesis Healthcare System must pay $25,000 to the victim of discrimination and $9,000 as a civil penalty. In addition it must train its staff on the ADA, develop and implement a non-discrimination policy, and report to the department every time a person with HIV is denied or discharged as a patient, with a written justification for the decision.
Full Story: Federal Press Release, Justice Department Settles with Ohio Healthcare System Over HIV Discrimination, Justice.gov, Jan. 15, 2015, available at
http://www.justice.gov/opa/pr/justice-department-settles-ohio-healthcare-system-over-hiv-discriminationSee Also: Settlement Agreement Between the United States of America and Genesis Healthcare System, Jan. 8, 2015, http://www.ada.gov/genesis_healthcare_sa.htm
2. Waiting List for Disability Services Grows Longer Despite Increased Spending
Waiting lists in Iowa for people seeking disability services have continued to grow, even as state officials start spending $6 million that legislators authorized to pare down the lists. The Iowa Department of Human Services said Wednesday that 9,479 people are now on waiting lists for special Medicaid programs to help people with mental or physical disabilities. That's an increase of more than 9 percent from July when the current fiscal year began.
Tammy Nyden of Iowa City talked about how her 12-year-old son, Cole, has waited more than two years for services under a Medicaid waiver program. Cole has autism, Tourette syndrome and a mood disorder, and he needs the extra services that the program would provide. She said, "The question is, why is Iowa making our children wait?" Nyden said children like Cole appear to have been left out of the state's ambitious reorganization of mental health services for adults. She said she and other parents of children with disabilities had hoped the redesign would be more helpful to their families.
Full Story: Tony Leys, Waiting Lists for Disability Services Continue to Grow, Des Moines Register, Jan. 14, 2015, available at
http://www.desmoinesregister.com/story/news/2015/01/14/disability-services-lines-grow-waiting/21788361/
E. WORKFORCE
1. New Rule Requiring Overtime for In-Home Care Workers Struck Down
In September 2013, after a promise from President Obama, the Department of Labor instituted a rule that extended the minimum wage and overtime protections of the Fair Labor Standards Act to in-home care workers for people with disabilities. The rule went into effect on January 1, 2015. Trade groups representing agencies that employ in-home care workers challenged the new requirement in federal court. This week, U.S. District Judge Richard Leon ruled that the Department of Labor overstepped its authority by enacting the rule. The Department of Labor commented that it stands by the regulations and is considering its legal options.
Full Story: Michelle Diament, Caregiver Wage, Overtime Protections Struck Down, Disability Scoop, Jan. 16, 2015, available at
http://www.disabilityscoop.com/2015/01/16/caregiver-protections-struck/19970/See Also: News Release, U.S. Department of Labor, Minimum Wage, Overtime Protections Extended to Direct Care Workers by US Labor Department, Sept. 17, 2013, available at
http://www.dol.gov/opa/media/press/whd/WHD20131922.htm
2. Committee Tasked with Increasing Integrated Employment Formed
On January 5, 2015, U.S. Secretary of Labor Thomas Perez announced the 17 public members that will comprise the Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities. This Committee is required under the Workforce Innovation and Opportunity Act (WIOA) that was signed into law in July 2014. The purpose of the act, in part, is to assist those with disabilities in finding gainful employment. The members include experts in the field, representatives from national employer organizations, and federal officials such as the Commissioner of the Rehabilitation Services Administration and Administrator of the Wage and Hour Division.
The committee will advise the Secretary of Labor on how to improve integrated employment opportunities for people with significant disabilities. The Secretary believes that "[e]mploying people with disabilities is a win-win for workers, employers and the entire community ... the advisory committee will help us expand opportunities for more people with disabilities."
Full Story: News Release, U.S. Department of Labor, Disability Employment Advisory Committee Adds 17 Public Members, Jan. 5, 2015, available at
http://www.dol.gov/opa/media/press/odep/ODEP20142331.htmSee Also: Employment and Training Administration, U.S. Department of Labor, Workforce Innovation and Opportunity Act, July 14, 2014, available at
http://www.doleta.gov/wioa/
3. Companies Work Together to Make the Workplace More Inclusive
Large corporations such as IBM, Merck, and Cisco recently participated in the inaugural EY Diverse Abilities Summit that focused on fostering a workplace culture of diversity and inclusion. The EY is a prominent, international professional service organization that helps companies capitalize on business opportunities. The participants in the Summit recognized that the new Section 503 regulations and the Workforce Innovation and Opportunity Act (WIOA) have contributed to significant progress for people with disabilities in the workforce. But they believe that more still needs to be done, as in 2013 only 17.6% of people with disabilities were employed.
Participants of the Summit compiled a list of strategies and observations for continued progress. They suggest creating employee resource groups that serve as a venue for support and a method of accountability regarding inclusion implementation. Further, they observed that although employment of people with disabilities is a "policy-driven issue" it has also become a "market-driven imperative." Thirty-seven million workers are poised potentially to age into disability, the workplace is increasingly comprised of employees from the post-ADA generation, and 30% of veterans returning from Iraq and Afghanistan have some form of disability.
Full Story: Kathy Martinez & Karyn Twaronite, Leading the Way: Workplace Inclusiveness for People of All Abilities, U.S. Department of Labor Blog, Dec. 10, 2014, available at
http://blog.dol.gov/2014/12/10/leading-the-way-workplace-inclusiveness-for-people-of-all-abilities/?utm_source=rss&utm_medium=rss&utm_campaign=leading-the-way-workplace-inclusiveness-for-people-of-all-abilitiesSee Also: News Release, U.S. Department of Labor, US Labor Department Announces Final Rules to Improve Employment of Veterans, People with Disabilities, Aug., 27, 2013, available at
http://www.dol.gov/opa/media/press/ofccp/OFCCP20131578.htm
F. INDEPENDENCE
1. ABLE Act Passed
On December 19, 2014, President Obama signed the Achieving a Better Life Experience (ABLE) Act, which allows people with disabilities to set up a bank account and accrue up to $100,000 without the assets affecting their government benefits. Before the act was passed, people with disabilities could only have $2,000 in the bank or they would lose their benefits.
The government based the ABLE Act on the college 529 plans, which allow people to set up tax free accounts to save money for college.To set one up, a person's disability must have been diagnosed before age 26, and each person may only have one account. People can save up to $14,000 a year. The interest on these accounts is tax free. People with disabilities can use these assets to pay for expenses such as housing, education, and transportation.
Full Story: Michelle Diament, Obama Signs ABLE Act, Disability Scoop, Dec. 22, 2014, available at
http://www.disabilityscoop.com/2014/12/22/obama-signs-able-act/19935/See Also: National Down Syndrome Society, Achieving a Better Life Experience (ABLE) Act, Jan. 29, 2015, available at
http://www.ndss.org/Advocacy/Legislative-Agenda/Creating-an-Economic-Future-for-Individuals-with-Down-Syndrome/Achieving-a-Better-of-Life-Experience-ABLE-Act/
2. Juneau Ski Program Promotes Independence
In Juneau, Alaska, Outdoor Recreation and Community Access (ORCA) works to help people with disabilities ski as independently as possible. This year one of ORCA's participants, Jessica Gilbert, made one more step toward independence. Gilbert, who has autism, wears a harness that is clipped to the ski lift to prevent her from falling if she has a seizure. During 15 years of skiing with ORCA, she developed the ability to clip the harness to the ski lift without assistance.
ORCA has offered an adaptive ski and snowboarding program at Eaglecrest Ski Area for 18 years. It is mainly staffed with volunteers who work with people with a wide range of disabilities. Each lesson is personalized, based on people's abilities and how they feel on the day of the lesson.
Full Story: Lisa Phu, People with Disabilities Find Independence Through Skiing, Alaska Public Media, Jan. 20, 2015, available at
http://www.ktoo.org/2015/01/16/people-disabilities-find-independence-skiing/
G. EMERGENCY RESPONSE / PREPAREDNESS
1. DC Metro System May Not Be Safe for People with Disabilities
On Tuesday January 15, 2015, a DC metro line, operated by Washington Metropolitan Area Transit Authority (WMATA), filled with smoke, killing one person and leaving 86 more with injuries. Passengers were stuck on the train struggling to breathe for 40 minutes before being evacuated. This is a jarring incident for any metro rider, but could be a life-threatening scenario for riders with disabilities.
Wheelchair user Pat Spray took to twitter and said, "There would be me, dead." His wife Miika also a wheelchair user shared the sentiments and said, "I've said this for years, including to WMATA itself in person: If there's an emergency on MetroRail: I'm dead. From my perspective, I can't rely on WMATA and train staff assisting me if there's an emergency." Thankfully, in this most recent Washington Metro incident passengers assisted each other and helped to provide support by sharing resources including inhalers. Relying in the future on the goodwill of strangers is something the Miika says she's not comfortable with. In her perspective the DC metro system is far from being truly accessible.
Full Story: Clinton Yates, Metro Incident Reminds Disabled Riders of Specific Dangers in Emergency Situations, Washington Post, Jan. 13 2015, available at
http://www.washingtonpost.com/blogs/local/wp/2015/01/13/metro-incident-reminds-disabled-riders-of-specific-dangers-in-emergency-situations/
2. European Union Talks About the Importance of Emergency Preparedness
An estimated 15% of the world's population lives with some form of disability, and they are among the most vulnerable and neglected in any type of emergency. A United Nations International Strategy for Risk Reduction global survey found that people living with disabilities across the world say they are rarely consulted about their needs and only 20% could evacuate immediately without difficulty in the event of a sudden disaster event. The Latvian Presidency of the Council for the European Union, the upcoming host of the upcoming disaster risk reduction conference, hopes to change that.
The new European Council conclusions on disability and disaster risk, expected to be announced at the conference, will represent a major step forward and create opportunities for follow-up activities from the European Commission that could include financing, specific research, and fostering new technologies in the field. Member of the European Parliament from Belgium, Helga Stevens, highlighted that the topic of disaster risk reduction and persons with disabilities will be a top priority of the European Parliament disability group and that the outcomes of the week's discussion on the disaster risk management cycle would feed into the work on persons with disabilities and disaster risk management at the Parliament.
Full Story: Biljana Markova, EU Gears Up for Disability Inclusive #WCDRR, PreventionWeb.net, Jan. 14, 2015, available at
http://www.preventionweb.net/english/professional/news/v.php?id=41891
H. INTERNATIONAL
1. Europe's High Court Rules Obesity Is a Disability Regardless of Cause
On December 18, 2014, the European Court of Justice ruled that obesity could constitute a disability. Specifically, the court found that obesity that hinders "full and effective participation" at work could qualify as a disability under European law. The European Court of Justice also declared that courts cannot consider the cause of an individual's obesity when deciding whether the individual qualifies as having a disability. The decision is binding on all courts within the European Union.
The European Court of Justice did not decide the issue of whether Karsten Kaltoft's obesity is severe enough to be considered a disability. Kaltoft brought the action claiming that his employer, a Danish city council, fired him because of his weight. The highest European Court instead sent the case down to a Danish court to determine whether Kaltoft's weight qualifies as a disability under European law.
In the United States, the ADA may cover obesity, according to the EEOC's Commissioner Chai Feldblum, when "body weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder ... can be an impairment under the law." Feldblum continues, "The question then is whether the impairment, be it abnormal weight or a condition causing abnormal weight, substantially limits a major life activity or a major bodily function."
Full Story: Owen Bowcott, Obesity Can Be a Disability, EU Court Rules, The Guardian, Dec. 18, 2014, available at
http://www.theguardian.com/society/2014/dec/18/obesity-can-be-disability-eu-court-rulesSee Also: Nicole Oran, Is Obesity a Disability? Europe Says Yes. America Says No, MedCity News, Jan. 15, 2015, available at
http://medcitynews.com/2015/01/obesity-disability-minds-doctors-europe-says-yes-america-says/See Also: Patrick Dorrian, EEOC Commissioner Feldblum Offers Insights on Obesity as a Disability, Bloomberg BNA News, Sept. 11, 2013, available at
http://www.bna.com/eeoc-commissioner-feldblum-n17179876987/
I. POP CULTURE
1. New Movie "The Theory of Everything" Doesn't Portray Disability Like Most Movies
"The Theory of Everything" is a film about the life of famed scientist Stephen Hawking. Hawking, often recognized as one of the smartest individuals in the world, has lived with amyotrophic lateral sclerosis (ALS) for nearly 50 years. The film depicts disability differently than many movies in the past. Often, disability in movies is shown with an abled bodied person being involved in an accident and then "overcomes" their disability to accomplish their dreams.
"The Theory of Everything" does not follow that model. This movie is about Hawking's life. This includes his marriage, his children, and his work. His disability is not shown as an obstacle to overcome, but just another aspect of his life. The movie still portrays the destructive nature of ALS and does not attempt to downplay the disease. However, the disability does not define the movie. The movie is not about disability; it is about Stephen Hawking, and ALS is just a part of his life. The film has been nominated for five Oscars including Best Picture and Best Actor.
Full Story: Kristen Page-Kirby, 'Theory of Everything' Breaks the Mold of Films about Illness. Washington Post, Nov. 14, 2014, available at
http://www.washingtonpost.com/express/wp/2014/11/14/theory-of-everything-breaks-the-mold-of-films-about-illness/See Also: Stephanie Merry, 2015 Oscar Nominations: Complete List, Washington Post, Jan. 15, 2015, available at
http://www.washingtonpost.com/blogs/style-blog/wp/2015/01/15/2015-oscar-nominations-complete-coverage/
2. HBO Acquires Rights to Documentary That Follows Children with Autism
School dances are a rite of passage for many teenagers across the country. "How to Dance in Ohio" follows a group of children with developmental disabilities as they spend time confronting and practicing their social skills to prepare themselves for their school's spring formal. This is a part of growing up that all kids worry about and struggle through, but for some it can be more difficult than many may realize. The film encapsulates something very relatable, the scary process of growing up. However it shows that process from a standpoint that is perhaps unfamiliar to many.
The film will premiere at the Sundance Film Festival later this month and will be released by HBO later in the year. The director of the film, Alexandra Shiva, believes the HBO broadcast is the best way to ensure the film reaches the largest audience possible.
Full Story: Ray Pride, HBO Documentary Films Acquires U.S. Television Rights to 'How to Dance in Ohio' Prior to its World Premiere at the 2015 Sundance Film Festival, Movie City News, Jan. 14, 2015, available at
http://moviecitynews.com/2015/01/sundance-15-buy-hbo-docs-learns-how-to-dance-in-ohio/See Also: Adam Benzine, HBO Buys Sundance-Bound Autism Documentary, Real Screen, Jan. 14, 2015, available at
http://realscreen.com/2015/01/14/hbo-buys-sundance-bound-autism-doc/
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.; and Associate Editors Danielle Morrison, Nathan Pearson, Tesla Goodman, Philip Ross, Douglas Curwin, and Kate Battoe.
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