MISSION OF CENTER IS TO PROTECT, PROMOTE AND EXPAND THE RIGHTS OF PEOPLE WITH DISABILITIES.
AMERICAN BAR ASSOCIATION FORMS NETWORK OF LAWYERS WITH DISABILITIES
BY Barrie Black, barrieblac-@staff.abanet.org
The American Bar Association
Commission on Mental and Physical Disability Law and its Subcommittee on Lawyers with Disabilities invite you to JOIN A NETWORK OF OUR OWN. Join us to: (1) Kick off our email/list-serv discussion group and (2) Develop a mentor program. Sound like a good idea? Meet new people and network with old friends. Talk about employment and advancement opportunities. Learn about upcoming events . . . and much, much more. GET CONNECTED. A national listserv discussion group dedicated to lawyers with disabilities. Discussion begins September 8, 1998.
Exchange valuable information and ideas with your colleagues.
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On August 7, 1999, the President signed into law the Workforce Investment Partnership Act of 1998, which includes the Rehabilitation Act Amendments of 1998. The revised Section 508 of the Rehab Act will require that when Federal departments or agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that it allows Federal employees with disabilities to have access to and use of information and data that is comparable to the access to and use of information and data by Federal employees who are not individuals with disabilities, unless it poses an undue burden to do so. It directs the Access Board to develop and publish electronic and information technology standards in 18 months. It also requires agencies to evaluate their technology access in 6 months. The Attorney General must submit a report to the President in 18 months on Federal information technology access, and biennially thereafter. There is also an individual right of action in filing complaints, using the same procedure as to file 504 complaints. Visit Thomas’ Congressional Record web site at http://rs9.loc.gov/home/thomas.html and check it out.
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COURT DECISIONS -- AMERICANS WITH DISABILITIES ACT
from the U. S. Department of Justice's Interim Report, April-June, 1998http://www.usdoj.gov/crt/ada/aprjun98.htm
Supreme Court Rules Asymptomatic HIV-infected Patient is Person with a Disability -- The Supreme Court decided in Bragdon v. Abbott that asymptomatic HIV-status is a disability under the ADA. Plaintiff, a dental patient in Bangor, Maine, infected with HIV, but who had no outward symptoms of the disease, was denied treatment by a dentist. The patient filed suit under the ADA, alleging that, as a result of the virus, she was "disabled" and therefore protected by the Act. The U.S. Court of Appeals for the First Circuit held that the patients asymptomatic HIV status constituted a disability because it was a physical impairment that substantially limited the "major life activity" of reproduction. The Supreme Court agreed with the amicus brief filed by the Department of Justice and upheld the court of appeals in a 5-4 decision, finding that asymptomatic HIV status met all the requirements under the statutory definition of a disability -- it is a physical impairment (from the moment of infection), it impairs the major life activity of reproduction, and it "substantially limits" that activity. The court also emphasized that its conclusion was consistent with the Department of Justice s views on this issue as expressed in its regulations and technical assistance manual. As to whether the plaintiffs HIV infection posed a "direct threat" to the dentist s health, the Supreme Court sent the case back to the court of appeals for further review of the evidence.
Supreme Court Says ADA Clearly Protects Prison Inmates -- In a unanimous opinion the Supreme Court ruled in Pennsylvania Department of Corrections v. Yeskey that a motivational boot camp operated for selected inmates by the Pennsylvania State prison system is subject to the requirements of title II of the ADA. Prisoners who successfully complete the boot camp program are entitled to a significant reduction in their sentence. The Court agreed with the Department of Justice in ruling that the broad language of title II clearly covers prisons and provides no basis for distinguishing programs, services, or activities of prisons from those provided by other public entities. It rejected the State s arguments that the law is ambiguous and that prisoners cannot be "qualified individuals with disabilities" because they are not in prison voluntarily. The Department also received a favorable ruling on prison coverage in Westcott v. Garner in the U.S. District Court for the Middle District of Georgia.
State Must Consider Community-Based Services -- The U.S. Court of Appeals for the Eleventh Circuit ruled that the State of Georgia discriminated against two individuals with mental disabilities by confining them in a institution rather than providing services through a community-based program. In L.C. v. Olmstead the Eleventh Circuit agreed with an amicus brief filed by the Department of Justice arguing that the title II regulation requires States to provide services to individuals with mental disabilities in the "most integrated setting appropriate to their needs." The State s treating professionals agreed tat a community placement was appropriate for the plaintiffs. The case has been sent back to the lower court for a decision as to whether the State's actions were justified because any added financial burdens or policy modifications that are needed to provide community placements would result in a "fundamental alteration in the nature of the program."
More Courts Find ADA is Constitutional -- In Dickson v. Florida Department of Corrections (consolidated with Kimel v. Florida Board of Regents) the U.S. Court of Appeals for the Eleventh Circuit rejected arguments that the ADA is unconstitutional because the rights it creates are broader than those of the Fourteenth Amendment s equal protection
clause. Instead, it concluded as urged by the Department in an amicus brief that Congress has ample authority to subject States to lawsuits under the ADA because of the history of pervasive discrimination against people with disabilities. A lower Federal court, the U.S. District Court for the Eastern District of Pennsylvania in Anderson v. Pennsylvania Department of Public Welfare, also agreed with an amicus brief filed by the Department that it is constitutional for the ADA to prohibit more than just intentional discrimination that would be prohibited by the Constitution.
Court Allows Challenge to Health Insurance AIDS Cap -- As urged by the Department of Justice in an amicus brief, the U.S. District Court for the Northern District of Illinois in Doe v. Mutual of Omaha Insurance Co. ruled that title III prohibits discrimination in the terms and conditions of a health insurance policy against persons with AIDS or Aids Related Complex (ARC). The suit challenges a health insurance policy that contains a maximum lifetime benefit cap for expenses incurred for covered services related to AIDS and ARC of only $25,000 or $100,000 (depending upon the policy) where the same policy provides benefits to a lifetime maximum of $1,000,000 in virtually every other situation. The court, denying defendant's motion to dismiss, ruled that singling out individuals with AIDS or ARC for inferior insurance coverage stated a claim of discrimination under the ADA.
Court Allows U.S. Attorney to Continue Suit Against Day Care Providers for HIV Discrimination -- The U.S. District Court for the Western District of Wisconsin, denying defendants motions for summary judgment, allowed three Department of Justice lawsuits to proceed against day care centers who denied admission to a three-year old child (L.W.) with HIV infection. Defendants in U.S. v. Happy Time Day Care, U.S. v. Kiddie Ranch, and U.S. v. ABC Nursery, claimed that L.W. does not have a disability under the ADA because his HIV is "asymptomatic," and because defendants did not regard L.W. as having been substantially limited in a major life activity. The district court agreed with the United States Attorney s Office for the Western District of Wisconsin that damage to the child s immune system may render him substantially limited in the ajor life activity of caring for himself, including fighting off ommunicable diseases. The court also held that plaintiff proved that efendants general fear of HIV led them to exclude L.W. from child care, thereby substantially limiting him in the major life activity of learning. The court rejected defendants argument that plaintiff needs to prove that the defendant believed L.W. to be substantially limited in a particular major life activity. However, the Court held that HIV does not substantially limit a three-year-old child in the major life activity of procreation, disagreeing with the Department of Justice on that point. The court also held that mitigating measures, such as AZT
and other treatments, should not be considered when determining whether a person with HIV has a disability. Two of the three cases have since been settled by consent decrees (see "Consent Decrees").
Third Circuit Rejects Challenge to Long-Term Disability Plan -- In Ford v. Schering-Plough Corp. the U.S. Court of Appeals for the Third Circuit rejected a suit brought by a former employee under titles I and III of the ADA against her employer an an insurance company in New Jersey. The suit challenged a long-term disability (LTD) insurance plan under which employees can receive benefits until age 65 if they become totally disabled due to physical impairments but can collect benefits for no longer than 24 months if their impairments are mental in nature. Plaintiff s LTD benefits were terminated after 24 months because hers was a mental, not a physical, disability. The Department filed an amicus brief in the Third Circuit arguing that title III prohibits unjustified discrimination in the terms and conditions of insurance coverage, and that title III s coverage is not limited to denials of physical access to public accommodations. The Department did not address title I issues or whether the LTD plan s distinction between mental and physical impairments is disability-based discrimination. The Third Circuit held that plaintiff was entitled to bring a suit challenging the plan even though she was no longer working. However, the court concluded that the LTD plan s distinction between mental and physical disabilities was not discriminatory because every employee was offered the same insurance plan. The court also rejected plaintiff s title III claim against the insurance company. It held that, because the insurer did not deal directly with the plaintiff in issuing the employee coverage, the insurer did not act as a place of public accommodation. The Third Circuit also rejected the Department s argument that title III covers the substance of insurance policies.
NCAA Operates Places of Public Accommodation -- The U.S. District Court for the District of New Jersey ruled that the National Collegiate Athletic Association is a public accommodation covered by title III and refused to dismiss a lawsuit challenging the NCAA s procedures for determining athletic eligibility for student-athletes with learning disabilities. The NCAA has since agreed to modify its policies in another case resolved by a consent decree entered into with the Department of Justice (see "Consent decrees"). The court concluded in Bowers v. National Collegiate Athletic Association that, while the NCAA is not itself a "place" of public accommodation, it "operates" places of
public accommodation such as stadiums and team training, dining, living, playing, practice, and meeting facilities. The Department filed an amicus brief in this case urging the court to find title III coverage.
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OKLAHOMA DISABILITY LAW CENTER, INC.'S SUCCESSFUL TITLE III CASE IN U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
The following summaries from the USDOJ's webpage provide an outline of ODLC's case filed in the United States District Court for the Western District of Oklahoma on behalf of Roger Allen. The United States Department of Justice sought, and obtained, permission to intervene on behalf of ODLC's client in this Title III case. http://www.usdoj.gov/crt/ada/aprjun97.htm, ( Aug 14 1997) http://www.usdoj/gov/crt/foia/adaalph.htm, ( Nov 14 1997) http://www.usdoj.gov/crt/ada/octdec97.htm, ( Apr 24 1998)
Allen v. Russell -- A commercial landlord who allegedly refused to allow removal of architectural barriers and to lease office space to a prospective tenant because of his quadriplegia will pay damages and remove barriers under an agreement with the U.S. Attorney for the Western District of Oklahoma. The Department intervened to support the plaintiff in this suit involving a small commercial office building in Pauls Valley, Oklahoma. The plaintiff alleged that the defendants refused to rent to him, but subsequently leased the premises to a friend of the plaintiff acting as plaintiff's representative. Several days later, however, the landlord allegedly told plaintiff that he would have to move. The plaintiff also alleged that the landlord retaliated against him for exercising his ADA rights, refused to remove architectural barriers, and even prevented the plaintiff from removing barriers at plaintiff's own expense. Under the consent decree the defendants will pay $20,000 to the plaintiff and develop and implement an ADA compliance plan to remove barriers to access.
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Health Care Financing Administration (HCFA) on Durable Medical Equipment (DME) after DeSario v. Thomas
On September 4, 1998 The Health Care Financing Administration issued a letter to all state Medicaid Director's clarifying HCFA policies concerning Medicaid coverage of durable medical equipment (ME) and the use of lists in making such coverage decisions; and contradicting DeSario v. Thomas.
HCFA states that "a ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear in a stare's list, is inconsistent with the federal law . . . In evaluating a request for an item of ME, a state may not use a ‘Medicaid population as a whole' test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of ‘most' Medicaid recipients will not be meet".
The complete letter follows:
DEPARTMENT OF HEALTH HUMAN SERVICES
Health Care Financing Administration
Center for Medicaid and State Operations
7500 Security Boulevard
Baltimore, MD 21244-1850
September 4, 1998
Dear State Medicaid Director:
We have received a number of inquiries regarding coverage of medical equipment (ME) under the Medicaid program in light of the ruling of the United States Court of Appeals for the Second Circuit in DeSario v. Thomas. In that case, the court examined the circumstances under which a State may use a list to determine coverage of ME and offered its interpretation of HCFA's policies. We have concluded that it would be helpful to provide States with interpretive guidance clarifying our policies concerning ME coverage under the Medicaid program and the use of lists in making such coverage determinations. This guidance is applicable only to ME coverage policy.
As you know, the mandatory home health services benefit under the Medicaid program includes coverage of medical supplies, equipment, and appliances suitable for use in the home (42 C.F.R. § 440.70(b)(3)). A State may establish reasonable standards, consistent with the objectives of the Medicaid statute, for determining the extent of such coverage (42U.S.C. § 1396(a)(17)) based on such criteria as medical necessity or utilization control (42 C.F.R. § 440.230(d)). In doing so, a State must ensure that the amount, duration, and scope of coverage are reasonably sufficient to achieve the purpose of the service (42 C.F.R. §440.230(b)). Furthermore, a State may not impose arbitrary limitations on mandatory services, such as home health services, based solely on diagnosis, type of illness, or condition (42 C.F.R. § 440.230(c)). A State may develop a list of pre-approved items of ME as an administrative convenience because such a list eliminates the need to administer an extensive application process for each ME request submitted. An ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above. In evaluating a request for an item of ME, a State may not use a "Medicaid population as a whole" test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the ME context, establishes a standard that virtually no individual item of ME can meet. Requiring a beneficiary to meet this test as a criterion for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or exceptions to a State's pre-approved list. Finally, the process for seeking modifications or exceptions must be made available to all beneficiaries and may not be limited to sub-classes of the population (e.g., beneficiaries under the age of 21).
Page 2 -- State Medicaid Directors
In light of this interpretation of the applicable statute and regulations, a State will be in compliance with federal Medicaid requirements only if, with respect to an individual applicant's request for an item of ME, the following conditions are met:
The process is timely and employs reasonable and specific criteria by which an individual item of ME will be judged for coverage under the State's home health services benefit. These criteria must be sufficiently specific to permit a determination of whether an item of ME that does not appear on a State's pre-approved list has been arbitrarily excluded from coverage based solely on a diagnosis, type of illness, or condition.
The State's process and criteria, as well as the State's list of pre-approved items, are made available to beneficiaries and the public. Beneficiaries are informed of their right, under 42 C.F.R. Part 431 Subpart E, to a fair hearing to determine whether an adverse decision is contrary to the law cited above.
We encourage you to be cognizant of the approval decisions you make regarding items of ME that do not appear on a pre-approved list, to ensure that the item of ME is covered for all beneficiaries who are similarly situated. In addition, your list of pre-approved items of ME should be viewed as an evolving document that should be updated periodically to reflect available technology.
HCFA's Regional Offices will be monitoring compliance with the statute and regulations that are the subject of this guidance. Any questions concerning this letter or the ME benefit may be referred to Mary Jean Duckett of my staff at (410) 786-3294.
Sincerely,
/s/
Sally K. Richardson
Director
cc: All HCFA Regional Administrators
All HCFA Associate Regional Administrators
for Medicaid and State Operations
Lee Partridge
American Health Services Association
Joy Wilson
National Conference of State Legislatures
bcc: HCFA Press Office
CMSO Senior Staff
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ASSISTIVE TECHNOLOGY TASK FORCE MINUTES
Senate Bill 1024
Thursday, September 10, 1998, 1:30 to 4:30, State Capitol
CALL TO ORDER: The meeting was called to order by Linda Jaco.
Senator Mike Morgan and Representative Al Lindley, co-authors of
Senate Bill 1024, opened the meeting with remarks pertaining to the
importance of the legislation and the work which the task force
members have before them to provide recommendations for a statewide
infrastructure of assistive technology.
INTRODUCTIONS
Task Force members introduced themselves and indicated their membership
role. Members present included: Linda Jaco, Mike O'Brien, John
Corpolongo/Misty Kimbrough, Jaimie White, Lynn Mitchell, Steve Stokes,
Dale Lott, Melanie Eick, Jean Jones, Cinda Hughes, Ruby Walker, LaDonna
Bornemann, Marti Ferretti, James Rankin, Bob Utley, Jeffrey Rhoads,
Senator Bernest Cain, Representative Al Lindley, Kathy Leeper for Mike
Ward. Laura Dempsey-Polan joined the meeting while in progress. Guests
present included: Peggy Davis, David Phillips and Susan Zummer. Milissa
Gofourth and Diana Sargent were present as ABLE Tech staff.
REVIEW OF SENATE BILL 1024
Linda Jaco began the discussion by reviewing the four purposes of
SB 1024. ABLE Tech prepared and disseminated binders with resource
information pertaining to each of the four provisions contained within
SB 1024. Additionally, ABLE Tech disseminated copies of OK Funding for
AT to all task force members. Linda explained that these materials were
prepared and disseminated in an effort to provide task force members
with an initial packet of resources which would help them begin their
work.
Jean Jones commented that with the dissemination of the resource
materials prepared by ABLE Tech, it would appear that the work of
the Task Force was complete. She went on to say that she understood
that the laws and policies were in place and yet she knew that
individuals with disabilities in Oklahoma went without needed assistive
technology on a daily basis. Hence, the work of the Task Force was far
from completion and there was much to be done to reduce the system
barriers within the state.
A discussion ensued and several Task Force members contributed pointing
out significant assistive technology barriers in Oklahoma including:
funding, policies, and attitudes. Additionally, task force members
expressed concern over the difficulty which individuals with
disabilities encounter regarding employment opportunities and the costs
associated with equipment, personal care and transportation.
There was a brief discussion about whether the Oklahoma Health Care
Authority is considering the provision of durable medical equipment
(DME) as a benefit for the aged, blind and disabled (ABD) population as
they convert to managed care in 1999. Dr. Mitchell explained that the
Oklahoma Health Care Authority is mandated by the Health Care Finance
Administration (HCFA) to maintain `budget neutrality' with their 1119
waiver, but further explained that actuarial studies are presently being
done by OHCA to determine the ability to add the DME benefit to the
managed care health plan for the ABD population. Additionally, she
explained that the OHCA certainly recognizes and wants to be in a
monetary position to offer a DME benefit for adults over 21 in the same
manner that DME is provided for children through the Early Periodic
Screening Diagnostic and Treatment (EPSDT) program.
Suggestions were made about the idea of passing legislation in Oklahoma
that would allow for tax exemption on the purchase of assistive
technology for individuals with disabilities. Members expressed the
need for ongoing education saying there is no quick fix. Systems change
takes time and must be carefully and thoughtfully planned. The Task
Force needs to use this legislative opportunity as a way to educate the
legislature and make specific recommendations which speak to the
assistive technology needs that will ultimately create a seamless
infrastructure for Oklahoma.
ELECTION OF CHAIRMAN, VICE CHAIRMAN, AND SECRETARY
Senator Cain nominated Linda Jaco as the Chair of the Task Force. Dale
Lott seconded the motion. A brief discussion ensued with Linda
expressing her concerns about accepting the chairmanship. She explained
that had ABLE Tech, as the Tech Project, been able to accomplish the
specific AT provisions laid out in SB 1024 there would not have been the
need for the legislation. She expressed concern in being able to
accomplish the necessary work of the Task Force unless members actively
worked to assist in making a difference.
Jaimie White suggested that it may be appropriate to consider a consumer
in the Chairman role. After a brief discussion, a vote was taken and
Linda Jaco was unanimously elected to serve as the Chair.
Melanie Eick nominated Jean Jones as the Vice Chair. Jean declined
saying her current work load would not afford her the opportunity to
serve as Vice Chair. Representative Lindley nominated Cinda Hughes to
serve as Vice Chair. Mike O'Brien seconded the nomination. A vote was
taken and Cinda was unanimously elected to serve as Vice Chair.
Linda called for nominations for the Task Force Secretary. A brief
discussion ensued with members asking about the responsibilities for the
Secretarial position. Additionally, members asked if Diana Sargent,
Staff Assistant with ABLE Tech, could serve as Secretary. Linda
commented that the law stipulated that the Secretary should be a member
of the Task Force and therefore Diana would be unable to serve as
Secretary. Linda called again for nominations, with no response. It
was decided to revisit the issue of electing a Secretary following
further discussion regarding the frequency of meetings and the
obligations of the position.
SCHEDULE NEXT MEETING DATE, TIME & LOCATION
Linda questioned task force members with regard to the selection of
future meeting dates, time, and place. Suggestions were made and
various individual member's schedules were discussed regarding their
availability. Linda indicated a need to meet at least once monthly for
the remainder of months in 1998 in order that there be enough time to
collect valid information for the preparation of the interim report
which must be submitted to the Governor by December 31, 1998. It was
decided that meetings would be scheduled to occur on the first Friday of
each month from 9:30 AM to NOON. There was a brief discussion regarding
the need to consider a different room that would afford more space and
the opportunity for individuals to see and hear better, should the Task
Force continue to meet at the Capitol. After further discussion
regarding other possible locations within the Oklahoma City area, it was
decided to make an attempt to stay at the Capitol, looking into the
availability of a larger room.
SET TASK FORCE PRIORITIES
Linda asked task force members if they felt it would be helpful to
create a mission statement for the Task Force in an effort to keep the
discussions and work focused and on task with respect to the provisions
of the law. Members agreed. Linda volunteered that she and Cinda and
prepare a draft and bring it to the next meeting for review by all
members.
Linda discussed the need to select working subcommittees. Numerous
ideas and areas of interest were discussed. Eventually, it was decided
to have the following five subcommittees: Independent Living,
Employment, Interagency, Education, and Use/Maintenance. A
subcommittee sign-up sheet was circulated among task force members. All
members selected their subcommittee(s) of choice. It was decided that
Linda would select chairs for each subcommittee and communicate
committee structure to all members during the week of September 14th.
Linda reminded the members that ABLE Tech has a wide variety of
resources from both a national and state perspective regarding systems
change efforts which have been accomplished with regard to assistive
technology. She encouraged members to contact her for information
rather than re-invent the wheel. She made it clear that there was no
shortage on ideas and that much could be accomplished through the work
of the Task Force through the interagency process and with specific
recommendations to the Governor.
Linda asked again if there were any volunteers for the Secretary
position. Laura Dempsey-Polan volunteered to accept the position. The
meeting was adjourned at 4:00 PM.
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LOCATION OF ODLC:
Executive Director: Kayla A. Bower, J.D. (kbower1@flash.net)
Program Coordinator: Janet G. Burns, J.D. (jburns3@flash.net)
Oklahoma City Office
2915 Classen Blvd., Suite 300
Oklahoma City, OK 73106
(405) 525-7755 (v/tdd)
(800) 880-7755 (v/tdd)
(405) 525-7759 (fax)
Tulsa Office
2828 East 51st Street
Interim Building, Suite 302
Tulsa, OK 74146
(918) 743-6220 (v/tdd)
(800) 226-5883 (v/tdd)
(918) 743-7157 (fax)
