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 31, 2011
Volume 8, Issue 3
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. ADAAA Regulations Implement Congressional Intent to Simplify Definition of Disability
On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) released new ADA Amendments Act (ADAAA) regulations for public view. The regulations are designed to simplify the determination of whether a person has a "disability" under the ADA and make it easier for persons to establish that they can receive protection under the ADA. "The ADAAA is a very important civil rights law," said EEOC Chair Jacqueline A. Berrien. "The regulations developed by the Commission to implement the ADAAA clarify the requirements of the law for all stakeholders, which is one of the Commission's most important responsibilities."
The ADAAA overturned a string of Supreme Court decisions that too narrowly defined "disability," resulting in a denial of protection for many people. The ADAAA was a bipartisan effort by Congress to correct this overly narrow interpretation, instead defining disability more broadly to offer more coverage. The ADAAA went into effect January 1, 2009. The new EEOC ADAAA regulations reflect feedback the EEOC received from a broad spectrum of stakeholders and over 600 public comments during its Notice of Proposed Rule Making.
Full Story: EEOC announces Final Bipartisan Regulations for the ADA Amendments Act (ADAAA) available March 25, 2011, DBTAC Southeast ADA Center, March 25, 2011, available at
http://sedbtac.org/ada/publications/updates/EEOC_Final_Regulations_ADAAA_03-25-2011_email.htm.
2. Advocacy Groups Demand Withdrawal of Medicaid Fraud Lawsuit
On January 14, 2011, the Legal Aid Society along with over 200 disability rights, legal, and community organizations demanded that the US Attorney's office withdraw a Medicaid fraud lawsuit against New York City. The suit, filed on January 11, 2011, by Preet Bharara, the United States Attorney of Manhattan, alleges that the city's Human Resources Administration overbilled the federal Medicaid program tens of millions of dollars by improperly approving 24-hour home care for thousands of patients. The advocates asserted that the lawsuit conflicted with the Americans with Disabilities Act and federal policy requiring states to keep people with disabilities in their homes instead of institutions.
"We are and always have been committed to aggressive enforcement of the Americans with Disabilities Act," said Ellen Davis, a spokesperson for the U.S. Attorney's Office. The advocates contended that the suit would have a chilling effect on the government's willingness to authorize personal care in the home and that New York should be commended, not penalized, for its success in furthering this federal goal.
Full Story: Anemona Hartocollis, Groups Demand Withdrawal of Medicaid Fraud Lawsuit, The New York Times, Jan. 14, 2011, available at
http://www.nytimes.com/2011/01/15/nyregion/15medicaid.html
3. Justice Department Settles Americans with Disabilities Act Dispute with H&R Block
On January 31, 2011, the United States Department of Justice reached a settlement agreement under the Americans with Disabilities Act (ADA) with H&R Block Tax Services, LLC, HRB Tax Group, Inc., and HRB Advance, LLC (H&R). The agreement resolves a complaint filed by a person who is deaf against a tax preparation office in San Antonio under the ADA. It will ensure effective communication with individuals who are deaf or have hearing impairments in income tax preparation services and courses at over 11,000 offices nationwide. The settlement requires the H&R provide appropriate auxiliary aids and services, including qualified sign language interpreter services, to afford equal access to the goods, services, and accommodations available to others. All offices must post a notice of the right under the ADA to a qualified interpreter or other auxiliary aid in a conspicuous place. The agreement also requires that H&R adopt and enforce an effective communication policy to ensure equal access for individuals who are deaf or have hearing impairments, staff training, and that H&R pay a civil penalty among other provisions.
The ADA prohibits discrimination against people with disabilities by businesses that serve the public, including tax preparation services, accountants, lawyers, and doctors. Effective communication is important in tax preparation services, where important, lengthy, or complex oral information is relayed, and businesses are usually required to provide qualified interpreters and other auxiliary aids free of charge, including telephone relay services, notes, assistive listening system, and captioned videos. Auxiliary aids must also be provided for individuals who are blind or have impaired vision, such as materials in Braille, large print or electronic formats, qualified readers, and assistance in filling out forms.
Full Story: Justice Department Reaches Americans with Disabilities Act Settlement with H&R Block, Department of Justice Office of Public Affairs, Jan. 31, 2011, available at
http://www.justice.gov/opa/pr/2011/January/11-ag-131.html
4. Delta Penalized for Violating Rules Protecting Air Travelers with Disabilities
On February 17, 2011, the Department of Transportation (DOT) imposed a civil penalty of $2 million upon Delta Air Lines for violating rules protecting air travelers with disabilities. It was the largest penalty ever assessed against an airline by the DOT in a non-safety-related case. The DOT requires airlines to provide assistance to passengers with disabilities. That assistance includes providing wheelchairs, ramps, and mechanical lifts for boarding and deplaning. Also, airlines must respond to written complaints within thirty days of receipt addressing the issues raised. Delta failed to comply with the proscribed DOT's measures
Of the $2 million penalty, up to $1,250,000 may be used to improve disability services to passengers, and the remaining $750,000 must be paid as a penalty by Delta. Of the $1,250,000, Delta may use up to $834,000 to develop and implement an automated wheelchair tracking system at major airports; $236,000 to create a system for passengers with disabilities to rate Delta's accommodation services and provide specific feedback on improvements; $150,000 to expand audits of its compliance with the rules of the Air Carrier Access Act; and $30,000 to improve website accessibility.
Full Story: Delta Fined for Violating Rules Protecting Air Travelers with Disabilities, United States Department of Transportation, Feb. 17, 2011, available at
http://www.dot.gov/affairs/2011/dot2211.html
5. Michigan HIV Disclosure Forms Found to Reflect Michigan Law Inaccurately
After an investigation by the Michigan Messenger on February 7, 2011, several organizations including the Michigan Department of Civil Rights called the legality of HIV disclosure forms into question. According to the advocates and various legal experts, client acknowledgment forms used by local health departments and the Michigan Department of Community Health inaccurately state Michigan law. The purpose of the form is to inform newly diagnosed HIV-positive people about Michigan's disclosure law. However, advocates argue that the forms misstate the law. Under Michigan law, failing to disclose to a sex partner that one is HIV positive prior to a sexual encounter is a felony. The forms in question also claim that people who are HIV positive are required to practice protected sex and imply that failure to do so will result in a criminal penalty. The statement in the form is not taken from Michigan law. Instead, the language appears to rely on a legal memorandum written by a lawyer who claims that it is illegal for people with HIV to engage in unprotected sex, even if both parties consent, and even if both parties are HIV positive.
Catherine Hanssens, Executive Director of the Center for HIV Law and Policy in New York City, said, "any state action, through an actual law or its interpretation, that limits the reproductive choices of people on the basis of the disability of HIV is ... wrong." According to a statement released by Emily Dievendorf, Policy Director of Equality Michigan, a local advocacy group, a complaint will be filed with the Michigan Department of Civil Rights regarding the inaccuracy of the disclosure forms in hope that an investigation will be done on both the state and federal levels.
Full Story: Todd A. Heywood, Michigan HIV Disclosure Forms Found Inaccurate under Law, The Washington Independent, Feb. 7, 2011, available at
http://washingtonindependent.com/105409/michigan-hiv-disclosure-forms-found-inaccurate-under-lawTodd A. Heywood, State Civil Rights Officials Want Investigation of HIV Documents, The Michigan Messenger, Feb. 10, 2011, available at
http://michiganmessenger.com/46433/state-civil-rights-officials-confirm-interest-in-hiv-documents-controversy
B. EDUCATION
1. School District to Allow Student's Service Dog for a Trial Period
Andrew Stevens is a 12-year-old boy who has epileptic seizures. Andrew travels with a 5-year-old German shepherd, service dog, Alaya, who has been trained to detect and respond to Andrew's seizures. In order for Andrew's school, Fort Belvoir Elementary School in Fairfax County, Virginia, to feel comfortable with Andrew bringing Alaya to school every day, they require a two-week trial period, beginning January 11, 2011. During that time frame, Andrew's father will have to take off work and come to school with Andrew every day and act as Alaya's handler. This trial period is to show the school staff and students that Andrew can safely handle the dog. The school has been especially reluctant to allow Alaya in the school because they feel that Andrew's teachers and aides can respond to emergencies at least as well as the dog, despite the fact that the dog is specifically trained for such work.
Full Story: Bill Turque, School Will Give Boy's Dog a Tryout, The Washington Post, Jan. 5, 2011, available at
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/04/AR2011010405789.html
2. Parents of a Child with a Disability Sue School District over Treatment of Student
In January 2010, the parents of a student with a disability brought a suit against the Wilson County Board of Education and several employees for assault and battery, false imprisonment, and negligent failure to train employees. As reported in the complaint, the classroom in which the child, Emily, was placed permitted the use of physical force to make students comply with class expectations, and the "use of physical force is contraindicated for students with Emily's disability."
The trial Court dismissed the complaint on the ground that the plaintiffs failed to exhaust their administrative remedies pursuant to the Individuals with Disabilities Education Act (IDEA). The Court held that Emily's parents did not succeed in stating a claim that sufficiently established the school's negligent failure to train. Emily's parents failed to state a claim because the IDEA provides the exclusive remedy for such claims, but their claims for assault and battery and false imprisonment are not included in the IDEA.
Full Story: Sabaski v. Wilson County Bd. of Ed., Dec. 21, 2010, available at
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjbff&searchTerm=fbSW.KQjb.gfcQ.Oaah&searchFlag=y&l1loc=FCLOW
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Low Correlation Between Internet Use and Disability
A study released on January 21 of this year by the Pew Research Center found that Americans living with disabilities were less likely to use the Internet than other adults. The study, entitled "Americans Living with Disabilities and their Technology Profile," observed that only 44 percent of those with a disability used the Internet. In comparison, 81 percent of adults without a disability used the Internet on a regular basis. The study also found that nearly 39 percent of American adults living without broadband Internet access are also living with a disability. The primary reasons responders cited for low Internet use were lack of accessibility and proper accommodations to meet their needs.
Full Story: Susannah Fox, Americans Living with Disability and Their Technology Profile, PR Newswire, Jan. 21, 2011, available at
http://www.pewinternet.org/Reports/2011/Disability/Report.aspx
2. Travelocity Partners with the National Federation of the Blind to Improve Accessibility
In an agreement with the National Federation of the Blind (NFB) early this year, Travelocity announced it would launch a more accessible website. Starting July 1 it will begin its release of a new home page with searchable flights, hotels, vacation packages, and other pages needed to complete the booking process. Travelocity promised that the web site would be fully accessible to blind people by March 30, 2012. The agreement is setting an example for others to follow in both the online travel industry and the online industry itself. It is the hope of Travelocity and the NFB that one day the full range of products and services will be available to the disabled through the Internet and other information technologies.
Full Story: National Federation of the Blind Announces Agreement with Travelocity, PR Newswire, Jan. 17, 2011, available at
http://www.prnewswire.com/news-releases/national-federation-of-the-blind-announces-agreement-with-travelocity-113873809.html
D. HEALTHCARE / BENEFITS
1. VA to Offer More Help to Family Members of Disabled Military Personnel
On February 9, 2010, the Veterans Affairs Department outlined a long-awaited initiative to give additional help to family members of disabled Iraq and Afghanistan War veterans who provide "around-the-clock care" for the disabled veterans. For some family members, the VA will offer health insurance, mental health services and a monthly stipend. The recently unveiled plan comes after President Obama's signing of a law last year instructing the VA to provide services not only to veterans, but also to the family members who care for them.
Full Story: Kimberly Hefling, VA Outlines Plan to Help Caregivers of Wounded, Wavy.com, Feb. 9, 2011, available at
http://www.wavy.com/dpp/military/VA-outlines-plan-to-help-caregivers-of-wounded
2. Disability Advocates Strongly Oppose Minnesota Medicaid Reduction Proposal
On January 31, 2011, a coalition of disabled Minnesotans and their advocates blasted a proposal that would scale back the state's Medicaid benefits. The proposal, which was supported by a group of seven health plans and hospitals, would move individuals with disabilities into managed care in an effort to "eliminate nearly a third of the state's $6.2 billion budget deficit."
Opponents of the proposal say that the proposal's developers simply lack the expertise on "high-need, complex persons with disabilities" to initiate such a plan. The health plans and hospital groups say that the proposal isn't intended to be the final word on the state's health budget, but rather is intended to start a discussion on potential solutions.
Full Story: Lorna Benson, Disability Groups Hit Back on Medicaid Reduction Plan, Minnesota Public Radio News, Jan. 31, 2011, available at
http://minnesota.publicradio.org/display/web/2011/01/31/medicaid-reduction-plan-disability/
3. College Health Care Plans Required to Comply with New Health Care Law
On February 9, 2011, the Department of Health and Human Services said that college health insurance plans must comply with the provisions of the Affordable Care Act, despite speculation that colleges and universities would be permanently exempted. An estimated three million college students are covered by school health plans, and an estimated 4.7% of all college students live with a disability.
College health-insurance plans have come under great scrutiny for many reasons, including limiting cap benefits at $30,000. Under the proposed regulation, the health plans will have to provide free preventative care for students and devote 80% of the revenue they collect from premiums toward medical care rather than administrative costs.
Fully Story: Jessica Silver-Greenberg, College Plans Required to Comply with Health-Care Law, Wall Street Journal, Feb. 9, 2011, available at
http://online.wsj.com/article/SB10001424052748703716904576134523371435488.html?mod=googlenews_wsjChristiaan Petterson, Adaptive Technology Eliminates Roadblocks to Education for Disabled Students, Daily Sundial, Feb. 8, 2011, available at
http://sundial.csun.edu/2011/02/adaptive-technology-eliminates-roadblocks-to-education-for-disabled-students/
E. WORKFORCE
1. Disability Discrimination in the Workplace Rising, Unemployment Dipping
A report released on January 30, 2011, found a record 100,000 workplace disability discrimination claims in 2010, a 17% increase from 2009. This rise was partially attributed to the 2009 amendments to the Americans with Disabilities Act, which increased the scope of disabilities that could qualify for protection under the law. Additionally, the unemployment rate of Americans with disabilities decreased from December's 14.3% to 13.6% in January, according to the unemployment numbers released on February 4, 2011. This decrease in unemployment is due to a drop in the number of people with disabilities currently looking for work. The rate of unemployment for people with disabilities remains much higher than the rate for the rest of the population, which remained at 9 percent in January.
Full Story: Disability Discrimination in the Workplace on the Rise, Nacht Law, Jan. 30, 2011, available at
http://www.24-7pressrelease.com/press-release/disability-discrimination-in-the-workplace-on-the-rise-194037.phpShaun Heasley, Jobs Report Offers Mixed Signals for People with Disabilities, Disability Scoop, Feb. 4, 2011, available at
http://www.disabilityscoop.com/2011/02/04/jan-2011-jobs/12187/
2. People with Disabilities Face Difficulty Finding Quality Work
A report, released in January of 2011, from the National Disability Rights Network found that people with disabilities face barriers to quality employment. These barriers include sheltered environments and low wages. Many Americans with disabilities are paid less than the federal minimum wage of $7.25 per hour, and work in segregated environments that limit their opportunities that put them at risk for abuse and neglect. The Department of Labor allows employers to pay less than the minimum wage if employees with disabilities are deemed less productive as a result of their disabilities. However, the researchers found that limited government oversight meant that employers often abused this law.
Additionally, the report found few opportunities for workers to transfer out of sheltered workshops into competitive employment, keeping them in a cycle of poverty where they were often paid 50 percent of the minimum wage. The report recommends increased labor protections, better law enforcement, improved tax incentives for employers to hire people with disabilities in integrated workplace at fair wages, and restricted funding for employers who segregate employees.
Full Story: Mary Kuhlman, People with Disabilities Struggle to Find Quality Work, Public News Service, Jan. 31, 2010, available at
http://www.publicnewsservice.org/index.php?/content/article/18185-1Report: National Disability Rights Network, Segregated and Exploited: The Failure of the Disability Service System to Provide Quality Work
http://ndrn.org/images/Documents/Resources/Publications/Reports/Segregated-and-Exploited.pdfDiament, Michelle, Sheltered Workshops No Better Than Institutions, Report Finds, Disability Scoop, Jan. 19, 2011, available at
http://www.disabilityscoop.com/2011/01/19/sheltered-workshops-report/11974/
F. INDEPENDENCE
1. Center for Independent Living Built Ramps in Central Florida
During the last two weeks of February, the Center for Independent Living will build twenty ramps in Central Florida to show off its services and help people with disabilities. "Rampage" is an annual event sponsored by the Center for Independent Living, a nonprofit center that assists and advocates for disability issues in seven counties throughout Central Florida. Corporate and individual donations, as well as volunteer labor made the ramp construction possible. Donations and volunteers are down this year due to the economy. Each ramp costs about $3,000, which the Center builds for free. This year, the Center has funds for only ten ramps and is looking for donations and volunteer labor to build ramps for the waiting list of forty people. The Center for Independent Living also provides help with employment, housing, home and vehicle equipment modifications, and mental health counseling, as well as other services such as donating used wheelchairs to the poor.
Full Story: Eric Pera, Center for Independent Living on Ramp-Building Frenzy, The Ledger, Feb. 15, 2011, available at
http://www.theledger.com/article/20110215/NEWS/102155053/1134?Title=Center-for-Independent-Living-on-Ramp-Building-Frenzy-&tc=ar
2. Housing Center Opens to Homeless Families with Mental Health Disabilities
A housing center in Knoxsville, TN, opened its doors to homeless families in February 2011. The Helen Ross McNabb Center aims to create a safe and affordable place for families with mental health disabilities to stay and get back on their feet. The Helen Ross McNabb Center housed individuals in the past, but a new project funded through private donations, local government grants, and the Federal Home Loan Bank of Cincinnati's affordable housing program will now allow the center to house children and families. In order to qualify, one member of the family (adult or child) must suffer from a mental health disability. Additionally, the family must have either an income voucher or a Section 8 voucher.
Full Story: Allison Kropff, New Housing Facility Opens Doors for Homeless Families, WVLT, Feb. 1, 2011, available at
http://www.volunteertv.com/home/headlines/New_housing_facility_opens_doors_for_homeless_families_115051704.html
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Federal Court Rules Los Angeles Disaster Plans Discriminatory
On Friday, February 11, 2011, a Federal District Court Judge determined that Los Angeles's disaster plan did not take into account the needs of persons with disabilities and ordered that a new plan be put into place. The plan did not include anything regarding the notification and evacuation of persons with disabilities or provide them with shelter and transportation. In 2008, Los Angeles's Department on Disability reported that residents with disabilities are "at-risk for suffering and death in disproportionate numbers." The city still contended that it was up to the individual to plan and prepare for disasters, but the judge disagreed.
Full Story: Victoria Kim, Feds Issue Scathing Report on Psychiatric Center, Los Angeles Times, Feb. 12, 2011, available at
http://www.latimes.com/news/local/la-me-disabled-ruling-20110212,0,7903445.story
H. INTERNATIONAL
1. Indian High Court Rules that Hearing-Impaired People Can Drive
On February 14th, 2011, the Delhi High Court stated that people with hearing impairments can drive if they pass the necessary driving tests. The landmark decision will benefit approximately 50 million hearing-impaired people in the country.
The Motor Vehicles Act, an archaic Indian law, prevented hearing-impaired individuals from taking driving tests under the presumption that the deaf, while driving, were a danger to the public. Chief Justice Dipak Msra said, "Even if an applicant is totally deaf, he has to be called for a test. Even if he applies for a learner's license without a medical certificate and clears the test, he should be granted a learner's license."
Colin Gonsalves, the attorney who argued on behalf of the deaf, said: "It is a historic judgement [sic]." Until now, the hearing impaired were thought "to be incapable of driving and were automatically debarred from even sitting for a test." According to Gonsalves, hearing-impaired individuals are allowed to drive all over the world, except in twenty-six countries.
Full Story: Hearing Impaired Can Drive in India: HC, Disability News Asia, Feb. 15, 2011, available at
http://disabilitynewsasia.com/home-mainmenu-1/669-hearing-impaired-can-drive-in-india-hc.html
2. Free Public Transportation in United Arab Emirates for People with Disabilities
On February 11, 2011, Roads and Transport Authority (RTA) officials announced that the government of the United Arab Emirates (UAE) approved a discount for the use of public transportation by individuals with disabilities, students, and senior citizens. The discount will take effect in March, 2011.
Disabled residents of UAE will receive free travel on the Metro or the bus system for a one-time fee of 70 Dirhams, which equals about 19 dollars. After paying the fee, the individual will be issued a blue "nol" card, which must be renewed (without cost) every six months. Additionally, the blue nol card also covers water-bus fares and parking fees in Dubai.
Abdulla al Madani, the chief executive of the RTA's corporate support sector, said: "The RTA seeks to expand services by including more segments and encouraging them to use public transport in Dubai."
Full Story: Roads and Transport Authority in UAE Approves Discount for People with Disabilities, Feb. 11, 2011, available at
http://disabilitynewsasia.com/home-mainmenu-1/663--roads-and-transport-authority-in-uae-approves-discounts-for-people-with-disabilities-.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 mailto:dlpannounce@law.syr.edu. Thank you.
Calls for Papers and Proposals
Scholarships, Fellowships, and Events
Conferences and Events
New Organizations and Resources
More e-newsletters from the Burton Blatt Institute and Partners:
ADA Headliner (monthly e-newsletter) http://sedbtac.org/headliner.php
ADA Pipeline (tri-yearly newsletter) http://sedbtac.org/pipeline.php
One Stop Toolkit Resources of the Week http://www.onestoptoolkit.org/resourceoftheweek.cfm
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; Senior Editor Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Patrick Vanderpool, Jonathan Schnader, Dana Mele, Tovah Miller, Nicole Loring, and Stephanie Herring.
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