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
October 31, 2017
Volume 14, Issue 10
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: ADA, Section 504, CRPD Ratification
B. WORKFORCE: Workforce Innovation and Opportunity Act, Vocational Rehabilitation
C. EDUCATION: Special Education, Youth Transition, Postsecondary Education, & Outcomes
D. HEALTHCARE: Access, Services, Benefits, and the Affordable Care Act
E. TECHNOLOGY: Assistive, Information, and Communication Technologies
F. EMERGENCY PREPAREDNESS: Disaster Preparation, Mitigation, and Response
G. INDEPENDENCE: Community Integration
H. INTERNATIONAL: Topics Outside the United States
I. POP CULTURE: News and Topics Vary
J. EVENTS AND FUNDING: Conferences, Calls for Proposals, Papers, and Presentations
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A. CIVIL RIGHTS
1. ADAPT Protests about Obamacare Repeal Continue
Protesters from ADAPT, a disability rights activist organization, filled the halls of Congress as early as five a.m. on September 25 to protest the recently defeated Graham-Cassidy healthcare bill. About 10 to 15 protesters, who were wheelchair users, were allowed into the hearing room and voiced their opposition to the bill, which proposed drastic cuts to Medicaid and threatened the health care of a substantial number of Americans with disabilities. Police were brought in to clear the room of protesters. Many left willingly; others refused to leave and were carried out by the police. Ultimately, the hearing was delayed by over 20 minutes.
This protest was similar to ADAPT's Capitol Crawl in 1990, when activists pulled their bodies up the steps of the U.S. Capitol to spur on the passage of the Americans with Disabilities Act. Dominick Evans of ADAPT described the importance of public protests like this in advancing civil rights, saying, "They can't ignore it if they're constantly arresting disabled bodies."Full Story: Jim Newell, Senate Obamacare Repeal Hearing Overwhelmed by Protests, Slate, Sept. 25, 2017, available at
http://www.slate.com/blogs/the_slatest/2017/09/25/graham_cassidy_hearing_overwhelmed_by_protests.htmlSee also: Sarah Jones, Arresting Disabled Bodies, New Republic, Sept. 28, 2017, available at
https://newrepublic.com/article/145072/arresting-disabled-bodies
2. Disability as a Pathway to Prison?
There is an underlying issue for children with disabilities who end up in incarceration facilities because of poor education and resources. It is a multilayered problem. About 85% of incarcerated youth have a disability, but just 37% of them receive special education services while they are in school. At the same time, special education programs often function as a new form of school segregation that places students with disabilities on a track toward unequal outcomes, according to the National Council on Disability.
The situation is further complicated by being a student with disabilities along with other identities, which can make certain children more vulnerable than others. Black children are more likely to go through school with unaccommodated disabilities and to be improperly diagnosed with behavioral disabilities that push them into what could be called a "special-education-to-prison" pipeline. Children in poverty are impacted heavily by having a disability, because it is more difficult for them to access resources outside of those offered by their public school.
A report released in August by the Ruderman Family Foundation shows that children with "non-apparent disabilities" -- meaning those not immediately visible, such as learning disabilities, autism, Crohn's disease, or mental illness -- are routinely criminalized rather than given the educational accommodations to which they are legally entitled. The report also found that non-apparent disabilities are overrepresented in children already at risk, including Black, Latino, and Native American children, and those in the foster care system.
Full Story: Rachel Anspach, Why Disabled Youth Are More at Risk of Being Incarcerated, Teen Vogue, Oct. 8, 2017, available at
https://www.teenvogue.com/story/why-disabled-youth-are-more-at-risk-of-being-incarcerated
3. ACLU Sues Chicago Police Department over Treatment of People with Disabilities
The American Civil Liberties Union (ACLU) of Illinois recently filed a lawsuit against the Chicago police department, alleging that police brutality in Chicago has been magnified for people with disabilities, as well as for Black and Hispanic people. Despite recent reform efforts aimed at curbing violence by police officers, the ACLU alleged that the police department has neglected issues around how officers are trained to interact with people with disabilities.
Specifically, they alleged that officers are not trained with "critical de-escalation skills." De-escalation training focuses on getting police officers to act more slowly and try to make connections with people during tense situations, which is the opposite of the quick decision making on which officer training usually focuses. Police officers who have undergone de-escalation training act more sympathetically toward people with mental disabilities and illnesses, according to a study conducted by Emory and George Washington universities in 2014.
The lawsuit alleges that half of all victims of police brutality are people with disabilities. It also alleged that the disparate treatment was worse for people of color with disabilities, and often leads to injury or death. The lawsuit seeks a permanent injunction to stop the police department's practices.
Full Story: Amber Fisher, ACLU Files Lawsuit Seeking Federal Oversight of Chicago Police Reform, Chicago Patch, Oct. 5, 2017, available at
https://patch.com/illinois/chicago/aclu-files-lawsuit-seeking-federal-oversight-chicago-police-reformSee also: Curtis Gilbert, Not Trained Not to Kill, APM Reports, May 5, 2017, available at
https://www.apmreports.org/story/2017/05/05/police-de-escalation-training
B. WORKFORCE
1. October Marked National Disability Employment Awareness Month
October commemorated National Disability Employment Awareness Month (NDEAM), and the Office of Disability Employment Policy made this year's theme "Inclusion Drives Innovation." NDEAM recognizes the meaningful and continual economic contributions made by the disability community as well as acknowledges the undeniable power of inclusion to foster innovation.
Historically, October denoted the promotion of expanding job opportunities for people with disabilities. Starting in October 1945, Congress certified National Employ the Physically Handicapped Week, a title which was adapted in the sixties to National Employ the Handicapped Week in recognition of the broad range of disability identities. Later, in 1988, Congress renamed it National Disability Employment Awareness Month and made it a month-long commemoration.
Full Story: Press Release, U.S. Department of Labor, U.S. Department of Labor Recognizes National Disability Employment Awareness Month (Oct. 4, 2017), available at
https://www.dol.gov/newsroom/releases/odep/odep20171004
2. Disability Mentoring Toolkit Promotes Employment of People with Disabilities
In early October, the National Disability Mentoring Coalition (NDMC) partnered with the United States Department of Agriculture (USDA) to launch a mentoring toolkit in tandem with a white paper entitled "Mentoring as a Disability Inclusion Strategy." As reported by the Employer Assistance and Resource Network on Disability Inclusion, NDMC's toolkit highlights the power of mentoring to increase disability representation in the workforce. By capitalizing on meaningful mentor relationships, the toolkit aims to promote greater success of people with disabilities at all levels of the employment process, including recruitment, hiring, retention, and advancement.
The toolkit is the latest collaboration between the USDA and NDMC meant to promote advances in disability employment. The organizations previously hosted a national training on mentoring as a disability inclusion strategy and held a professional mentoring event in Washington, D.C. The toolkit provides numerous resources, examples, and models to aid employers in inclusive mentoring efforts. For those interested, the toolkit can be found here:
https://www.targetcenter.dm.usda.gov/mentoring/introFull Story: Mike Caprara, Disability Mentoring Toolkit, Employer Assistance and Resource Network on Disability Inclusion, Oct. 6, 2017, available at
https://www.askearn.org/news-events/announcements/disability-mentoring-toolkit/
C. EDUCATION
1. Students Sue West Los Angeles College for Terminating Van Services
Students at West Los Angeles College are suing the institution and the Los Angeles Community College District, claiming their access to education has been severed. West L.A. College previously provided a van service to students with disabilities but has since ended that program. As a result, some students have cut down their class load and others are forced to travel long distances on varying inclines. Administrators from the college claim they have provided alternate options, such as guidance on paths to class and parking lots near the school.
The attorney for the students plans to bring the court's attention a federal ruling from ten years ago, ordering the school to provide better access to students with disabilities by modifying classrooms and providing a shuttle service. The attorney will also highlight a report issued last year through the California Community College Chancellor's office calling schools to improve access to campuses. The trial began Tuesday, October 17, 2017.
Full Story: Adolfo Guzman-Lopez, Trial Set in LA Disabled Students' Suit Alleging Community College Blocked their Education, Southern California Public Radio, Oct. 16, 2017, available at
https://www.scpr.org/news/2017/10/16/76645/trial-set-in-l-a-disabled-students-suit-alleging-c/.
2. Legal Fight over Website Accessibility
Emanuel Delacruz, an individual who is blind, has filed eight lawsuits against various colleges and universities in New York. In each suit, Delacruz claims that the institutions have violated the ADA by not making their websites accessible. When he went to the schools' websites, he was not able to navigate them because they were not formatted to function with his screen reader.
In previous years, many cases have gone through the courts dealing with the issue of website accessibility. The ADA requires that public accommodations be accessible, but there is no mention of the internet in the statute or regulations. With no specific legal obligation, the courts are divided, some ruling that websites must be accessible and others holding that the internet is not covered by the ADA. In June 2017, Florida Federal District Court ruled that grocery store Winn-Dixie was in violation of the ADA by not providing a website that was accessible to the plaintiff who was blind, whereas in March a California Federal District court found that Domino's Pizza's website did not have to be accessible to a person who is blind because customers have the option of ordering by phone.
With the influx of cases involving this issue, there may be a need for a regulation addressing website accessibility.
Full Story: Vivian Wang, College Websites Must Accommodate Disabled Students, Lawsuits Say, The New York Times, Oct. 11, 2017, available at
https://www.nytimes.com/2017/10/11/nyregion/college-websites-disabled.html
D. HEALTHCARE
1. Two Percent Increase in Social Security Benefits Expected by 2018
In October, the Social Security Administration (SSA) announced an expected two percent increase in benefits for more than 61 million recipients of Social Security benefits and over eight million individuals receiving Supplemental Security Income (SSI) benefits. Likely to increase the average benefit by $25.00 a month, the change will take full effect in January of 2018. SSA attributes such an increase to a corresponding increase in the Consumer Price Index.
There will be some other notable increases in January as well. Namely, the SSA identifies an increase in the maximum amount of yearly earnings subject to the Social Security Tax. In January, the limit is expected to jump from $127,200 to $128,700 a year. The SSA predicts that the increase will impact an estimated 12 million people.
Full Story: Press Release, Social Security Administration, Social Security Announces 2.0 Percent Benefit Increase for 2018 (Oct. 13, 2017), available at
https://www.ssa.gov/news/press/releases/#/post/10-2017-1
2. Advocates with Chronic Pain Condemn CVS's New Opioid Policy
On September 21, CVS introduced a new policy regarding prescription opioids. In an attempt to curb opioid abuse, the new policy limits certain acute opioid prescriptions to seven-day supplies, qualifies the available dosage based on opioid strength, and requires the initial use of immediate release medications before gaining access to extended-release options. While the language of the policy is vague, and it is not entirely clear which specific prescriptions the policy change will affect, individuals with chronic pain worry that their medical care will be compromised.
Opponents argue that the policy is a misguided effort to halt abuse that will only make it more difficult for those with disabilities to access the medicine they need. The concern is that such red tape will result in unsubstantiated scrutiny of legitimate medical care and additional bureaucratic hoops that people in pain often cannot afford to jump through. To support their claims, those in opposition to the change point to statistical evidence showing that 75 percent of opioid abuse occurs without a prescription. The new policy will take effect in February of 2018.
Full Story: Sarah Blahovec, CVS's New Opioid Policy Does Nothing to Solve Addiction While Negatively Impacting Pain Patients, Rooted in Rights, Oct. 13, 2017 available at
http://www.rootedinrights.org/how-people-with-chronic-pain-will-be-impacted-by-opioid-prescription-policy-changes/
E. TECHNOLOGY
1. Supreme Court Denies Review of Fifth Circuit Vending Machine Case
On October 2, 2017, the Supreme Court declined to review Magee v. Coca-Cola, a decision in which the Fifth Circuit Court of Appeals held that vending machines were not public accommodations under the ADA. Magee is blind and sued Coca-Cola over their glass-front vending machines. Magee said that these types of vending machines were inaccessible to him, because he was unable to know what item he was selecting or its price. The Fifth Circuit rejected his claim, stating the vending machines were not public accommodations under the ADA, because they were not physical places open to the public.
On appeal, Magee argued that Coca-Cola has many options, such as an audio interface with a tactile keyboard, to make their vending machines accessible. Coca-Cola, on the other hand, argued that Congress did not intend to cover vending machines with the ADA. The Trump administration submitted a brief supporting Coca-Cola's argument. By rejecting the appeal, the Supreme Court kept the Fifth Circuit's decision in place.
Full Story: Greg Stohr, Supreme Court Rejects Blind Man's Bid for Vending-Machine Access, Yahoo! Finance, Oct. 2, 2017, available at
https://finance.yahoo.com/news/supreme-court-rejects-blind-mans-133517820.htmlSee also: Michelle Diament, Supreme Court Punts on ADA, Special Ed, Disability Scoop, Oct. 3, 2017, available at
https://www.disabilityscoop.com/2017/10/03/supreme-court-punts-ada-special-ed/24252/
2. Businesses Join Winn-Dixie in Web Accessibility Appeal; Questions Remain for Trump DOJ
This past June, a Federal District Court in Florida ruled that Winn-Dixie's website, as a service to a public accommodation, was required to be accessible to individuals with disabilities to comply with the Americans with Disabilities Act (ADA). The case involved a plaintiff who was legally blind and could not access several features of the grocery store's website. Gil v. Winn-Dixie Stores, Inc., is now being appealed by Winn-Dixie in the Eleventh Circuit Court of Appeals. A group of businesses, including the Restaurant Law Center, American Bankers Association, and U.S. Chamber of Commerce, among others, has now submitted a brief to the appeals court, arguing that nothing in the ADA specifically requires websites to accommodate customers with disabilities.
When the ADA was passed, Congress tasked the Department of Justice (DOJ) with passing regulations to interpret it. The DOJ, however, has not proposed any rules regarding web accessibility, leaving the issue to judicial interpretation. In spite of this, under President Obama, the DOJ would advocate for plaintiffs in web accessibility cases and even filed a notice of interest in this case in December of 2016. Since the inauguration of President Trump, however, the DOJ has been silent regarding web accessibility and has seemingly abandoned the work that the Obama DOJ did toward proposing a web accessibility rule by 2018. It remains to be seen what role the Trump DOJ will play in this case, if any, and what side they will take, in what is the first major web accessibility case to come up under the Trump administration.
Full Story: Alison Frankel, Will Trump DOJ Side with Disabled Plaintiffs in ADA Website
Suits, Reuters, Oct. 19, 2017, available at
https://in.reuters.com/article/legal-us-otc-ada/will-trump-doj-side-with-disabled-plaintiffs-in-ada-website-suits-idINKBN1CO2WJ
G. INDEPENDENCE
1. UB Research Improves Public Transportation
Researchers at the University at Buffalo (UB) have developed innovative ways to improve public transportation for people with mobility disabilities. UB's Center for Inclusive Design and Environmental Access (IDeA Center) has been instrumental in developing accessibility standards for many years. For example, researchers found that a one-to-six ramp, which raises one inch to every six inches of length, is best for passengers in wheelchairs to enter a bus, and the U.S. Access Board made this the maximum allowable slope for all transit vehicles.
Currently, the IDeA Center is developing systems to secure wheelchairs more efficiently than the traditional four-point system, with two hooks in the front and backs of a wheelchair. Since this system is time-consuming and requires the driver's assistance, riders prefer to not have their wheelchairs tied down because it draws attention to them from other passengers, according to Brittany Perez, an occupational therapist and head of the bus experiments. The researchers developed a fully automated system that riders can use independently. After backing into a wheelchair space, the rider pushes a button and "two telescoping arms [come out and] apply pressure to both sides of the wheelchair, securing it into place."
The IDeA Center partners with the Niagara Frontier Transportation Authority (NFTA) to apply their findings in the real world. Over the ten-year partnership, NFTA has adopted many of the practices and equipment developed at the IDeA Center and aims to be as accessible as possible.
Full Story: David J. Hill, UB, NFTA Working to Make Public Transportation More Accessible, UBNow, available at
https://www.buffalo.edu/ubnow/stories/2017/10/idea-center-nfta.html
2. Disability Advocates Fight for New York Sidewalk Access
New York City is under pressure to repair its inaccessible sidewalks. Many individuals with mobility impairments are forced to travel significantly farther distances than individuals without these impairments because of nonexistent or significantly damaged curb ramps. As a result, lawsuits have been pending for two decades.
A recent federal court-ordered report has highlighted the issues with curb ramps and the city's obligation to maintain them under the ADA. The report calls for a comprehensive survey of the city's curb ramps within 90 days, and a plan for making all ramps ADA compliant within five years. As the city of New York has 162,000 corners and over 300,000 ramps, this timeframe has been challenged as infeasible. However, as disability advocates continue the fight for access, the city is aware that they must make efforts to be compliant.
Full Story: Winnie Hu, For the Disabled, New York's Sidewalks Are an Obstacle Course, The New York Times, Oct. 8, 2017, available at
https://www.nytimes.com/2017/10/08/nyregion/new-york-city-sidewalks-disabled-curb-ramps.html
H. INTERNATIONAL
1. Resolution on Mental Health Approved by Human Rights Council
On September 28, 2017, the Human Rights Council approved the Resolution on Mental Health. Proposed by the Permanent Missions of Brazil and Portugal, and supported by 59 co-sponsors, the resolution came to fruition through a process of candid and productive negotiation. Also involved in the process, as advocates, were the International Disability Alliance, the World Network of Users and Survivors of Psychiatry, and Transforming Communities for Inclusion -- Asia.
Although not legally binding, the resolution represents the UN's political and moral dedication to human rights. During the negotiation process, some states struggled to comprehend that all persons should be equally recognized by the law, and proposed that practices such as forced treatment and forced medication be allowed. However, through resilient dedication from Portugal, Brazil, Mexico, Australia, the Special Rapporteurs on the Rights of Persons with Disabilities and of Health, and the World Health Organization, the resolution did not include such practices and was written with human rights-based language.
Full Story: Human Rights Council (HRC) Approves Resolution on Mental Health and Human Rights, International Disability Alliance, Oct. 12, 2017, available at
https://www.internationaldisabilityalliance.org/hrc-mental-health-resolution
2. National Theatre in London Uses Augmented Reality to Improve Accessibility
Previously, it was incredibly difficult for people with hearing disabilities to access productions of London's National Theatre, which offered only a few captioned shows with only a small number of seats from which people could view the captions. Jenny Sealey, the CEO of the accessibility-focused Graeae Theatre Company and a person who is hard of hearing, noted when captioned shows are offered, the caption screens are off to the side of the stage. Because she must read the dialogue from the screen, she misses much of the action, which makes it "deeply frustrating" to attend performances.
However, the theater hopes to change that. In October it began a yearlong trial with Epson smart glasses, which displays subtitles within the user's field of vision. The glasses are available at all performances at the Dorfman Theatre, and the National Theatre's other two theaters, Olivier and Lyttelton, will have them soon.
The National Theatre also plans to implement an audio-description service for people with visual impairments by April 2019.
Full Story: Katie Collins, Smart Glasses Stage New Experiences for Deaf Theater Fans, CNET, Oct. 6, 2017, available at
https://www.cnet.com/news/smart-glasses-stage-new-experiences-for-deaf-theater-fans/#
I. POP CULTURE
1. Breaking Barriers in Reality TV
Nominated for six Emmys, "Born This Way" took home the Outstanding Casting for a Reality Program Award and Outstanding Cinematography for a Reality Program Award during the Creative Arts Emmy Awards on September 9. "Born this Way" is an American reality television series on A&E, featuring seven young adults with Down syndrome who work hard to achieve their goals and overcome obstacles. The show finished its third season this past summer and was renewed for a fourth season.
Last year "Born This Way" was nominated for two Emmys, outstanding picture editing for reality programming and outstanding unstructured reality program, and won the latter.
Full Story: Shaun Heasley, Down Syndrome Reality Show Takes Home Emmys, Disability Scoop, Sept. 12, 2017, available at
https://www.disabilityscoop.com/2017/09/12/down-syndrome-reality-emmys/24150/See Also: Shaun Heasley, "Born This Way" Scores Emmy Win, Disability Scoop, Sept. 12, 2016, available at
https://www.disabilityscoop.com/2016/09/12/born-this-way-scores-emmy-win/22727/
2. Tribute to Disability Rights Pioneer
Disability advocate Robin Cavendish was diagnosed with polio in 1958 and spent the next 36 years of his life devoted to promoting equal treatment for people living with disabilities. His son, Jonathon, helped produce the film "Breathe," which depicts Robin's life. The story begins when Robin is in his late twenties and is a young spry man with his life in front of him. The movie revolves around the love story between Robin and his wife, Diana, who helped him through the tumultuous early stages of polio.
The movie is largely shot from the son's point of view. However, it attempts to give viewers a sense of what personal strength Robin must have had to persevere through life outside a hospital, something unheard of for a person with polio in the 1960s. The film does not hesitate to show the reality of Robin's struggle. As the storyline progresses, you see Robin build relationships, advocating for people with disabilities, and partnering with a colleague to create motorized chairs for those like himself with severe physical impairments.
"Breathe" is currently in theaters.
Full Story: Alan Zilberman, Andrew Garfield Shines as Disability-Rights Champion in "Breathe," The Mercury News, Oct. 20, 2017, available at
www.mercurynews.com/2017/10/20/movie-review-andrew-garfield-shines-as-disability-rights-champion-in-breathe/See Also: Breathe (2017), IMDb, Oct. 2017, available at
http://www.imdb.com/title/tt5716464/
J. EVENTS AND FUNDING
Call for Papers and Proposals
Webinars and Conferences
Scholarships
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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 Kate Battoe, Christina Kalebic, John Cronin, Lauren Galloway, and Matthew Ramsay.
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