NEWSLETTER UPDATE – JUNE, 2009
FROM PHYLLIS F. RESNICK,
PRESIDENT
HELLO, AGAIN,
EVERYBODY!!!!!
Please allow us to commence by addressing the matters of
costs and trees. As the costs of
printing and paper continue to rise and the loss of trees continues to grow, we
have been thinking of sending this newsletter electronically ONLY, to those who
have e-mail, while continuing to send it by postal mail to those who do
not. (Or, in the alternative, one could
log on to our website and read it there.)
If you would like to receive future newsletters by email or via the
website, rather than in paper form, please send us an email (phyllis@adaaccessnow.org)
indicating so and we will then cease sending all future newsletters by postal
mail, except to those who wish to continue that way. Thank you for your cooperation!
Well, another 6 months have passed since our last
newsletter and much continues to happen in the world of “Access Now”®. We have had several Class Action Fairness
Hearings, a trial and many Settlements.
It has been an active, interesting, challenging, sometimes aggravating,
but mostly gratifying time! Some things are happening in the overall
A.D.A. (Americans with Disabilities Act) world as well; more about all of the
above later in this newsletter.
We would like to point out to those of you
who are receiving this newsletter for the first time that, sadly, many entities
continue to fail to comply with the A.D.A., despite the fact that the law was
enacted in 1990. As we have said before, we continue to press
on with cases against a variety of entities.
On a continuing basis, virtually daily, we receive complaints from
disabled persons who are routinely being denied their rights under this civil
rights law. There is no such thing
as a “large” or “small” case, only a large or small entity and we take pride in
the fact that we do not limit our efforts to either category. The resolution of high profile cases of legal
“first impression”, as well as of those involving neighborhood businesses have
a great impact on the daily lives of the disabled among us (although we want to
make clear that it is not our aim to put anyone out of business.)
NOEL NEUDECK – REFLECTIONS ON A FIGHTER
I want to begin this issue by paying tribute to Noel Neudeck, one of
the most tenacious leaders of our movement.
Noel died two years ago in San Diego, California.
He was 70 years old.
We had difficulty getting information regarding Noel’s passing, but our
late tribute in no way detracts from our admiration of the things he
accomplished for our community during his life of service.
The first thing one found out about Noel was that he knew the law. That meant he knew when public officials or
business owners were not complying with their legal obligations. And when they chose to ignore the law, Noel
let them know they were not going to get away with it. Over four decades Noel was a tireless
advocate for the disabled community. His
monuments are the numerous public venues now accessible to the disabled
community through his efforts.
Noel was also a man who didn't mince words. Some may have labeled his style
“confrontational”, but he got results.
When the City of San Diego
built Qualcomm Stadium without complying with disability access standards, Noel
refused to give them a free pass. He
sued, and the city made $6.5 million in accessibility improvements to the
stadium. Noel’s point was that the law
is the law, and not even government is above the law! If it took “confrontation” to drive that
point home, Noel would have responded, “So be it!”
Noel was not always a rabble-rouser: That was just one tool he used to achieve his
goal of demolishing barriers. He toiled as
far back as the early-1970s in the California Department of Transportation
working with state architects designing curb ramps to ease travel for
wheelchair-users. In this aspect Noel
was one of the true pioneers who presaged the Americans with Disabilities Act (ADA). I believe he possessed a prescient knowledge
of how the law could catch up with and support the needs of the disabled
community. Noel knew instinctively that
architectural design, political advocacy and legal action were always different
arrows to be drawn as needed from his equal rights quiver.
We miss – and will continue to miss – Noel’s robust
advocacy. However, he has taught us that
we can never be afraid to demand what is rightfully ours. To do so we cannot focus only on the trials
of today, but we must prepare for tomorrow’s tribulations as well. Noel’s “confrontational” tactics worked so
well because he was always prepared for the battle to come.
Rest
well, Dear Friend.
AND NOW, THE UPDATE:
Membership – We now
have 958 members representing 47 states and Puerto Rico. We are also proud to claim members in Canada, Hong
Kong, Australia. Our Board of Directors stands at 40, our
Executive Committee at 8, our Attorneys represent 4 law firms and our
Consultants number 6. We want to
acknowledge here our debt to our Board of Directors and our Executive Committee
for their support, their encouragement and their many kinds of contributions to
our goals. Most particularly, we want to
express our appreciation for the efforts of our First Vice-President, Marla
Dumas. Above all, our deepest
appreciation goes to the attorneys and consultants who handle all our
cases. Contrary to what is widely
believed by the public, these are professionals who, although they earn their
livings, in part, through these efforts, are primarily attracted to this work
by their belief in and dedication to our mission!
Finally, we would be quite remiss if we failed to mention the enormous
contributions of our computer consultants, Gregory
Arkin and Alain Ginzberg, without whom we would not be able
to function! Above all, I want to
express my everlasting gratitude to my assistant, Thomas
Miller, for undertaking the task of composing and typing the
bulk of this newsletter. I couldn’t do
it without him!!
A BRIEF OVERVIEW OF OUR LITIGATION:
Since
our September Newsletter, Access Now® has made progress in settling
cases in several states. We have filed a
total of 974 cases since our inception. Presently, there are 136 cases with outstanding
Settlement Agreements, requiring alterations or modifications which in several
cases should be completed by July 1, 2009, or later. (Cases involving hospitals and other large or
complex facilities have post-settlement compliance completion dates much
further in the future.)
During the past six months,
Access Now® has entered into 16 additional settlements to
make properties A.D.A.-compliant. They
include:
Hospitals 15
Transportation 1
Access Now® continues to assert
itself nationally in scope. The 7 states
in which cases have been settled in the last six months range from the Southeast
to the Pacific shore. Our headquarters
state of Florida
accounted for 12.5% of settlements over the past six months.
We will keep
expanding our geographical presence as best we can as we continue to receive requests
for information and assistance from around the country and internationally. Please notify us if you become aware of
situations where access continues to be denied.
We remain solidly in the forefront of the fight for accessibility.
The following is a brief listing of the cases that
have been settled since our last newsletter:
Transportation
Cunard Line, Limited Miami, FL
Hospitals (# of beds)
|
South
Fulton
Medical Center (356)
|
East Point
|
GA
|
|
Sierra Vista Regional Medical
Center (186)
|
San Luis Obispo
|
CA
|
|
Los
Alamitos Medical Center (167)
|
Los Alamitos
|
CA
|
|
Delray
Medical Center (493)
|
Delray Beach
|
FL
|
|
Hilton
Head Medical Center (93)
|
Hilton Head
|
SC
|
|
Coliseum Psychiatric Center (350)
|
Macon
|
GA
|
|
Dauterive Hospital (103)
|
New Iberia
|
LA
|
|
Emory Johns Creek
Hospital (110)
|
Johns Creek
|
GA
|
|
Fairview Park Hospital (175)
|
Dublin
|
GA
|
|
Kingwood
Medical Center (197)
|
Kingwood
|
TX
|
|
Menorah
Medical Center (158)
|
Overland Park
|
KS
|
|
Overland Park Regional Medical
Center (343)
|
Overland Park
|
KS
|
|
Rapides
Regional Medical Center (323)
|
Alexandria
|
LA
|
|
Texas Orthopedic
Hospital (9)
|
Houston
|
TX
|
|
Wesley
Medical Center (38)
|
Wichita
|
KS
|
Below is an article
about our law firm responsible for these cases.
ADA lawsuit forces changes at Wesley Medical
Center
BY
KAREN SHIDELER
The Wichita Eagle, Posted on Friday, Mach.
13, 2009
Wesley Medical Center will make hundreds
of changes – most of them minor – to its facilities over the next few years as
part of a settlement in a class action lawsuit over accessibility. The lawsuit
was filed in Florida
about eight years ago against HCA, which owns Wesley. All of HCA's 165
hospitals and 112 outpatient centers are part of the lawsuit.
Miami attorney Miguel de
la O said Wesley was not one of the HCA facilities originally involved. De la O
and his law firm represent ADA Access Now and other plaintiffs in the lawsuit. Wesley
and nine other HCA properties, including Overland Park
Regional Medical
Center and Menorah
Medical Center
in Overland Park,
are in the latest round of proposed settlements.
The
settlements include anyone with any kind of disability who has sought or will
seek access to HCA properties. No monetary damages are being paid. "To
HCA's credit, they really partnered up with our client" and agreed to
remove all architectural barriers found by inspectors, de la O said.
He said
inspectors have been going over HCA properties inch by inch and noting changes
that need to be made. Once the barriers have been identified and remedies
suggested, they're listed in a proposed settlement that then is subject to a
court hearing. An April 17 hearing in Miami
is set for the latest 10 properties. In Wesley's case, the proposed changes
fill more than 200 pages. They include items such as courtesy phones that don't
have volume controls; grab bars that are too high in Health Strategies locker
room showers; a lack of Braille signs in a Birth Center play area; and
grasp-and-turn doorknobs in the Wesley Medical Towers building. Each doorknob,
grab bar and other barrier is listed separately, which is why the list is so
long.
Wesley
spokesman Paul Petitte said the medical center has several years to correct the
problems but "we'll get it done much more quickly than that." He said
work would start as soon as the settlement agreement is approved. As de la O
did, Petitte noted that the settlement had been a cooperative process and that
HCA was making every effort to comply with the Americans with Disabilities Act.
De la O
said about three-quarters of the HCA properties already have been through the
process. "We're near the end," he said. "I think we may have a
handful of facilities to still inspect."
The law
firm and ADA Access Now have filed similar lawsuits against other hospital
chains, including Tenet Healthcare and Catholic Healthcare West.
Reach
Karen Shideler at 316-268-6674 or kshideler@wichitaeagle.com
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NOTABLE CASES – There are some
cases that are especially important because of their value as precedents or
because they remove significant numbers or types of barriers. Several of those types of cases are listed
below. Please remember that most
defendants in non-class action cases insist on confidentiality as a condition
of signing settlement agreements.
Therefore, we cannot discuss those cases by name, although they number
quite a few. However, several of them
are included in the cases listed above.
1.
Hospitals – We continue
to make significant progress in this area.
The total of 15 Tenet Healthcare Corporation and Hospital Corporation of
America
(HCA) facilities listed in this newsletter brings to 147 the total adjudicated
at Fair Hearings over the past two years.
The 15 facilities have a total of 3,100 beds in seven states. As a consequence, over 27,000 beds have now
been made accessible or are in the process of being made accessible because of
our legal action.
We
continue to be actively involved in cases involving medical institutions
because of our strong belief that they constitute one of the most important
ways to enhance the quality of life of the disabled community. These
hospital settlements will make a great difference to members of our
community. The settlements show that the
ADA can work
when there are dedicated advocates and attorneys using it for our benefit.
We want to give much
deserved praise to the firm of de la O, Marko, Magolnick and Leyton, and
particularly to Daniel Leyton and Charles D. Ferguson, for their stellar work
in pursuing all the hospitals listed above and many others still in the
pipeline!
(Again, we direct
your attention to the article above.)
2.
Cunard Line, Limited – This case represents
the culmination of another cruise line case in the aftermath of the Supreme
Court’s 2005 Spector v. Norwegian Cruise Line Ltd. case stating that
the A.D.A. applies to foreign flag cruise ships that depart from and return to
United States ports. The Cunard Line
case is especially important since the Cunard brand is under the Carnival
corporate umbrella with many well-known names in the industry, including Carnival
Cruise Lines, Holland America
Line, Princess Cruises and Seabourn Cruise Line in North
America. The settlement
encompasses the Queen Elizabeth 2 and the Queen Mary 2, two of
the most notable ships afloat.
3.
Emory University – Access Now®
and member Kami Barker sued Emory
University and its
architects and engineers for denial of access in university housing
projects. On March 2, 2009, the U.S. Court of Appeals for the 11th
Circuit upheld the district court’s decision that the designer of the Ms.
Barker’s on-campus housing complex at Emory University
had not violated the FHA but that the builder of the complex had committed FHA
violations. While we are disappointed
not to have prevailed on appeal, this victory with respect to the builder will
serve as a foundation for future forays into this legal arena. In connection with the cruise line cases and
the Emory University case, all kudos to our attorney,
Matthew Dietz. We also wish to
acknowledge the outstanding work of two additional firms with which we
work; Schwartz, Zweben, Zwilling and
Rosen, Switkes and Entin.
___________________________________________________________________
OTHER LEGAL MATTERS: We want to keep you informed about important
recent litigation around the country, of which you might not be aware, as well
as to update information from previous newsletters affecting the rights of the
disabled. We think it is important for
our members to keep abreast of successes realized by and within the disabled
community, whether accomplished by Access Now® or by other
organizations. We are all in this fight
together!
Deaf Woman Wins Discrimination Case against
Hospital
By Theo Karantsalis
MIAMI -- A deaf woman who waited two days before receiving
proper care won a discrimination lawsuit against a hospital in Palm Beach federal court. Pennie Fuller, 40, who is deaf, cannot read
and uses sign language to communicate, alleged that Wellington Regional
Medical Center
intentionally discriminated against her based on her disability.
Fuller was rushed to
the emergency room at Wellington in May 2004 after fracturing her knee and
waited two days in extreme pain because the hospital did not have access to a
qualified sign language interpreter, according to the complaint filed on Dec.
21, 2005. When Fuller used the call
button to get the attention of the hospital staff, they “would attempt to
respond on the intercom,” according to the complaint. Fuller alleged she experienced humiliation
and discrimination in violation of her civil rights.
On Dec. 18, a jury
awarded Fuller $76,400 to compensate her for physical and mental pain and
anguish as a result of the discrimination by Wellington.
“Hospitals are required to provide qualified sign language interpreters
when necessary to ensure effective communication with individuals who are
deaf,” said Matthew Dietz, Fuller’s co-counsel and a disability rights attorney
based in Miami.
“The deaf community is entitled to have
the same quality of care and treatment as the hearing community.”
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Tuesday, March 3, 2009
MIAMI –
A disabled man settled a lawsuit filed in Miami federal court against the city,
county and state over access to roads near his home. The lawsuit, filed September 22, 2008,
alleged that Theo Karantsalis, 47, a librarian who suffers from multiple
sclerosis, was being “denied full, safe and equal access" to sidewalks and
bicycle paths in Miami Springs in violation of the Americans with Disabilities
Act (ADA).
Karantsalis,
acting as his own attorney, negotiated individual settlements with attorneys
from the city of Miami Springs, Miami-Dade County
and Florida’s
Attorney General. On February 23, 2009,
Miami Springs city leaders announced plans to comply with the ADA that include creating a Disability
Advisory Committee, conduct a self-evaluation plan, and install sidewalks along
Ludlum Road. Karantsalis filed a notice of dismissal on
Dec. 29, 2008.
“Society
wins when individuals with disabilities receive equal access to government
services,” said Karantsalis. Karantsalis
is an activist with the National Multiple Sclerosis Foundation.
See the
following page for Mr. Karantsalis’ heartfelt tribute to Edward S. Resnick.
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The following is a message recently received from
Theo Karantsalis. Mr. Karantsalis blogs
at the Social Media Press, and he speaks passionately about the impact Access
Now®, and especially its founder, Edward Resnick, has made on his
quest for equality in the communities where we live. As I said in concluding our last newsletter,
“It is our fervent hope to continue to take part in this effort, and with your
help and encouragement we shall persevere in making ever-greater strides in
that direction.” Mr. Karantsalis’s
comments indicate some progress is being made at the grass roots.
On
Remembering Edward Resnick, founder of Access Now, Inc.®
By
Theo Karantsalis
WEDNESDAY,
DECEMBER 24, 2008
I start every settlement discussion by thanking Mr.
Edward Resnick, the man who laid the groundwork for the disabled community to
enjoy equal access.
In 1954, during Christmas and Hannukah, Edward was
struck with polio. As he continued his life as an attorney on Miami Beach, he was often asked to leave the
theater. The reason: his wheelchair blocked the aisles. This was decades before
federal civil-rights statutes were passed to protect the disabled.
Since Edward passed away in 2003, I have litigated several
cases against the government under the ADA
and the Rehab Act as a pro se, or by
myself. But I’m not really going it all alone. Phyllis Resnick, Edward's wife,
asked me why I don’t pass these cases on to an attorney. The answer: Because I
go into meetings and to court with Edward as my co-counsel.
Edward taught me that it sometimes takes a lawsuit to
bring people to the negotiating table. When I get to this stage, as I did
yesterday in a Title II case against the city, county and state, I read the
following statement:
At every ADA settlement discussion, my policy is
always to acknowledge and thank Mr. Edward Resnick. May he rest in peace.
When I’m finished, and to diffuse what might otherwise
be a cantankerous, closed-door settlement discussion, I look everyone in the
eye and say:
It’s
a pleasure to negotiate with people who want to do the right thing.
"The most frustrating thing I find is the lack of
knowledge and professionalism on the part of lawyers who represent the
defendant. They don't know anything about the ADA," said Edward, in a message to
lawyers in The Florida Bar News on
Sept. 15, 2000. Edward said that defense attorneys unfamiliar with ADA should refer their
cases to someone who does.
"If you're sued, get your inspection report, sit
down with the plaintiff and settle it," said Edward.
Accordingly, when defense attorneys make threats,
jockey for position or need to be educated, I tap my coat pocket. This is where
I keep Access Now's mission statement; my assurance that things will work out
OK since I’m fighting for what’s right. Access Now's mission is to sufficiently
spread the word whereby public accommodations will make the necessary
alterations on their own to comply with the law, instead of the prevalent
attitude of waiting for someone to catch up with them.
Thank you, Edward, for teaching me how to become
self-sufficient in managing my own accommodations.
Theo Karantsalis works as a librarian at Miami Dade
College and has multiple
sclerosis. He is also an activist with
the National Multiple Sclerosis Foundation.
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US
Dept. of Justice v. Wal-Mart
Stores, Inc.
A Settlement Agreement: The Service Animals Issue
On January 16, 2009, the U.S. Dept. of
Justice Civil Rights Division (USDOJ) entered into a settlement agreement with
Wal-Mart Stores, Inc. under Title III of the Americans with Disabilities Act (Title
III) to improve access for persons with disabilities at Wal-Mart stores
nationwide. The agreement resolves an investigation initiated after USDOJ
received several complaints alleging Wal-Mart had refused to make reasonable
modifications to its rules, policies, practices, and procedures for customers
with disabilities in violation of Title III. Many of the complaints alleged
that persons with disabilities were denied access to Wal-Mart stores or were
denied an equal opportunity to shop, free of repeated challenges by Wal-Mart
staff, because they were accompanied by service animals. Service animals are
dogs and other animals that are individually trained to work or perform tasks
for persons with disabilities.
The
settlement agreement covers all facilities open to the public located in the United States,
including all Wal-Mart stores, Supercenters, Sam’s Clubs, and Neighborhood
Markets. The settlement agreement, which will be effective for three years,
requires Wal-Mart to take several steps to improve access for customers with
disabilities, including:
·
Wal-Mart’s undertaking not to discriminate in
violation of Title III and to provide reasonable modifications to individuals
with disabilities as required by Title III, such as disability-related
assistance such as helping customers in locating, lifting, and carrying items;
·
Adoption and implementation of an ADA-compliant policy
of welcoming persons with disabilities who use service animals into Wal-Mart
stores with little or no questioning and without repeated challenges by
Wal-Mart employees;
·
Training all employees on Wal-Mart’s obligations under
Title III to make reasonable modifications for individuals with disabilities
and Wal-Mart’s new ADA-compliant service animal policy;
·
Additional training for store management and People
Greeters, since employees in these positions have additional responsibilities
under Wal-Mart’s new service animal policy;
·
Posting of Wal-Mart’s new service animal policy on its
website and in employee areas at its stores; and
·
Establishment of a grievance procedure by Wal-Mart to
receive Title III complaints at a toll-free hotline, investigate such
complaints and take appropriate corrective action to resolve any noncompliance
with Title III.
Under the settlement agreement, Wal-Mart
will also pay $150,000 into a fund to compensate certain individuals with
disabilities who filed administrative complaints with the USDOJ alleging
Wal-Mart’s refusal to make reasonable modifications, including the denial of
equal access to persons with disabilities who use service animals. USDOJ will
determine which complainants are to receive damages from the fund as well as
the amount of damages. Finally, Wal-Mart
will pay an additional $100,000 into a fund for USDOJ to finance a public
service announcements to increase public awareness of the access rights of
persons with disabilities who use service animals. The nature and scope of the
public service announcement campaign will be determined by USDOJ. The settlement agreement is posted on USDOJ’s
ADA Home Page at http://www.ada.gov.
For further insight into, and a
fascinating discussion of, the service animals issue we are happy to direct you
to an article beginning at page 34 in the January 4, 2009 issue of The New York Times entitled “Creature
Comforts” by Rebecca Skloot. You can
find the article online at http://www.nytimes.com/2009/01/04/magazine/04Creatures-t.html.
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We want to update you on a case from our September
2005 issue. We had opined that there was
“cause for concern” over a judge’s refusal to grant attorney’s fees to a
successful A.D.A. plaintiff in Doran
v. Del Taco, Inc. 373 F. Supp.
2d 1028 (C.D. Cal. 2005). U.S. District Judge Gary Taylor denied
attorney’s fees under the A.D.A. because the plaintiff had not given a
pre-litigation warning notice to the defendant prior to bringing suit so the
defendant could cure any A.D.A. violation.
We characterized the judge’s action, which is NOT required under the
A.D.A., as a “judicial end run around Congress’ consistent refusal to enact
a pre-suit notification requirement.”
Well, it looks like the 9th Circuit U.S. Court of Appeals agrees with
us. On May 21, 2007, in an unpublished opinion,
the appellate court reversed Judge Taylor’s refusal to grant attorney’s
fees. It found that “the district court
should have either set a reasonable fee award using [a] flexible, fact-specific
approach . . . or given specific, valid reasons for its denial of fees. Instead, it denied fees by subjecting Doran
to a requirement not found in the ADA
or the case law.” The case was returned
to the District Court for a decision on attorney’s fees that complied with the
legal requirements.
This
is another instance where a judge’s refusal to follow the law has led to the
needless expenditure of scarce funds. We
hope that Congress’ review of the A.D.A. makes clear that rogue judges are not
free to impose additional burdens on plaintiffs in these cases.
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Kenneth Kronstadt, a
recent graduate from the University of Southern California School of Law, authored
a November, 2007 note published in the University
of Southern California Law Review.
Kenneth Kronstadt, Looking Behind the Curtain: Applying Title III of
the Americans with Disabilities Act to the Businesses Behind Commercial
Websites, 81 S. Cal. L. Rev. 111
(2007). The note argues for the
applicability of Title III of the ADA
to any website engaged in commerce.
As you may know,
Access Now, Inc.® argued for this very proposition in our 2004 case
against Southwest Airlines. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, (11th Cir. 2004). We lost that
case, but Mr. Kronstadt’s persuasive arguments provide additional ammunition to
disability advocates seeking the opportunity to revisit this issue. You can read the full note online at http://law.usc.edu/students/orgs/lawreview/
K.KronstadtLookingBehindtheCurtain.cfm.
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GOVERNMENTAL NEWS
New ADA
Amendments Expand Law’s Reach
On September 25, 2008, President Bush signed into
law the Americans with Disabilities Act Amendments Act (“ADAAA”), which became
effective January 1, 2009. The ADAAA strengthens protections for employees
covered by the Americans with Disabilities Act (“ADA”).
Although the basic definition of disability under
the ADA remains
unchanged, the ADAAA specifies that “[t]he definition of disability shall be
construed in favor of broad coverage of individuals under this Act.” Disability
is still defined as: 1) a physical or mental impairment that substantially
limits one or more major life activities; 2) a record of such impairment; or 3)
being regarded as having such impairment. The ADAAA ensures broader coverage of
employees by revising several important concepts, including the following:
1. Most mitigating measures are no longer considered. The ADAAA provides
that the determination of whether an impairment substantially limits a major
life activity must be made “without regard to the ameliorative effects of
mitigating measures.” In other words, courts may no longer consider the effects
of medication, “assistive technology,” or employers’ accommodations on the
impairment in question. Ordinary eyeglasses or contact lenses, however, still
will be considered in the impairment analysis.
2. Expanding the concept of “substantially limits.” Previously, only those
impairments that “prevent[ed] or severely restrict[ed] . . . [the performance
of] major life activities” were covered by the ADA. The new law directs the Equal Employment
Opportunity Commission (“EEOC”) to craft a less restrictive standard for
measuring the extent to which an individual is substantially limited in a major
life activity.
3. Impairments that are episodic in nature or in remission are now covered.
The U.S. Supreme Court previously instructed courts to focus on an individual
in his or her present state when determining the presence of a disability.
Rejecting this approach, the ADAAA provides that “[a]n impairment that is
episodic or in remission is a disability if it would substantially limit a
major life activity when active.”
4. Revising the definition of “major life activities.” Prior to the
amendments, the task of defining major life activities was left to the EEOC.
The new law incorporates a non-exhaustive list of examples into the statute and
adds new activities such as eating, sleeping, standing, lifting, bending,
reading, concentrating, thinking, and communicating.
5. Expanding coverage for employees “regarded as” disabled. Previously, an
employee had to prove that because of a disability, an employer regarded the
employee as being substantially limited in a major life activity. Under the
ADAAA, an employee is protected from discrimination on the basis of an actual
or perceived impairment, regardless of whether the impairment actually limits a
major life activity. While the ADA
formerly focused on the severity of a plaintiff’s impairment, the new law
frames the inquiry on the employer’s motivations in making an adverse
employment action.
The ADAAA contains several key restrictive changes.
For example, prior to the amendments, courts were divided on the issue of
whether an employer had to accommodate employees merely “regarded as” disabled.
The ADAAA settles this issue, providing that employers “need not provide
reasonable accommodation or a reasonable modification to policies, practices,
or procedures to an individual who meets the “regarded as” definition. Moreover,
the ADAAA provides that an employee “regarded as” having an impairment that is
merely minor and transitory is not afforded any protection. Finally, the
amendments expressly foreclose the possibility of reverse discrimination
actions made on the basis of an individual’s “lack of disability.”
The federal Office of Disability and Employment
Policy’s Job Accommodation Network has developed a resource page http://www.jan.wvu.edu/bulletins/adaaa1.htm
regarding the ADAAA. This resource page http://www.jan.wvu.edu/
bulletins/adaaa1.htm is worth viewing as it clearly explains the
new legislation and lists practical tips for employers. Many provisions of the
ADAAA will be detailed and enforced by the EEOC in regulations to be issued in
2009.
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OTHER NEWS
Steve Gold’s “Treasured
Nuggets of Information”
Steve Gold is very informed and active
regarding issues of Medicare, Medicaid and Home Health Care. Steve is a treasure trove of information, and
we strongly suggest that you take the time to view his website. Steve’s comments can be found at http://www.stevegoldada.com.
In a February 2009 issue of “Treasured
Nuggets of Information”, Mr. Gold provides a roadmap for holding your state
accountable after it receives The Stimulus Act money:
The Stimulus Act and
Medicaid Services. Information Bulletin
#276 (2/19/09)
Is your State crying
lack of Medicaid funds? Threatening to
reduce Medicaid waivers? Already reduced
Medicaid programs? Telling the press that
Medicaid funds must be reduced because of a state budget crisis? Here are some possible answers:
You've read about
the recently enacted Stimulus Act. It
has an entire section regarding "FMAP" the "Federal medical
assistance percentage," i.e.,
the federal money used to match your state's funds for Medicaid programs in
your state.
The FMAP has been
significantly increased. States' Medicaid programs will have a large
increase in federal funds without having to increase their state funds
whatsoever.
1.
The Stimulus package provides states with enormous
FLEXIBILITY. Each state can decide how
to allocate this new Medicaid funds. The
federal statute imposed virtually no requirements.
Therefore, how your
State spends its new Medicaid funds depends on political decisions at your
State level - not because of the Stimulus package. If your state tells you that
it must spend its Medicaid funds on certain programs or cannot do other
programs, they're selling you a lemon!
Advocates must
ensure that Stimulus funds increase integration of people with disabilities in
the community and do not increase the institutional biases. This is a great opportunity to "End the
Waiting Lists" and to move people from institutions to the community.
You must know how
your Medicaid office, Governor, and Legislature want to allocate these funds. IF there is a potential ADA violation, it should be stopped, either
by direct actions and court orders.
2.
A state is NOT eligible for increased FMAP if any of the
increased federal funds will go "directly or indirectly" to "any
reserve or rainy day fund of the State."
3.
With regards to the "eligibility" of persons
and "methodologies or procedures" under a state's Medicaid plan, any
person who was eligible on, as well as Medicaid programs' methods and
procedures in effect on, July 1, 2008, must be maintained in order for your
state to be eligible for the increased FMAP.
This is a very
important handle. IF your state has
imposed restrictive eligibility criteria since July 1, 2008, or changed its
Medicaid programs' methods and procedures since July 1, 2008, and IF your state
wants to receive the increased FMAP, then eligibility, methodologies, and procedures
must be reinstated to what they were on July 1, 2008. Therefore, if your state has, since July 1,
2008, restricted eligibility of programs or changed Medicaid programs'
procedures, hold them accountable.
4.
States can increase eligibility to persons whose incomes
are higher than the income standards [sometimes known as "medically
needy"] and receive increased FMAP for these people.
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An update of a previous story from our December 2007 newsletter
. . .
The Centers
for Medicare & Medicaid Services (CMS) has released a study of states’
participation in the Money Follows the Person (MFP) Demonstration program. MFP is a federal program that has authorized $1.75
billion to support state efforts to move people currently residing in
institutions back into their communities and to rebalance their long-term care
systems to emphasize home and community-based services rather than
institutional placement. (See our
article about states’ non-participation in MFP in the December 2007 newsletter.) This study chronicles the efforts of the 30
states and the District of Columbia
that are participating in MFP. You can
find out what your state is doing under MFP (or if it one of the 20 states that
have spurned participation in the program) by going to http://www.cms.hhs.gov/DeficitReductionAct/20_MFP.asp.
There is a
small mystery regarding the MFP Demonstration program. On its website CMS says that $1.436 billion
in MFP grants have been made to the various states. However, Congress appropriated $1.75 billion
for the program. This leaves $314
million unaccounted for. If anyone can
help with this enigma, please send us an e-mail with the answer. We will let our readership know in the next
newsletter.
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. . . As well as
from the September 2005 newsletter.
The U.S. Department
of Transportation (DOT) has spent over four years issuing regulations implementing
the Air Carrier Access Act (ACAA). DOT
published a Notice of Proposed Rulemaking (NPRM) on November 4, 2004, to revise
its ACAA regulations in 14 Code of Federal Regulations, Part 382 to make
foreign air carriers operating to and from the United
States subject to most of the disability-related
requirements currently applicable to U.S. carriers. DOT issued further NPRMs on September 7,
2005, (to provide greater accommodations for travelers with respiratory
disabilities) and February 23, 2006, (to provide additional accommodations for
air travelers who are deaf, hard of hearing or deaf-blind). The three now-consolidated rulemakings have
been completed. The new regulations will
be effective May 13, 2009. We will
provide a full update of the new regulations in our next newsletter.
___________________________________________________________________
MEDICAL DEVELOPMENTS
Standing Tall
AN ISRAELI-MADE SUIT THAT LOOKS LIKE AN
EXOSKELETON RAISES
PARAPLEGICS OUT OF THEIR WHEELCHAIRS AND
LETS THEM WALK AGAIN
A new Israeli
invention is helping paralyzed people walk again. Something of a mix between the exoskeleton of
a crustacean and the suit worn by comic hero Iron Man, the device, called
ReWalk, helps paraplegics – people paralyzed below the waist – to stand, walk
and climb stairs.
One of these new
ReWalk users is former Israeli paratrooper Radi Kaiof, who was injured in 1988
while serving in the Israel Defense Forces.
“I never dreamed I would walk again,” Kaiof told Reuters. “After I was wounded, I forgot what it’s
like. Only when standing up can I feel
how tall I really am and speak to people eye to eye, not from below.”
ReWalk was
invented by engineer Amit Goffer, founder of Argo Medical Technologies, a small
Israeli high-tech company. “It raises
people out of their wheelchair and lets them stand up straight,” Goffer said of
his contraption. “It’s not just about
health, it’s also about dignity.”
When Goffer
speaks about dignity, he understands all too well. He was paralyzed in an accident in 1997 but
he cannot use his own invention because he does not have full function of his
arms.
ReWalk, which
requires crutches to help with balance, consists of motorized leg supports,
body sensors and a backpack containing a computerized control box and
rechargeable batteries. The user picks a
setting with a remote control wrist band – stand, sit, walk, descend or climb –
and then leans forward, activating the body sensors and setting the robotic
legs in motion.
The ReWalk is now
in clinical trials in Tel Aviv’s Sheba Medical Centre, and Goffer said it will
soon be used in trials at the Moss Rehabilitation Research Institute in Pennsylvania. Slated for commercial sale in 2010, ReWalk
will cost as much as the more sophisticated wheelchairs on the market, which
sell for about $20,000, the company said.
To learn more about the ReWalk system, visit www.argomedtec.com.
FYI . . .
The Performers With Disabilities
(PWD) Tri-Union Committee of Screen Actors Guild (SAG), the American Federation
of Television and Radio Artists (AFTRA) and Actors’ Equity Association (AEA),
announced the launch of a major disability rights campaign to increase the
visibility and equal employment opportunities for actors, broadcasters and
sound recording artists with disabilities throughout the entertainment and news
media – I AM PWD (Inclusion in the Arts Media of People With
Disabilities).
I AM PWD is a global civil rights
campaign seeking equal employment opportunities for artists and professionals
with disabilities throughout the entertainment and news media. It is dedicated to ending the discrimination
and exclusion of performers and broadcasters with disabilities by uniting
labor, industry, community and governmental allies in the fight to combat continuing
discrimination against people with disabilities. Over the course of the three-year I AM PWD
campaign, the group will coordinate with these groups as well as the
entertainment and media industries and the general public in an effort to open
up equal opportunities for disabled performers in the entertainment industry.
Robert David Hall, National Chair of
the Tri-Union Performers with Disabilities Committee said, “I’m fortunate to
have a good career as an actor and creative artist. The normal struggles any performer faces,
however, are complicated ten-fold by our industry’s reluctance to include
people with disabilities in the full landscape of entertainment. In the 21st century, media is the world’s
common cultural environment. Society’s
values and priorities are expressed and reflected in film, television, theatre,
news and music. If you aren’t seen and
heard, you are invisible. People with
disabilities are largely invisible within the arts and media landscape. I AM PWD will awaken the general public to
the lack of inclusion and universal access for people with disabilities by
uniting with a network of industry, labor, community and government allies.”
Those interested in the campaign are
urged to join the I AM PWD network by signing up at www.IAMPWD.org. Others can learn
more about the organization at the website.
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“NEWS YOU CAN USE”
These items were brought to our attention by
our members:
New member
Oliver Cowdery has alerted us to his “Webtech-Directory” website that contains
several informational links to websites specializing in services for the
disabled community. You can find the
“Webtech-Directory” at http://www.webtech-directory.com/Business-31.htm
___________________________________________________________________
For those of you seeking news of the disabled community
in South Asia, we have recently received
correspondence from Mr. Farhat Abbas, Chief Editor of the Pakistan Special magazine.
This monthly publication is the oldest and largest circulated magazine
for over 10 million Persons with Disabilities in Pakistan. According to Mr. Abbas it “provides a common
platform to the most neglected segment of the society. ‘Pakistan Special’ contains articles,
write-ups, interviews, therapy reports, sports news, success stories, social
problems, activities report, sign language, matrimonial, appeals, etc.” It is evidence – as if we needed more – that
our community’s voice is growing louder each day in every part of the world.
___________________________________________________________________
We were recently referred to a website with pertinent
information for disabled golfers. The Dennis Walters
Golf Show is dedicated to the transcendent nature of
perseverance. Mr. Walters has been paralyzed
from the waist down since 1974. His
message that “with hard work and perseverance, you can achieve success at
almost anything” provides a reaffirmation of all that we hold true. This is why discrimination based upon
disability status is so repugnant. (http://www.denniswalters.com)
___________________________________________________________________
Finally, we want to tell you about the Alliance for Justice. The organization provides a variety of news
related to the disabled community as well as other non-profit
organizations. You can find out more
about this excellent organization and its work at http://www.afj.org
___________________________________________________________________
We continue to hope that
the foregoing has helped you to achieve a fuller understanding of our
work. Although much has been done, much
more needs to be done. The population of
the U.S. has just recently grown to 300,000,000 people and, given the
ever-growing percentage of those with disabilities, the need for greater and
further-reaching compliance with the A.D.A. continues to make itself all the
more obvious and necessary.
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please:
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WELL AS CONTINUED PROGRESS IN ACCESSIBILITY ISSUES!
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Phyllis F. Resnick,
President
