JFActivist

United States Supreme Court will decide important cases on the rights of persons with disabilities

By David Heymsfeld, AAPD Policy Advisor

In the next few months the United States Supreme Court is expected to decide two important cases on the rights of persons with disabilities.

The first case, Douglas v. Independent Living Center of Southern California, is a challenge to the decision of the State of California to lower the rates paid to doctors and hospitals for Medicaid services.  The suit was brought by persons receiving Medicaid and doctors and hospitals, who assert that the lowering of rates will cause doctors and hospitals to drop out of the program, making it harder for enrollees to get services.

The question before the Supreme Court is whether Medicaid enrollees and doctors and hospitals can also go to a court and ask the court to prevent this type of reduction in rates. If the Supreme Court decides that the courts can consider these cases, Medicaid enrollees will have an important new tool in advocacy to ensure that State Medicaid programs provide adequate services.

In the second case, Hosanna-Taylor Evangelical Lutheran Church and School v EEOC, the Court will decide whether ministers and other teachers in religious schools are protected by the Americans with Disabilities Act. The case involves a teacher in a church-affiliated school who was fired because she threatened to bring an ADA case to protect her rights to continue in her job despite a history of sleep disorders. The church claims that in her teaching role she was also serving as a minister of the church, and that the courts have ruled that the ADA does not apply to ministers.

In this case, the Supreme Court may develop broad principles on whether employees of a church with religious duties are exempt from the ADA. If so, the court may also decide which employees are exempt; only those who teach classes in religion, or those who teach subjects such as history and literature, but are expected to be guided by religious principles in their teaching. Hundreds of thousands of employees could be affected.

Chipotle Loses Disability Access Case

via Disablog (4.26.11):

Chipotle Loses Disability Access Case

Maurizio Antoninetti sued Chipotle Mexican Grill arguing that the restaurant chain’s 4-foot counters were too high for people using wheelchairs. On April 18, 2011, the U.S. Supreme Court upheld a ruling made by the Federal Court of Appeals last year which found in favor of Antoninetti saying that the counter “significantly reduced Antoninetti’s ability to enjoy the ‘Chipotle experience.’”  Chipotle has said they will be retro-fitting the counters in their restauraunts to make them accessible to wheelchair users. Now my only question is - what about other restaurants like Subway, Qdoba, etc? Are they already in compliance with the law, and Chipotle just dropped the ball?

>>>To View this Blog Post

Let Deaf Americans Serve Their Country

via the Washington Post (7.21.11):  

by Robert Weinstock

In May 1971, near the end of my junior year in high school, I participated in Armed Forces Day activities at the U.S. Naval Academy. I was immediately enchanted by the academy and Annapolis. When I returned to school the following week, I asked my guidance counselor if I could apply to the Naval Academy. He said that he didn’t think so, “because you have to be able to hear to serve our country"...

My outlook changed in the fall of 1972, when I entered Gallaudet College (now university) as a freshman. For the first time, I lived and studied among other deaf and hard-of-hearing students. Thirty-nine years later, I know there is no limit to what a deaf person can do...

>>>For the Full Article

In LA: State Agencies Not Offering Voter Registration Forms, DOJ Steps In

via the Department of Justice (7.12.11):

Justice Department Files Lawsuit Against Louisiana Alleging Violations of the National Voter Registration Act

WASHINGTON – The Department of Justice announced today that it has filed a lawsuit against the state of Louisiana and a number of Louisiana state agencies and officials alleging that the state has violated its obligations under the National Voter Registration Act (NVRA).

The complaint, filed today in the U.S. District Court for the Middle District of Louisiana, alleges that Louisiana has violated the NVRA by failing to provide voter registration services at offices providing public assistance and serving persons with disabilities in Louisiana.   Specifically, the complaint alleges that Louisiana officials have not routinely offered voter registration forms, assistance and services to the state’s eligible citizens who apply, recertify or provide a change address for public assistance or disability services, or benefits.

>>>For the Press Release

DOJ and Delaware Enter Agreement to Transform State's Mental Health System, Resolve ADA Violations

via the Department of Justice (7.6.11):
Justice Department Obtains Comprehensive Agreement Regarding the State of Delaware's Mental Health System

WASHINGTON - The Justice Department today announced that it has entered into a comprehensive agreement with the state of Delaware that will transform Delaware’s mental health system and resolve violations of the Americans with Disabilities Act (ADA).  The ADA and the Supreme Court’s landmark decision in Olmstead v. L.C. afford individuals with disabilities the right to receive services in the most integrated settings appropriate to their needs, and today’s agreement will ensure individuals in Delaware can exercise that right...

>>>For the Full Press Release

 

Appeals Court Upholds Affordable Care Act

via the LA Times (6.29.11):

In major test, appeals court upholds Democratic healthcare law

The healthcare law President Obama signed last year survived its first test before a federal appellate court Wednesday, as the 6th U.S. Court of Appeals in Cincinnati concluded that the law’s insurance requirement is constitutional.

“We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause,” the judges said in rejecting a legal challenge to the law by the conservative Thomas More Law Center.

The Thomas More lawsuit has not attracted as much attention as two other legal challenges being pushed by Republican state officials in Virginia and other states. Those suits are being reviewed by federal appellate courts in Atlanta and Virginia.

And few legal experts expect that the constitutionality of the Patient Protection and Affordable Care Act will be settled until it is reviewed by the U.S. Supreme Court, likely next year.

But the ruling Wednesday nonetheless marked a legal victory for the Obama administration and its Democratic allies, who have argued that Congress could require Americans to get health insurance starting in 2014...

>>>For the Full Article

Sen. Harkin's 2008 Letter to Ability Magazine Readers, Addresses Importance of 2009 ADA Amendments Act

via Ability Magazine (Vol 2008/09 Dec/Jan): 

Dear ABILITY Readers,

Recently, the ADA Amendments Act was signed into law, and I was proud to be its chief sponsor. When it is enacted in early 2009, the legislation will allow us to fulfill the original promise of the Americans with Disabilities Act.

As you may know, the ADA was one of the landmark civil rights laws of the 20th century, and helped us make enormous progress in advancing the four goals of the ADA: equality of opportunity, full participation, independent living and economic self-sufficiency.

Despite these strides, we have left some people with disabilities behind. The problem is a series of Supreme Court decisions, which have greatly narrowed the scope of who is protected by the ADA. First of all, these cases held that mitigating measures, such as medication, prosthetics, or other assistive devices, must be considered in determining whether a person has a disability under the ADA. Secondly, they asserted that there must be a demanding standard in assessing whether an individual has a “disability.”

As a result, people with conditions that common sense tells us are disabilities, are being told by courts that they are not disabled, and thus not eligible for protections under the law...

>>>To Read Harkin's Full Letter

EEOC Looks at Disparate Treatment in 21st Century Hiring Decisions

via AAPD (6.24.11):

EEOC Looks at Disparate Treatment in 21st Century Hiring Decisions

By Julia Feinberg, AAPD Policy Intern

On Wednesday June 22, 2011, AAPD attended the U.S. Equal Employment Opportunity Commission’s (EEOC) meeting on “Disparate Treatment in 21^st Century Hiring Decisions,” held in Washington, D.C. The EEOC is chaired by Jacqueline Berrien with Stuart Ishimaru, Constance Barker, Chai Feldblum, and Victoria Lipnic as Commissioners.  The meeting looked at how discrimination during the hiring process affects minorities, including people with disabilities.  Nine witnesses were called to provide evidence and discuss the impacts of disparate hiring practices. 

During the opening statements, all Commissioners noted that working is not only important financially but also for an individual’s sense of self-worth and connection to their community.  They also noted the difficulty of reporting and getting information to people who have been discriminated against in the workforce.  It was discussed many times during the hearing that often people do not know they have been victims of hiring discrimination. 

Recent Cases: EEOC General Counsel David Lopez described a successful court case where two deaf men were refused employment by Wal-Mart.  The Courts ruled in the men’s favor and, as part of the settlement, a television ad was played for several weeks promoting the employment of people with disabilities.  This ad was shown in the hearing and had a visible affect on the Commissioners.  Lopez also described a clip from an ABC show “What Would You Do?” where two deaf women applied to be kitchen workers in a café and were refused jobs.  While some customers stood up to the discrimination they saw, others gave the manager legal advice saying he should have accepted their applications and not called them instead of outright saying he wouldn’t hire them because they were deaf.  These “advisors” were professional recruiters and managers.

Silent or Covert Discrimination:  The first two panels focused on “silent discrimination,” where the employer doesn’t outright say or show that he or she is discriminating.  This was a recurrent topic throughout the meeting.  It especially came up during discussion of contingency or temporary staffing agencies, that is, companies that match employers with employees looking for work.  Since hiring laws are different for the contingency agencies, many companies can get away with discriminatory hiring practices by using these types of companies.

Bill Lann Lee, an attorney at Lewis, Feinberg, Lee, Renaker, & Jackson on the first panel called this “covert discrimination.”  Grace Speights, attorney at Morgan, Lewis, & Bockius, and Katherine Kores, an EEOC District Director in Memphis were also on the first panel. The second panel was composed of Supervising Trial Attorneys Kate Boehringer and Diane Smason at the EEOC Baltimore and Chicago offices, respectively, with Ana Lopez and Jeannette Wilkins as Charging Party Members in two major EEOC cases.  This panel highlighted the real life challenges of workforce discrimination and gave an in-depth look at how companies use covert discrimination.

Research and Training Issues: Marc Bendick from Bendick & Eagan Economic Consultants and General Counsel Rae Vann from the Equal Employment Advisory Council, a non-profit employer association, discussed discrimination research and training on the third and last panel.  Bendick provided staggering statistics about the prevalence of discrimination in the workforce and also specific industries that were especially “hard core discriminators.”  For instance, he said that 20-25 % of people have encountered hiring discrimination across all fields of the workforce.  Advertising and construction industries were among the worst with about 67% discriminating against applicants.

 

Vann concluded the meeting by outlining the training programs that the EEAC has developed over the past few decades to reduce workplace discrimination.  The hope is to change the attitude within all offices so that anti-discrimination is company policy, not just federal law.

Resources: To file an EEOC complaint or “charge,” go to the link http://www.eeoc.gov/employees/charge.cfm

To learn more about ADA and disability employment protections go to http://www.eeoc.gov/laws/types/disability.cfm

 

Question:  Have you experienced silent or covert discrimination as a person with a disability seeking or maintaining employment? Please comment in the box below or tell us via email to [email protected]

 

 

Reduced Federal Medicaid Payments in 2012: Many States Already Cutting Back

via AAPD (6.24.11):

Reduced Federal Medicaid Payments in 2012: Many States Already Cutting Back

By David Heymsfeld, AAPD Policy Advisor

In recent weeks supporters of Medicaid have focused on advocating against proposals, such as block grants and global spending caps, which could lead to drastic reductions in future federal funding of Medicaid. The threats of these proposals have obscured the fact that even if none of these proposals are enacted there are provisions in existing law which will result in less spending for Medicaid in 2012 than in 2011. In many states this is likely to lead to reduced Medicaid services including for people with disabilities and their family members.

Background: In the Medicaid program, each state establishes its own program although it must work within federal requirements.  The federal government helps fund each state’s program, with the federal share averaging about 57%. Medicaid is the largest expense in state budgets, and constituted about 22% of total state spending in 2010.

Federal Cutbacks Taking Effect on July 1, 2011:  As you may recall, there was legislation passed in 2009 to combat the recession, that is, the American Recovery and Reinvestment Act, also referred to as “the stimulus.”   This temporarily increased the federal share for Medicaid by about 10%, resulting in the states receiving about $87 billion in increased funding. This increased rate of funding ends on July 1, 2011. However, at the same time, the needs are growing. For instance, as a result of the recession, Medicaid enrollment increased by 8% in 2010, with estimated growths of 5% in 2011 and 4% in 2012.

State Response to Lower Federal Funding: The states’ responses to reduced federal funding are described in some detail in a Spring 2011 Report of the National Association of State Budget Officers in a document called “Fiscal Survey of the States,”  link at http://www.nasbo.org/LinkClick.aspx?fileticket=yNV8Jv3X7Is%3d&tabid=38

With federal funding to be reduced by 13% in Fiscal 2012, most states are planning some increases in their own funding, but not enough to close the gap. Overall Medicaid funding is expected to decrease 3%. With the lower funding, most states are planning some changes to limit costs of their programs.

How States Cut their Medicaid Programs: These changes include reduced provider payments in 33 states, making it more difficult for Medicaid patients to find providers willing to treat them. Other measures include limitations on benefits to be carried out in 25 states. Another 13 states will put limitations on prescription drugs. New or higher co-payments will occur in 21 states and there will be expansions of managed care in 19 states.  In fact, many states are proposing more than one of these changes.  For instance, Table 29 (page 57) lists which states have cut or plan to restrict community-based care (CA, MN, NY, WA).

Note that the so-called Maintenance of Effort (MOE) provisions included in the health care reform Act prevent the states from making other changes such as increasing income eligibility levels or otherwise making it more difficult for individuals to apply.

Suggestions for Further Advocacy:

1. Read Chapter Four, “Medicaid Outlook,” in “Fiscal Survey of the States: An Update of State Budget Conditions” at http://www.nasbo.org/LinkClick.aspx?fileticket=yNV8Jv3X7Is%3d&tabid=38.

This will give you some sense of what your state is looking at in regard to Medicaid. For instance, Table 28 shows some specific strategies states are using. Note also that the states are considering ways to increase revenues (Table 30).

1. Contact your governor’s office or state legislator to learn about specific proposals to cut back Medicaid in your state.
2. Protest early and often any cuts that are unfair to people with disabilities or revenue enhancements that unfairly burden people with disabilities and their families.
3. Comment in the box below or send concerns to [email protected]

DOJ Intervenes in Texas Case to Enforce Olmstead

via The Department of Justice (6.22.11): 

Justice Department Moves to Intervene in Texas Case to Enforce the Supreme Court’s Olmstead Decision

The Justice Department today filed papers seeking to intervene in Steward, et al. v. Perry, et al., a case filed on behalf of thousands of Texans with developmental disabilities to enforce their right under the Americans with Disabilities Act (ADA) to receive services provided by the state in the most integrated setting appropriate to their needs...

The proposed complaint by the United States, which must first be approved for filing by the U.S. District Court in San Antonio alleges that Texas unnecessarily segregates individuals with developmental disabilities in nursing homes instead of providing them the opportunity to receive integrated, community-based services. The proposed complaint also alleges that Texas places individuals with developmental disabilities who currently live in the community at risk of unnecessary placement in nursing facilities by failing to provide necessary community-based services in violation of the ADA and Section 504 of the Rehabilitation Act...

>>>For the Full Press Release