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
March 9, 2011
Volume 8, Issue 2
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.
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A. CIVIL RIGHTS
1. Judge Blocks Discovery into Aspiring Lawyers' Mental Health
On December 23, 2010, District Judge Tanya Pratt affirmed a magistrate's order prohibiting the Indiana State Board of Law Examiners from conducting further discovery about the mental health of class-action plaintiffs who were suing over questions on the state's bar admission application. The 2009 lawsuit alleged that questions on the application related to applicants' mental health violated the Americans with Disabilities Act, claiming that applicants who answer affirmatively are subjected to elevated burdens solely because of their histories of mental, emotional, or nervous disorders. The lawsuit sought a declaratory judgment, an injunction removing the questions and costs.
The five anonymous plaintiffs submitted affidavits last year stating that they planned to apply for admission to the bar and to answer a question affirmatively on the application asking whether they had been treated for mental or emotional problems, and did not believe that their mental health history impeded their ability to practice law.
Jon Laramore, president of the Indiana State Board of Law Examiners, stated that the questions are necessary to help ensure the fitness and character of attorneys licensed in Indiana. ACLU attorney Kenneth Falk, who represents the plaintiffs, said, "The issue is whether someone has the current character and fitness to practice law. These questions [present] too broad an inquiry."
Cases in other states have challenged questions about mental health on professional license applications, resulting in the removal or modification of similar questions in Maine, New Jersey, and Rhode Island.
Full Story: Leigh Jones, Judge Blocks Discovery into Aspiring Lawyers' Mental Health, The National Law Journal, Jan. 04, 2011, available at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202477011437&hbxlogin=1;Marci Oddi, Ind. Courts - "Judge Blocks Discovery Into Aspiring Lawyer's Mental Health," Jan. 6, 2011, available at
http://indianalawblog.com/archives/2011/01/ind_courts_judg_147.html
2. Justice Department Settles Housing Disability Discrimination Case for $1.25 Million
On December 27, 2010, the Department of Justice announced a $1.25 million agreement to settle an alleged violation of the Fair Housing Act by Warren Properties, Inc., Warren Village Limited Partnership, and Frank R. Warren in Mobile, AL. According to the allegations, the defendants refused to grant a tenant's requests for a reasonable accommodation, resulting ultimately in the largest settlement ever obtained by the department in an individual housing discrimination case. The lawsuit was filed on April 29, 2009, in the U.S. District Court for the Southern District of Alabama. It alleged that the defendants failed to permit a tenant with a mobility impairment to move to a ground-floor apartment, and that the tenant suffered severe injuries as a result of falling down the stairs.
Under the settlement, the defendants must compensate the tenant, pay fees and costs to the government, and hire a reasonable accommodation facilitator to handle requests for reasonable accommodations from more than 11,000 housing units in 85 properties managed by Warren Properties, Inc., in 15 states. The defendants must also attend fair housing training, implement a non-discrimination policy, and comply with notice, monitoring, and reporting requirements.
Thomas E. Perez, Assistant Attorney General for the Justice Department's Civil Rights Division said of the litigation, "Property owners and managers have no excuse for violating our nation's fair housing laws by refusing to accommodate people with disabilities. Equal access to housing in the United States is a fundamental right, and this nation will not tolerate discrimination in housing."
Full Story: Justice Department Settles Disability Discrimination Case Against Property Management Company for $1.25 Million, Department of Justice Office of Public Affairs, Dec. 27, 2010, available at
http://www.justice.gov/opa/pr/2010/December/10-crt-1482.html
3. Department of Transportation Fines Airline for Violating Disability Rules
On January 7, 2011, the U.S. Department of Transportation (DOT) fined Mesaba Aviation $125,000 for failing to provide adequate and prompt wheelchair assistance to passengers with disabilities including boarding and leaving aircraft, as airlines are required to do under the Air Carrier Access Act (ACAA). Mesaba is a regional carrier based in Minnesota that operates Delta Connection Flights. After the DOT's office of Aviation Enforcement investigated Mesaba's compliance with the ACAA and also reviewed complaints about Mesaba that the DOT has received during the past few years, the DOT found that the airline did not provide adequate assistance boarding and deplaning passengers and that Mesaba did not provide required adequate written responses to passenger complaints within a mandatory 30-day period. An overview of ACAA rules can be found at
http://www.disabilitytravel.com/airlines/air_carrier_act.htm.The DOT requires airlines to provide the use of wheelchairs, ramps, mechanical lifts, or service personnel to passengers with disabilities in boarding and deplaning aircraft. In addition to responding to complaints within 30 days, carriers must specifically address the issues raised in each complaint and inform passengers they can refer complaints to DOT for investigation.
Transportation Secretary Ray LaHood stated, "We expect airlines to respect the rights of passengers with disabilities, and we will continue to take enforcement action when they do not."
Full Story: Christine Boynton, Mesaba Fined for Violating DOT Disability Rules, Air Transport World, Jan. 10, 2011, available at
http://atwonline.com/international-aviation-regulation/news/mesaba-fined-violating-dot-disability-rules-0109Mesaba Fined for Violating Rules Protecting Air Travelers with Disabilities, Jan. 7, 2011, available at
http://www.dot.gov/affairs/2011/dot0211a.html
B. EDUCATION
1. Jewish Parents of Students with Disabilities Seek Appropriate Parochial Education
2. Colleges Specifically for Students with Learning DisabilitiesFor quite a few Jewish parents of children with disabilities, finding a school that can suit both their child's educational and religious needs has proved to be difficult. Kim Moskowitz, a Modern Orthodox Jew living on the Upper East Side of New York City, reluctantly sent her daughter, who has a speech and language disability, to a public school because she could not find a Jewish day school or yishiva that could properly accommodate her daughter's educational needs. Moskowitz brought this issue up at a conference of Yad HaChazakah-The Jewish Disability Empowerment Center, a 4-year-old group that advocates for Jews with disabilities. The conference was held in mid- December. "All those attending the conference shared one common goal: a commitment to expanding the horizons for Jews with disabilities that have ended their formal education and are preparing for their next step in life."
Full Story: Attention to Disabilities Seen Changing, The New York Jewish Week, Jan. 18, 2011, available at
http://www.thejewishweek.com/news/new_york/attention_disabilities_seen_changing
Many students with learning disabilities struggle with the transition from secondary school to college life for various reasons, including being away from the encouragement of their parents to complete their work as well as the increased workload. Section 504 of the Rehabilitation Act of 1973 requires all colleges to provide some accommodations for students with learning disabilities, but these accommodations are not always sufficient. Landmark College, in Pultney, Vermont, is a college made up of 500 students with various learning challenges and disabilities. Landmark attracts students with the goal of getting the academic or organizational skills they need to succeed at a four-year college or to enter the workforce. Mitchell College, in New London, Connecticut, and Beacon College in Leesberg, Florida, offer similar programs.
Full Story: Learning with Disabilities, Jan. 7, 2011, available at
http://www.nytimes.com/2011/01/09/education/edlife/09landmark-t.html?scp=1&sq=landmark%20college&st=cse.
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Ninth Circuit Upholds Law Graduate's Right to Use Assistive Technology on Bar Exam
On January 4, 2011, U.S. Court of Appeals for the Ninth Circuit unanimously ruled that a under the Americans with Disabilities Act, Stephanie Enyart, a blind 2009 UCLA Law School graduate, had the right to use screen-reading computer software to take the "multistate" portion of the California bar exam (MBE) as a testing accommodation. A federal court in San Francisco issued an injunction in favor of Enyart, and NCBE appealed.
According to the press release by the firm that represented Enyart, Brown, Goldstein & Levy, the ruling is significant not only for blind law school graduates, but for all test-takers with disabilities who need testing accommodations. The National Federation of the Blind (NFB) welcomed the ruling. The President of the NFB, Marc Maurer, claimed that the accommodations would help level the playing field for the blind and those with other disabilities. The agency plans to stand behind the ruling and ensure that adjustments are made for aspiring professionals.
Legally under Title III of the Americans with Disabilities Act (ADA), examinations are required to be "administered to ensure that when the examination is administered to an individual with a disability . . . the examination results accurately reflect the individual's aptitude or achievement level." A primary principle of the act is that "[a]ssistive technology is not frozen in time: as technology advances, testing accommodations should advance as well."
Full Story: Federal Appeals Court Upholds Blind Woman's Right to Use Technology to Take Professional Examinations, PR Newswire, Jan. 5, 2011, available at
http://www.prnewswire.com/news-releases/federal-appeals-court-upholds-blind-womans-right-to-use-technology-to-take-professional-examinations-112962849.htmlImportant Civil Rights Victory for Test Takers with Disabilities, PR, Brown, Goldstein, and Levy, LLP., Jan. 6, 2011, available at
http://www.browngold.com/?s=news&ss=97
2. Decision Support Tool Reduces Claim Duration
GettingHired, LLC, is a software organization created specifically to help employers find talented employees while also creating employment opportunities for people with disabilities. Unlike other employment social networking sites GettingHired.com connects job seekers who have disabilities with employers, advocacy organizations, veteran groups, and service providers. Chief Executive Officer of GettingHired, LLC, Thomas Capato emphasized that technological innovation and intervention are "key to more efficient and successful claimant outcomes as well as cost containment in the return-to-work arena."
On January 11th, 2011, GettingHired, LLC, announced a new functionality in its FastTrackRTW software that helps to better manage return-to-work programs. Designed specifically for companies working with short-term and long-term disability the system helps to manage worker compensation and insurance. This technology uses the Physical Capabilities Form (PCF) to capture and compare variations in abilities to make job accommodations, temporary work assignments, medical management, and occupation changes. The overall effect of this innovation will speed up the identification and assistance process and help to ensure shorter claim duration.
Full Story: FastTrackRTW Adds Innovative Feature to Enhance Return-to-Work Efforts on Short and Long-Term Disability and Workers Compensation Claims, PR Newswire, Jan. 11 2011, available at
http://www.prnewswire.com/news-releases/fasttrackrtw-adds-innovative-feature-to-enhance-return-to-work-efforts-on-short-and-long-term-disability-and-workers-compensation-claims-113266844.html
3.Clinical Research Trial to Develop Technology to Aid those with Severe Disabilities
Within the next fiscal year a Japanese research team plans to do clinical research on technology that will provide people with severe disabilities the ability to control a computer using their brain waves. If this research succeeds, it would make it possible for people who do not have the ability to use their limbs to display their thoughts on a screen and manipulate robots. The group plans to conduct their research using patients who have been diagnosed with ALS, or Lou Gehrig's disease.
Full Story: Japanes Research Team Aims to Help Disabled People through Brain Machine Interface, Disability News Asia, Jan. 10, 2010, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/634-japanese-research-team-aims-to-help-disabled-people-through-brain-machine-interface.html,
D. HEALTHCARE / BENEFITS
1. Federal Government Brings Medicaid Fraud Lawsuit Against New York City
In January 2011, the federal government made a novel move and filed suit against the New York City government accusing them of improperly authorizing, without proper paperwork from physicians, nurses, and social workers, 24-hour home care for thousands of patients at a cost of $75,000 to $150,000 per year per patient. The suit cited that the City of New York provided in-home care to patients who should have been placed in nursing homes because they either are unable to care for themselves or threatened suicide. Disability lawyers fear that this lawsuit would push the city to unnecessarily institutionalize more patients. The lawsuit, however, does not take a stance on which patients should or should not be institutionalized; it accuses the city of overruling physicians who are responsible for deciding whether a patient is to receive 24-hour home care, or of not consulting physicians at all.
Full Story: Anemona Hartocollis, As New York City Defends Medicaid Approvals, Fear of Suit's Fallout Grows, New York Times, Jan. 12, 2011, available at
http://www.nytimes.com/2011/01/13/nyregion/13medicaid.html?partner=rss&emc=rss
E. WORKFORCE
1. Campaign for Disability Employment Promotes Supportive Work Environment
In early January of this year, a coalition of groups organized a new effort called the Campaign for Disability Employment. The Campaign is headed by the Association of People with Disabilities, the Business and Disability Council, the National Council of La Raza, the National Gay and Lesbian Chamber of Commerce, the Society for Human Resources Management, the Special Olympics, and the U.S. Business Leadership Network. The Campaign is funded by the U.S. Department of Labor's Office of Disability Employment Policy, and seeks to "promote positive employment outcomes for people with disabilities by encouraging employers and others to recognize the value and talent they bring to the workplace," according to the Campaign website (http://www.whatcanyoudocampaign.org/). The Campaign seeks to encourage workplace practices such as a flexible and inclusive workplace environment and offers an outreach toolkit to assist employers in creating a positive work environment for employees with disabilities.
Full Story: Campaign for Disability Employment Promotes Workplace Support, HR, Jan. 14, 2011, available at
http://hr.blr.com/HR-news/Discrimination/Disabilities-ADA/Campaign-for-Disability-Employment-Promotes-Workpl/
2. Jewel-Osco Settles Disability Discrimination Lawsuit for $3.2 Million
Jewel-Osco parent company Supervalu, Inc., agreed to pay a $3.2 million settlement in early January to end a federal lawsuit claiming the company discriminated against disabled employees. On January 5th, 2011, Federal District Chief Judge Ronald Guzman signed the consent decree, which resolved the case. The suit was filed by the U.S. Equal Employment Opportunity Commission and alleged that Jewel-Osco had fired employees with disabilities at the end of their medical leave instead of bringing them back to work with reasonable accommodations. About 1,000 employees were fired from Jewel-Osco stores in the Chicago metropolitan area and Northwest Indiana since 2003, although only 110 of those employees will receive settlement money. Supervalu, Inc., denies any wrongdoing, stating that they settled the case to avoid further legal fees.
Full Story: Francine Knowles, Jewel Settles Disability Discrimination Lawsuit for $3.2 Million, Chicago Sun Times, Jan. 6, 2011 available at
http://www.suntimes.com/business/3172740-417/jewel-osco-employees-eeoc-disabilities.html
3. Suicide and Post-Traumatic Stress Disorder Rates High in the Military
According to a Congress Quarterly compilation of statistics, there were 434 suicides by active duty personnel in 2010, up from 381 in 2009. Although the number of suicides is less than the 462 active duty personnel killed in combat, the suicide statistic does not include suicides by reservists or veterans who complete their tours. Reservist suicides have become a problem; according to Rush D. Holt, a democrat from New Jersey; citizen soldier reserves do not receive thorough screenings for mental health upon returning from deployments.
The US Military released statistics on post-traumatic stress disorder (PTSD) among military personnel in September 2010. The report defines a case of PTSD as "an individual having at least two outpatient visits or one or more hospitalizations at which PTSD was diagnosed."
According to the report, the army has 67% of the cases of PTSD, the Air Force has 9%, the Navy has 11%, and the Marines have 13%. The report indicates that there were 2,432 case of PTSD for non-deployed personnel, and 13,595 cases for deployed personnel. Both statistics represent all branches of the military. In 2010, 1,423 cases were reported for non-deployed personnel, and 7,739 were reported for deployed personnel.
Full Story: John Donnelly, More Troops Lost to Suicide, Congress Quarterly, Jan. 24, 2011, available at
http://www.congress.org/news/2011/01/24/more_troops_lost_to_suicideHannah Fischer, US Military Casualty Statistics: Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, Congressional Research Service, Sept. 28, 2010, available at
http://www.fas.org/sgp/crs/natsec/RS22452.pdf
F. INDEPENDENCE
1. Justice Department Makes 2010 ADA Standards for Accessible Design Available Online
On November 15, 2010, the Justice Department announced that the 2010 ADA Standards for Accessible Design are now available for anyone to view online. The standards, adopted as part of the revised regulations for Title II and Title III of the Americans with Disabilities Act (ADA) of 1990, can be found at www.ada.gov/2010ADAstandards_index.htm. The standards will go into effect on March 15, 2012, and will set minimum requirements for new construction and alterations of more than 80,000 state and local governments and more than seven million businesses. The Department of Justice created an online version of the standards to enable viewers to find all the information in one easy-to-access location and search for text efficiently. This will also help architects, contractors, business owners, and disability rights advocates to find all the information they need about ADA standards in one place.
Full Story: Justice Department Makes the 2010 ADA Standards for Accessible Design Available to Online Viewers Nationwide, PR Department of Justice Office of Public Affairs, Nov. 15, 2010, available at
http://www.justice.gov/opa/pr/2010/November/10-crt-1300.html
2. Independence Center Allows Test Driving of Adaptive Technology
The Finger Lakes Independence Center (FLIC) in Ithaca, NY, has developed a program which allows anyone to borrow adaptive technology, such as wheelchairs, commodes, walkers, bath benches, shower chairs, and reachers for up to three months with a fully refundable deposit. In late December 2010, FLIC announced that they also have a "Try It Room" with items such as pockettalkers, TTYs, magnifiers, sock aids and large-button telephones, which can be borrowed for two weeks. FLIC developed this program with the hope that people could test out adaptive items at home to see what works for them. If a user finds an item he or she likes, FLIC will provide information on where that item can be purchased. The Center also offers a library of books, videotapes, and other materials that can be borrowed, as well as peer counseling and information about disability issues such as accessible housing, social services, and also offers American Sign Language classes.
Full Story: Lenore Schwager, Executive Director Column, FLIC News, Fall 2010, available at
http://www.fliconline.org/documents/Newsletter_Fall_2010.pdf
G. EMERGENCY RESPONSE / PREPAREDNESS
1. FEMA Issues Winter Preparation Reminder for Seniors and Persons with Special Needs
For this 2010-2011 winter, the Federal Emergency Management Agency's (FEMA) recommendations highlight that persons with special needs should take steps to prepare for extreme winter weather. This includes having backup electricity, multiple ways to communicate (for example, having a fully charged cell phone and a land line in case one of the services goes out), copies of medical records, and a plan for accessible transportation in case of evacuation. With winter, there can be heavy snow, very cold temperatures, winds, and ice, all of which can be dangerous to anyone not prepared. FEMA also describes and recommends an adequate emergency supply kit. Finally, the report highlights the different terms weather services use when describing winter weather, as an understanding of these terms will be crucial to planning for bad winter weather.
Full Story: FEMA Encourages Seniors and People with Special Needs to Prepare for Winter, Federal Emergency Management Agency, Nov. 24, 2010, available at
http://www.fema.gov/news/newsrelease.fema?id=53310.
H. INTERNATIONAL
1. Museum for Visually Impaired Children Proposed in Tehran, Iran2. Indian Court Declares People with Disabilities Entitled to Government Housing QuotaOn January 11, 2011, Leila Kaffashzadeh, an expert on the renovation of historical items, proposed that there be museums in Iran devoted to visually impaired children. At the very least, Kaffashzadeh suggested that sections in existing museums be created to afford visually impaired children an opportunity to examine museum exhibits.
Using moulage, a technique typically used to make wax representations of human bodies and body parts, the historical artifacts can be copied in way that will allow visually impaired people to touch the historical artifacts. By adding sandpaper or other materials to the copies, visually impaired children will be able to feel and understand the differences in the shapes and textures of those artifacts.
"This would create an educational opportunity for all children to interact with historical items through touch. They would also benefit from gaining a better understanding of the challenges facing the blind," Kaffashzadeh explained.
Full Story: Expert Proposes Establishment of Museum for Visually Impaired Children, Tehran Times, Jan. 10 2011, available at
http://www.tehrantimes.com/index_View.asp?code=233894
Before the Punjab and Haryana High Court ruled on January 20, 2011, only visually and physically disabled people were entitled to reservations in government housing projects. However, the Court ruled that all people with disabilities are entitled to reservation in government housing.
A man with mental disabilities, Gurcharan Singh, who had demanded reservation in Mohali's Aerocity government housing project, filed a petition. Counsel for Singh argued that the Disabilities Act--which does not distinguish between types of disabilities covered by the quota--"does not differentiate between the physically and mentally disabled people as far as affirmative action by the state are concerned."
In reference to the limited application of the housing quotas, the Court ruled: "We do not see how a scheme can be restricted" to only particular forms of disabilities. However, the Court left the actual number of reservations for people with disabilities up to the state.
Full Story: Disabled People in India Entitled to Quota in Govt Housing Schemes: HC, Disability News Asia, Jan. 21 2011, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/644-disabled-people-in-india-entitled-to-quota-in-govt-housing-schemes-hc.html
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
Book Announcements
Scholarships, Fellowships, and Events
Conferences and Events
New Organizations and Resources
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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.; Senior Editor Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Hannah Pooley, Jonathan Schnader, Dana Mele, Tovah Miller, Nicole Loring, and Stephanie Herring.
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