Print Friendly VersionNovember 2008 Issue 130
ADVOCACY ACTION NEWS
November 2008, Issue 130
NATIONAL
STATE
LOCAL
LEGAL NOTICE
OTHER LEGAL
WEB RESOURCES
ANNOUNCEMENTS
Monthly News Bulletin Published by IndependenceFirst
SOCIAL SECURITY ANNOUNCES 5.8% BENEFIT INCREASE FOR 2009
Social Security and Supplemental Security Income benefits for more than 55 million Americans will increase 5.8% in 2009, the largest increase since 1982.
The 5.8% Cost-of-Living Adjustment (COLA) will begin with benefits that over 50 million Social Security beneficiaries receive in January 2009. Increased payments to more than 7 million Supplemental Security Income (SSI) beneficiaries will begin on December 31.
[SOURCE: Social Security Administration Press Release(edited)]
WE’VE MOVED!!
In case you haven’t heard, on October 17th, IndependenceFirst moved into our new office at 540 South 1st Street. We are having an open house for the community on November 13th from 2:30-5:30pm. Please feel free to stop by and check out our new digs!
The following message comes Ari Ne'eman, the President of the Autistic Self Advocacy Network (ASAN):
Recently, the organization People for the Ethical Treatment of Animals (PETA) launched a new ad campaign entitled, "Got Autism?", misleadingly implying that the consumption of milk is associated with the cause of the autism spectrum. PETA is misinforming the public about autism and thus joining a long line of unscrupulous groups that have sought to try and spread fear about autism as a means of pushing their particular agendas. Attempts such as these treat individuals with disabilities as pawns in the efforts of other constituencies. By refusing to acknowledge the right of the autistic community to be referred to with respect instead of as the focus of public hysteria, PETA contributes to a state of affairs which marginalizes the disability community. People with disabilities, our families and our supporters deserve better than the exploitation and fear-mongering that comes about when disability is used as a means of scaring the general populace. For millions across the globe, the answer to PETA's "Got Autism?" question is an unequivocal yes. That should not spell the end of our lives or prevent us from being fully included throughout society. By exploiting us, PETA becomes a culprit in the social forces that marginalize people with disabilities and lead to the discrimination and prejudice that truly disable us.
Let PETA know how you feel about its choice to exploit autistic people by writing to them at info@peta.org or call them at 757-622-7382 and dial 0 (v/relay).
Regards,
Ari Ne'eman
President
The Autistic Self Advocacy Network
NATIONAL
MENTAL HEALTH PARITY VICTORY!
After more than a decade of work to end insurance discrimination against Americans with mental illnesses and substance use disorders, full mental health parity has finally become law. The House voted 263-171 to send the historic agreement on mental health parity and other provisions to the President for his signature.
The new federal parity law will—
• End insurance discrimination against mental health and substance use disorder benefits for over 113 million Americans, requiring full parity coverage with physical health benefits.
• Extend to all aspects of plan coverage, including day/visit limits, dollar limits, coinsurance, copayments, deductibles and out-of-pocket maximums.
• Preserve strong state parity and consumer protection laws while extending parity protection to 82 million more people who cannot be protected by state laws.
• Ensure parity coverage for both in-network and out-of-network services.
[The following updates are from “The Capitol Insider,” an elist from the Disability Policy Collaborative (edited)]:
FISCAL YEAR 2009 CONTINUING RESOLUTION
Just before the start of FY 2009 on October 1, President Bush signed into law the FY 2009 Continuing Resolution (CR). The Resolution maintains FY 2008 level funding for all human services programs until March 6, 2009. This action essentially freezes all federal spending for domestic programs for five months.
VICTIMIZATION
Senator Joe Biden introduced the “Crime Victims with Disabilities Act” (S. 3668) on October 1st. The legislation would provide grants to states to facilitate collaboration among the criminal justice system and a range of agencies and other organizations that provide services to individuals with disabilities. In addition to increasing the awareness, investigation, prosecution, and prevention of crimes against individuals with a disability--including developmental disabilities--the legislation would also improve services to those who are victimized.
MEDICAID
The Centers on Medicare and Medicaid Services (CMS) made available to selected disability organizations a draft white paper related to pending proposed changes to the 1915c Home and Community Based Waiver regulation. CMS gave the organizations one week to respond to the planned changes which would begin with an Advanced Notice of Proposed Rulemaking. Two changes are proposed: 1) CMS would allow states to combine targeted groups (aged or disabled or both; mentally retarded or developmentally disabled or both; mentally ill) within one waiver; and 2) strengthen the requirements for providers to allow more choices of housing alternatives in the community and make all the choices truly home and community centered.
CMS published final regulations for the Medicaid Self-Directed Personal Assistance Services Program State Plan Option (Cash and Counseling). The rule allows eligible beneficiaries to purchase personal assistance services as specified in an approved self-directed services plan and budget. Since this is an optional service, states will decide whether to include the program in their state Medicaid plans. The final regulations can be found at: http://edocket.access.gpo.gov/2008/pdf/E8-23102.pdf.
ADOPTION INCENTIVES
The House passed H.R. 6893 on September 17, a bill to expand federal funding for the adoption of special needs children when states increase the adoption rates of such children. Under the bill, adoption support would double from $2,000 to $4,000 (from $4,000 to $8,000 for children over age 9). Relatives who adopt a child would receive the same funding supports as non relatives. New Family Connection Grants would be established to spur foster placements with blood relatives.
NAD MAKES TOUCHDOWN IN GROUNDBREAKING REDSKINS CASE
In an opinion issued on September 30, 2008, a federal district court in Maryland held that the Americans with Disabilities Act (ADA) requires the Washington Redskins “to provide deaf and hard of hearing fans equal access to the aural information broadcast over the stadium bowl public address system at FedExField, which includes music with lyrics, play information, advertisements, referee calls, safety/emergency information, and other announcements.”
The National Association of the Deaf (NAD) and Joseph B. Espo of Brown, Goldstein & Levy, LLP, represent the plaintiffs. The court’s ruling requires that FedExField, the home of the Washington Redskins, must provide auxiliary aids and services to make the game-day experience fully accessible for deaf and hard of hearing fans.
“The court’s decision marks a significant victory for plaintiffs and the deaf and hard of hearing community,” said Marc Charmatz, NAD Senior Attorney. “The ADA applies to stadiums, and now a court, for the first time, has recognized that deaf and hard of hearing fans have a legal right to equal access at stadiums.”
The Court held that one disputed fact remained in the case – whether captions displayed on the 50-yard line were effective for audiovisual presentations displayed on JumboTrons located in the end zones. The NAD is confident that this matter will be brought to a successful closure.
[SOURCE: NAD elist (edited)]
STATE
GOVERNOR WARNS OF $3 BILLION BUDGET DEFICIT
Gov. Jim Doyle said he hopes the current budget bill (ending June 30, 2009) will get the state through the current biennium. However, he added that if the current economic situation continues to decline, there could be as much as a $200 million deficit in the current budget. The governor went on to say that there is a looming budget deficit for the next budget (2009-2011) – possibly $3 billion or more. He has ordered state agencies to submit new 2009-2011 budget requests with 10% cuts in spending. According to Gov. Doyle, department cuts could include layoffs and “deep cuts in some spending programs.” Doyle said his goal is to balance the budget without major tax increases but did single out the hospital assessment as a place the state could go to increase revenues.
BADGERCARE PLUS IN THE WINGS
The Doyle Administration is awaiting federal approval for an expansion of the BadgerCare Plus program that would include low-income adults who do not have dependent children younger than 19 living with them (a/k/a “childless adults”). Insiders believe Wisconsin will get the green-light from the feds in November. Called “BadgerCare Plus Core Plan,” the program could cover between 40,000 and 50,000 individuals, providing them with basic health care services, including primary and preventive care as well as generic drugs. The BadgerCare Plus Core Plan would begin enrolling eligible recipients statewide in April. Adults who would be eligible for the plan could earn up to 200% of the federal poverty level each year. Currently, this is $20,800 for a single person and $28,000 for a married couple. The new program would be available for adults who were previously not eligible to enroll in state and federal health programs. The Department of Health Services estimates the cost of the program for the balance of this fiscal year at less than $8 million GPR. The DHS base estimate is about $18 million GPR in Fiscal Year 2010.
[SOURCE: Essie Kammer Group Capitol Connector (edited)]
QUOTE OF THE MONTH
“Strength does not come from physical capacity. It comes from an indomitable will.” — Mahatma Gandhi
LOCAL
STRATEGIES TO OVERCOME PREDATORY PRACTICES (STOPP)
As the number of foreclosures continues to skyrocket, the Metropolitan Milwaukee Fair Housing Council (MMFHC) continues its work to help homeowners keep their homes and to create policies and programs that will prevent future toxic loans and the resulting board-ups that often follow.
STOPP staff conduct intake, review documents and provide assistance to borrowers seeking loans, as well as to those who may be facing foreclosure. Those facing foreclosure receive information on the process, timing of foreclosure, and options for taking action to avoid the loss of their home. STOPP staff will assess the borrower’s financial condition and coordinate a plan to help the client address that situation. Those who need intensive credit counseling will be referred to partner organizations for help with establishing a budget and cleaning up their credit. Depending on the specific circumstances, borrowers will receive assistance in negotiating with their existing lender or identifying a new lender who can provide an affordable home loan suitable for the borrower’s circumstances, and/or receive assistance pursuing legal options or filing complaints with regulatory agencies.
In addition to providing direct assistance to borrowers, STOPP’s Fair Lending Service Administrator and Coordinator coordinate with other STOPP staff and partners to educate people facing default, and those considering refinancing or home equity loans.
STOPP is beginning to serve an expanded geography and clientele. MMFHC’s new Fair Lending Services Coordinator is fluent in Spanish, enabling them to more fully serve borrowers who feel more comfortable speaking in Spanish. Until recently, STOPP’s borrower assistance served Milwaukee County, but they are expanding services to cover Waukesha, Ozaukee, Washington, Dane, Brown, Calumet, Outagamie and Winnebago Counties as well. MMFHC has identified legal and counseling agencies in those areas, to provide referrals and supplementary help.
Milwaukee area borrowers with questions about loans and foreclosures should call the STOPP hotline: (414) 278-9190 (v/relay). Those outside of the Milwaukee area, or Spanish-speakers should call Letty at (414) 278-1240, x16 (v/relay). To schedule a presentation for your group, or for more information about STOPP, contact Bethany Sanchez at (414) 278-1240, x22 (v/relay)
LEGAL NOTICE
ATTENTION: LEGALLY BLIND INDIVIDUALS IN THE UNITED STATES WHO HAVE ATTEMPTED TO VISIT TARGET.COM SINCE FEBRUARY 7, 2003 YOU MAY HAVE A CLAIM UNDER THE SETTLEMENT DESCRIBED BELOW ----READ THIS NOTICE AND FOLLOW THE INSTRUCTIONS CAREFULLY---
BACKGROUND
This notice is to inform you of a class action settlement in the case of National Federation of the Blind v. Target Corp. (Case No. 06-01802 MHP), pending in the United States District Court for the Northern District of California before the Honorable Marilyn Hall Patel. The case was brought on behalf of legally blind individuals who have encountered access barriers on Target.com. It alleged that defendant Target Corporation (“Target”) violated U.S. and California law in designing and maintaining its website, Target.com (“the website”), such that blind visitors could not acquire the same information and engage in the same interactions as sighted visitors to the website. Target denies all liability and the case has been vigorously contested. On October 2, 2007, Judge Patel certified a nationwide class under the Americans with Disabilities Act and a California class for claims under two California civil rights statutes. This case has now settled. The Court has granted preliminary approval of the settlement and has scheduled a hearing on January 26, 2009 to determine whether to grant final approval.
SUMMARY OF THE CLASS ACTION SETTLEMENT
The class action settlement calls for Target to ensure that the Target.com website is accessible such that blind visitors to the website acquire the same information and engage in the same interactions with substantially equivalent ease of use as sighted visitors to the website. Pursuant to the settlement agreement, Target and the National Federation of the Blind (“NFB”) are working together to make the website accessible under that standard.
Under the settlement agreement, NFB and Target have specified testing protocols to be used by NFB to monitor the website’s continuing accessibility to blind visitors. The settlement allocates funds for NFB to monitor the website and notify Target if it identifies any concerns regarding the accessibility of the website. The settlement also allocates funds for NFB to provide periodic accessibility training to Target employees responsible for coding the website.
Additionally, the settlement includes a six million dollar ($6,000,000) fund to be used to pay valid claims submitted by members of the damages subclass who are legally blind individuals in California who attempted to access the goods and services offered on Target.com with screen-reader software and encountered access barriers. Members of the damages subclass will be entitled to make up to two (2) claims, each worth $3,500. If the total number of valid claims exceeds the settlement fund, each claim will be reduced pro rata. If there is money left over after payment of all valid claims, the left over funds will be donated to the Braille Institute of America and Recordings for the Blind and Dyslexic.
OPTIONS FOR MEMBERS OF THE NATIONWIDE CLASS: If you are a legally blind individual who has attempted to access Target.com since February 7, 2003 you have two options concerning the settlement:
1. You may do nothing and be bound by the terms of the settlement; or
2. You may object to the settlement, in which case you must follow the procedures set forth below.
Please note that should the settlement be approved, all members of the nationwide class will be bound concerning the terms of the settlement relating to the accessibility of the website.
FURTHER INFORMATION
If you want a copy of the proposed settlement agreement or related documents, you can find these documents online at www.nfbtargetlawsuit.com. You may also contact class counsel at the following addresses:
Larry Paradis
Disability Rights Advocates
2001 Center Street, Fourth Floor
Berkeley, CA 94704
Joshua Konecky
Schneider Wallace Cottrell Brayton Konecky LLP
180 Montgomery Street, Suite 2000
San Francisco, CA 94104
Dan Goldstein
Brown Goldstein & Levy LLP
120 East Baltimore Street, Suite 1700
Baltimore, MD 21202
Counsel for Target may be contacted at the following address:
Matthew I. Kreeger
Kristina Paszek
Morrison & Foerster
425 Market Street
San Francisco, CA 94105
The Settlement Agreement and claim form documents are available from the Claims Administrator and class counsel in multiple accessible formats. Alternatively, you may inspect the Court’s files during business hours at the office of the Clerk of the Court, United States District Court, 450 Golden Gate Avenue, in San Francisco, California, 94102. The case caption is National Federation of the Blind v. Target Corp. (Case No. 06-01802 MHP). Please do not call the Judge or the Court Clerk.
OTHER LEGAL
EEOC NOTICE CONCERNING THE AMERICANS WITH DISABILITIES ACT (ADA) AMENDMENTS ACT OF 2008
On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of the Equal Employment Opportunity Commission's (EEOC) ADA regulations. The Act retains the ADA's basic definition of "disability" as “an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.” However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:
• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
• the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
• the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions);
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability";
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
• emphasizes that the definition of "disability" should be interpreted broadly.
EEOC will evaluate the impact of these changes on its enforcement guidances and other publications addressing the ADA. Effective Date: The ADA Amendments Act is effective as of January 1, 2009 http://www.eeoc.gov/ada/amendments_notice.html
Groundbreaking Settlement Agreement
In September, a federal district court granted final approval of the settlement agreement in the civil rights class action filed to prevent unnecessary institutionalization of people with disabilities at Laguna Honda Hospital in San Francisco.
The lawsuit was brought in the Northern District of California by six individual plaintiffs who are or were residents of Laguna Honda, as well as the Independent Living Resource Center of San Francisco (ILRCSF) as organizational plaintiff.
Among its many provisions, the agreement creates an innovative program to coordinate services across city departments, enabling San Franciscans with disabilities who live at, or are referred to, Laguna Honda, to instead receive community-based housing and services. Eligible individuals will be assessed for, referred to, and provided with subsidized housing, attendant and nursing care, case management, substance abuse treatment, mental health services, and assistance with meals.
In addition, several hundred Medi-Cal Home and Community-Based waiver slots, which allow people to receive long-term health care in their homes instead of in institutions, will be made available to those who qualify. These waivers should bring millions of dollars in federal and state Medicaid funding to San Francisco.
Another exciting and innovative aspect of the agreement is the development of a rental subsidy program, through which San Francisco will, over the next five years, secure and subsidize scattered-site, accessible, independent housing for approximately 500 people with disabilities and seniors who are eligible for community-based services.
To review the entire Settlement Agreement, please visit http://www.pai-ca.org/news/lhh/index.htm
MAN WITH QUADRIPLEGIA SETTLES CASE FOR NEEDED HOME CARE
Judge Thomas Coffin signed a Final Order and Judgment, adopting a Settlement Agreement between Clay Freeman and the Oregon Department of Human Services. As a result of a diving accident 12 years ago, Mr. Freeman, now 34, is paralyzed from the neck down and requires a ventilator to breath. He has relied upon in-home services, funded through Oregon’s Home and Community-Based Medicaid Waiver, which allows him to live at home and avoid institutional care that is both more restrictive and more costly. Freeman’s in-home care was threatened when the state would not pay for the level of care he needs.
Under the terms of the Settlement Agreement:
• Mr. Freeman’s four homecare workers will be paid $3/hr more than the union rate for other homecare workers;
• New workers will receive training from a contract Registered Nurse;
• Mr. Freeman’s experienced homecare workers will be paid for helping his new caregivers learn other medical procedures; and
• A respite plan will be developed to prevent a repeat of the crisis that led to the emergency filing of this case. In June, Mr. Freeman was down to only two caregivers who would work for the wages available.
Under this settlement, Mr. Freeman will have a full staff of trained caregivers and will be able to return to college to complete his bachelor’s degree. He will have backup caregivers in place so that if a worker is ill or takes a vacation, Mr. Freeman will not be endangered. This is essential because no facility will take Mr.
Freeman on a short term basis unless he has a medical crisis requiring hospitalization. His only alternative to
home care is long-term placement in an adult foster home, where his ability to lead his active daily life would end. The Court will retain continuing jurisdiction over the case to enforce the terms of the Settlement Agreement.
WEB RESOURCES
The National Network of Disability and Business Technical Assistance Centers (DBTAC) ADA Centers announced its 2008-2009 ADA Audio Conference Series Schedule. You can view it on-line at www.ada-audio.org The schedule this year offers a host of topics including a 4 part series on employment, Title II obligations for Emergency Preparedness and Public Rights Of Way, an update on the regulations for Section 508 (Information Technology) of the Rehabilitation Act of 1973 and Section 255 of the Telecommunications Act and many other topics of interest. In addition to the regularly monthly schedule, there will be at least two special sessions held on the ADA Amendments Act of 1990 (to be scheduled) as well as the Final Regulations under Title II and Title III (to be scheduled).Go to www.ada-audio.org and "click" on ADA Audio Conference Series to view the complete schedule for 2008-2009. Questions regarding the series should be directed to gldbtac@uic.edu or by phone at (877)ADA-1990 or (877)232-1990 (V/TTY).
The Disability and Business Technical Assistance Centers (DBTAC)-Great Lakes ADA Center announced its 2008-2009 schedule for a Legal Webinar Series on Employment issues. Sessions use a web-based conferencing system and are fully accessible through use of on-line real-time captioning. The cost of the program depends on the type of entity registering but ranges from $50.00-$100 per connection. Topics in the six part series include the Interplay between the ADA and FMLA, Disparate Impact versus Disparate Treatment, Legal Update on Major Life Activities, Legal Update on Title III case law, and Pretext cases. If you have questions regarding the program please contact them at gldbtac@uic.edu or call their toll free number at 877-ADA-1990 (V/TTY) or 877-232-1990 (V/TTY).
ANNOUNCEMENTS
DISABILITY ETIQUETTE BOOKLET
Disability Etiquette, an illustrated, 36-page booklet full of valuable tips on interacting with people who have disabilities, is an excellent resource. This useful booklet, which is also available in Spanish, is published by United Spinal Association, a national nonprofit membership association for people with spinal cord disorders.It can be downloaded for free at the United Spinal website: http://www.unitedspinal.org/publications
Disability Etiquette covers basic interaction principles that apply to most people with disabilities on a broad level and includes detailed information on many specific types of disabilities, including mobility and sensory impairments, developmental and psychiatric disabilities, HIV/AIDS, learning disabilities, Tourette syndrome and many others. For more information, please visit http://www.unitedspinal.org/ or call (800) 404-2898 (v/relay).
NOMINATIONS BEING ACCEPTED FOR THE 2009 VOICE AWARDS
The Voice Awards honor writers and producers who incorporate dignified, respectful, and accurate portrayals of people with mental illnesses into film and television productions. The awards also recognize consumer leaders who inspire us with their contributions toward promoting the social inclusion and recovery of people with mental health problems. If you know of a film or TV show that was released after October 1, 2007, and depicts people with mental health problems in a dignified, respectful, and accurate way, please nominate it for a 2009 Voice Award.
Similarly, if you know of mental health consumers who have led efforts to promote social inclusion, demonstrated that recovery is real and possible, and made a positive impact on their workplaces, communities, and/or schools, please nominate them for a 2009 Consumer Leadership Voice Award. Additional consideration will be given to nominees who have made a positive impact within special populations such as culturally diverse groups, young adults ages 18 to 24, and those who have worked to prevent suicide. Nominations are open to anyone, are free, and there is no limit to the number an individual can submit.
-Entertainment industry nominations will remain open until March 15, 2009.
-Mental health consumer nominations will remain open until May 15, 2009.
WI LIBRARY FOR THE BLIND
The Wisconsin Regional Library for the Blind and Physically Handicapped, part of the Talking Book Program of the Library of Congress, provides Braille and recorded books and playback equipment for those Wisconsin residents who for any physical reason cannot read normal print. Wisconsin residents who have one or more of the following reading disabilities, as certified by a competent authority, are eligible for free library services from the Wisconsin Regional Library for the Blind and Physically Handicapped:
• Visual Disability: Inability to read standard print materials without special aids or devices other than regular glasses.
• Legal Blindness: Legal blindness is defined as having no more than 10% of normal vision in the better eye with maximum correction.
• Physical Disability: Inability to read standard print materials as a result of physical limitations, e.g., paralysis, missing arms or hands, multiple sclerosis, cerebral palsy, spina bifida.
• Reading Disability: Organic dysfunction of sufficient severity as to prevent reading in a normal manner, as certified by a physician.
Services are also available to schools, hospitals, nursing homes and other institutions which serve people with qualifying disabilities. In Milwaukee call: 286-3045 (v/relay). Elsewhere in Wisconsin call: 1-800-242-8822 (v/relay). E-mail to lbph@milwaukee.gov
Advocacy Action News is published by IndependenceFirst on or about the 1st of each month. Submissions of articles are due by the 15th of each month prior to publication. For consideration, send your articles or announcements to the Editor, Karen Avery, via e-mail to kavery@independencefirst.org.
Advocacy Action News is available by request in alternative formats such as Braille, large print, on disk or audiotape. It is also made available via our website. You may also receive Advocacy Action News via email instead of print copy. Contact Karen at 414-291-7520 (V/TTY) or kavery@independencefirst.org If you do not have access to the internet, and would like assistance in obtaining any of the internet-based items described in this news bulletin, please contact Karen at 414-291-7520 (V/TTY).
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