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

December 4, 2009
Volume 6, Issue 9

The Disability Law & Policy Newsletter is a bi-weekly 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.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

A. CIVIL RIGHTS

1. Department of Justice Releases Statistics for Crimes Against Persons with Disabilities

The Department of Justice recently published a report on a study of "the victimization experiences of persons with disabilities," which includes comparisons with the victimization rates of persons without disabilities. The statistics released in the report indicate that persons with disabilities older than twelve experienced approximately 716,000 non-fatal violent crimes and 2.3 million property crimes in 2007. Strikingly, the report found that persons with disabilities experienced higher rates of violence than persons without a disability. The disparity was especially great for persons aged twelve to nineteen with disabilities who were nearly twice as likely to be victims of a violent crime as persons without a disability. Moreover, almost twenty percent of victimized persons with disabilities believed that they were victims because of their disability. The data were collected through the Bureau of Justice Statistics administered National Crime Victimization Survey.

Full story: Michael R. Rand & Erika Harrell, Crime Against People with Disabilities, United States Department of Justice, Oct. 2009, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/capd07.pdf

2. Sears and EEOC Reach ADA Settlement for $6.2 Million

A federal judge approved a consent decree settling a lawsuit against Sears Roebuck & Company under the Americans with Disabilities Act (ADA). The settlement for $6.2 million was the largest ever reached by the Equal Employment Opportunity Commission (EEOC). The lawsuit was filed after a Sears service technician was injured at work, took workers' compensation leave, and then attempted to return to work at Sears repeatedly. Sears fired him after his leave expired, explaining that they perceived no reasonable accommodation would allow the worker to perform the essential job functions. EEOC Attorney John Hendrickson noted that discovery documents turned over by Sears suggested hundreds of other similarly situated former employees were terminated while on leave without Sears seriously considering reasonable accommodations.

The settlement also requires that Sears change its leave policy, provide written reports that indicate ADA compliance, post a notice of this settlement order in all branches, and provide ADA training for all employees. A Sears spokeswoman promised a continued good faith effort to meet its obligations under the ADA.

Full story: U.S. Equal Employment Opportunity Commission, Sears, Reobuck to Pay $6.2 Million for Disability Bias, Press Release, Sept. 29, 2009, available at
http://www.eeoc.gov/eeoc/newsroom/release/archive/9-29-09.html

See also: Bloomberg News, Sears to Pay $6m in Disabilities Suit, Boston Globe, Sept. 30, 2009, available at
http://www.boston.com/business/articles/2009/09/30/sears_to_pay_6m_in_disabilities_suit/

3. Segway Suit and Settlement Against Disney Voided by Court

A lawsuit brought against Disney in November 2007 alleging violations of federal disability laws and the settlement reached in December 2008 were recently dismissed by a federal judge. Three plaintiffs filed the lawsuit after Disney refused to allow them to use Segways while visiting its amusement parks due to a company policy banning the personal two-wheel transporters. A year later, the parties reached a settlement when Disney agreed to acquire more than a dozen electric stand-up vehicles for use by visitors with disabilities. In vacating the settlement and dismissing the lawsuit, District Court judge Gregory Presnell reasoned that all of the plaintiffs were able to use wheelchairs or scooters to move around the amusement park, and the plaintiffs failed to show that use of the Segways were necessary.

Full story: Bloomberg News, Disney Wins Segway Suit Dismissal, Settlement Voided, Bloomberg.com, Oct. 7, 2009, available at
http://www.bloomberg.com/apps/news?pid=20601103&sid=a0rqNBI7sQxI

4. EEOC Files Suit Alleging Discrimination at Work Against Persons with Mental Illness

On September 21, the EEOC filed a lawsuit in federal court in North Carolina, alleging that Smith International Truck Center discriminated against an employee with a mental illness, based on "myths, fears and stereotypes about mental impairments." More broadly, the EEOC has indicated that it believes discrimination against employees in the workplace with mental disabilities remains a pervasive problem. In this case, the suit implicates Smith International for firing Stephen Kerns after he took one week off from work to obtain medical treatment for a mental impairment. Kerns then returned to work without restrictions, but was fired soon after. According to the EEOC, Smith International assumed that if the employee is "getting treatment for any kind of mental impairment that he must not be able to work." Smith International's attorney is arguing that Kerns was fired because he failed to show up to work without providing notice several times after being repeatedly warned.

Full story: Tresa Baldas, EEOC Sees Mental Health Stereotypes at Work, Law.com, Sept. 24, 2009, available at
http://www.law.com/jsp/article.jsp?id=1202434019761

B. EDUCATION

1. Children with Disabilities Excluded from School in Central Asian Countries

The Organization for Economic Cooperation and Development (OECD) recommends integration of children with disabilities in mainstream schools in Central Asia. Due to scarce funds and stereotypes, at least ten percent of students with disabilities in Kazakhstan, Kyrgyzstan, and Tajikistan are excluded from educational programs. According to Eurasianet, inclusion is important because it promotes better education outcomes for all children, both with and without disabilities. Additionally, inclusion is less costly because social costs are decreased by avoiding institutionalization, and inclusion reduces government expenditures on education. Tajikistan has a complete lack of need-based education, but all three countries view special education as a low political priority.

Full Story: Eurasianet, Central Asia: New Report Calls for Education Policy Changes for Special Needs Children, Eurasianet.org, Sept. 17, 2009, available at
http://www.eurasianet.org/departments/insightb/articles/eav091709a.shtml
(last visited Sept. 17, 2009)

2. Public Schools More Likely to Pay for Private Schooling for Students with Disabilities

This summer, in the case of Forest Grove School District v. T.A., the U.S. Supreme Court ruled parents of students with disabilities "have the right to seek reimbursement from [school] districts for private school tuition, even if they did not first try their public school's education programs." The plaintiff's son was diagnosed with attention-deficit hyperactivity disorder, and a more structured learning environment was recommended. The school claimed that his learning problems were not severe enough and subsequently denied services.

Some public school supporters claim that the ruling is unfair because the district must reimburse parents who removed their child before being identified as having a disability. The ruling has the potential to impose an unfair financial burden on school districts. Currently, "the federal government only funds 20 percent of IDEA; the remainder comes from state and local governments." In Illinois, over $180 million of public funds went to cover the costs of 9,563 students with disabilities during the 2007-08 school year. Additionally, although the ruling is a win for many parents, there are financial difficulties in accessing this benefit: parents must first pay the cost of tuition and legal fees before seeking reimbursement for private school tuition from the district.

Full Story: Bonnie Miller Rubin, Special education: Public schools pressed to pay for private schooling, Chicago Tribune, Sept. 4, 2009, available at
http://archives.chicagotribune.com/2009/sep/04/local/chi-special-education-ruling-citsep04

See also: Forest Grove School District v. T.A., 523 F.3d 1078, available at
http://www.supremecourtus.gov/opinions/08pdf/08-305.pdf

C. TECHNOLOGY / TELECOMMUNICATIONS

1. University Improves Hearing Aid Technology

At a University of Florida research clinic, Alice Holmes and other professors of communicative disorders have improved the quality of hearing aids by making them more adaptable to a patient's unique needs. Professor Holmes explains that, because the newly developed implants respond to speech sounds instead of tonal beeps, they are much more accurate and easily adjustable.

Holmes believes this development will have many positive effects. Only about twenty percent of the estimated thirty-one million Americans with a form of hearing loss use a hearing aid. Holmes thinks that the increased effectiveness of the hearing aid will encourage more people with hearing loss to use one. Also, audiology clinics will be able to program hearing aids more quickly, resulting in decreased medical costs. The technology is already patented and being licensed to an Orlando-based company this month. It is expected to launch in the coming weeks at the meeting of the Academy of Dispensing Audiology.

Full Story: University of Florida News, Improved Hearing Aid Technology also Benefits Economy, Oct. 15, 2009, available at
http://news.ufl.edu/2009/10/15/hearing-aid/

2. Grant Awarded to Increase Wheelchair Accessibility in Developing Countries

The U.S. Department of Education's National Institute on Disability and Rehabilitation Research has awarded San Francisco State University a $4.8 million research grant to develop a plan for organizations to distribute wheelchairs and other accessibility technology to developing countries and U.S. Indian reservations. The San Francisco State program, called Whirlwind Wheelchair, builds strong, affordable wheelchairs.

In an effort to identify current barriers to technology access, Whirlwind will conduct a five-year study on how accessibility devices are distributed from factories to homes in developing countries. To accomplish this, the program plans to send engineers and other researchers to countries such as Tanzania, South Africa, and Cambodia. The results of their study will be compiled in a guide on best practices for different stakeholders involved in promoting accessible technology.

Full Story: Elaine Bible, Whirlwind Wheelchair Awarded $4.8 Million for Research, San Francisco State University, Oct. 13, 2009, available at
http://www.sfsu.edu/~news/2009/fall/15.html

3. Disability Advocates Implore Universities to Stop Buying Kindle

Amazon's Kindle, a wireless reading device used for e-books, is sparking objections from the National Federation for the Blind. The electronic reader can read books aloud, but it is extremely difficult to turn on the function when the reader is visually impaired. Two universities, including Syracuse University, refuse to buy more Kindles until Amazon changes the ineffectual design.

Although the Kindle has the ability to read text aloud, the text-to-speech function is almost impossible to use for a blind person. "The problem is you need to see on screen controls to use it," stated NPR's Chris Bolt. Amazon's spokesman Drew Hardener told the Associated Press that the company is working on the problem. But, according to Eve Hill at the Burton Blatt Institute, this is simply not enough: "[The Kindle's issue is not a] hard fix, and Amazon's vague promise just doesn't remedy ongoing discrimination." According to a Syracuse University librarian, "unless there is a push back from consumers, businesses have no incentives to change their practices." Leaders of the boycott are encouraging libraries and universities not to purchase any Kindles until Amazon fixes the design.

Full Story: Chris Bolt, Vision Groups Want Universities to Stop Buying Kindle, National Public Radio, Nov. 12, 2009, available at
http://www.npr.org/templates/story/story.php?storyId=120340625

D. HEALTHCARE / BENEFITS

1. New Healthcare Reform: Possible Rationing for Children with Disabilities?

A group of parental advocates are actively opposing President Obama's healthcare reform, claiming that it would lead to rationing for children with disabilities. These parents expressed outrage at a news conference on Capitol Hill hosted by Republican lawmakers. Some parents believe that the reform will "lead to a government takeover of healthcare," and will pressure doctors to reduce costs, subsequently resulting in persons with disabilities being denied care.

However, other parents of children with disabilities feel differently. National officials at Easter Seals and the Autism Society claim the legislation will improve services for children with disabilities, and parental worries of children being reduced to dollar amounts are unfounded. Jeff Sell, Vice President at the Autism Society said, "the bill will improve care by eliminating annual and lifetime limits on coverage and coverage exclusions based on pre-existing health problems."

Full Story: Ann Sanner, Rationing or Better Care for Disabled Kids?, ABC News, Sept. 15, 2009, available at
http://abcnews.go.com/Politics/wireStory?id=8583447

2. Wake Up Call to Clinicians: Fetal Alcohol Syndrome as the 'Invisible Disability'

On September 9, 2009, carillon bells rang out internationally in recognition of Fetal Alcohol Spectrum Disorders (FASD) Awareness Day. FASD still remains below the national radar because of the stigma associated with alcohol abuse. According to Kathy Mitchell of the National organization on Fetal Alcohol Syndrome (NOFAS), "Many physicians and health clinics still do not screen women for alcohol use, do not educate them on the hazards of drinking while pregnant and do not even recognize FASD in their patients." Additionally, many clinicians still define the condition by "facial deformities and stunted growth, instead of the less obvious symptoms, such as poor judgment, impulsivity, and inability to grasp cause and effect." According to NOFAS, 40,000 children are born each year with FASD in the United States alone. This number is more than spina bifida, Down Syndrome, and muscular dystrophy combined.

Full Story: Bonnie Miller Rubin, Families battle an 'invisible disability,' Chicago Tribune, Sept. 9, 2009, available at
http://archives.chicagotribune.com/2009/sep/09/local/chi-090909-fetal-alcohal-syndrome-story

E. WORKFORCE

1. National Disability Employment Awareness Month

Assistant Attorney General Thomas Perez of the Civil Rights Division commemorated National Disability Employment Awareness month in a statement that the Justice Department would vigilantly enforce federal civil rights laws that protect individuals from discrimination on the basis of disability. Moreover, he stated that there are unfortunate myths and falsehoods that make it difficult for individuals with disabilities to gain employment. Additionally, the Civil Rights Division will join the EEOC in holding town meetings about the proposed ADA Amendments Act regulations to gather public comments.

Full Story: United States Department of Justice, Justice Department Commemorates National Disability Employment Awareness Month, Oct. 2009, available at
http://usdoj.gov/opa/pr/2009/October/09-crt-1092.html

2. Benefits of Employing Individuals with Disabilities

Life Skills, a United Way agency working in the St. Louis area, has assisted more than 350 individuals with disabilities in developing gainful employment skills with more than 150 employers. Life Skills asserts that there are many benefits to hiring individuals with disabilities: low employee turnover (8% compared to a general rate of 45%), economic incentives such as a $2,400 Work Opportunity Tax Credit, dedicated and reliable employees, and community recognition. Currently only 32% of Americans with disabilities are employed, but Life Skills has had a 91% success rate in helping individuals obtain jobs.

Full Story: PRWeb, Companies Reap the Benefits of Employing People with Disabilities, Oct. 15, 2009, available at
http://www.prweb.com/releases/Life_Skills/Disability_Month/prweb3049584.htm

3. White House Announces New Disability Initiatives

President Obama announced that his administration is committed to ensuring the federal government leads the way in providing employment opportunities to individuals with disabilities. Some of the initiatives include a day long federal government job fair for individuals with disabilities as well as workshops on a variety of topics including reasonable accommodations and assistive technology. The Department of Justice will release a video that will identify and respond to many employer misconceptions about employees with disabilities. Additionally, the Office of Personnel Management will prepare a report identifying and promoting successful practices in outreach, recruitment, successful accommodations and career advancement.

Full Story: The White House, President Obama Announces New Initiatives During National Disability Employment Awareness Month , Oct. 5, 2009, available at
http://www.whitehouse.gov/the_press_office/President-Obama-Announces-New-Initiatives-during-National-Disability-Employment-Month/

F. INDEPENDENCE

1. California Courts Reverse Governor's Budget Cuts

A U.S. District Court Judge has ruled that the state of California cannot make its anticipated cuts to In Home Supportive Services (IHSS) because doing so would cause substantial harm to an estimated 130,000 elderly with disabilities. Cuts in the IHSS program were scheduled for November 1. Approximately 40,000 individuals would have lost all homecare services, and about 90,000 more would have had their services severely cut. IHSS has been able to help individuals in need of services in their homes as opposed to having to live in nursing homes or other institutions. The lawsuits also claimed that the cuts would violate federal laws that require individualized needs assessments to determine appropriate service provision, and a blanket cut undermines the individualization that is required.

Full Story: Disability Rights California, Judge Halts Homecare Cuts, Disability Rights California, Oct. 19, 2009, available at
http://www.disabilityrightsca.org/

Additionally, U.S. District Judge Saundra Brown Armstrong ordered California to halt its cuts to the Adult Day Health Care (ADHC) program unless their poor, elderly clients with disabilities are provided other services through MediCal to prevent their institutionalization for health services. The budget cuts are part of an agreement reached by the Legislature and Gov. Arnold Schwarzenegger to help relieve California's multibillion dollar deficit. Judge Armstrong reasoned the elderly plaintiffs are at high risk of requiring hospitalization, and this risk could violate the plaintiffs' rights under the ADA. ADHC centers provide nursing, psychiatric, and social services to thousands of low-income seniors with disabilities.

Full Story: Josh Richman, Judge orders halt to Adult Day Health Care cuts, Oakland Tribune, Sept. 10, 2009, available at
http://www.insidebayarea.com/search/ci_13310257?IADID=Search-www.insidebayarea.com-www.insidebayarea.com

G. EMERGENCY RESPONSE / PREPAREDNESS

1. Illinois 911 Service Aids Persons with Disabilities

A new Illinois alert program allows families and individuals to voluntarily submit information to local police officers or fire departments about persons with disabilities who may need assistance in the case of a personal or public emergency. The program, signed into law on August 28 via Bill SB2057 of the Illinois state legislature, requires any 911 call center with adequate technology to accept information on people with disabilities or their families and to share this with first responders in an emergency situation. Officials indicated that many areas in Illinois have an "enhanced" 911 service, which supplies the necessary technology for compiling information. As of October 2008, 85 of the 102 counties in Illinois offered the "enhanced" 911 service, but only a few local dispatch centers offer the alert program to its citizens. Nonetheless, advocates of the program continue to highlight the growing utility of this service as it expands, and note that Illinois's program is one of only two in the country at the state level. Pennsylvania currently has a similar service.

Full story: Christopher Willis, New Ill. 911 Service Aims to Protect the Disabled, Chicago Tribune, September 21, 2009, available at
http://archives.chicagotribune.com/2009/sep/21/news/chi-ap-il-911-disabilities

2. Pass It On Center Creates Survey at Outset of National Emergency Response System

The Atlanta-based Pass It On Center has begun to develop an emergency response system using the existing network of assistive technology (AT) centers throughout the country. In preparation for the project, Pass It On has designed a survey to understand better the host of programs related to "assistive technology reuse and emergency planning, management and response." The system's availability will be based on national response to the survey (linked below).

Full story: Pass It On Center, Spotlight on... Emergency Response System, Pass It On Center, Nov. 11, 2009, available at
http://www.passitoncenter.org/Home/tabid/411/Default.aspx

The survey is available at
http://www.surveymonkey.com/s.aspx?sm=wSOEqoWYnhBjNQ541bKy2A_3d_3d

H. INTERNATIONAL

1. Veterans Return to Iraq to Treat Physical and Psychological Wounds

As part of a program named Operation Proper Exit, eight veterans of the conflict in Iraq, including five who had amputations and one who lost his sight, returned to the places where they sustained a variety of physical and psychological injuries in order to achieve closure. There, they were greeted by their fellow soldiers, who wore full uniform and welcomed the injured veterans with a sense of camaraderie. Operation Proper Exit was started by Troops First, a foundation in Laurel, Maryland, and the idea came from the troops themselves. The goal of the program is to assure soldiers that their losses have contributed to a worthy cause.

Full Story: New York Times, Wounded Soldiers Return to Iraq, Seeking Solace, Oct. 14, 2009, available at
http://www.nytimes.com/2009/10/15/world/middleeast/15exit.html?_r=2&th&emc=th

2. Discrimination Haunts Russian Man with Paraplegia

Vadim Voevodin has started a campaign to raise awareness of disability discrimination in Russia. The idea came to him after he was mauled by a man because of his paralysis. In addition, Mr. Voevodin explains that he is effectively trapped in his apartment because his doorway is too narrow for his wheelchair to pass through, and because of the many physical barriers in the outside environment, which continue to be unnoticed by the Russian government.

Mr. Voevodin also believes that forty members of the disability community in Russia have died recently because of alleged discrimination. The social defense department of Moscow denies these claims, arguing that Mr. Voevodin cannot provide hard evidence to back his claims. A Moscow official stated that the Russian government is spending the equivalent of $300 million dollars to improve facilities for persons with disabilities.

Full Story: BBC News, Russia's Disabled Suffer Neglect and Abuse, BBC News, Oct. 12, 2009, available at
http://news.bbc.co.uk/2/hi/europe/8302633.stm

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Note to readers: News article links may require free registration for access, or may be active for a limited time before the respective news services archive them. Archived items may also be available for a fee. Products mentioned in this newsletter are for information only and do not constitute an endorsement.

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., Managing Editor Deepti Samant, M.S. (Rehab), M.S. (ECE); and Associate Editors Jeffrey Davenport, B.A., Kenneth Hunt, B.A., Dara Lenoff, B.S., and Eric Moll, B.A./B.S.

http://disability.law.uiowa.edu/

To subscribe to this free e-newsletter, go to http://disability.law.uiowa.edu/lhpdc/publications/news.html and subscribe to the "Disability Law & Policy e-Newsletter."
The e-Newsletter is archived at http://disability2.law.uiowa.edu/
Re-distribution / forwarding of this e-Newsletter to your networks is encouraged.