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  • Nuggets' Home Breaks Law, Gets Sued
  • Scalding in Group Home Not Reported
  • AMC movie theaters violate ADA, says judge
  • Deaf Man awarded $$ in Optician Suit
  • Supreme Court To Hear CA Bias Case
  • Report Cites Abuse, Neglect at Facility
  • Sterilization Survivors To Get Apology From Oregon Governor
  • Report Finds Integrated Students Perform Better
  • Louisville Activists Sue Firms over Access
  • Deaf students win accommodations on UC campuses
  • Medicaid Recipients To Control In-Home Funds
  • Sacramento plans to take sidewalk access fight to Supreme Court
  • Air Carrier Act Doesn't Allow Lawsuits, Says Court
  • National Visitability Bill in Congress
  • DE Olmstead Plan Not Enough, say Advocates
  • 'Flag Pole' Protest Sprouts in WV
  • ID City Sued For Housing Discrimination

    Nuggets' Home Breaks Law, Gets Sued

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

    DENVER, Nov. 26, 2002 --The Colorado Cross-Disability Coalition and five individuals with disabilities are suing Pepsi Center for violating the Americans with Disabilities Act by not being accessible to patrons who use wheelchairs.

    The disability rights advocacy group filed the suit Monday against the arena, which hosts the home games of the Denver Nuggets professional basketball team, claiming it broke promises to provide lower-level wheelchair seating at center court.

    Patrons using wheelchairs currently must sit at the corners and ends of the arena or the "nosebleed" seats at the top level, according to Tuesday's Rocky Mountain News. The lawsuit points out that federal law requires wheelchair accessible seating to be spread throughout the facility.

    "We believe Pepsi Center exceeds ADA compliance standards," said Brian Kitts, spokesman for the Pepsi Center. "The disabled community is certainly important to us." The coalition said Pepsi Center officials had promised to put center wheelchair seating on the lower level but had failed to do so.

    The suit is against Kroenke Sports Enterprises and Kroenke Arena Co, the paper reported.

    Scalding in Group Home Not Reported

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

    MILWAUKEE, Nov. 25, 2002 --A former employee of Heavenly Care Remember Me Group Home was charged Friday with failing to get emergency medical treatment for a resident whose feet were severely scalded during a bath, the Milwaukee Journal-Sentinel reported.

    Sue R. Wells, 34, could face up to 15 years for felony neglect of a resident over an incident that occurred August 6 of this year.

    The state attorney general's office filed a criminal complaint against Wells claiming that she failed to seek medical treatment for the 27-year-old woman with a developmental disability whose feet blistered from the hot bath water. The woman experienced second-degree burns and may require skin grafts.

    The complaint also claims that an on-call nurse was telephoned soon after the incident, but failed to respond because she didn't have a ride and "simply wanted to go back to sleep." The nurse later said that she tried repeatedly to call a doctor. The doctor's answering service told authorities that the nurse never called.

    A nursing assistant at the home eventually called the resident's parents to report the blisters on her feet. When the parents saw the seriousness of her injuries, they immediately took her to the hospital for treatment, the complaint says. But this was 15 hours after the scalding incident. Wells was later fired from the home which has eight residents.

    The investigation is continuing. Charges have not been filed against the on-call nurse.

    AMC movie theaters violate ADA, says judge

    LOS ANGELES, Nov. 20, 2002 --The AMC movie theater chain violates the Americans with Disabilities Act by offering patrons who use wheelchairs and their companions only inferior seating in the front rows of its new stadium-style movie theaters, says a Los Angeles judge. District Judge Florence-Marie Cooper has ruled that while AMC publicizes its stadium-style theaters as providing enhanced unobstructed lines of sight to the screen, in fact patrons who use wheelchairs are excluded from the most popular stadium sections in the vast majority of AMC's stadium-style theaters.

    Patrons who use wheelchairs are routinely left to sit in the few rows of seating on the sloped-floor closest to the screen, outside the stadium section, said the judge. Those seats are less popular, offer poor views of the screen and isolate persons who use wheelchairs from the rest of the movie audience.

    Several issues, including the damages to be awarded disabled moviegoers who were discriminated against by AMC, are still pending before the court. Also pending is the United States' motion for an order requiring AMC to remedy all of the other ADA violations that do not involve line of sight issues (such as concession counters, companion seating, wheelchair ramps and parking lots) at its stadium-style theater complexes. AMC currently has over 80 such theaters nationwide.

    Deaf man awarded damages in optician suit

    WASHINGTON, Nov. 19, 2002 --In one of the first disability rights cases to be tried in the District of Columbia, a deaf patient who was denied vision services by an optical care provider was awarded $19,119 in damages by a jury in a trial before U.S. District Court Judge James Robertson. The jury award was announced Nov. 13.

    Garth Alexander, who is deaf, had asked his wife Donna, who is hearing, to call and make an appointment for him with a United Optical vision care services office. When his wife called, she was informed that her husband could not be seen because deaf patients take too long. She asked that this refusal to treat be put in writing so that she could appeal to her insurer to allow a visit to a different optical care provider. The couple obtained the signed written refusal. The Alexanders and the Disability Rights Council of Greater Washington (DRC) filed a complaint under the Americans with Disabilities Act and the D.C. Human Rights Act seeking injunctive relief and damages.

    Supreme Court To Hear CA Bias Case

    Some information in this story provided by Dave Reynolds, Inclusion Daily Express Email News Service.

    WASHINGTON, Nov. 19, 2002 --On Monday, the U.S. Supreme Court agreed to hear a case that could further define whether people can sue state agencies under the 1990 Americans with Disabilities Act.

    The case involves Michael J. Hason, a doctor who sued the California Medical Board after it refused to grant him a medical license because of his disability.

    Hason, who experiences depression, argued that the board should have given him a reasonable accommodation by offering him a probationary license and requiring him to go through therapy. A psychiatrist told the board that Hason should be allowed to practice medicine because he was not a danger to patients.

    An appeals court ruled that Hason could sue under the ADA, but the board claimed that a 2001 Supreme Court ruling protects it from suits filed by individuals. In that ruling, Alabama v. Garrett, the court determined that state workers could not use the ADA to sue their employers for damages.

    Both advocates and experts worry that the Court will use the Hason case to abolish or weaken Title II, which applies to accommodations and services. "The big picture in this reflects (Chief Justice) William Rehnquist's view of federalism," Peter Blanck, a disability law expert and a professor at the University of Iowa told Disability Compliance Bulletin. "The Court will likely say Congress exceeded its power under the Constitution to create Title II because [the Title] is overly broad."

    Erwin Chemerinsky, a University of Southern California law professor of Constitutional law, is representing Hason in the case, and, by extension, is representing the disability rights side of the case. "This case includes the whole range of what government can in do in accommodations from voting to public universities," Chemerinsky said. (Read Chemerinsky's article on the Findlaw website.).

    The issue the Supreme Court is examining in the Hason case is not about Hason per se; rather it is a broad Constitutional issue: as it did in the 2000 Alabama v. GarrettSupreme Court case, the justices are asking whether Congress had the power to abrogate the states' Eleventh Amendment immunity in the case of Title II of the ADA. The specific question presented is: "Does the Eleventh Amendment bar suit under Title II of the ADA against the California Medical Board for denial of a medical license based on the applicant's mental illness?"

    And this, in turn, hinges on the same question it did in the 2000 Garrett case: Is there sufficient evidence that states' discrimination against people with disabilities was serious enough to warrant Congress passing a law abrogating states' Eleventh Amendment immunity. Only if Congress has sufficient reason -- by dint of official discrimination on the part of states -- can it override that immunity. (For more on this discussion, and to read the legal briefs, visit http://www.bazelon.org/issues/disabilityrights/legal/hason/ )

    If the Court rules in favor of California and against Hason, say disability law experts, it would likely mean that a disabled person could no longer sue a state under Title II of the ADA.

    Report Cites Abuse, Neglect at Facility

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

    FRANKFORT, KY, Nov. 18, 2002 --Last week the U.S. Department of Justice issued a 35-page report on living conditions for 400 people with mental retardation housed at Oakwood, a facility in Somerset, Kentucky.

    The Justice Department found that the residents were at risk of abuse from staff members, and that they did not receive the medical and psychiatric care they needed. It warned that if the problems are not corrected, the department may sue the state for violating the civil rights of Oakwood's residents.

    The federal inspection a year ago came after a series of problems and reports of abuse at Oakwood. In October of 2000, two former staff members were charged with kicking a resident in the head. A year later another former worker was indicted after being accused of beating a resident in the stomach.

    The report released last week highlighted other instances of abuse, and focused on specific medical concerns.

    ''Bowel and bladder disorders have been identified as a recurrent medical issue in residents at Oakwood," the report said. "In a review of the charts of residents who died while at Oakwood, all of the autopsy reports indicated dilated colons."

    Kentucky's Cabinet for Health Services, which operates Oakwood, pointed out that the letter is based on an inspection done in 2001, and that a number of corrections have already taken place. A representative of the facility's parent group said the report was "all old news". The Louisville Courier-Journal has more details.

    Sterilization Survivors To Get Apology From Oregon Governor

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

    SALEM, OR, Nov. 15, 2002 --Governor John Kitzhaber announced Friday that he will formally apologize on behalf of the state for the forced sterilizations of more than 2,750 Oregonians during the last century.

    The apology is scheduled for December 2. Several survivors have been invited to attend the special ceremony. Kitzhaber is also expected to proclaim December 10 as Human Rights Day across the state.

    Kitzhaber would be the second U.S. governor to issue such an apology. On May 2 of this year, Virginia Governor Mark R. Warner formally apologized for the forced sterilizations of 8,000 Virginians, most of whom were people with disabilities housed in the state's institutions.

    A coalition of Oregon advocacy groups, including those representing people with developmental disabilities and mental illnesses, have been pushing for the apology since July of this year.

    Most of those who underwent operations so that they could not have children did so because they had no choice under the state's sterilizations laws that were in effect from 1917 to 1983. Many had to go through the surgery before they could be allowed to leave institutions, state hospitals, or, in some cases, prison.

    Thirty states and two Canadian provinces had similar laws on the books during much of the 20th century. The practice was popular under the Eugenics Movement, based on the idea that society could be improved by special breeding. The "science" behind eugenics was disproved in the later half of the century, but not until more than 60,000 North Americans had experienced castrations, vasectomies, hysterectomies or tubal ligations. In addition, Adolph Hitler used the American sterilization laws as blueprints for his Nazi plan under which hundreds of thousands of Europeans were forcibly -- and legally -- sterilized.

    As a state senator in 1983, Kitzhaber was on the committee that wrote language to throw out Oregon's 1917 sterilization law.

    "It knocked me backward," said Kenneth Newman, who was sterilized at Fairview Training Center when he was 15 years of age, of Kitzhaber's announcement. "I just didn't know if he was going to do it."

    Read the Oregonian story. For past stories and related resources on Oregon's push for an official apology for forced sterilizations, check out Inclusion Daily Express. For information on the American Eugenics Movement, and the mandatory sterilization laws, visit the historical archives hosted by the DNA Learning Center, Cold Spring Harbor Laboratory in New York. Click on the essay entitled "Sterilization Laws."

    Report Finds Integrated Students Perform Better

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

    NEW YORK, Nov. 15, 2002 --A new report, released by a coalition of New York City advocacy groups, says that children with disabilities who are included in regular classes are three times more likely to pass standardized tests than those who are separated into special education classrooms -- as long as they continue to receive the supports they need.

    The 25-page report, entitled "Learning Together: Lessons in Inclusive Education in New York City", highlights five schools in Brooklyn, Queens, and Manhattan that use inclusive practices to provide a "first-rate education" to students with and without disabilities. In these schools, special education teachers work side-by-side with general education teachers, giving the students the support they need in the regular classrooms.

    "Integration is not only possible, but also desirable for children with many different types of disabilities," the report concludes.

    The study warns, however, that few schools provide the supports that students need in the general classrooms, and that far too many children are "languishing in segregated settings when they could benefit from more contact with general education students."

    The report itself is available in MSWord format at http://www.insideschools.org/vm/LRErep10-2002.doc

    Louisville Activists Sue Firms over Access

    LOUISVILLE, Nov. 12, 2002 --Disability activists with the Louisville Metro Sweep for Access sued four local businesses today, claiming the businesses lack entrances accessible to people using wheelchairs. Members of the group had been dealing with the businesses over a number of months, urging them to obey the Americans with Disabilities Act. Businesses that failed to respond or who insisted they need not obey the law were sued.
    Read press statements at MetroSweep.org
    Read story from the Louisville Courier-Journal

    Deaf students win accommodations on UC campuses

    BERKELEY, Nov. 12, 2002 --A 1999 Americans with Disabilities Act class-action lawsuit brought by deaf and hard-of-hearing students at University of California's Berkeley and Davis campuses has been settled, with the university agreeing to a substantial number of changes that will provide students with more effective communications accommodations.

    Under the terms of the settlement, students will no longer be required reserve or cancel interpreter services 48 hours in advance. Interpreters will now be required to wait 15 minutes after a class has started for their students to arrive before they are allowed to leave, and must wait longer if the student says they will be late.

    Students will now also be allowed to use a combination of sign-language interpretation and simultaneous closed-captioning during lectures -- prior to the settlement, they were required to choose one format or the other. The university will install assistive-listening technology into all classrooms holding more than 50 students, and will ensure that alarm systems and evacuation plans will be accessible to deaf and hard of hearing students.

    Medicaid Recipients To Control In-Home Funds

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

    WASHINGTON, DC --U.S. Health and Human Services Secretary Tommy G. Thompson has approved a Texas plan that would allow seniors and people with disabilities who receive Medicaid home and community-based services to choose and contract for their services directly.

    The plan shifts control of those services from local social service agencies to the people receiving them. Participants themselves will have the option to design their own programs, choose their own assistants, and even set wage rates. Technical assistance will be provided to help participants manage their plans and their finances for supports and services.

    "Texas is setting the right example by giving people with disabilities the right to make their own choices for the kind of care and services that they need," Thompson said in a press statement. "We are committed to working with states on innovative and creative ways to permit the elderly and those with disabilities to remain independent and at home."

    The amendment applies only to people receiving Medicaid home and community-based services. It does not increase funding for such services or shift Medicaid money from nursing homes or other institutions.

    Sacramento plans to take sidewalk access fight to Supreme Court

    SACRAMENTO, Nov. 1, 2002 -- The city of Sacramento, Calif. will petition the U.S. Supreme Court to hear a case it lost in June, when the 9th Circuit Court of Appeals ruled that it was required under the Americans with Disabilities Act to ensure its sidewalks were passable and usable by people in wheelchairs (see "Sidewalks Must Be Accessible, Says 9th Circuit"). The city has asked other cities to join it as "friends of the court" to "overturn the Ninth Circuit." More.

    Air Carrier Act Doesn't Allow Lawsuits, Says Court

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

    ATLANTA -- A federal appeals court has determined that people with disabilities cannot sue airlines for discrimination under the 1986 Air Carrier Access Act (ACAA) -- a federal law designed to protect against discrimination.

    In the past, three different federal circuits had allowed such lawsuits under the ACAA, but last week the 11th Circuit Court of Appeals said two Supreme Court decisions last year restricted the rights of individuals to sue in order to enforce federal laws. The Court said that citizens must use the current means available to enforce federal laws. When it comes to airlines, individuals may only file complaints with the U.S. Department of Transportation.

    The case involved Delta Air Lines and Cynthia Love, a polio survivor from Montgomery, Alabama who uses a wheelchair. On a 1998 flight to Colorado Springs, Love became ill and tried to reach the lavatory. Love said that the passenger plane did not have an accessible call button to page a flight attendant nor did it have attendants trained to help her. As a result, Love's son had to help her to the restroom, which was too small for her and did not allow her privacy.

    Love filed suit under the 1991 Americans with Disabilities Act and the ACAA. A lower court ruled that the ADA did not cover airlines, but allowed several of her counts to move forward. The 11th Circuit reversed those portions Thursday and sent the case back to the Alabama court with instructions to dismiss Love's case.

    The Department of Transportation has the power to stop discriminatory actions and to fine airlines. It does not, however, have the ability to compensate passengers who claim they have faced discrimination.

    "Where does that leave people with disabilities?" asked Sheila Bedi, the lawyer from Georgetown University's Institute for Public Representation who handled the appeal. "With little or no protection."

    The 11th Circuit Court of Appeals covers Alabama, Florida and Georgia.

    Read the Appeals Court decision.

    National Visitability Bill in Congress

    "It is currently legal for the U. S government to fund new, totally inaccessible townhouses and single-family homes," says Concrete Change's Eleanor Smith. "HUD, FEMA, the VA, and other federal agencies do that every day."

    A federal bill has now been introduced to address this problem. The Inclusive Home Design Act, HR 5683, has just been introduced into Congress. "The bill calls for basic access (at least one step-free entrance, ample interior doors, and a few other features) in all homes built or otherwise assisted with federal assistance," says Smith.

    "It defies logic to build new homes that block people out when it's so easy and cheap to build new homes that let people in," says the bill's sponsor, Rep. Jan Schakowsky (D.-Ill.) To see a copy of the bill, go to http://thomas.loc.gov and type in HR5683.

    DE Olmstead Plan Not Enough, say Advocates
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    DOVER, DELAWARE, Nov. 1, 2002 --Last month, officials with Delaware's Department of Health and Social Services released their plan to help people with developmental disability or mental illness to move from institutions into community settings.

    The plan is the state's attempt to comply with the 1999 U.S. Supreme Court's Olmstead decision. In that ruling, the high court said that unnecessarily putting people in institutions violates the Americans with Disabilities Act. After that decision, the federal government directed all state Medicaid directors to address the need for more supports so that people would have the necessary services to live in the community.

    Disability rights advocates in Delaware welcomed the state's most recent plan, but said it should include more details. For example, the plan does not say where the money will come from to pay for the needed community services. It also does not give specific guidelines as to how the plan will be implemented year by year.

    "We are extremely disappointed with the lack of specifics in the plan," Kyle Hodges, administrator of the State Council for Persons with Disabilities, told the News Journal. "The issues involved are much broader than what the plan reports."

    The state of Delaware spends three times the amount it spent ten years ago on community supports for people with developmental disabilities -- currently about $111 million. But it spends $223 million for Stockley Center, the state-run institution that houses 179 people. Read News Journal article.

    To see how individual states are coming along in their Olmstead plans, check out this Website hosted by the National Conference of State Legislatures: http://www.ncsl.org/programs/health/forum/olmsreport.htm The University of Colorado hosts this Website, which shows how states have moved toward community-based services over the past 25 years: http://www.cusys.edu/ColemanInstitute/stateofthestates/home.htm

    'Flag Pole' Protest Sprouts in WV
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    CHEAT LAKE, WEST VIRGINIA --Debi and Jason Lewis want their 9-year-old son, Tucker, to attend his local school, Cheat Lake Elementary School, so he can be with his friends and the other chidren in his neighborhood.

    But Monongalia County Schools says Tucker must attend Mountainview Elementary School because the one at Cheat Lake does not have the facilities, staff or equipment to educate the boy who has cerebral palsy and mental retardation. Providing what is needed for Tucker at Cheat Lake would be too expensive, district officials say. Besides, six other students with similar disabilities are already being served at Mountainview, they add.

    Tucker's parents have filed a complaint against the district and are schooling him at home until the district changes its position -- or is ordered to change its position. On Monday, October 21, advocates from West Virginia ADAPT began helping the family, staging a demonstration by chaining themselves -- some in wheelchairs -- to the school's flagpole. The Morgantown, WV Dominion Post has covered the protest and its aftermath.

    The Dominion Post is covering the protest, with new articles added each day: Oct. 22: Unflagging Support; Oct. 23: Protesters Continue Flagpole Vigil at Cheat School; Oct. 24: Cheat Protesters Still Chained to Flagpole; Oct. 25: Cheat Lake Mom Debates Flagpole Protesters; Oct. 26: Protesters Vow: We're Not Going to be Run Out; Oct. 28: Protesters Continue Vigil at Teach and Oct. 29: Parents go to court over boy's school.

    The demonstration is similar to that staged for three weeks in 2000 by Deanna Lesneski, just across the state line in Washington County, Pennsylvania. Known by disability rights advocates as the "Flag Pole Mom", Lesneski strapped herself and her lawn chair to the flag pole in front of Blain-Buffalo Elementary School after school officials failed to provide what they had agreed her son, Max, needed. Read Inclusion Daily Express's coverage of Lesneski's flag pole protest.

    ID City Sued For Housing Discrimination
    by Dave Reynolds, Inclusion Daily Express
    This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

    PAYETTE, IDAHO, Nov, 1, 2002 --The U.S. Department of Justice in late October filed a lawsuit against the City of Payette claiming it violated the federal Fair Housing Act by discriminating against people with disabilities.

    The Department claims the violation occurred when the city refused to allow a group home to be opened in a residential neighborhood because the home's future residents would be recovering from drug or alcohol addiction. Under the Fair Housing Act, individuals recovering from such addictions are considered to be people with disabilities, so long as they are no longer using drugs.

    The lawsuit came after the prospective operators of the home filed a discrimination complaint with the U.S. Department of Housing and Urban Development (HUD). The case was then referred to the Justice Department following an investigation.

    The DOJ is seeking a court order in U.S. District Court in Boise, which would require the city to allow the home to open in the neighborhood as planned. The Department is also asking for damages to be paid to those people whose rights had been violated and to pay civil penalties.

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