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February ARCHIVES Sept., '01 |
MA Gov. Orders State's Oldest Institution Closed by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Boston, Feb. 26, 2003 -- Fernald Developmental Center, the oldest publicly-funded institution housing people with developmental disabilities in the Western Hemisphere, is to be closed under a budget proposal from Governor Mitt Romney. Fernald is to be shut down as part of Romney's plan to close a $3 billion budget gap for the 2004 fiscal year. Its 309 residents would either be moved to other facilities or homes in the community, under the governor's proposal. The governor will seek to close the state's other five institutions housing another 800 residents in the future, a spokesperson said Tuesday. Officials are already considering options for selling the buildings and properties, including the 200 acres at Fernald. Social reformer Samuel Gridley Howe founded the institution with a $2,500 appropriation from the state legislature in 1848. Originally called the "Massachusetts School for the Feeble Minded", the facility was renamed the Walter E. Fernald State School in 1925 after its first resident superintendent. "These were facilities that were built in a time when they put people away," Mary Lou Maloney, legislative liaison for Arc Massachusetts told the Boston Globe. "People with disabilities can live in the community." Arc Massachusetts has been pushing for the state's six facilities to be shuttered since 1990. Most of the institutions have not admitted new residents for more than 25 years because of court orders following complaints of overcrowding. In his budget proposal, Romney also plans to close Worcester State Hospital which houses people with mental illness, and to increase health care fees for about 150,000 Medicaid recipients. If Fernald's closure is approved by the legislature, several families of residents have said they would sue the state to stop it. Samuel Gridley Howe, known chiefly as the man responsible for educating the blind and deaf Laura Bridgman, played a major role in creating institutions -- including Fernwald. Read Samuel Gridley Howe and 'Schools for the Feebleminded' in the Jan./Feb. 2003 Ragged Edge. Advocates for blind file FCC complaint over Verizon, Audiovox cell phones Washington, DC, Feb. 26, 2003 -- Disability advocate Bonnie O'Day has filed the first formal complaint to the Federal Trade Commission seeking to enforce rights provided under Section 255 of the Telecommunications Act of 1996. Both Audiovox Communications Corporation and Verizon Wireless, Inc. have failed to make their wireless telephones and services accessible to people who are blind and visually impaired, she says. "When I began shopping for a cellular phone in December of 2000, I finally settled on the Audiovox CDM9500 as 'the best of the worst.' But I found that many features of the phone were very difficult to use because most of the information I needed even for minimal access to the phone's features, such as caller ID and one-touch dialing, was delivered via a visual display which is totally inaccessible to me as a person who cannot read the phone's screen." O'Day contacted both Audiovox and Verizon Wireless by letter, and that neither company could offer her the hope of any remedy for these difficulties. In fact, each participated in a "blaming game," implying that what O'Day requested couldn't be done. "And," O'Day says, "each one said, even if it could be done, it was the responsibility of the other party." ACB President Christopher Gray says that both companies told O'Day that "it's not possible to build a text-to-speech capability into their phones, or it's too expensive, or it's just over the horizon." "It is ludicrous for Audiovox and Verizon Wireless to imply that it is not 'readily achievable' for them to make their menus accessible to us with voice output," says ACB Director Charlie Crawford, adding that blind people in Japan enjoy text-to-speech capability on their cell phones routinely. For more on the case, read the press release from the American Council of the Blind. the ACB is supporting O'Day in her FCC complaint. Rehabbed drug user ADA case taken by Supreme Court Washington, DC, Feb. 26, 2003 -- The U S Supreme Court agreed Monday to hear another Americans with Disabilities Act case: Is refusing to re-hire a rehabilitated former drug abuser discrimination under the ADA? The case involves Joe Hernandez, a 25-year former employee of Hughes Missile Systems, who resigned when confronted with a drug test that tested positive for cocaine use. Rehabilitated, Hernandez applied to be rehired by Hughes two years later; the company refused. Hughes sued and lost; he appealed; the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled for Hernandez. Hernandez "has made a prima facie case of discrimination on the basis of a disability," the appeals court ruled. "He has presented sufficient evidence from which a jury could conclude that he was 'qualified' for the position he sought in 1994 and that his application was rejected because of his record of drug addiction. "Additionally," the court said, "we hold that a policy that serves to bar the re-employment of a drug addict despite his successful rehabilitation violates the ADA." Hughes appealed the case to the Supreme Court, which agreed Monday to take the case. It will likely be heard next fall. The U S Supreme Court agreed Monday to hear another Americans with Disabilities Act case: Is refusing to re-hire a rehabilitated former drug abuser discrimination under the ADA? The case involves Joe Hernandez, a 25-year former employee of Hughes Missile Systems, who resigned when confronted with a drug test that tested positive for cocaine use. Rehabilitated, Hernandez applied to be rehired by Hughes two years later; the company refused. Hughes sued and lost; he appealed; the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled for Hernandez. Hernandez "has made a prima facie case of discrimination on the basis of a disability," the appeals court ruled. "He has presented sufficient evidence from which a jury could conclude that he was 'qualified' for the position he sought in 1994 and that his application was rejected because of his record of drug addiction. "Additionally," the court said, "we hold that a policy that serves to bar the re-employment of a drug addict despite his successful rehabilitation violates the ADA." Hughes appealed the case to the Supreme Court, which agreed Monday to take the case. It will likely be heard next fall. Institution To Stay Open "To Protect Residents' Rights", Judge Rules by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Memphis, TN, Feb. 24, 2003 -- A judge has ruled that the 200 people with developmental disabilities housed at Arlington Developmental Center will remain at the facility, because of "the public's interest in protecting the constitutional rights of residents," the Memphis Commercial Appeal reported. After 12 years of legal battles and compromises, at a cost of more than $500 million, U.S. District Judge Bernice Donald rejected a settlement agreement Friday that would have closed the institution and moved its residents into the community within the next few years. The plan would have settled a lawsuit filed by the U.S. Department of Justice and People First, an advocacy group made up of people with developmental disabilities. The suit was filed in 1991 following recurring reports that some of the facility's then-500 residents had been abused by employees. It sought to close ADC and move the people into community homes with the medical and social services they needed. Two years later, federal officials said that at least 25 residents had died of poor care at the facility. Over the next few years the state poured millions of dollars into ADC, while at the same time moving people into the community. In December 2001 the settlement was reached that called for closing the facility over the next 3-4 years. A member of the group representing parents of institution residents signed the agreement. But parent group members later withdrew their approval because they said they were not aware the plan called for closing the facility. The parents launched a letter-writing campaign, stating that community services were not adequate to meet their relatives' needs. The state Abuse and Neglect Prevention Committee -- made up of members of the facility's direct care staff, social service agencies, parents and developmental center board members -- said that community services were not adequately funded to support the institution's residents. In a pro-institution message that has become familiar to community advocates across the country, the committee wrote: "These developmental centers are now a part of the community and should serve as a resource for those services that are not otherwise available." Judge Donald's ruling, based on her understanding of "protecting the constitutional rights of residents", goes against the trend across the nation to close institutions in favor for more individualized community-based supports. It also goes against the 1999 U.S. Supreme Court's Olmstead decision, which found that unnecessarily institutionalizing people with disabilities violates their constitutional rights guaranteed by the Americans with Disabilities Act. Related article: "People First Win Freedom In Tennessee" (Mouth Magazine -- 1997) Hason case may be dropped, say activists Sacramento, Feb. 26, 2003 -- A meeting this coming Friday may remove the threat to the Americans with Disabilities Act posed by the upcoming Medical Board of California v Hasoncase before the U.S. Supreme Court. At its Feb. 28 meeting, the board will vote on whether to withdraw its "petition for certiori" to the Supreme Court, something CA activists have fought hard for. MORE. Disability groups file brief for woman with brain injury Chicago, Feb. 24, 2003 -- Over a dozen national disability rights groups today filed a friend-of-the-court brief supporting Terri Schiavo's right to food, water and rehabilitation. In November, Judge George Greer, after a hearing, ruled to remove Schiavo's feeding tube; but then put his own order on hold to give Schiavo's parents one more chance to appeal. (Read about the hearing) (Read about the appeal.) "A judge's order to terminate the life of a woman with severe disabilities is not a private family matter," attorney Max Lapertosa said on filing the brief. "Terminating Ms. Schiavo's life support would not be possible without the authority of the courts. This case reflects whether our society and legal system values the lives of people with disabilities equally to those without disabilities." "The standards upon which Ms. Schiavo's life or death turn may, if defined broadly enough, also be applied to thousands of people with disabilities who, like Ms. Schiavo, cannot articulate their own views and must thus rely on third parties as substitute decision-makers," said Not Dead Yet. "The need for constitutional limits on the powers of such decision makers is nowhere more clear than on a question as fundamental as life or death, because the consequences of abuse or misjudgment are both ultimate and irreversible. For this reason, neither a court nor any third party may base a decision on their own view of the affected person's 'quality of life.' Only the person's own desires may drive this determination." Groups filing the brief include Not Dead Yet, ADAPT, American Association of People with Disabilities, Center for Self-Determination, the Center on Human Policy, the Disability Rights Education & Defense Fund, Half the Planet Foundation, Hospice Patients' Alliance, the National Council on Independent Living, the National Spinal Cord Injury Association, Self-Advocates Becoming Empowered, TASH, the World Association of Persons with Disabilities and the World Institute on Disability. Most of the groups, they say, are governed and staffed by a majority of people with disabilities of all types, including people with severe physical and cognitive disabilities. NC tries to repeal eugenics law; deaths found by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Raleigh, NC, Feb. 21, 2003 --The North Carolina legislature acted this week to repeal a law that allowed 7,600 people to be sterilized against their will during the last century. The law gave the state's Eugenics Board authority to order sterilizations for people who had mental retardation, mental illness, or other disabilities under the later-discredited belief that they would pass their "problems" on to their children and society in general. North Carolina's law has been in effect since 1929, but has not been used since 1974. Some of those forced to undergo sterilization were children as young as 10 years of age. During the 1960s, most of those sterilized in the state were young black women. In December, Governor Mike Easley became the third governor to apologize for a state's role in forced sterilizations. Last week he set up a committee to investigate the eugenics program and consider reparations for the victims. In a related story, the Winston-Salem Journal reported that a review of just 183 sterilization procedures resulted in three deaths. During the 1930s a "single white female, age 21 years, died from post-operative intestinal obstruction ten days after" her sterilization operation, a 30-year-old married woman died two days after her operation, and a 17-year-old girl died from "locked bowels" five months after her surgery. A researcher noted that three deaths in that relatively small group would have been an extremely high rate for such a procedure.
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Related resources: ADAPT presses nation's governors at DC meeting Washington, DC, Feb. 21, 2003 -- Members of ADAPT from the capitol area and neighboring states are pressing the nation's governors at their annual winter meeting this coming week to support programs and funding that will change the nation's "institutional bias." ADAPt wants the National Governors' Assn. to support the Bush administration budget proposal of $1.75 BILLION incentive funding to states to implement the U.S. Supreme Court Olmstead decision by adopting policies to ensure individuals can use their Medicaid funds for in-home services. Under current Medicaid regulations, says ADAPT, states must pay for nursing home care, but aren't obligated to pay for the same services delivered in a person's own home. "This policy has resulted in an 'institutional bias' in long term services, and deprives people with disabilities the right to remain in their homes and receive the services they need," says ADAPT. "Without a provision to give states an enhanced match for home and community-based services, states have no reason to alter the current institutional bias," said Linda Anthony, Pennsylvania ADAPT. "If the NGA can help convince Congress to provide an even greater incentive to states for implementing a "money follows the person" policy, all of us in America will be that much closer to having real choice in where we receive our long term care services and supports." Calif. disability law's broader protections upheld by court Sacramento, Feb. 21, 2003 -- On Thursday, California's Supreme Court upheld the state's disability antidiscrimination law, a law whose definition of disability is broader than the Americans with Disabilities Act's. A person does not have to be "substantially limited" in a life activity to claim the protection of the state law, said the court. In its unanimous decision, the California Supreme Court "confirmed that there has always been a 'notable difference'" between the federal Americans with Disabilities Act (ADA) and the state's antidiscirmination lawm which was enacted a decade before the ADA. "While federal law covers individuals whose impairments "substantially limit" one or more major life activities," said the Berkeley-based Disability Rights Education and Defense Fund, California law "protects individuals with physical impairments that merely 'limit' major life activities." Employers' attorneys complained to Sacramento Bee reporter Melanie Payne that the decision would "open it up to all kinds of abuses" -- that "the disability category is so loosey-goosey and over-broad that everyone falls into it." Teen Sues Airlines Over Non-Captioned In-Flight Movies by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Houston, Feb. 20, 2003 --Eighteen-year-old Sam Bynum is tired of airlines that provide in-flight movies without captions. So the high school senior that has severe hearing loss sued Continental, American, United and several other U.S. carriers last week. In the suit, Bynum claims the airline industry is violating the Americans with Disability Act by not providing him with a reasonable accommodation. He hopes the lawsuit will be certified as a class action, so it will help the more than 25 million other airline passengers in the country who experience severe hearing loss. "To see a film and not understand what is said is like not watching a film at all," Bynum's lawyer, Marian S. Rosen, told the Houston Chronicle. Whether or not the airlines will have to make the movies accessible might depend on the cost of doing so, explained disability rights attorney David George. If the cost of adding captions is too high, it might be considered unreasonable to expect the airlines to retrofit each plane. If, on the other hand, the solution is a rather inexpensive software program, the airlines may be ordered to do so to provide the accommodation, George said. The airlines declined to comment, stating that they do not discuss pending litigation. Harrassed Teen Leaves School by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Denver, Feb. 17, 2003 -- Earlier this month, 13-year-old Lacey Henderson transferred from Hill Middle School because she feared for her safety, the Denver Post reported. Lacey, whose right leg was amputated four years ago due to cancer, has been the object of bullying and harassment by a group of school mates during the three years she attended Hill. Most recently, the harassment has escalated to name-calling, along with verbal and written threats on an Internet Website. Chewing gum and saliva has been left on her locker handle. Dissected frogs have been left in her backpack. "You can take it for so long," said Lacey, who believes some of the suspected culprits -- a group of 8 to 10 girls -- are capable of violence. "You just can't let it go." Lacey's mother said she believes the school has done all it could. A spokesman for Denver Public Schools said: "We are aware of these allegations, and we will pursue all information that comes forward." Related article: "Harassment chases teen from school" (Denver Post) Federal Agencies Lax On Discrimination Enforcement, Agency Says by Dave Reynolds, Inclusion Daily Express This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service. Washington, Feb. 17, 2003 --Federal agencies have not properly monitored disability discrimination complaints, and Congress has not properly monitored those federal agencies, claimed a report released Wednesday by the National Council on Disability (NCD). The report, entitled "Rehabilitating Section 504", looked at how the federal government is handling Section 504 of the 1973 Rehabilitation Act. The Act was the first to consider the exclusion and segregation of people with disabilities to be a form of discrimination. It was also the first to declare that the federal government would take a key role to reverse and eliminate that discrimination. Section 504 prohibits federal agencies and federally funded programs from discriminating on the basis of disability. NCD looked at five federal agencies -- Education, Labor, Health and Human Services, State and Justice -- and found that all have given low priority to enforcing Section 504. Thirty years after the Act became law, the federal government has no systematic way to track and investigate hiring complaints, and no reliable way to monitor whether programs receiving federal money are complying with the law. None of the agencies had withdrawn funding from grantee programs that discriminate against people with disabilities, even though Congress gave them the power to do so in order to enforce the law. NCD's report concluded that the government "would be much further along the road to eliminating discrimination based on disability had it used the full arsenal and range of remedies provided by Congress." The report added that none of the agencies have been able to devote enough funding and resources to their Section 504 enforcement programs. NCD is an independent federal agency that makes recommendations to the President and Congress on issues affecting Americans with disabilities. Read "Rehabilitating Section 504" from NCD McBryde Johnson article a "watershed" New York, Feb. 17, 2003 -- Controversial Princeton philosopher Peter Singer's views, which can be read as advocating infanticide for those born with disabilities, received eloquent rebuttal by longtime disability rights activist and Ragged Edge writer Harriet McBryde Johnson in the cover story of this past Sunday's New York Times magazine. "Unspeakable Conversations, or, How I Spent One Day as a Token Cripple at Princeton University," is Charleston, SC attorney Johnson's first-person account of her interactions with Singer. "Whenever I try to wrap my head around his tight string of syllogisms, my brain gets so fried it's . . . almost fun. Mercy! It's like ''Alice in Wonderland,' " she writes. Read the story at the New York Times website Read about disability community reaction at the iCan.com websiteCommittee votes for Sutton confirmation Washington, DC, Feb. 13, 2003 -- Democrat Dianne Feinstein of California, long considered supportive of disability rights, voted with Republicans in the Senate Judiciary Committee to approve, 11-8 , the nomination of Jeffrey S. Sutton to the U.S. Court of Appeals for the 6th Circuit. Disability activists have waged a fierce war against the Sutton nomination; activists were dismayed with Feinstein's vote. The nomination now moves to the floor of the full Senate for confirmation. Read more on disability opposition to Sutton. Notification Act rears ugly head -- again Washington, DC, Feb. 12, 2003 -- It's sort of like a bad penny: it keeps coming back. Once again Rep. Mark Foley (R.-FL) has introduced his ADA Notification Act. The bill, which has been introduced by Foley several times in the past, would require a disabled person to give a business 90 days' notice before suing them under Title 3 of the Americans with Disabilities Act. Foley's way of putting this is that the Act would "limit frivolous 'drive-by' lawsuits by giving businesses 90 days to comply with the Americans with Disabilities Act once alerted to the violations, before being sued." The bill, HR 728 this year, has been referred to the Committee on the Constitution. Foley blames attorneys for preying on disabled people by filing lawsuits on their behalf. "Many of these lawyers are making a mockery of the law. They are using disabled Americans in their quest for quick cash," says Foley's press release. "The disabled community should be outraged over the hijacking of a law meant to protect their interests, not lawyers' assets." Disability activist groups counter that the ADA has been law since 1990 and that businesses have had 13 years now to comply with it; nobody needs another 90 day's "notification." " The effect of requiring 'notice' is to encourage [businesses] to do nothing until they get a letter," disability attorney Andrew Levy told the House Judiciary Committee in May, 2000. The National Association of Realtors issued a press release praising Foley's bill for "addressing a weakness in Title III of the Americans With Disabilities Act." The the American Hotel and Lodging Association and the National Restaurant Association are just a few of the trade groups who have come out in the past in support of this perennial effort to weaken the Act. Ragged Edge editor Mary Johnson's new book details Foley's 2000 effort with the Notification Act. Read more. Read more ADA Notification Act efforts in the recent past:
AL nursing home rule changed for Dupree MOBILE, AL, Feb. 11, 2003 -- Late yesterday, HHS Secretary Tommy G. Thompson announced the approval of a new Medicaid waiver in Alabama to provide services "to certain Medicaid-eligible individuals" which "will assure continued support for people who might otherwise lose their services simply because they turn 21." MORE. CA bill: 90 days' wait before suing SACRAMENTO, Feb. 1, 2003 --A bill introduced in the Calif. legislature calls for 90-days' notice be given "a public accommodation or housing accommodation" by a disabled person before suing them for access violations, and would prohibit collection of any costs, including attorney's fees. The bill mimics the ADA Notification Act which has been introduced in Congress by Rep. Mark Foley (D.-FL) several times. Calif. SB69 was introduced in January by state senator Rico Oller, a Republican from northern Calif. "The bill would also prohibit the recovery of attorney's fees, treble damages, or any other costs, with respect to any action or proceeding regarding access improvements," says a description of the bill from the Legislative Counsel's office. Scott brothers' murderer-mom gets 5 years, probation ATLANTA, Feb. 1, 2003 --Carol Carr, who murdered her two sons last summer, shooting them as they lay in beds in a Georgia nursing home, was sentenced Wednesday to five years in prison and five years on probation after pleading guilty to Georgia's assisted-suicide law. Carr had faced two counts of felony murder and two counts of malice murder. Both sons, 42-year-old Michael Randy Scott and 41-year-old Andy Byron Scott, had Huntington's disease. The case, covered in news media as "mercy killings," outraged disability activists (see "Mercy! Here we go again," Ragged Edge Year 2002 Issue 4). |
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