Showing posts with label Americans with Disabilities Act. Show all posts
Showing posts with label Americans with Disabilities Act. Show all posts

Monday, April 5, 2021

USA: Justice Department moves unopposed motion to intervene as Plaintiff in a Disability Discrimination Suit Against City of Chicago Regarding Pedestrians with Vision Disabilities

Dear Colleagues,


This is a disability rights enforcement action by the Justice Department of United States of America against the City of Chicago, seeking to remedy the city’s failure to provide people who are blind, including those who are deaf-blind or have low vision, equal access to pedestrian safety information at intersection crossings, which the city provides almost exclusively through visual-only pedestrian signals.  The United States has sought declaratory, injunctive, and compensatory relief for this violation of Title II of the Americans with Disabilities Act of 1990. 


Having moved an unopposed motion to intervene as a plaintiff in this disability discrimination lawsuit filed by private plaintiffs American Council of the Blind of Metropolitan Chicago, Ann Brash, Maureen Heneghan and Ray Campbell against the City of Chicago under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), the Department of Justice found in its investigation that the allegations were true.


The complaint alleges that the city of Chicago fails to provide people who are blind, have low vision, or are deaf-blind with equal access to pedestrian signal information at intersections. Pedestrian signal information, such as a flashing “Walk/Don’t Walk” signal, indicates when it is safe to cross the street. 


Accessible pedestrian signals (APSs) are devices that provide pedestrians with safe-crossing information in a non-visual format, such as through audible tones, speech messages, and vibrotactile surfaces. Since at least 2006, Chicago has recognised the need to install APSs for pedestrians with visual disabilities. Yet, while Chicago currently provides sighted pedestrians visual crossing signals at nearly 2,700 intersections, it has installed APSs at only 15 of those intersections. 


Thus over 99% of Chicago’s signalised intersections subjects people who are blind, have low vision, or are deaf-blind to added risks and burdens not faced by sighted pedestrians, including fear of injury or death which in contravening the ADA and Section 504 that require that individuals with disabilities have equal access to public services, including access to pedestrian crossing information that is critical for safety and for full participation in community life.


Petition seeks to ensure that Chicagoans with disabilities are provided equal access to city services, particularly those services whose purpose is public safety.


The motion and complaint seeking intervention were jointly filed by the Disability Rights Section of the department’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of Illinois. Access the proposed motion to intervene at this link: https://www.ada.gov/acbmc/acbmc_motion.html.



Wednesday, October 21, 2020

Manhattan Federal Judge Paul Engelmayer rules "NYC has violated the ADA by not installing accessible pedestrian signlas for the blind."

Dear Colleages, 

A federal lawsuit, brought by the the American Council of the Blind in 2018, sued NYC Govt. on behalf of plaintiffs Michael Golfo and Christina Curry, claiming that out of the city’s 13,000 pedestrian traffic signals, just over 2 percent conveyed information in a way that is accessible to blind pedestrians. 

The lawsuit argued that the city’s Department of Transportation violated the Americans with Disabilities Act by neglecting to add audible features to crosswalk signals that let visually impaired people know when they have the traffic signal. There are about 205,000 blind or otherwise visually-impaired people who live in the city and face this inaccessible and hostile environement. 

The arguments have found favour with the District Judge Paul A. Engelmayer and on 20 Oct 2020, the court ruled  the current “near-total absence” of accessible crossing information violates the ADA and the Rehabilitation Act of 1973, the federal disability law that preceded the ADA.

The tuesday ruling notes that blind pedestrians in New York will typically stop at the curb and assume they are at a point where they can cross the street. Without any accessible indicator of a crossing, however, blind pedestrians cross somewhere other than the crosswalk 30 percent of the time. This leaves them to rely on other auditory cues, which is prohibitively difficult with New York’s level of ambient noise. 

In particular, Engelmayer ruled the city had failed to equip traffic signals with accessible pedestrian signals — APS for short — which include alarms or other audible alerts. The Court held that the absence of non-visual crossing information at more than 95% of the City’s signalized intersections denies plaintiffs meaningful access to the City’s signalized intersections and the pedestrian grid, in violation of the ADA and Rehabilitation Act,” Engelmayer wrote.

“The Court further holds that some, but not all, of the City’s projects with respect to traffic signals gave rise to a duty under these statutes to add APS [Accessible Pedestrian Signals]—a duty that the City has largely breached.”

The Court ordered  the NYC lawyers to seek an agreement with petitioners to make more intersections safe for pedestrians who cannot see. The two sides must submit a letter to the court by Oct. 30 laying out a path forward to come to a resolution, which could include benchmarks and deadlines for adding APS to street signals.   Though, the court's ruling itself does not specify how many signals must be installed.

Mayor de Blasio spokeswoman Laura Feyer said the city is already working to expand accessibility for blind people at crosswalks — but declined to provide a timeline for the installation of more infrastructure to make good on the judge’s ruling. 

“The city is dedicated to making our streets more accessible to all New Yorkers with and without disabilities, including those who are blind or have low vision,”  “We will continue to install APS across the city and are consistently working to increase access for the blind and low vision community in all facets of life.”  said Feyer.

Sources: 

1. pressfrom dot info

2. NYDailyNewsdotcom







Friday, June 30, 2017

California Federal Judge allows Website Accessibility Lawsuit to continue under Title III, ADA

Dear Colleagues,

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge. The case will now move forward.

This decision is significant for several reasons:

The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website. Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process. On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years. As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website. Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”

In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “for over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.” Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency. Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”

Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time. We predict that the case will settle before the court reaches the merits of the case.

Sources: 

Wednesday, April 19, 2017

ना रहेगा बांस, ना बजेगी बांसुरी - Instead of making online audio and video content accessible at the order of Deptt of Justice, UC Berkeley removes entire public content - leaving all students in lurch.

Dear Colleauges,

A group of scholars have objected to a decision by the University of California, Berkeley, to remove many video and audio lectures from public view as a result of a Justice Department accessibility order.
In response to the Department of Justice's letter to the University of California, Berkeley, dated 30 Aug 2016 asking it to implement procedures to make publicly available online audio and video content accessible to people who are deaf, hard of hearing, deaf and blind, and blind, the University, rather than complying with the request, took the outrageous step of ending public access to those valuable resources, which include over 20,000 audio and video files, to avoid the costs of making the materials accessible. And on top of it, the UC Berkeley issued a public statement saying that disability access requirements forced this decision.
A large number of stakeholders have strongly objected to Berkeley’s choice to remove the content, and its public statement  The stakeholders feel that Berkeley has for years systematically neglected to ensure the accessibility of its own content, despite the existence of internal guidelines advising how to do so. Further, the Justice Department letter left sufficient room for many alternatives short of such a drastic step. The stakeholders allege that it was never the intent of the complainants to the department, nor of the disability community, to see the content taken down.
In fact, people who depend on the accessibility of online course content constitute a significant portion of the population. There are between 36 and 48 million individuals in the United States with hearing loss, or about 15 percent of the population. An estimated 21 million individuals are blind or visually impaired. Altogether, about one in five adults in the United States has a functional disability.
The prevalence of disability increases significantly after the age of 65: more than one in three older adults have hearing loss, and nearly one in five have vision loss. Refusing to provide public access to online content negates the principle of lifelong learning, including for those who may eventually acquire a disability. Moreover, many individuals without hearing and vision disabilities benefit from accessible online course content.
As per the post of Mr. Christian Vogler, the public response to Berkeley’s announcement - and to Inside Higher Ed’s reporting -- has been disheartening. While some commenters have acknowledged the need for accessible e-learning content, others have cast blame on those seeking access, accusing people with disabilities of putting their own interests first. Many have suggested that calls for access, such as captioning and audio description for video content, deprive the broader public of these resources. Many misrepresent this issue as one where the needs of the many outweigh the needs of the few.
Despite the large number of people who stand to gain from accessible content, changes to existing practice are rarely made voluntarily and typically occur through the enforcement of disability civil-rights laws. Those laws, including the Americans With Disabilities Act and its 2008 amendment, were passed unanimously or with overwhelming bipartisan majorities in both the U.S. House of Representatives and the U.S. Senate.
Once disability civil-rights laws are passed and implemented, the broader public stands to gain. As laid out by “The Curb Cut Effect,” the installation of curb cuts -- a direct consequence of the unanimously passed 1968 Architectural Barriers Act -- permitted diverse public access that has nothing to do with wheelchairs: baby strollers, shopping carts, bicycles, roller skates, skateboards, dollies and so forth. Today, curb cuts are so ubiquitous that we do not usually think about their existence anymore, yet we cannot imagine our country without them. In fact, Berkeley, often considered the birthplace of the civil-rights movement, led the way in curb cut implementation.
Captions are often referred to as digital curb cuts. As with physical curb cuts, widespread digital captioning originates from civil-rights legislation, including the 21st Century Communications and Video Accessibility Act of 2010. About 30 percent of viewers use captions, according to Amazon, 80 percent of whom are not deaf or hard of hearing. A 2011 Australian survey revealed similar numbers, and a 2006 British study found that 7.5 million people in Great Britain had used captions to view television, including six million, or 80 percent, with no hearing loss. On Facebook, 85 percent of viewers consume video without sound, and captioning has increased user engagement. And an October 2016 study found that about 31 percent of hearing respondent college students “always” or “often” use closed captions when they are available, and another 18 percent sometimes use captions.
It was never the intention of the complainants or their allies to have course content removed from public access. With the recent mirroring of 20,000 public lectures, the net outcome is that we are back to square one with inaccessible content, now outside of the control of Berkeley. (We wish to emphasize that we have no quarrel with the decision to mirror the content, and affirm the right to freedom of speech in the strongest terms.)
The Department of Justice’s letter did not seek the removal of content, either. Indeed, Berkeley’s peer institutions have affirmed that they will continue to make their materials publicly available while striving to make them accessible as well.
The letter cannot have come as a surprise to Berkeley. In February 2013, seven months after the university announced its partnership in edX with the Massachusetts Institute of Technology and Harvard University, faculty and staff members on Berkeley’s now-dismantled Academic Accommodations Board met to discuss how to “make sure students with disabilities have access” in “online education, including MOOCs.” There, board members warned that the university needed strong and immediate plans for disability access in its MOOCs.
In April 2014, the Civil Rights Education and Enforcement Center, on behalf of the complainants, contacted Berkeley and offered to engage in structured negotiation -- a successful method of dispute resolution that has been used with some of today’s biggest champions of captioned online video content. When the offer of structured negotiations went nowhere, the center filed with the Department of Justice in October 2014.
The Justice Department letter issued in August 2016 found that Berkeley had failed to enforce the accessibility of such content, resulting in few of their video or audio files being accessible. The department asked that the university strengthen its procedures to enforce accessibility guidelines. In response, rather than make the suggested changes, Berkeley publicly threatened to withdraw content and then went ahead with its March 2017 announcement to remove content.
The stakeholders acknowledge that remedial accessibility work -- after-the-fact efforts to make content accessible -- can be costly. Such work requires not only the addition of captions and audio descriptions but also checking to ensure that documents and materials can be read by screen readers or accessed on a variety of devices. That is why it is so important that leadership enforce accessibility policies from the beginning. The ADA contains an undue-burden defense that protects public entities that cannot afford to make accessibility changes. But it is difficult to see how this applies here, since Berkeley was offered the option to make content accessible over a longer period of time to keep the cost manageable.
The fact that the online content is free is immaterial. Civil-rights justice and access are built on the premise that everyone, with or without a disability, should be able to participate. Online educational content has become a key ingredient of community participation, irrespective of whether it is free or paid. Moreover, Berkeley created the content at the outset -- which means taxpayers, including taxpayers with disabilities, partially funded it.
Barriers to accessing the educational materials of a respected university hinder community participation by people with disabilities. The removal of digital access barriers is a crucial endeavor for a society that continues to revise its aspiration of justice for all. 
The stakeholders who were signatories to this article titled "Access Denied" originally appearing on InsiderHigherEd.com,  expressed that they experience such barriers on a very personal level. They have urged the UC Berkeley to reconsider its decisions and restore the access to the public content to all while the content is made accessibile in due course of time.

Friday, August 19, 2016

Travelodge sued for discriminating with a deaf customer with guide dog in USA

Dear Colleagues,

A deaf woman who uses a service dog is suing the Travelodge of La Mesa, alleging discrimination for how she was treated when she tried unsuccessfully to check into the hotel earlier this year.

The Travelodge though did not initially bar her from staying overnight with her guide dog, it demanded that she sign a damage policy form for pets that she and her lawyers say is discriminatory, according to a lawsuit filed last week in U.S. District Court.

When she protested during the check-in process, the desk clerk informed her that she and herguide dog were no longer welcome to stay at the hotel, the suit says. She asked for a refund but was denied one at the time because the hotel stay was booked on Expedia, the desk clerk told her.

The plaintiff, Naomi Sheneman, of Rochester, New York, is alleging violations of the Americans with Disabilities Act, Unruh Civil Rights Act and the California Disabled Persons Act.

She is seeking a court order requiring Travelodge to comply with policies prohibiting discrimination against the deaf and to train its staff on a regular basis about the rights of individuals who are deaf or hard of hearing under state and federal laws. The suit also seeks compensatory damages.

“There are a lot of hotels out there that don’t follow the law and require additional burdens for people with service animals,” said attorney Andrew Rozynski of Eisenberg & Baum Law Center For The Deaf and Hard of Hearing, which is representing Sheneman. “This suit is to show that you can’t have these additional burdens for people with disabilities because that’s the law. To require her to sign this form and say she can’t stay there and embarrass her is humiliating.”

Travelodge said it was reviewing the complaint with its attorneys. “However, we want to make it clear that Ms. Sheneman, who was a returning guest and totally familiar with the policies and rules of the hotel, was not presented any additional requirements because of her service animal,” the hotel said in a statement. “She was asked for the same deposit as any customer and presented the same information that would be given to any guest with a non-service animal.”

The La Mesa hotel said it did not refuse service to Sheneman, and that it “has never discriminated against persons with service animals. We welcome service animals as advertised on our website, and guests with service animals are staying on a regular basis at the Travelodge of La Mesa.”

While the Travelodge of La Mesa does not permit pets, it notes on its website that “ADA defined service animals are welcome at this hotel.” When Sheneman checked in, she was told that a damage deposit for the room was required, which she provided.

But when she was given a form setting forth additional charges to be applied specifically to damage caused by a guest’s animal, she said she was uncomfortable signing it because it “appeared to impose additional terms or obligations on her because of her service animal,” states the suit.

Sheneman was forced to stay at another hotel and ultimately received a full refund from Travelodge of the $185.53 she had paid.

Tuesday, May 10, 2016

Franklin Institute's policy of charging attendant of disabled patron held discriminatory


Federal Judge orders Franklin Museum to change admission policy of charging the attendant of disabled patron since it would be deemed discriminatory to disabled under the provisions of ADA.

A federal judge has ordered the Franklin Institute to stop discriminating against disabled patrons by making personal-care attendants pay entrance fees.

The court order follows a 2013 lawsuit alleging that the nonprofit museum's policies prevented some disabled people from enjoying all the institute has to offer by charging their caretakers for the price of admission.

Lead plaintiff Michael Anderson has cerebral palsy and uses an electric wheelchair with the help of a full-time personal attendant. His attendant was charged at the door and for special offerings at the institute.

For instance, when Anderson tried to attend an Imax screening, he was told that his attendant must buy a ticket, a position that attorneys for the institute defended in federal court for more than two years. They have argued that waiving the fee could, eventually, cause the nonprofit to run a deficit and even trigger layoffs.

"The illogic of the institute's position is as striking as its hyperbole," wrote U.S. District Judge Gerald McHugh Jr.

McHugh wrote that he's "frankly puzzled" that the Franklin Institute would resist following the law — the Americans with Disabilities Act — because it could dampen ticket sales. 

"To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes," he wrote.

According to institute attorneys, personal-care attendants are no longer charged the $19.95 cost of general admission. However in filings, they contend the institute cannot extend the policy to Imax screenings and other special exhibits that have limited seating.

Now, the institute is under a court order to change that. 

The institute provides personal-care attendants with a folding chair to sit in an upper section dedicated to wheelchair seating for Imax screenings. Arguing that waiving the folding chair cost is hurting the museum's revenue is "nonsensical," the judge wrote, since those seats are not available to the general public.

The institute does not keep records on how many people with disabilities are accompanied by personal-care attendants, making the financial impact of waiving the folding chair fee difficult to quantify. Furthermore, the majority of Imax and special exhibits never even reach 50 percent capacity, McHugh wrote.

"No reasonable fact-finder could conclude that an occasional $1 loss to a $135 million organization constitutes an unreasonable cost or an undue financial burden," the judge wrote.

In a statement, the Franklin Institute said it has a long history of serving the disabled community through education and outreach programs. 

"We strongly disagree with the decision," said spokeswoman Stefanie Santo, saying the institute will now "explore all of our options." 

The Miami-based attorneys representing the institute never returned calls seeking comment.

Attorney Stephen Gold, who represented the plaintiffs in the case, said without caretakers, many severely disabled people in the Philadelphia area cannot partake in the region's cultural offerings.

"We hope that museums and other institutions throughout the country will modify their policies to conform to the ADA," he wrote in a statement.

Source: Newsworks

Wednesday, September 11, 2013

Can blind carry guns in public under the ADA

Changes to USA's Americans with Disabilities Act (the state law) in 2011 allowed those with visual impairments to legally carry guns in public. However, there is a debate in Iowa State of USA between the disability advocates and law enforcement officials who are split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.
In other words can  blind can be discriminated from carrying guns in public spaces merely on the ground of disability! 

In Indian context, I can remember the famous epic of  King Prithviraj Chauhan of Rajasthan who fought a brave battle against the foreign invader Muhammad Ghori. Ghori lost the battle 16 times and was given mercy by the Chauhan. However, 17th time a traitor from Chauhan's kingdom supported Ghori's army and that resulted in defeat of Chauhan who was captured and taken to Afghanistan along with his state poet cum friend Chandbhar by Ghori.  In Ghori's court, Prithviraj and Chandbhar were brought in shackles. Prithviraj was asked to show the art of archery, wherein he could aim and shoot just by hearing the sound. It is also known as Shabdbhedi-baan. Ghori asked him to show him this art. To make game interesting for himself, he got Chauhan's eyes pierced with hot iron rods making him completely blind. We all know what happen in end. The blind Prithvi Raj Chauhan killed Ghori in his court and obviously to meet his own death. Grave of Prithvi Raj Chauhan is present till date next to Ghori's grave.

In another epic, Ramayana, the King Dashratha (father of Lord Rama) who was an expert archer in shooting at the hearing of the sound also accidently killed Shravan Kumar by his arrow taking him to be a deer which resulted in Shraap by Shravan's parents that he too would die of Putra Viyog.

This proves sufficiently that with training, it is not difficult for a completely blind person to use fire arms for one's safety. Hence, the debate is useless in light of settled law as well as the above precedence.

Here is the report covered in Disability Scoop.

By SHAUN HEASLEY

September 10, 2013 

A new debate over disability rights is emerging as Iowa grants permits for people who are blind to carry guns.

Changes to state law in 2011 allowed those with visual impairments to legally carry guns in public. And officials in one Iowa county say they’ve issued permits to at least three people who are legally unable to drive because of their limited sight.

“It seems a little strange, but the way the law reads, we can’t deny them (a permit) just based on that one thing,” Sgt. Jana Abens of the Polk County sheriff’s office told the Des Moines Register.

The situation is leaving disability advocates and law enforcement officials split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.

Cedar County Sheriff Warren Wethington has a daughter who is legally blind and favors training for those with visual impairments to carry weapons, a stance shared by some advocates who say that denying guns because of a disability would be a violation of the Americans with Disabilities Act.

Other law enforcement officials in the state are skeptical, however, and even some advocates say guns may present one area where equal access is unreasonable.

“Although people who are blind can participate fully in nearly all life’s experiences, there are some things, like the operation of a weapon, that may very well be an exception,” Patrick Clancy, superintendent of the Iowa Braille and Sight Saving School, told the newspaper.

Unlike Iowa, some states do consider vision abilities in issuing gun permits. Nebraska and South Carolina require applicants to provide proof of vision, for example. Meanwhile, in Missouri and Minnesota individuals with limited vision may be indirectly disqualified because of requirements to complete a live fire test and hit a target.

Source: Disability Scoop 

Monday, August 5, 2013

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.


According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Disabilities can't be restricted to those in the PwD Act 1995

Dear Colleages,

The present medical model of disability in the Disability Act and as understood by the Courts has some serious shortcomings. The etiology based labels or medical condition based labels are counterproductive so far as the constitutional mandate of ensuring equality and non-discrimination is concerned. The benefits of schemes meant for social justice can not be just restricted to persons whose condition or type of disability reflects in the law.

What is needed is to look at the restrictions that the person faces in the community due to the particular condition. The forumula that Amended Americans with Disabilities Act (came in to force on Jan 01, 2009) adopts is quite reasonable. It accepts you for the disability benefits if :

(a) If you have a physical or mental problem that substantially limits one or more of your “major life activities”.
(b) You have a record of having had such a problem in the past.
(c) Other people think you have such a problem, even if you do not actually have it.

What are major life activities

Some of the “major life activities” covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The amended ADA has made some major changes to the way the definition of disability had been interpreted under ADA in the past. The 2008 Amendments Act includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help people with cancer, because in the past they often had a hard time meeting the definition of disability.

Bombay High Court sets a precedent

The Bombay HC has in the below case issued notices to the Coordination Committees  - both Centre and State - established under the Persons with Disabilities (Equal opportunities, proteciton of Rights and full participation) Act 1995 Central Govt.to respond to a similar case wherein the petitioner Vinod Tambe - a personal rehabilitated after cancer  -   has sought benefits available to persons with disabities under the Act.

Hon'ble Chief Justice Mohit Shah has been known to be a very sensitive judge so far as  matter related to those with disabilities and marginalised segments are concerned. He has been known to take suo moto notice of matters affecting the rights of disabled while he was with Gujarat High Court and championed the cause of persons with disabilities.

Disabilities Act not superseding but supplementing

The Maharasthra Government had through a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. And the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being a beneficial legislation only supplemented what existed before and by its enactment, no pre-existing right  could be taken away by the state in such a blatant manner. Therefore, even if if caner-cured is not included in the medical definitions of the Disabilities Act, the said category continues to get the benefits, technically.

Other unreported cases

I personally know of a case in Valsad, Gujarat where a gentleman met with a serious car accident during which a metal rod of the car entered his body from a little lower than the urinal part on the front side of the body and came out from the spinal cord i.e. back side of his body thereby tearing his body and damaging the sphincter, anus, rectum and the spinal cord. He was somehow saved but with a colostomy. 

The Disability Certificate granted by Civil Hospital Valsad says he is a case of "Permanent Colostomy  + L1 Vertebra Fracture (Old)" and degree of disability is quanitified as "66%" .  

He sought benefits of Tax Concession to buy an adapted car available to persons with Disabiliites. However, the Government authorities refused him the benefit saying that he is not a person with disability according to the Persons with Disabilities Act 1995 since he is not suffering from blindness, low vision, mental illness, mental retardation, hearing impairment or locomotor impairment! This is despite that fact that the gentleman has no voluntary control over his stools and has problems in independent mobility.

Lessons

Even the draft of the new Rights of Persons with Disabilities Bill 2012 which is to replace the existing Disabilities Act 1995 doesn't address this issue and still revolves around the etiology and types of disabilities without looking at the effect of the disability on the normal living of the person affected and the accommodations required by the person to be able to functional on an equal basis with others to ensure his fundamental right of equality to him. We need to move beyond types of impairment to the effects of the impairment the person faces in terms of disabilities while interacting with the social and environmental barriers and derive the accommodations that the person may require. 

The amended Americans with Disabilities Act (ADA) even recognises a disability which may not be actually there but may be perceived by others in addition to the major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. 

We seriously need to consider this before the present bill gets passed in the present form. Below is the news coverage on Bombay High Court admitting a case of  person recovered from Cancer with residual impairments/ disabilities.

TREAT CANCER - CURED AS DISABLED: PLEA IN COURT
Rosy Sequeira, TNN | Aug 5, 2013, 01.40 AM IST

MUMBAI: The Bombay high court has sought responses from the central and state coordination committees for persons with disabilities after a teacher cured of cancer approached it, demanding the same rights granted to disabled people. 

Solapur resident Vinod Tambe was diagnosed with blood cancer in 1977 at the age of seven. He was treated at Tata Memorial Hospital, and on March 16, 2005, issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him "cancer-cured handicap". Still, in spite of this, Tambe found that he was not allowed to access facilities for handicapped people. The primary school teacher subsequently moved court. 

Tambe is seeking the benefits accorded to disabled persons in healthcare, public transportation, education and employment. "The government should be considerate towards someone who has gone to the doorsteps of death and returned. Even though I am cured I still go through body pain. I am not like a normal person," he said. 

Tambe's advocate M S Karnik, during a hearing on July 12, pointed out that a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. 

But the Maharashtra government maintains that the circular was superseded by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The definitions of disabilities listed in the act do not cover Tambe's case, it says. 

Karnik argued that the authorities erred in applying a narrow definition of the term "disability": "A person who has suffered from blood cancer even after getting cured does suffer from disabilities arising from weakness of the bones, joints or muscles, leading to substantial restriction of the movement of limbs." Karnik added that Tambe's case can be classified under locomotor disability, which is recognised under the 1995 act. 

The advocate contended that various additional forms of disabilities should be covered under the act and the Right of Persons with Disabilities Bill, 2012. Because of the current narrow definitions, he said, many people are getting deprived of disability benefits. 

Agreeing with him, a division bench of Chief Justice Mohit Shah and Justice M S Sanklecha gave the instance of the rare genetic disorder Hunter's syndrome. In this, an enzyme the body needs is missing or insufficiently generated, the judges said, leading to progressive damage, affecting development and organ function. 

Karnik said among the responsibilities of the central and state coordination committees is to continuously evolve policies to solve the problems faced by disabled people and to advise Central and state governments. The judges issued notices to the committees and posted the next hearing on August 7.

MAKING A CASE

THE PETITIONER

Vinod Tambe was diagnosed with blood cancer in 1977 and treated at Tata Memorial Hospital. In 2005, he was issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him 'cancer-cured handicap'

THE PLEA

Cancer survivors should be granted the rights given to disabled people

Disabilities Under Right of Persons with Disabilities Bill, 2012

1) Autism spectrum disorder 2) Blindness 3) Cerebral palsy 4) Chronic neurological conditions 5) Deafblindness 6) Haemophilia 7) Hearing impairment 8) Intellectual disability 9) Leprosy cured 10) Locomotor disability 11) Low vision 12) Mental illness 13) Muscular dystrophy 14) Multiple sclerosis 15) Specific learning disability 16) Speech and language disability 17) Thalassaemia 18) Multiple disabilities (two or more disabilities listed as one to 17 occurring in a person at the same time)

Disabilities Defined Under Persons with Disabilities Act, 1995

1) Blindness 2) Low vision 3) Leprosy-cured 4) Hearing impairment 5) Locomotor disability 6) Mental retardation 7) Mental illness

Times View


The government should treat such cases with utmost sympathy instead of going purely by the rulebook. And, if need be, rules should change to provide relief to people in distress. The court has done the right thing by indicating there may be a need to take a fresh look at the law.





Wednesday, July 24, 2013

Lawsuit against State of Florida for unnecessary segretation of disabled in institutions

Dear Colleagues,

Children have a right to grow up with their families, among their friends and in their own ‎communities‬ as per US Supreme Court’s decision in ‪‎Olmstead‬ v. L.C. The judgement requires states to eliminate unnecessary ‪‎segregation‬ or ‪‎institutionalisation‬ of persons with ‪‎disabilities‬. 

On finding ‎violations‬ that are serious, systemic and ongoing and which require comprehensive relief for children and their families, US Justice Department has filed a lawsuit against the State of Florida alleging that the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other ‎communitybased‬ settings! 

Here is detailed press release:


The Justice Department announced today that it has filed a lawsuit against the state of Florida alleging the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other community-based settings.  The lawsuit, filed in federal district court in Fort Lauderdale, Fla., further alleges that the state’s policies and practices place other children with significant medical needs in the community at serious risk of institutionalization in nursing facilities.  The ADA and the Supreme Court’s decision in Olmstead v. L.C. require states to eliminate unnecessary segregation of persons with disabilities.  The department’s complaint seeks declaratory and injunctive relief, as well as compensatory damages for affected children.

In September of last year, the department issued an extensive findings letter, notifying the state that it is in violation of the ADA.  The letter found that the state’s failure to provide access to necessary community services and supports was leading to children with significant medical needs being unnecessarily institutionalized in, or being placed at serious risk of entering nursing facilities.  The letter identified the numerous ways in which state policies and practices have limited the availability of access to medically necessary in-home services for children with significant medical needs.  Additionally, the state’s screening and transition planning processes have been plagued with deficiencies.  Some children have spent years in a nursing facility before receiving screening required under federal law to determine whether they actually need to be in a nursing facility.

As a result of the state’s actions and inaction, the state has forced some families to face the cruel choice of fearing for their child’s life at home or placing their child in a nursing facility.  In one instance, the state cut one child’s in-home health care in half.  Her family could not safely provide care themselves to make up for this reduction in services, and they felt they had no choice but to place her in a nursing home.  Another child who entered a nursing facility as a young child spent almost six years in a facility before the state completed her federally mandated screening.

“Florida must ensure that children with significant medical needs are not isolated in nursing facilities, away from their families and communities,” said Eve Hill, Deputy Assistant Attorney General for the Civil Rights Division.  “Children have a right to grow up with their families, among their friends and in their own communities.  This is the promise of the ADA’s integration mandate as articulated by the Supreme Court in Olmstead.  The violations the department has identified are serious, systemic and ongoing and require comprehensive relief for these children and their families.” 

Since late 2012, the department has met with Florida officials on numerous occasions in an attempt to resolve the violations identified in the findings letter cooperatively.  While the state has altered some policies that have contributed to the unnecessary institutionalization of children, ongoing violations remain.  Nearly two hundred children remain in nursing facilities.  Deficient transition planning processes, lengthy waiting lists for community-based services and a lack of sufficient community-based alternatives persist.  The department has therefore determined that judicial action is necessary to ensure that the civil rights of Florida’s children are protected.

The ADA prohibits discrimination on the basis of disability by public entities, including state and local governments.    The ADA requires public entities to ensure that individuals with disabilities are provided services in the most integrated setting appropriate to their needs. The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability and to conduct compliance reviews regarding the programs and services offered by public entities.