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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 9, 2008
Volume 5, Issue 10
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.
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A. CIVIL RIGHTS
1. Is Wal-Mart Deliberately Discriminating Against
People with Disabilities?
Wal-Mart Watch, a non-profit organization aiming to reform Wal-Mart’s
business practices and improve Wal-Mart as a neighbor, corporate citizen,
and employer, released a report on October 27, 2008, alleging Wal-Mart systematically
violates the Americans with Disabilities Act (ADA). In 2001, an Equal Employment
Opportunity Commission consent decree forced Wal-Mart to create an internal
ADA compliance office; however, according to the report, the office has failed
to correct Wal-Mart’s practices.The report, “Reasonable Accommodation – Denied,” presents
two troublesome trends. First, the report argues Wal-Mart uses a “leave
of absence” technique, requiring employees with disabilities to take
an unpaid leave of absence as a means of ultimately getting rid of its employees
with disabilities. Second, the report argues Wal-Mart regularly fails to
provide ADA-mandated accommodations for employees and job applicants with
disabilities. Wal-Mart Watch plans to distribute the report to Congress,
to disability rights groups, and to other elected officials and organizations.Wal-Mart Watch: Reasonable Accommodation-Denied: An Emerging Tale of Lawsuits,
Settlements, and Wal-Mart’s Broken Promises to Applicants and Employees
with Disabilities, October 2008, available athttp://www.walmartspeakout.com/page/-/ADAreport.pdf
More information on Wal-Mart’s treatment of employees with disabilities
is available at Wal-Mart Watch’s recently launched website,
2. Third Circuit to Determine Class Certification in ADA Case
The Third Circuit Court of Appeals, including visiting judge and former
U.S. Supreme Court Justice Sandra Day O’Connor, is reviewing a decision from
the Western District of Pennsylvania certifying a class action brought by United
Parcel Service (UPS) employees. The employees allege the company’s unwritten
policy requiring employees to be “100% cured” before they return
to work thwarts attempts for reasonable accommodations by preventing employees
who might be functional with an accommodation from returning to work.Attorneys for UPS urged the Third Circuit to reverse the district court’s
decision and deny the class certification, arguing the group lacks a “common
thread” (or commonality), one of four essential components for class
certification. UPS contended that the thousands of plaintiffs involved vary
in both their impairments and requested relief. Attorneys for the plaintiffs
argued, once plaintiffs proved the existence of the illegal policies, class
members could continue in the litigation under the “presumption that
they were victims of the policies.” Plaintiffs further noted the defined
class parameters include only workers who were unable to return to work due
to the alleged illegal policies. The ADA does permit class actions, but limits
cases to those “[lending themselves] to class treatment in which an
employer imposes job requirements that have the effect of excluding a class
of workers with a defined disability.”Full Story:
Shannon P. Duffy, Justice O’Connor Sits on 3rd Circuit Panel Hearing
UPS Challenge to ADA Class Action, The Legal Intelligencer, November 21,
2008, available at
3. Creating Public Awareness of a North Carolina Eugenics Program
Professor Johanna Schoen, now an associate professor of history and women’s
studies at the University of Iowa, stumbled upon disturbing evidence of a state-administered
eugenics program while conducting research as a graduate student. The North
Carolina program, which did not end until 1975, purported to “improve
the quality of the race,” by ordering sterilization for individuals against
their consent, including individuals in mental institutions, and people on
welfare. Social workers could recommend people for sterilization, and often
these petitions included family medical and social history. The files Professor
Schoen accessed revealed living conditions, family histories, reasons individuals
were recommended for sterilization, and individuals’ feelings on their
pending sterilization.To create public awareness of the issue, Schoen notified local newspapers
of her discovery. The media coverage induced an apology from the governor and
generated a number of projects aimed at raising additional awareness, including
a traveling exhibit and a Lifetime docudrama.Full Story:
Nicole Riehl, Profiles: Johanna Schoen, College of Liberal Arts and Sciences,
45 fyi 11, November 3, 2008, available athttp://www.uiowa.edu/~fyi/issues/issues2008_v45/11032008/profiles.html
B. EDUCATION
1. U.S. Education Department Awards Grants to Aid
Students with Disabilities
The U.S. Department of Education Office of Special Education Programs
recently awarded a $1.6 million grant to the University of Oregon to lead
a collaborative effort with the University of Connecticut, the University
of Missouri, eight other universities, state governments and service organizations
to expand the projects of The National Technical Assistance Center on Positive
Behavioral Interventions and Supports (PBIS). PBIS, established in the 1990s,
is a program designed to develop positive interventions to aid students with
behavioral challenges.The Department of Education also granted $1 million to each of 22 universities
to fund the creation of a Universal Design Program in each of the institutions.
These programs will allow students with disabilities to learn in a more accessible
environment, and benefit from the most successful teaching methods. The University
of Vermont, one of the 22 schools receiving grant money, will use the funds
towards creating a support team to supply technical resources and information,
and to suggest teaching practices to all faculty members teaching students
with disabilities.Full Story:
University of Oregon, UO to Head Expansion of Special Education Technical Assistance
Center, University of Oregon Media Relations, November 10, 2008, available
athttp://pmr.uoregon.edu/science-and-innov…istance-center/
Ben Whalen, UVM receives $1 Million to Make Education Accessible, The Vermont
CYNIC, November 18, 2008, available at
2. Leadership Program to Teach Skills on an International Level
The Perkins School for the Blind, located in Watertown, Massachusetts, is
a leading innovator in serving people with visual impairments. Each year
the school hosts a nine-month Educational Leadership Program, bringing
12 teachers from around the world to the campus to learn new methods and
skills on instructing students with disabilities. This year, there are two
women from Armenia, Astghik Nalbandyan and Hasmik Dzvakeryan, participating
in the program. They plan to use the skills they learn at the Perkins School
towards improving their teaching program at the Gyumri Children’s Home in
Armenia, where they teach 135 students many of whom have significant visual
impairments. Through this partnership, the Children’s Home hopes to begin
a preschool program as well as expand their use of technology.Full Story:
Perkins School for the Blind, Long Distance Lessons, The Lantern, Fall 2008,
available athttp://www.perkins.org/assets/downloads/lantern/2008-fall-lantern_.pdf
3. University of Iowa Provides College Education to Young Adults with
Disabilities
The University of Iowa recently introduced Realizing Educational and Career
Hopes (REACH), a two-year certificate program for young adults aged 18-25 with
learning and cognitive disabilities. Students in the program will live in residence
halls and participate in university life while learning career development,
computer and interpersonal skills, as well as enhancing their academics and
receiving post-program internship and employment help. The program focuses
on fostering independence and self-sufficiency while helping its students make
positive life choices. Eligible students must be identified as having learning
or cognitive disabilities that interfered with his or her school performance
and have a high school diploma or certificate of completion from a certified
secondary school. For additional information and requirements, visit http://www.education.uiowa.edu/reach/Full Story:
Brian Morelli, Making College Life a reality, IowaCityPress.com, October 15,
2008, available athttp://www.press-citizen.com/apps/pbcs.dll/article?AID=/20081015/NEWS01/810150304/1079
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Will Technology Replace Service Animals?
Researchers at Georgia Tech are working to develop a robotic device that would
perform the same functions as service dogs. Service dogs assist individuals
with visual and other impairments by doing tasks such as fetching objects,
opening doors, and safely guiding navigation. Individuals often have to pay
up to $16,000 for the dogs and then wait up to two years to allow the dog proper
training. In response to the growing demand for service dogs, researchers wanted
to develop a cheaper and more available robotic device for individuals with
visual impairments. The robots have a point-and-click laser function in which
users gesture at the object they want, and in response, the robot locates the
object and uses its sensors to retrieve the item for the user. However, the
robots cannot perform the more complex functions such as opening doors and
windows.Full Story:
R. Colin Johnson, Research Seeks to Replace Service Dogs with Robots, EETimes,
October 28, 2008, available at
2. New Toys Help Children with Disabilities Play
AbilityNet, a London-based charity organization, helping people with disabilities
use information and communication technology, has teamed up with technology
manufacturer, Excitim Ltd., to develop new toys for children with limited
motor skills. One such toy, the Dream-Racer, has a motion-sensing electronic
system installed in a baseball cap, so users unable to control standard joysticks
have an alternative way to participate in toy car, boat and truck racing
games. Additionally, AbilityNet’s AccessFun software is a collection
of games for individuals with visual and physical impairments unable to operate
multiple switches. The Dream-Mouse allows users with difficulties operating
a computer mouse to play computer games by using head and other body movements.
For more information about the toys, visit http://www.abilitynet.org.uk/index.php.Full Story:
Andrea-Marie Vassou, Disabled Children Get Specially Adapted Toys: New Toys
Will Enable Children to Play Normally, Computeract!ve, November 11, 2008,
available athttp://www.computeractive.co.uk/computeractive/news/2230257/disabled-children-specially
3. Intelligent Walker Communicates with and Learns from User
Researchers at the Technical University of Catalonia have designed a walker,
called the Intelligent Walker, or i-Walker, which can communicate with its
user, think for itself, and react to the environment. The device follows
voice commands from the user, such as “take me to the kitchen.” The
walker also uses intelligent multi-agent systems technology, including independent
movement and personalized intelligent software, to observe and interact with
the surroundings. It has the ability to learn and adapt its assistance to
the needs of the user, enhancing their independence. The i-Walker has use
in medical rehabilitation, particularly for recovering motor skills. The
device can adjust the aid it provides to the individual, allowing the user
to become less dependent on the walker and grow stronger. Additionally, the
walker measures travel distance, calculates calories burned, and uses an
accelerometer to detect falls.Full Story:
Science Daily, Intelligent Walker Designed to Assist the Elderly and People
Undergoing Medical Rehabilitation, November 10, 2008, available athttp://www.sciencedaily.com/releases/2008/11/081107072015.htm
D. HEALTHCARE / BENEFITS
1. Social Security Administration Releases 2009
Cost of Living Adjustment
In October 2008, the Social Security Administration released the Cost of Living
Adjustment (COLA) for 2009, based on increases in the Consumer Price Index
for the current year to ensure Social Security beneficiaries receive a pension
that adjusts for inflation. Social Security and Supplemental Security Income
(SSI) beneficiaries will receive a 5.8 percent COLA for 2009, a significantly
larger increase than the 2.3 percent adjustment for 2007 and the 3.3 percent
adjustment for 2008. With this increased COLA adjustment, the average Social
Security Disability Insurance payments will increase from $1,006 to $1,064
per month, and the SSI Federal Benefit Rate will increase from $637 to $674
per month.Full Story:
Social Security Online, 2009 Social Security Changes, SocialSecurity.gov, October
2008, available at
2. Federal Drug Experts Criticize Doctors for Over-Prescribing Antipsychotics
to Children
A panel of federal drug experts, meeting to review the pediatric safety
of the popular antipsychotic medicines Risperdal and Zyprexa, concluded these
drugs are over-prescribed to children and pose substantial risks. Risperdal
was prescribed to more than 389,000 children and teenagers in 2007, with
240,000 of those patients aged 12 or younger, and the prescription was often
treatment for attention deficit disorders. However, the drug is not approved
for treating attention deficit problems, and its risks include weight gain,
metabolic disorders and permanent muscular tics. Over the last fifteen years,
prescriptions of antipsychotic drugs in children have increased by five times.
Often, the drugs are meant to settle outbursts and aggression in children,
but young people are particularly susceptible to their side effects. Between
1993 and the beginning of 2008, 1,207 children suffered serious health problems
after being treated with Risperdal, and 31 died.Full Story:
Gardiner Harris, Use of Antipsychotics in Children Is Criticized, New York
Times, November 18, 2008, available athttp://www.nytimes.com/2008/11/19/health/policy/19fda.html?ref=health
Also available at
http://www.iht.com/articles/2008/11/20/healthscience/19fda.php and http://www.starnewsonline.com/article/20081119/ZNYT04/811193013
E. WORKFORCE
1. Tips for Employers: How to Ensure Compliance
with the ADA Amendments Act
The ADA Amendments Act of 2008, effective January 1, 2009, may require businesses
take extra steps to ensure their compliance within the ADA. The Amendments
reinforce the original intent of the ADA and directly attacks some key decisions
made by the U.S. Supreme Court, which effectively narrowed the definition
of disability under the ADA. Employers in some states such as California,
New Jersey and New York will have little to change because their state laws
are more expansive than the amended ADA.Employment lawyer Burton Fishman recommends that before January 1st, employers
nationwide do the following: 1) review their policies and procedures to assure
an interactive process when accommodating individuals with disabilities; 2)
reassess their job descriptions ensuring the accuracy of essential job functions
and designate which functions may require accommodations; and 3.) ensure procedures
exist for keeping records of accommodation requests, determination of such
requests, and information explaining the determinations made.Full Story:
Burton J. Fishman Fortney & Scott, LLC, More Workers Protected from Disability
Discrimination under ADA Amendments Act, HRHero.com, October 3, 2008, available
athttp://www.hrhero.com/hl/100308-lead-ada_amendments_act.html
2. U.S. Department of Labor’s Alliance with the U.S. Business
Leadership Network
The U.S. Department of Labor’s Office of Disability Employment Policy
(ODEP) and the U.S. Business Leadership Network (USBLN)–a national organization
recognizing and promoting best practices in hiring, retaining, and marketing
to people with disabilities–have partnered to promote the employment
of people with disabilities. The partnership will enable USBLN and ODEP to
achieve their goals of ensuring “everyone ready, willing and able to
work has the opportunity to do so” and of helping employers to hire,
recruit and retain workers with disabilities by providing guidance, information
and access to resources. ODEP’s alliance initiative is available to
businesses, trade and professional associations, labor unions, educational
institutions, government agencies, and others.Full Story:
U.S. Department of Labor, U.S. Department of Labor Establishes Alliance with
U.S. Business Leadership Network to Promote Employment of Workers with Disabilities
Nationwide, September 17, 2008, available athttp://www.dol.gov/opa/media/press/odep/odep20081327.htm
For more information on USBLN:
F. INDEPENDENCE
1. New Program Allows People with Disabilities to
Vote by Phone
Individuals with visual impairments in Vermont and four other states had
the option to cast their ballot by using the Vote-By-Phone system in this
year’s
presidential election. The program is in response to the 2002 Help America
Vote Act, designed to ensure equal voting access for all people. The phone
call accesses a computer that provides verbal prompts leading voters through
the ballot, listing the candidates for each office. When the voter’s
choice for each office is read, the voter presses the number 5, which has
a raised bump in the middle for people working by touch. In the past, voters
with visual impairments and other disabilities had to bring a friend or poll
worker into the booth with them in order to help them read and fill out paper
ballots. The goal of the Vote-By-Phone method is to give voters the same
sense of independence and privacy that those without disabilities have. Despite
its benefits, only 29 people in Vermont used the device this year due to
lack of knowledge of the existence of the technology, as well as the availability
of absentee voting.Full Story:
Dave Gram, Disabled Now Can Vote by Phone, News Times, November 9, 2008, available
at
2. Inaccessibility Caused by Lack of National Design Standards
In the coming 60 Hastings Law Journal, Professor Robin Paul Malloy examines
the difference between inclusive design requirements in public places (i.e.
parks and theaters) verses the requirements in private homes. Professor Malloy’s
findings show the absence of a national design standard in private homes limits
their accessibility to people with mobility impairments. Exclusionary and unsafe
features, illegal in public places, are common in private homes; therefore,
Professor Malloy argues there needs to be a national inclusive design standard
for all new single-family residential housing units. Defending this need, Professor
Malloy details the current law on physical accessibility and discusses two
competing standards for inclusive design in private homes – “universal
design” and “visitability.” Defining single-family homes
as “quasi-public” because visitors may include people with mobility
impairments, Professor Malloy describes how to use local and national mechanisms
to enforce a national design standard, and explains the tension between improving
accessibility and maintaining affordability.Full Story:
Robin Paul Malloy, Inclusion by Design: Accessible Housing and the Mobility
Impaired, Social Science Research Network, November 18, 2008, available at
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Ensuring “No One is Left
Behind”
In his report, “Assessing the Impact of Hurricane Katrina on Persons
with Disabilities,” Kansas University professor Glen White identified
the major issues faced by centers for independent living and emergency managers
in their response to the needs of people with disabilities after Hurricane
Katrina. Professor White’s findings will help individuals of Douglas
County in Lawrence, Kansas to develop a plan for people with disabilities
in the event of a disaster, ensuring no one is left behind. Emergency planners
and advocates are urging agencies working with Douglas County residents,
including those with physical, cognitive or sensory disabilities, to have
an emergency plan, and for individuals themselves to form their own emergency
plans.Full Story:
County Emergency Making Sure “Nobody is Left Behind:” New Program
Aims to Ensure No Vulnerable Residents Abandoned in Emergency, November 17,
2008, available athttp://www2.ljworld.com/news/2008/nov/17/county_emergency_making_sure_nobody_left_behind/
2. El Paso Develops a Plan to Evacuate People with
Special Needs
The current wildfire evacuation plans for El Paso County fail to address the
needs of residents with disabilities living alone. County officials plan to
remedy this failure by using $80,000 dollars from a $1.1 million dollar allocation
the County and four others received from the Department of Homeland Security.
The County will use the $80,000 to perform a study focusing primarily on people
with disabilities living independently and unable to evacuate on their own.
Although the exact number of residents living with disabilities in El Paso
is unknown, County officials expect to find a large population needing assistance
for evacuation due to disabilities. Thus, the new evacuation plan will rely
on a registry the county plans to build with the help of Pikes Peak United
Way, a locally-governed, independent organization addressing public problems
in El Paso and Teller counties.Full Story:
TMC News, A Plan to Evacuate Special-Needs People, November 11, 2008, available
at
3. New Jersey Special Needs Registry Can Save Lives
State and local officials are urging people with disabilities to register
for New Jersey’s Special Needs registry. This registry, established
over a year ago, is a free and confidential database providing emergency
responders with information about the needs of individuals with disabilities
during an emergency. The Princeton Regional Health Department is working
alongside the New Jersey Office of Emergency Management and the New Jersey
Office of Homeland Security and Preparedness to identify all individuals
who qualify for the registry. To register, please visit: http://registerready.nj.govFull Story:
Alex Zdan, A Crisis Database Lacks Data: Officials Urge Disabled People to
Sign up for Help During Emergency, NJ.com November 16, 2008, available athttp://www.nj.com/news/times/regional/index.ssf?/base/news-15/1226811912192100.xml&coll=5
H. INTERNATIONAL
1. UN Report Addresses Violence
Against Persons with Disabilities
The United Nations released an interim report of the Special Rapporteur
on torture and other inhumane and degrading treatment addressing, in part,
the importance of protecting persons with disabilities. The Rapporteur acknowledges
reports of various forms of violence against persons with disabilities. “By
recognizing and reframing violence and abuse . . . as torture,” victims
and advocates can claim the protection of an international legal framework
prohibiting acts of torture. Such a framework holds accountable signatory states,
as well as their public officials, doctors, health professionals and social
workers, to ensure the physical and mental integrity of all individuals in
their care. The report urges states to ratify the Convention on the Rights
of Persons with Disabilities, and encourages parties to the Convention to raise
awareness of the issue, to enact relevant legislation concerning the legal
capacity of people with disabilities, and to issue clear guidelines defining “free
and informed consent.” The report further calls on independent human
rights groups to monitor institutions.Full Story:
United Nations General Assembly, Interim Report of the Special Rapporteur on
Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, July
28, 2008, available at
2. European Commissioner for Human Rights Urges More
Needs to Be Done
On October 21, 2008, Thomas Hammarber, the Council of Europe’s Commissioner
for Human Rights, released his standpoint on issues concerning the fair treatment
of people with disabilities living in European countries. Mr. Hammarber emphasized
that European state leaders must do more to protect the rights of people
with disabilities as recognized under international human rights treaties,
including the recent UN Convention on the Rights of Persons with Disabilities.
In particular, governing bodies must focus their attention on children with
physical disabilities, elderly people with disabilities and people with mental
disabilities. Mr. Hammarber believes policy makers must take the following
actions:
- Implement action plans to remove certain legal, social and physical barriers
hindering people with disabilities from fully participating in day-to-day
activities- Create “equality bodies” to ensure individuals living with
disabilities can fully exercise their rights- Extricate hate crimes against persons with disabilities by implementing
stricter anti-discrimination policies- Establish a non-discrimination legislating body to govern issues pertaining
to all areas of society
Full story:Press release, “European Countries Still Fail to Respect the Rights of Persons
with Disabilities,” says Commissioner Hammarber,Council of Europe
Press Division, October 20, 2008, available at
3. The Duchess of York Helps Children with Disabilities
Mental Disability Rights International (MDRI) recently announced the Duchess
of York will serve as their “Global Advocate” for its campaign
to end the abuse and institutionalization of children with disabilities. MDRI
is an organization working to promote “human rights and [the] full participation
in society of people with mental disabilities worldwide.” MDRI publishes
documents and reports about enforcing human rights and “promoting international
oversight” of the rights of individuals with mental disabilities. After
witnessing human rights violations in Turkey, the Duchess of York was outraged
and joined the MDRI team in Turkey and Romania to investigate institutions
for a documentary about the abuse and institutionalization of children with
disabilities.Full Story:
Sarah Ferguson, The Duchess of York, Partners with MDRI to Become “Global
Advocate” for Children with Disabilities, MDRI Communications, November
5, 2008, available athttp://www.mdri.org/mdrihtmlemail/Nov2008Alert.html
For more information,
4. Children with Disabilities in Afghanistan Excluded from Education
According to a 2005 survey conducted by Handicap International in Afghanistan,
at least 200,000 individuals under the age of 19 do not receive education
because they have disabilities. For instance, Abdul Latif, a young boy who
lost both of his legs after a landmine explosion in 2002, is not receiving
an education because schools in Afghanistan do not have the resources to
provide him with accommodations. Furthermore, the country has not signed
the UN Convention on the Rights of Persons with Disabilities mandating that “children with
disabilities are not excluded from free and compulsory primary education, or
from secondary education.” Afghanistan has not created any policies
requiring schools to make accommodations or to assist individuals with disabilities
find employment.Full Story:
Afghanistan: Disability Deprives
Children of Education, IRIN, November 11, 2008, available at
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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., Managing Editor Deepti Samant, M.S. (Rehab), M.S.
(ECE); and Associate Editors Janelle Frias, B.A., Lauren Chanatry, B.A.,
Shawna Castells, B.S., Aaron Gottlieb, B.A., Carly Pavlick, Amanda Bernasconi,
and Nicole Loring.
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