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  • UT advocates sue stores for access
  • ADA doesn't cover Web, says judge
  • City plans sidewalk access fight at Supreme Court
  • Activist Says Poll Site Inaccessible
  • Settlement: GA Developer To Offer Access
  • Disability Lecture Held In Inaccessible Building
  • Thousands Killed in Nursing Homes, says Post-Dispatch
  • Activists Worry as Schiavo Case Goes Back to Court
  • Judge Gives In To Pressure, Orders L.A. To Keep Segregated Schools
  • ADAPT Names '10 Worst States' for Community Services
  • Prescription cutback in OK waiver program prompts lawsuit
  • Mom can refuse sons' cochlear implants, says court
  • High Court To Clarify ADA "Grey Area"

    UT Advocates sue stores for access
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    SALT LAKE CITY, Oct. 22, 2002 --Last Thursday, the Disabled Rights Action Committee (DRAC) filed a federal lawsuit against 40 tenants of The Gateway retail and residential development for allegedly violating the Americans with Disabilities Act.

    Those tenants include national chain stores such as Barnes & Noble and Galyan's and local stores such as Cummings Studio Chocolates and Copper Rivet.

    The suit claims that aisles, bathroom stalls and dressing rooms in the businesses are too narrow, and that sales counters are too high for wheelchair users.

    DRAC has also filed a federal lawsuit against Boyer and Cowboy Partners L.C., the developer of The Parc condominiums at Gateway, for failure to comply with the federal Fair Housing Act.

    "When I see a step into a business, it says to me, keep out," said disability rights advocate Barbara Toomer. "When I have to pay for my purchases and I have to sign things off of my lap, or people hand me a board to use, it says we don't want your business."

    A representative of the developer called DRAC "irresponsible" and said that it "discredits all the other good disabled rights groups." More details are available from Friday's Salt Lake Tribune.


    ADA doesn't cover Web, says judge
    MIAMI, Oct. 22, 2002 --A federal judge says websites are not covered under the Americans with Disabilities Act and don't have to be accessible.

    The ruling came Friday in a case filed by Access Now, a Florida-based disability group, against Southwest Airlines. The airline's web site is almost impossible to use by blind travelers, it said in its suit. U.S. District Judge Patricia Seitz of dismissed the suit, insisting that the ADA applies only to physical spaces, not to the Internet.

    "To expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards," Seitz wrote. The 12-opinion is online in inaccessible PDF format. (Download the PDF document.)

    The case was heard by the U.S.District Court in Miami.

    A win for disability rights would have "had far-reaching effects by imposing broad new requirements on companies hoping to do business online," said news.com in reporting the ruling.

    Other laws such as Section 508 of the Rehab Act explicitly require some websites to be accessible.

    Read the story from news.com


    City plans sidewalk access fight at Supreme Court
    SACRAMENTO, Oct. 22, 2002 -- The city of Sacramento, Calif. is preparing to petition the U.S. Supreme Court to hear a case it lost in June, when the 9th District Court ruled that it was required under the Americans with Disabilties Act to ensure its sidewalks were passable and usable by people in wheelchairs (see Sidewalks Must Be Accessible, Says 9th Circuit )

    Disability advocates in California have mounted a grassroots campaign to convince the city council to accept its loss and obey the law. "Two lower courts have ruled against the city, but they are persisting in their challenge," says advocate Mike Collins. "They want the Supreme Court to say that the ADA does NOT require that sidewalks have to be accessible to persons with disabilities," says Hollyn D'Lil, who is spearheading the campaign and urging advocates to convince City Council members to drop the appeal.

    Advocates question why the city would rather spend money fighting access than using it to make the city's sidewalks accessible. But City Attorney Sam Jackson told the Sacramento Bee that the city doesn't make litigation decisions based on cost.

    Readers can purchase the Oct. 13 Sacramento Bee story, "City spends money to fight rather than to open paths for disabled," for $1.95 through the Bee's archives at http://www.sacbee.com/static/live/search/index.html


    Activist Says Poll Site Inaccessible
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    BALTIMORE, Oct. 16, 2002 --Robert Reuter just wanted to cast his vote on primary day.

    But unlike most of his fellow citizens, Reuter, who uses a wheelchair, had to drag himself by the arms up five long steps to vote at a Masonic hall Sept. 10 - then drag himself back down.
    http://www.sunspot.net/news/local/bal-md.vote12oct12,0,3614757.story


    Settlement: GA Developer To Offer Access
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    WASHINGTON, DC, Oct. 16, 2002 --The Justice Department has reached a settlement with a Georgia developer to resolve complaints of alleged violations to the Fair Housing Act.

    The complaint alleges that John Barrett, and several companies with which he is associated, built seven apartment complexes that did not provide adequate and accessible features to persons with disabilities. The apartment complexes are located in Athens and Statesboro, Georgia and Greenville, North Carolina.
    http://www.usdoj.gov/opa/pr/2002/October/02_crt_587.htm


    Disability Lecture Held In Inaccessible Building
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    MIDDLETOWN, CT, Oct. 14, 2002 --Wesleyan University officials are wiping egg off their faces after scheduling a lecture concerning disabled people in a building that wasn't wheelchair accessible.

    The situation came to light after Sharon Denson, a West Hartford resident with muscular dystrophy who uses an electric scooter, learned she would not be able to attend the lecture because of the lack of access.
    http://www.globe.com/news/daily/08/odds_disability.htm


    Thousands Killed in Nursing Homes, says Post-Dispatch
    St. Louis, Oct. 13, 2002 -- Thousands of people are being killed each year in the nation's nursing homes. The deaths are "rarely detected by government inspectors, investigated by law enforcement, appraised by medical examiners or prosecuted by anyone," says a series that began Sunday in the St. Louis Post-Dispatch.

    "Most are caused by fatal neglect traced to caregivers upon whom residents depend for food and water and for turning them in their beds to prevent the formation of life-threatening sores, say investigators." Read the story from the St. Louis Post-Dispatch.


    Activists Worry as Schiavo Case Goes Back to Court
    CLEARWATER, FL, Oct. 10, 2002 -- Disability advocates from around the country are watching and waiting to see a severely disabled woman's life-and-death drama play out in the courtroom of Fla. Circuit Judge George Greer. One Not Dead Yet advocate will be present in court who has been in a coma twice, and heard people talk about "pulling the plug," says NDY.

    "The courts, the medical profession, and her husband seem to be in a rush to kill Terri Schiavo, while significant questions remain regarding her own wishes in the matter, her own level of awareness, and her prognosis for further recovery," says the the national disability rights group which opposes legalization of assisted suicide and euthanasia, "Fortunately, her execution was put off the 'fast track' by the Court of Appeals, which granted her a reprieve."

    Terri Schiavo's case is just the tip of a very ugly iceberg, says the group. In 1996, the British Medical Journal published a study authored by professionals from a leading neurological medical facility in Great Britain. The authors of the study found that fully 43 percent of the individuals referred to their facility diagnosed as being in a "persistive vegetative state," as Schiavo is said to be, had actually recovered.

    The trouble, the authors said, was that it took time and effort to really assess a patient's ability to react, communicate, and interact with others. Some came out of PVS after entering the unit. Others had already come out of it, albeit unnoticed by the referring physicians.

    "We call upon the courts and medical profession to give Terri Schiavo the full protection of due process of the law before starving her to death," says Not Dead Yet.

    Read NDY eyetwitness reports from the trial


    Judge Gives In To Pressure, Orders L.A. To Keep Segregated Schools
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    LOS ANGELES, Oct. 8, 2002 --A federal judge is allowing the Los Angeles Unified School District to keep nearly 4,800 students with disabilities in 16 segregated, special education schools, the Los Angeles Times reported last week.

    The decision by U.S. District Judge Ronald S.W. Lew reverses a 1996 court order to integrate students with disabilities into the general school population.

    The new ruling was supported by some school officials and prompted by parents who want their children to be in separate, sheltered environments instead of included with other students.

    Read story in The Los Angeles Times.


    ADAPT Names '10 Worst States' for Community Services
    NEW ORLEANS, Oct. 6, 2002 -- If you want to receive long term care services in your own home in your own community, think twice about living in Louisiana, says ADAPT, the nation's largest grassroots disability rights group. Louisiana topped ADAPT's list of the "Ten Worst States" for Community Services, having made its way to the top position from its number 3 ranking five years ago, in 1998.

    Following Louisiana is Mississippi, holding fast to its 1998 number 2 spot, with Washington, D.C. coming in third, up from eleventh in the 1998 rankings.The fourth and fifth worst states for community services heading into 2003 are Illinois and Indiana, both having moved up two spots from their 1998 sixth and seventh places.The other five states to make the "Top Ten Worst" list are Tennessee, Nevada, New Jersey, Ohio and Georgia. Tennessee, Georgia and Ohio are all repeats from the 1998 list, with Nevada and New Jersey making their first appearances in the top ten.

    ADAPT's findings were gathered from official Medicaid statistics which the states report to the federal government, along with an early September survey of advocates across the nation. For more details, go to http://www.adapt.org/bulletin.htm


    Prescription cutback in OK waiver program prompts lawsuit
    TULSA, Oct. 4, 2002 --When nearly 11,000 Oklahomans on the state's "Advantage" Home and Community-Based Services Waiver Program were notified in September that the state Medicaid agency was reducing the number of prescriptions it would pay for to five a month, Tulsa's Ability Resources independent living center sued the state's Health Care Authority, along with 46-year-old Karol Loy, 73-year-old Earlee Heath and 48-year-old Katherine Fisher, all of whom are on the waiver program and who want to continue to live at home.

    The three say they worry they'll be forced into a nursing home if they can't get the medicines they need. Fisher, who has cerebral palsy, told the court she would rather "die in her own home than go to a nursing home and give up her freedom."

    The women could get all their medicines if they moved into a nursing home, for the state has not restricted the number of prescriptions it covers for people institutions. It is only those on the waiver program, who are trying to stay out of institutions, whose prescription coverage is being cut.

    The prescription cutback is a move by the state to save money ($3.2 million a year, reported the Tulsa World). OHCA deputy general counsel Andrew Tevington told the newspaper that a court move to stop the cuts "would be an improper encroachment on the state's right to make budgetary decisions."

    Budget shortfall or not, states must comply with federal Medicaid rules, say the plaintiffs. "While states have a certain flexibility in designing waivers," says national disability rights attorney Steve Gold, who is handling the case, "once they undertake to provide services under those waivers they must comply fully with their obligations. To allow the states to provide fewer services -- or blatantly inadequate services -- would expose individuals with disabilities to a substantial risk of unnecessary institutionalization."

    Thus, say advocates, the prescription cutback violates the Americans with Disabilities Act. They cite the 1999 Supreme Court Olmstead decision.

    Oklahoma provides unlimited prescriptions only if Medicaid recipients "accept the unnecessary segregation of being put into an institution," says Gold. This, in effect, is offering people "the 'choice' of being institutionalized in the nursing home where they will receive all their prescriptions, or the 'choice' of continuing to live in their own homes with no more than five prescriptions per month."

    "This is not the 'choice' Congress intended," he says. "It violates both the ADA and Section 504. "In enacting the ADA in 1990, Congress intended to end unnecessary segregation of people with disabilities. Twelve years later, persons with disabilities in Oklahoma are still combating some of the basic and fundamental forms of discrimination that Congress intended to end." Plaintiffs have asked U.S. District Judge James Payne to grant the suit class-action status, to include everyone on the waiver program "who requires more than five prescriptions per month to survive."

    The state has asked the court to dismiss the case, insisting that the Eleventh Amendment to the Constitution makes states immune from such lawsuits. It cites the Garrett Supreme Court decision and a more recent 10th U.S. Circuit Court of Appeals decision.

    Ability Resources director Carla Lawson says the judge is expect to rule soon.


    Mom can refuse sons' cochlear implants, says court
    by Cal Montgomery

    GRAND RAPIDS, Oct. 4, 2002 --Lee Larson's sons will not undergo cochlear implant surgery over her objections.

    The Kent County Family Independence Agency (FIA, formerly Department of Social Services) ordinarily support parents' right to refuse elective procedures on behalf of their children. Cochlear implant surgery is an elective procedure.

    So the Larson case shouldn't have gone anywhere or so you'd think. But some activists and advocates had feared that Kent County Circuit Judge Kathleen Feeney would come into court today and order the surgery.

    "I wonder," Deaf activist Emily Alexander has said, "if these were hearing parents whose kids were in foster care and who had learned about the risks involved with a cochlear implant, would the judge still think that the kid should be implanted if the parents didn't want it?"

    That's the question that a lot of deaf and hard-of-hearing people have been asking, and the organizers of a peaceful rally to coincide with today's hearing have warned that the precedent a bad decision would have set wouldn't have affected only deaf parents. About a hundred people showed up to demonstrate, and an overflow room had to be arranged to accommodate the number of people wanting to attend today's hearing.

    Claudia Lee of the Deaf Community Advocacy Network has criticized many participants in and commentators on the case for treating the question of whether cochlear implants are a good thing as if it were the central issue. "We need to focus on the rights of parents and not whether we agree or disagree with cochlear implants or the choices that parents make," she said. (Read more on this issue.)

    And Judge Feeney seems to have understood that message.

    The lawyer assigned to represent the boys has not ruled out an appeal. But Ms. Larson says she is ready to get back to raising her sons. Read Theresa McLella's story in the The Grand Rapids Press. .

    Read about the trial and the issues it has raised for the disability community.


    High Court To Clarify ADA "Grey Area"
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    WASHINGTON, DC, Oct. 1, 2002 --When Congress passed the 1990 Americans with Disabilities Act, it said that small businesses -- defined as having 15 or more employees -- were required to follow the employment provisions under Title I of the law after July 26, 1994. Those provisions state that such employers cannot discriminate against workers with disabilities in how they hire, fire, train, recruit or pay them.

    The U.S. Supreme Court agreed Tuesday to hear a case that could clarify who can and cannot be counted when deciding whether a company has 15 or more employees. The ruling could affect employees with disabilities that work for small businesses across the country.

    The case involves Deborah Anne Wells who worked for Clackamas Gastroenterology Associates, P.C., for 11 years and was fired in 1997 because of her disability, described as "a debilitating tissue disorder". Wells claimed that she was demoted, then forced to resign.

    Wells sued the clinic under the ADA. The Ninth Circuit Court of Appeals, in a split decision, ruled that the clinic owners -- which include four doctors -- must be counted as employees. This would mean that the company has more than 15 employees and would have to comply with the ADA.

    The case is Clackamas Gastroenterology Associates, P.C., v. Deborah Wells. The case number is 01-1435.

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