NEWSLETTER UPDATE –
SEPTEMBER, 2005
FROM PHYLLIS F.
RESNICK, PRESIDENT
TO OUR MEMBERS IN
On behalf of all of us at
“Access Now, Inc.” and our members, please allow us to express our heartfelt
wishes to all of you and your loved ones who have suffered and are continuing
to suffer the disaster of Hurricane Katrina and its aftermath. We deeply hope that, at least by the time we send our next
newsletter (approximately 6 or 7 months from now), if not sooner, we will have learned that you
are all well on your way to recovery and that your new and, we hope, vastly
improved life will have begun!
HELLO,
AGAIN, EVERYBODY!!!!!
It has now been seven months since our last newsletter and we have
several cases and other items of interest to report. Many of our larger cases, such as those
involving hospitals and municipalities, are proceeding, but of course, as we
are sure you can understand, those types of cases take a very, very long time
to come to conclusion; more on those
later in this newsletter. As you will
see further along herein, where we acknowledge the achievements of other
disability advocacy groups, the passage of several years from the
inception of a case to its conclusion is not unique to “Access Now, Inc.” It is just the nature of litigation.
However, we at “Access Now” take
pride in the fact that we do not limit our efforts to the high profile cases of
first impression, but do, in fact, become involved in many, many small cases
which have a great impact on the daily lives of members of the disabled
community. Entities such as grocery
stores, hotels, motels, restaurants, shops, gas stations and the like continue
to fail to comply with the A.D.A.
(Americans With Disabilities Act), despite the fact that the law was enacted in
1990. Therefore, we continue to receive complaints daily from disabled persons
who are routinely being denied their rights under this civil rights law. Some of those which we have undertaken and
which have been settled will be detailed later in this newsletter.
AS AN
INTRODUCTION TO OUR WORK, FOR THOSE OF YOU WHO ARE NEW TO US, WE WOULD LIKE TO
BEGIN WITH THE FOLLOWING LETTER SENT TO A MEMBER: This letter was
received by James Lawson, a member
and plaintiff in Oklahoma.(Those of you who received our February, 2005
newsletter will have read the fine letter which we received from James and subsequently
re-printed.) The author of the letter
herein (slightly edited) is a man with loss of vision in
May 5, 2005
Hello, James:
We have heard many fine things
about you and your work in achieving benefits for the disabled and
handicapped. We have been working many
years in attempting the same, but you have done more in a few months than we in
those years. Dave keeps us informed of
your activities. You are a blessing to
all of us.
We do now have ramps in nearly
every part of our city. I asked some
time back for audible signals and was told they would check into the cost. A bit later they told me they would try to
get them as money became available. As
of now we still have none. I have
forwarded this article to many of our staff and members. It is time for us to contact the city
commissioners again.
Representative Jim Newport has
been very supportive of us. I contacted
him asking for a bill to raise the distance between a person with a white cane
and an oncoming car be amended to 7 feet as it is in Texas, instead of 3 feet
we had. He worked with us so well and
did get the distance raised to 15 feet.
A group of us attended a
televised meeting of the city commissioners about the time the law went into
effect. We outlined the change and
commented on the law, the rights and responsibility of both the person using the
cane as well as the drivers. Also our
police chief posed with some of our members and the Lions, our sponsors for a
picture announcing the new amendment to the law. The picture appeared in our local newspaper
Sunday. We have had the police chief
make a presentation for our group, as well as at different times a patrolman
and a detective. This gives them an
opportunity to outline their duties, as well as we get to tell them our
needs. Our mayor has also been a guest
speaker. We feel each contact we make is
helpful to our program.
It is humbling to realize that in
a few months you have achieved more than we have in our 4 years. We appreciate what you are doing and would
like to keep in contact with you. Please
send any information you have to me. I
have attempted to get our cable system to broadcast SAP, descriptive TV
programs and had little luck with it. I
got promises and one channel so far.
When I checked back with them was told I was the only person that had
ever approached them about it. It seemed
they thought I was the only one concerned.
I told the station manager that I represented a fairly large group and
could easily have forty people in his office the next day that would use the
service. He agreed that was not needed,
that he would immediately check into getting it installed. About that time we had some personal family
difficulties and so my attention has not been on TV. Dave and you are an inspiration to all of us
and we will get back in the saddle again.
Keep the good work up and know we
appreciate all you are doing.
Sincerely,
Ron Covill.
AND NOW, TO OUR UPDATE:
Membership –
We now have 1,007 members representing 48 states plus
A BRIEF OVERVIEW OF OUR LITIGATION:
Since our February Newsletter, “Access Now” has made progress in
settling cases in several states. As we
continue to settle more cases, “Access Now” and its attorneys have instituted a
management system to guarantee that the agreed upon work is finished in a
timely fashion. Of the 57 cases in which
modifications and alterations were supposed to have been completed over the
past seven months to make properties A.D.A.-compliant, we are proud to report
that the majority were completed on or ahead of schedule.
“Access Now” has filed a total of 937 cases since its inception. Presently, there are 112 cases with
Settlement Agreements outstanding, requiring alterations or modifications to be
completed on August 1, 2005, or later.
During the past seven months, “Access Now” has entered into 32 additional settlements to make properties
A.D.A.-compliant. They include:
Grocery
Stores 2
Hotels/Motels 3
Malls 5
Miscellaneous Entities 1
Museums 1
Office Building 1
Restaurants
10
Sports Venues 3
Stores 5
Transportation 1
“Access Now”
continues to become more national in scope.
The states in which cases have been settled range from the South and the
mid-Atlantic to the
Maryland/DC 6
We will keep expanding our
geographical presence as we continue to receive requests for information and
assistance from around the country and internationally. Please notify “Access Now” if you become
aware of situations where access continues to be denied. Contrary to rumors, we remain 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:
Restaurants
Red Lantern Restaurant,
The Clock Restaurant and the Buddha Bar & Grill of
Mellow Mushroom, Applebee's and Wildhorse Saloon, all of
Taco Mayo,
McDonald's - Mount Penn in
Dockside Waterfront Restaurant,
Stores
Toys R Us,
Mac's One Stop,
West
Lawn Printing,
Malls
Pembroke Lakes Mall,
Hotels
Best Western,
Quality Inn,
Opryland
Resort and Convention Center,
This hotel, situated near the Grand Ole Opry House in
Sporting Venues
Greer Baseball Stadium,
Southern Starz Gymnastics,
Grocery Stores
Kroger’s, Knoxville, TN
HG Hill Food Store,
Other
National Aquarium,
Helen Keller Birthplace,
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.
The highlights of our accomplishments since the last newsletter
are:
Hospitals:
FOR THOSE OF YOU WHO DID NOT HAVE
THE
We continue to receive complaints regarding various hospitals
nationwide. We are doing our best to
address those concerns through the remainder of the year. To do so we need your feedback. The healthcare accessibility issues typically
raised by our members are:
·
Parking problems
·
Lack of accessible restrooms, both in patients' rooms and in
public areas of facilities
·
Inaccessible entrances and paths of travel throughout medical
facilities
·
Exam rooms and examining tables
·
Mammography areas
·
Emergency area, including their restrooms, examining tables, etc.
·
No effective communication for the visually and hearing impaired.
If
any of you has had bad experiences regarding handicapped accessibility with
hospitals or other medical facilities in your communities, we want to know so
that we can incorporate those concerns into our current efforts. In addition, if you are aware of any
hospitals that are doing a great job with accessibility, we want to know that
as well, so that we can alert and educate our members.
Municipalities:
We also continue to receive complaints
regarding various cities and municipalities nationwide. We are doing our best to address those
concerns. Accordingly, we are again
asking for your feedback. The typical
issues raised by our members concerning access to government services, programs,
or activities are:
·
Parking problems at government buildings and facilities
·
Inaccessible city streets and sidewalks
·
Lack of curb ramps/cuts at city street intersections
·
Lack of accessible public restrooms
·
Lack of wheelchair ramps, inaccessible entrances and paths of travel to
government buildings (courthouses, post offices or voting facilities)
·
No effective communication in government facilities for the visually
and hearing impaired.
If any of you has had bad
experiences regarding handicapped accessibility in your communities, we want to
know so that we can incorporate those concerns into our efforts. We are interested in working hard to create
accessibility in all communities.
We are committed to
creating the legacy of an accessible world.
Please help us to help ALL of us!
Thank you!
a.
We have had quite a
tussle with the City of
b.
c.
_____________________________________________________________
3.
4.
SeaWorld Theme Parks:
These parks, owned and operated by the Busch Entertainment Corporation,
one of the Anheuser-Busch Companies, have been simply extraordinary in their
approach to increasing accessibility at their several parks across the country. SeaWorld and the other
The outcome of all this is that their theme parks
are outstanding in terms of accessibility to the disabled community. They have gone so far as to prepare and
review with “Access Now” a large, comprehensive policy which clearly sets forth
which of their attractions and rides are SAFELY accessible to people with a
wide variety of disabling conditions, whether temporary or permanent.
SeaWorld's amazing understanding and acceptance of the needs of the disabled community stand as a shining example of what can be done when the will is there. We salute them and we are very, very proud to have been a part of their exemplary effort!!! We will keep you apprised in future newsletters of their progress.
5.
6.
Greyhound Lines: The
modifications have been completed on the terminal in
7.
8.
Emory University: This settlement of this case in 2002 stands
as one of our landmarks, involving as it does a large university (in
9.
Malls and Shopping Centers:
Of the 20 cases we mentioned in our last newsletter that have been
settled against malls and shopping centers with Time Up Dates (when work is to
be completed) through the end of 2005, “Access Now”, work has been fully
completed in 7 more cases. This is one more indication that these
comprehensive settlements are improving the quality of life for the
disabled.
________________________________________________________________
CLASS ACTIONS – Class actions
affect a large number of disabled persons, usually because a large number of
facilities are involved. We still have
class actions pending against Brookstone Stores,
Arby’s: “Access Now” brought suit
against Arby’s (RTM Operating Co., Inc.) based on the A.D.A. non-compliance of
approximately 773 of its restaurants in the United States, Puerto Rico and U.S.
Territories. Arby’s has agreed to the
removal of architectural barriers in the restaurants. That will allow the disabled better access to
this restaurant chain.
Brookstone Stores: The parties have
agreed in principle on all major issues.
What remains is for the legal papers to be drafted and then presented to
the court. This is not an easy task
since almost all of the stores have unique floor plans that do not lend
themselves to “one-size-fits-all” accessibility language that would be expected
to be found in most class action settlements.
At a recent hearing held in his chambers, Magistrate Judge Peter
Palermo, who is overseeing this case for Judge Joan Lenard, was highly complimentary to all parties involved, saying
that he has been involved with many A.D.A. cases, and this one has been handled
exactly as they should all ideally be!
We look forward to seeking the court’s approval for this settlement in
the very near future.
Norwegian Cruise Line Ltd.: This case
has been scheduled for trial during the three week period beginning December
27, 2005. In the interim, settlement
discussions are continuing. We hope to
have this case resolved before the trial date.
Should that goal prove to be elusive, we will be ready for trial.
________________________________________________________________
NON-“ACCESS NOW” LITIGATION – We want to keep you informed about important recent litigation
around the country, of which you might not be aware, 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!
·
First,
KUDOS to the Association for Disabled Americans, which has been successful in
its seven-year effort to have the Publix Super Markets chain improve
access for the disabled. On July 22
·
In Spector v. Norwegian Cruise Line Ltd., the
·
The
Regal Entertainment Group, the nation’s largest theater chain, has agreed to a
settlement with the
·
The
Archstone-Smith Trust, the nation’s third largest apartment real estate trust,
has agreed to pay more than $20 million to remedy design and construction
defects to allow greater access to the disabled. These include such things as widening bathrooms
and doorways that are too narrow and lowering mailboxes that are too high for
people using wheelchairs. The company
will renovate approximately 12,000 units at 71 apartment complexes it owns
nationwide. See Equal Rights Center et al v. Archstone-Smith
Trust (D. Maryland).
·
Finally,
a case that gives us cause for concern.
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 prior to bringing suit the plaintiff had not given a
pre-litigation warning notice to the defendant allowing it to cure any A.D.A.
violation (which is not required under the A.D.A.). The judge did this of his own accord; the
parties only disagreed over the amount
of the fee. The action looks like a
judicial end run around Congress’ consistent refusal to enact a pre-suit
notification requirement. It is part of
a seeming trend to render the law ineffectual undertaken by some judges hostile
to the A.D.A. We will have to see if the
trend continues. An appeal is pending.
________________________________________________________________
INFORMATION RESOURCES ON AND OFF
THE WEB:
Online Accessibility:
In its May 9th edition, The JHU Gazette reported that, in an effort
to provide equal access to online content,
Developmental Disabilities:
The Minnesota Governor’s Council on Developmental Disabilities has an
ongoing project to enhance independence, inclusion, individual productivity and
self-determination for people with disabilities. To this end the
·
Resources for individuals, families and professionals;
·
“Parallels in Time: A History of
Developmental Disabilities”;
·
Partners in Policymaking® materials;
·
The
·
Self-paced online learning courses for those wanting to increase their
knowledge and skills in self-advocacy, education and employment.
These resources are available at http://www.mncdd.org/ for anyone
interested. The
Spinal Cord Research:
Producer Danny Murphy (a longtime, disabled member of AN) and Bill
Johnston have released a new short film made in conjunction with the Staff and
Students at the
________________________________________________________________
GOVERNMENTAL NEWS:
Comments on ACAA Proposed Rule: “Access Now” filed its
comments regarding the U.S. Department of Transportation’s proposed new rules to
the Air Carrier Access Act - the law that provides access to air travel for
people with disabilities. “Access Now”
expressed its view (see below) that the USDOT’s proposed rules were more about
protecting business interests than in protecting the rights of people with
disabilities, and the proposed changes in the law only limit the ability of
people with disabilities to travel by commercial aircraft. No date has been set for the issuance of the
final regulations.
COMMENTS OF “ACCESS NOW, INC.” –
MARCH 22, 2005
What has become all too common
under the current federal administration is that executive branch agencies,
such as the USDOT, are more interested in protecting business interests than in
protecting the rights of people with disabilities. This Notice of Proposed Rulemaking (NPRM)
makes a number of changes in the regulatory law that will serve to limit the
ability of people with disabilities to travel by commercial aircraft. The NPRM weakens our access rights under the
Air Carrier Access Act (ACAA) and its current implementing regulations in
several ways at the same time as the weaker proposed regulations will be
applied to foreign flag air carriers.
Those most harmed by the proposed
rule are those with legs that do not bend (due to fusions, braces, etc.) and
those with service animals. This rule
proposes that people with legs that do not bend simply put their unbending leg
out into the aisle. (They ignore those
who have two legs that do not bend).
They do not address what such people should do with their legs during
take off and landing, when the FAA requires that the aisle be clear, or what
one does with an unbendable leg when the cabin crew rolls the beverage or food
cart up the aisle. As far as service
dogs are concerned, this proposed rule would require a service dog to fit in
the 16 inch wide space under the seat in front of the passenger with a
disability. People with guide dogs and
mobility assistance dogs, all of which are too large for that small space,
would no longer be able to fly on any
commercial aircraft.
Similarly, the lack of accessible
lavatories on aircraft with one aisle means that some mobility-disabled
passengers will be subjected to the indignity of wearing special undergarments if
they must travel on commercial aircraft.
This is simply unacceptable, inasmuch as it eviscerates the intent of
the ACAA.
On behalf of the members of “Access
Now, Inc.”, we wish to register our objection to the Proposed Rule as
delineated above. Thank you for your
consideration.
Important Medicare News:
|
For Immediate
Release: |
Contact: |
|
Wednesday, August
24, 2005 |
CMS Office of Public Affairs |
|
For questions about Medicare please call 1-800-MEDICARE or visit
http://www.medicare.gov/. |
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On August 26th the Centers for
Medicare & Medicaid Services (CMS) published an Interim Final Rule in the Federal
Register regarding appropriate access for people with Medicare to power
operated vehicles – commonly called “scooters” ‑ and power
wheelchairs. The Interim Final Rule will
become effective for services on or after October 25. Comments will be accepted until November 25,
and a final rule will be published at a later date.
The Interim Final Rule is the latest action
by CMS implementing a Power Wheelchair Initiative first announced in April 2004
provisions in the Medicare Modernization Act of 2003 affecting power
wheelchairs and power scooters. It is
meant to underscore the principle that a beneficiary’s physician or treating
practitioner is in the best position to evaluate and document his or her
clinical condition and medical needs.
“This Interim Final Rule is a critical step in ensuring that people with
Medicare have access to appropriate technology to assist them with mobility,”
said CMS Administrator Mark B. McClellan, M.D., Ph.D. “[T]his Interim Final Rule is part of a
comprehensive strategy to help Medicare beneficiaries get the mobility
assistance equipment they need while avoiding unnecessary administrative burdens
and inappropriate Medicare spending.”
CMS is eliminating the requirement
that a Certificate of Medical Necessity (CMN) signed by the prescribing
physician or other treating practitioner accompany claims for power wheelchairs
and scooters. In place of the CMN, the
Interim Final Rule describes the clinical documentation from a patient’s
medical record that must be submitted along with a written prescription to
the supplier before the supplier delivers a power wheelchair or scooter to the
beneficiary. “Documentation in the
medical record of the beneficiary’s need for assistance with mobility in the
home, as well as the type of technology needed, not only is the best evidence
of medical necessity – it also helps to promote continuity of care for our
beneficiaries,” said CMS Acting Chief Medical Officer, Barry Straube, M.D. “And we are recognizing this in our payments
to providers.”
CMS is notifying physicians, other treating
professionals and power mobility device (PMD) suppliers, of this Interim Final
Rule through its Medicare listserves.
CMS is also targeting educational efforts to physicians, other
practitioners who prescribe power wheelchairs and power scooters as well as to
PMD suppliers, to help them understand the new criteria and documentation
requirements before the implementation date.
This includes new billing instructions for suppliers.
In early September, CMS will hold a special
Open Door Forum to address power wheelchair and power scooter issues. The Open Door Forum will offer physicians,
suppliers and other stakeholders the opportunity to participate in person or by
conference call in a discussion with senior staff about Medicare policies.
________________________________________________________________
MISCELLANEOUS ITEMS OF INTEREST:
On
July 26th the Screen Actors Guild issued a report entitled “The
Employment of Performers with Disabilities in the Entertainment Industry”. The report indicates that, in spite of the
A.D.A. and SAG’s own Non-Discrimination and Diversity
policy, there are significant problems
for disabled SAG members. 36% of
the performers with disabilities felt they had encountered some form of
discrimination in the workplace, including not being cast or being refused an
audition because of their disability. 60% of performers with disabilities
who said that a reasonable accommodation would help them and never asked for
one “because they believed employers would be reluctant to hire them.” The
greatest difficulty was getting an audition.
This is important because performers who got more auditions worked more
often. “Stereotypical attitudes
about disability and being considered only for limited roles” were “the most
frequently encountered obstacles”. You can read the Executive Summary at http://www.sag.org/Content/Public/exec-sum-pwd.pdf. The full version of this very informative
report will be posted on the SAG website in the coming weeks.
The following article appeared in The Palm Beach Post on Sunday, July 24, 2005, and was subsequently reprinted in The Miami Herald on August 14,
2005. It contains very interesting
information regarding accessible inns and bed-and-breakfast establishments in
|
Copyright ©
2005, The MORE
B&BS MAKING ROOM FOR DISABLED
Steep staircases, narrow doorways and bathrooms not equipped to
accommodate guests in wheelchairs make getaways to bed-and-breakfasts
difficult for the handicapped. Many Casa de Suenos in St. Augustine,
for example, has a lovely first-floor room with its own entrance and ramp to
permit easy access for guests in wheelchairs.
Innkeeper Kathleen Hurley says the Nieves Room, which has a queen-sized
canopy bed and a double-sized roll-in shower, is a favorite of guests who
enjoy the private entrance and the ease of unloading luggage. The nightly rate is $145 during the week
and $195 on weekends. For reservations or more information, call 800-824-0804
or see www.casadesuenos.com. Other ·
Hoyt House Bed & Breakfast,
Amelia Island, 800-432-2085; www.hoythouse.com. ·
The Ash Street Inn Bed &
Breakfast, ·
Lilian Place Bed and Breakfast, ·
Miss Pat's Inn – a Bed and
Breakfast, Daytona Beach, 866-464-7772; www.misspatsinn.com. ·
The Laurel Oak Inn, ·
The Gardens Hotel, ·
Centennial House Bed &
Breakfast Inn, ·
The Quilter's ·
Heritage Country Inn, |
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CONCLUDING THOUGHTS:
I believe that you can see from reading
this newsletter that we continue to strive to fulfill our mission and to perpetuate
the magnificent legacy left by our strong, courageous and inspiring founder, my
late, beloved husband, Edward S. Resnick.
Not a day goes by that we do not receive either a phone call or an email
from or on behalf of a disabled person telling us of a problem which can only
be categorized as a violation of that person’s civil rights with regard to
handicapped accessibility. For those of
you are new to us, and as a reminder to those of you who have been members for
some time, the A.D.A. is a civil
rights law, under which complaints are handled through either the
United States Department of Justice (the D.O.J.) or through individual pieces
of litigation against the offending entity.
The D.O.J. is totally overwhelmed and backlogged and usually will accept
only very large, high profile cases.
While an individual can
“Access Now” deeply appreciates the
support of all those who have joined with us and we look forward to reporting
ongoing successes in our mission of helping to bring about as much
accessibility as possible to as many members of the disabled community as
possible.
Thank you all and please:
IF YOU HAVE A CHANGE OF ADDRESS,
PHONE NUMBER OR EMAIL ADDRESS PLEASE, PLEASE LET US KNOW SO THAT WE CAN KEEP
OUR FILES UPDATED AND SO THAT WE CAN CONTINUE TO COMMUNICATE WITH YOU.
BEST WISHES FOR A HAPPY, HEALTHY
YEAR AHEAD!!!!!
Access Now, Inc.
Phyllis F. Resnick
President