Are You Planning To Go To A Red Cross Shelter? Concerns of People With Disabilities

DOJ: Assistance with Transfer in a Shelter

DOJ: Shelter worker helps a person onto a cot using a portable lift provided by the shelter

Diagram of a Shelter in which beds are provided to people in wheelchairs. From A DOJ Technical Assistance Document.

As we undergo yet another hurricane season in Florida, people with disabilities are increaasingly worried. Do the Offices of Emergency Management in Florida comply with the mandates of the ADA? Does the Red Cross?


If you use a wheelchair, and plan to shelter at a Red Cross shelter, will you be able to get the services to which you are entitled?

According to the Justice Department: "Historically, great attention has been paid to ensuring that those shelters are well stocked with basic necessities such as food, water, and blankets. But many of these shelters have not been accessible to people with disabilities. Individuals using a wheelchair or scooter have often been able somehow to get to the shelter, only to find no accessible entrance, accessible toilet, or accessible shelter area."

While not all shelters have to be accessible (under title II of the ADA), those that are accessible should be identified as accessible:

DOJ: "Until all of your emergency shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area; you should identify and widely publicize to the public, including persons with disabilities and the organizations that serve them, the locations of the most accessible emergency shelters."

The Department of Justice says: "In some instances, people with disabilities have been turned away from shelters because of volunteers’ lack of confidence regarding the shelter’s ability to meet their needs. Generally, people with disabilities may not be segregated or told to go to “special” shelters designated for their use. They should ordinarily be allowed to attend the same shelters as their neighbors and coworkers."

Should the Red Cross provide beds in a reasonable number of shelters, to people in wheelchairs, as a reasonable modification of policy? Yes. Look at the drawing, (reproduced above), from the Justice Department's technical assistance material, in which an individual in a wheelchair is provided a bed that is at an accessible height.

Should assistance in transferring be provided? Yes, as a reasonable modification of policy, at a reasonable number of shelters. (See DOJ drawing, above).

Providing this assistance is the responsibility of the local Office of Emergency Management, as part of their title II responsibilities under the ADA. In addition, the Red Cross is required by title III to ensure that this service is provided. Both entities can be liable for the failure to ensure that this assistance is provided,

If you have comments, questions, or concerns, please contact Marc Dubin, Esq., at mdubin@pobox.com.

The views expressed above are those of the author, and do not represent the Florida Bar.

The author serves as Co-Chair of the Disability Law Committee, and served as a Senior Trial Attorney at the Justice Department from 1992-2005, in the Disability Rights Section of the Civil Rights Division, in Washington, D.C. In that capacity, he was responsible for nationwide enforcement of the ADA on behalf of the United States.


To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

Special Education Law Discriminates against Children with Surgical Implants

The Individuals with Disabilities Education Improvement Act denies services to children with disabilities who have cochlear implants or other surgically implanted devices. The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that as of 2005 approximately 15,000 children in the U.S. have cochlear implants, and with the advancement of bio-technology, the number is rapidly growing. A leading scientific report states: "Cochlear implants could potentially affect the auditory rehabilitation of an estimated 200,000 United States children with advanced levels of deafness . . ."

What are cochlear implants? They are not hearing aids. NIDCD states: "Hearing aids amplify sounds so they may be detected by damaged ears. Cochlear implants bypass damaged portions of the ear and directly stimulate the auditory nerve." The NIDCD describes the implant as having "an external portion that sits behind the ear and a second portion that is surgically placed under the skin."

The Act excludes surgically implanted medical devices as "related services" or as a "assistive technology device." The Act reads: "The term does not include a medical device that is surgically implanted, or the replacement of such device." Related services are the variety of services that the Act requires schools to provide children "to benefit from special education." What is the difference if a medical device is above the skin or below the skin? If a non physician can provide the service, anatomical topography, the location of the device, should not be relevant to whether the service is a related service. Nevertheless, the Act excludes services required for children with surgical implants as a related service.


To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

U.S. Access Board: Advisory Committee Presents Report on Courthouse Access

The Courthouse Access Advisory Committee, which the Board organized to promote accessibility in the design of court facilities, presented its recommendations at a meeting of the Board on November 15. The Committee’s report provides design guidance and best practice recommendations for achieving access in courthouses, including courtrooms. It also includes outreach and educational strategies for disseminating this information most effectively to various audiences.

Over the course of its two-year charter, the Committee examined design issues in depth, toured different types of courthouses across the country, and crafted solutions that ensure access without compromising traditional features essential to courthouse design.

A leading focus of the Committee was access to courtrooms, which feature a variety of elevated spaces, including witness stands, jury boxes, and judges’ benches. The report includes detailed recommendations on providing access to these and other courthouse spaces. This guidance is applicable to all types of courthouses at all levels of government. While focused on the design of new facilities, the report also can be used as a resource in the retrofit of existing facilities.

The Committee’s 35 members included courthouse architects, disability groups, members of the judiciary, court administrators, representatives of the codes community and standard-setting entities, government agencies, and others with an interest in the issues to be explored. Committee representatives, including Co-Chairs Eve Hill of the Disability Rights Legal Center and Sam Overton, Deputy Attorney General for the State of California, outlined key findings and recommendations of the report in a presentation to the Board.

Access to courthouses remains a problem, even in the design of new facilities, due to a lack of information and awareness. Design features essential to courthouses, particularly courtrooms, pose challenges to access that are not adequately addressed by existing resources. The Committee’s report, according to Board Chair and Deputy Administrator of the General Services Administration (GSA) David L. Bibb, promises to positively influence the next generation of courthouses by demonstrating how access for all users can be easily met. “I am confident, thanks to the work of this Committee, that future courthouses will fulfill the promise that justice for all means access for all,” Bibb noted.

The Committee’s recommendations will supplement accessibility guidelines the Board maintains under the Americans with Disabilities Act and the Architectural Barriers Act. Although these guidelines contain provisions specific to courtrooms, many have sought further guidance on how access can best be achieved. The report also contains an outreach and education plan for the Board’s use in disseminating this new guidance and promoting greater awareness.

The Committee held meetings in Phoenix, Chicago, San Francisco, Miami, Boston, and Washington, D.C. In developing its recommendations, the Committee followed a consensus-based model according to protocols governing Federal advisory committees. Three subcommittees organized by the Committee covering courtrooms, courthouse spaces other than courtrooms, and education and outreach met extensively in between quarterly committee meetings.



Courtroom Mock-Up
In addition to receiving the Committee’s report, the Board visited a full-scale courtroom mock-up organized by GSA and the Administrative Office of the U.S. Courts (AOC). The mock-ups, which were based on sample courtroom plans prepared by AOC, provided a means to test and evaluate some of the Committee’s recommendations. Board and Committee members toured a mock-up of a standard district courtroom, which was reconfigured to represent a special proceedings courtroom.

Report Highlights
The Committee’s report includes recommendations that address:

Integrating accessibility into all stages of courthouse design and planning;
Courthouse and courtroom entrances, including automated devices that facilitate access through heavy or monumental doors;
Access solutions to judges’ benches that preserve the security and dignity afforded justices;
Effective and economical solutions for providing access to raised witness stands, jury boxes, and clerks’ stations without disruption to court proceedings;
Assistive listening technologies that discretely enhance audio output for people who are hard of hearing;
Wheelchair seating in spectator areas;
Incorporating access solutions into standard design plans for various types of courtrooms, including jury, bankruptcy/ hearing, magistrate, appeals, special proceeding;
Signage and wayfinding systems that facilitate access throughout courthouses for people with vision impairments;
Counters and other elements of public service areas;
Jury deliberation rooms and jury assembly rooms;
Secured areas, including judges’ chambers and suites;
Holding cells serving courtrooms; and
Outreach and education strategies for disseminating this information and raising awareness.

Further information on the committee is available on the committee page.



To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

Are You a Boater? DOT Seeks Comment on New Regulations for Vessel Operators

The U.S. Department of Transportation has proposed new regulations under the Americans with Disabilities Act (ADA) to ensure access to vessels for passengers with disabilities. Published on January 23, the proposal, which is available for public comment for three months, ensures access to programs and services provided by vessel operators and prohibits discriminatory practices and policies. The regulations would apply to vessels of all types and sizes that provide transportation or other services to the public, including cruise ships, ferries, water taxis, gaming and excursion boats and other types of craft.

The rule bans practices that discriminate on the basis of disability, such as denial of service, program restrictions, and price discrimination, and specifies conditions upon which certain policies, such as advance notice of the need for accessible accommodations, would be considered acceptable. It also covers responsibilities for ensuring access to vessel services and programs, including accommodation of mobility aids, assistive devices and service animals, as well as access to landside facilities serving vessels, such as terminals and floating docks. The rule highlights certain issues and questions where public feedback is sought. Comments on DOT’s rule are due by April 23, 2007. Additional information, including received comments, is posted on DOT’s site at http://dms.dot.gov/reports/fr.htm (see “ADA - Passenger Vessels” under the heading “OST”).

The proposed rule does not include design requirements for vessels, which are currently under development by the Board. As explained in the notice, DOT plans to incorporate the Board’s future guidelines for vessels into its rule. The Board is preparing a proposed version of the guidelines that will be published for public comment at a future date.

Comments are due by April 23rd.


To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

Should Parents Be Allowed to Represent Themselves and Their Children to Enforce IDEA Rights?

NCD Speaks Out on Supreme Court Winkleman v. Parma City School District Case
NEWS RELEASE

NCD #07531
February 26, 2007
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY

National Council on Disability Speaks Out
on Supreme Court Winkleman v. Parma City School District Case

WASHINGTON, D.C. National Council on Disability (NCD) chairperson John R. Vaughn today released the following statement regarding the United States Supreme Court oral argument, which will be heard on February 27, on whether parents may, without a lawyer (pro se), file a lawsuit to enforce their child's rights under the Individuals with Disabilities Education Act (IDEA).

The case of Winkleman v. Parma City School District (No. 05-983) addresses a split among circuit courts, one circuit deciding that there are no limitations on the parents' ability to prosecute pro se an IDEA case in federal court, several circuits ruling that under IDEA parents can only represent pro se their own interests and not those of their child, and the Sixth Circuit said in Winkleman that parents cannot represent themselves or their kids in court under IDEA.

As an independent federal agency that is statutorily charged with the responsibility of promoting disability laws and programs, NCD is concerned about maintaining the ability of parents to obtain the rights and benefits guaranteed to their children under IDEA.

Jacob Winkleman is a student with autism whose parents disagreed with the school district's individualized education program (IEP) for Jacob. After administrative hearings affirmed the IEP, Jacob's parents chose to place him in a private school at their own expense and petitioned a federal district court for reimbursement.
The district court denied their request. At that point, the Winklemans had spent three years and $30,000 in legal fees on a household income of less than $40,000 per year. When the Winklemans appealed the federal district court decision, they sought to argue the case themselves because they could no longer afford legal representation. The U.S. Court of Appeals for the Sixth Circuit dismissed the suit finding that IDEA does not expressly provide for the right of a parent to represent the interests of his/her child in federal court. The circuit court also ruled that non-lawyer parents cannot represent themselves either, because IDEA provides for the rights of the child, not the parents. Based on the circuit court holding, the Cleveland Bar Association initiated an investigation into whether the Winklemans engaged in the unauthorized practice of law in attempting to pursue the matter in federal court.

At stake is the extent of access to IDEA rights and protections for seven million children and youth with disabilities. NCD affirms that in the nearly three decades that NCD has monitored IDEA, it is clearly established that parents are a main enforcement vehicle for ensuring compliance with IDEA. The statutory scheme of IDEA makes parental involvement and access to legal services integral to the protection of a child's rights under IDEA. In conducting its series of evaluative studies on education, NCD has consistently received reports from parents about their inability to find or afford lawyers to assist them with receiving the full benefits of IDEA for their children. NCD also has found through its research that families with children with disabilities are overrepresented among poor populations. NCD notes that there is a severe shortage in Ohio of attorneys with expertise in IDEA, and that the Ohio Legal Rights Service accepts a small percentage of requests by families for legal representation. Thus, it is critical to maintain the ability of parents like the Winklemans to pursue on their own legal recourse if they disagree with administrative decisions regarding the education of their child and cannot find or afford an attorney.
NCD also appreciates the position of the U.S. Solicitor on the matter, who has submitted a brief to the U.S. Supreme Court arguing that the Sixth Circuit holding is "inconsistent with the plain language, structure, and purposes of IDEA."

NCD urges that the resolution of the Winkleman case give full effect to the educational guarantees of IDEA by supporting the rights of parents to pursue the interests of their children regardless of whether they have a lawyer to assist them.

Recent NCD information regarding IDEA issues includes the
following:

Individuals with Disabilities Education Act Burden of Proof: On Parents or Schools?
www.ncd.gov/newsroom/publications/2005/burdenofproof.htm

Lessons for All of Us: Protecting the Right to Education for Persons with Disabilities, www.ncd.gov/newsroom/publications/2005/lessons.htm

Improving Educational Outcomes for Students with Disabilities, www.ncd.gov/newsroom/publications/2004/educationoutcomes.htm

People with Disabilities and Postsecondary Education, www.ncd.gov/newsroom/publications/2003/education.htm

People with Disabilities on Tribal Lands: Education, Health Care, Vocational Rehabilitation, and Independent Living, www.ncd.gov/newsroom/publications/2003/tribal_lands.htm

School Vouchers and Students with Disabilities, www.ncd.gov/newsroom/publications/2003/vouchers.htm

Individuals with Disabilities Education Act Reauthorization: Where Do We Really Stand?
www.ncd.gov/newsroom/publications/2002/synthesis_07-05-02.htm
and Back to School on Civil Rights,
www.ncd.gov/newsroom/publications/2000/backtoschool_1.htm

For more information, contact Mark Quigley or Jeff Rosen at
202-272-2004 or 202-272-2074 TTY.

# # #

Note: NCD is an independent federal agency making recommendations to the President and Congress to enhance the quality of life for all Americans with disabilities and their families.


Source: Mark S. Quigley
Director of Communications
National Council on Disability
1331 F Street, NW Suite 850
Washington, DC 20004
________________________________________________________________

For more education news issues, see:
http://www.aapd.com/News/education/indexeducation.php







To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

Patients With Psychiatric Disabilities and Strip Searches

Lawsuit filed over forced strip search
(August/September 2006 Issue)


By Pamela Berard

A 50-year-old Massachusetts woman with psychiatric disabilities filed a federal lawsuit against Beth Israel Deaconess Medical Center in June, alleging she was forcibly undressed by five male security guards last year during a visit to the emergency department for migraine treatment.

Cassandra Sampson, who says she pleaded to keep her pants on because of a history of sexual abuse, charges she was physically bruised, emotionally devastated and became suicidal after the incident.

The lawsuit seeks more than $1 million in damages and a change in the hospital policy regarding disrobing of people with psychiatric disabilities, in particular, forcible stripping by security guards.

According to the lawsuit, Sampson went to Beth Israel's Emergency Department on March 22, 2005, for migraine treatment at the referral of her primary care physician. Sampson, who has a history of self-injury, was moved to the psychiatric portion of the department after admitting to a triage nurse that she had struggled with safety issues, although she was not suicidal, did not have any desire to injure herself and had never attempted to injure herself in an emergency department.

The lawsuit alleges the nurse asked her to completely disrobe prior to her psychiatric evaluation. Sampson said she asked to keep her pants on.

"(Sampson) offered to take off her shirt, her shoes and give them her purse," explains Susan Stefan, a lawyer for the Center for Public Representation, and one of the lawyers representing Sampson. "She did submit to a thorough pat down with security guards present, which found nothing." She also repeatedly asked for a patient advocate, and even though one was on the premises, she was denied that request, Stefan says.

Sampson alleges she was forcibly stripped by five male security guards as she cried out that she was being raped and sobbed.

Jerry Berger, director of media relations for Beth Israel Deaconess Medical Center, says the center has decided to refrain from any comment on this pending legal matter.

Stefan says the policy that mandatory disrobing is expected of patients on the psychiatric unit is discriminatory under the Americans with Disabilities Act, by treating people with psychiatric disabilities disadvantageously with exaggerated fears.

"In most cases, the only increase is the psychiatric crisis. It increases the chance of injuries to others, it increases the chance of danger to the patients themselves and many hospitals don't do this without compromising patient safety," Stefan says. "One of our messages is that what hospitals believe increases safety isn't really what feels safe to patients when it comes to having to take their clothes off. Many, many people with psychiatric disabilities have histories of terrible sexual abuse, like our client. And she felt like she was being raped."

Stefan has written a book, "Emergency Department Treatment of the Psychiatric Patient: Policy Issues and Legal Requirements."

"We did a survey for this book, and mandatory disrobing was a huge issue in response to our survey," she says.

"We're very sympathetic" to hospitals, Stefan said. "I want to be very clear; we understand that hospitals need to be safe places.

"Our contention is that doing this makes hospitals less safe. I think they do it with the best of intentions, but I don't think that they understand that for example, stripping a struggling patient is a recipe for injury."

"We're not arguing for a policy that would ban request for clothing removal," she adds. "We're only saying that before you require a person with psychiatric disability to remove his/her clothing or forcibly remove the clothing, there should be a thorough assessment by a psychiatric professional that documents that the risk involved in allowing the patient to keep her clothes is greater than the risk to the patient and others by forcibly stripping.

"As a general matter, those kinds of experiences in emergency departments of being stripped haunt women and increase their chances of self-injury," Stefan says.

Mary Jean Murk, director of psychiatric central services for Maine Medical Center, says its center's general practice is to request patients (psychiatric or not) put on a patient gown in the emergency department. However, she says the policy is currently in the modification phase. She says some consumers had stated concern about the policy. "We're trying to maintain the same level of safety and not have to get into change or not change into gowns," she says.

In any case, "We would not force somebody to change. If we were worried about weapons or other things we would deal with (those issues), not with the changing of the clothes," she says.

Joyce Brennan, media relations coordinator of Southcoast Health System, which has hospitals in the Massachusetts communities of New Bedford, Fall River and Wareham, says patients who go to the emergency department are asked to put on a patient gown only if it's appropriate to their care. "For example, a hand injury probably would not require wearing a patient gown, but an abdominal complaint would," she says.

"If the patient is not comfortable with putting the gown on the health care provider would work toward a comparable solution," she says.





To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

What Kinds of Questions Are Prohibited During a Job Interview?

From the EEOC:

The ADA prohibits employers from asking questions that are likely to reveal the existence of a disability before making a job offer (i.e., the pre-offer period). This prohibition covers written questionnaires and inquiries made during interviews, as well as medical examinations. However, such questions and medical examinations are permitted after extending a job offer but before the individual begins work (i.e., the post-offer period).


Here are some examples of questions that an employer cannot ask on an application or during an interview:

Do you have a heart condition?

Do you have asthma or any other difficulties breathing?

Do you have a disability which would interfere with your ability to perform the job?

How many days were you sick last year?

Have you ever filed for workers' compensation?

Have you ever been injured on the job?

Have you ever been treated for mental health problems?

What prescription drugs are you currently taking?

May the employer ask me these questions after making a job offer?

Yes. An employer can ask all of the questions listed above, and others that are likely to reveal the existence of a disability, after it extends you a job offer as long as it asks the same questions of other applicants offered the same type of job.

In other words, an employer cannot ask such questions only of those who have obvious disabilities. Similarly, an employer may require a medical examination after making a job offer as long as it requires the same medical examination of other applicants offered the same type of job.



To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

Guidance material for use by state and local governments in complying with the ADA.

Justice Department Publishes Guidance on ADA Compliance

The U.S. Department of Justice (DOJ) is preparing guidance material for use by state and local governments in complying with the ADA. The “ADA Best Practices Tool Kit” provides guidance on identifying barriers to access in government programs, services, activities, and facilities and how to correct them. The first installment, released in December, provides an overview of the ADA and relevant regulations. A second section covers notice and grievance procedures and includes a compliance checklist and sample notices and policies. The information is posted on DOJ’s website at www.usdoj.gov/crt/ada/pcatoolkit/abouttoolkit.htm. Additional installments will be posted throughout the year as they become available.


To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.

New EEOC Publication Addresses Employment of Health Care Workers with Disabilities

The U.S. Equal Employment Opportunity Commission Monday, Feb. 26, 2007

CONTACT: Charles Robbins
David Grinberg
(202) 663-4900
TTY: (202) 663-4494

New EEOC Publication Addresses Employment of Health Care Workers with Disabilities

Latest Q&A Fact Sheet Explains How Americans with Disabilities Act Applies to Employment in the Health Care Industry

Washington, D.C. - Naomi C. Earp, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), today announced the issuance of a new question-and-answer (Q&A) fact sheet on the application of the Americans with Disabilities Act (ADA) to job applicants and employees in the health care industry. The new publication, part of a series of Q&A documents about specific disabilities in the workplace and specific industries, is available on the EEOC's web site at http://www.eeoc.gov/facts/health_care_workers.html.

Health care is the largest industry in the American economy. The health care industry provided more than 13 million jobs in 2004 and is expected to account for 19 percent of all new jobs created between 2004 and 2014 -- more than any other industry. In addition, the health care industry has a high incidence of occupational injury and illness. Health care jobs may involve potential exposure to airborne and bloodborne infectious disease, injuries from syringes, and other dangers; many health care jobs can also be physically demanding and mentally stressful.

The new Q&A fact sheet provides practical information about applying ADA employment rules in health care jobs, in a variety of settings - from public and private hospitals and nursing care facilities to doctors' and dentists' offices and diagnostic laboratories. The occupations within the health care field are many and varied, including not only physicians, surgeons, dental hygienists and nurses, but social workers, physical therapists, medical records clerks, laboratory technicians, paramedics, home health aides, and custodial and food service workers in medical facilities.

"We should be mindful that disability does not mean inability, and that every individual deserves the freedom to compete on a fair and level playing field," said Chair Earp in announcing the issuance of the new document. "People with disabilities represent a vast pool of untapped talent for employers, particularly in an industry that is growing as rapidly as the health care industry."

Although the rules under Title I of the ADA are the same for employers and individuals with disabilities in all industries, this fact sheet explains how the ADA applies to some unique situations that may arise in the health care setting. Many of the real-life examples in the fact sheet are based on cases that have been decided by courts or settled by the EEOC.

Topics discussed in the new publication include:

* When someone is an "employee" covered by the ADA (as opposed to
an independent contractor);

* When someone is an "individual with a disability" under the ADA;

* How to determine if a health care applicant or employee with a
disability is qualified for ADA purposes;

* What types of reasonable accommodations health care workers with
disabilities may need and the limitations on a health care
employer's obligation to provide reasonable accommodation;

* When an employer may ask health care applicants or employees
questions about their medical conditions or require medical
examinations; and

* How a health care employer should handle safety concerns about
applicants and employees.

The EEOC's latest ADA publication helps to advance the goals of the New Freedom Initiative, President Bush's comprehensive strategy for the full integration of people with disabilities into all aspects of American life. The New Freedom Initiative seeks to promote greater access to technology, education, employment opportunities, and community life for people with disabilities. An important part of the New Freedom Initiative strategy for increasing employment opportunities involves providing employers with technical assistance on the ADA.

The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments, and the Rehabilitation Act's prohibitions against disability discrimination in the federal government. In addition, the EEOC enforces other federal laws prohibiting employment discrimination based on race, color, religion, national origin, sex, and age. Further information about the EEOC is available on its web site at www.eeoc.gov.

Source: EEOC



To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.