February 2000 General E-Bulletin

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General E-Bulletin

In This Edition:

Breaking News

Upcoming Events, Conferences and "Celebrations"

Training Opportunities Available

Distance Learning

Resources

Federal Agency Rulemaking

Litigation: Definition of Disability Post Sutton and Abbott

Applicability of Title II to State and Local Governmental Services (Sovereign Immunity)

In the "Wake" of Olmstead v. L.C. - Following the Roadmap Set out by the United States Supreme Court

Breaking News

On February 9, 2000, the Subcommittee on the Constitution held a hearing on the applicability of the ADA to private Internet sites. Different modes of Internet communication severely limit access to individuals who are blind or who have vision impairments. In November, the National Federation for the Blind filed a class action lawsuit against America Online claiming that the manner in which AOL services are provided, violates the ADA. The Department of Justice has stated that the accessibility requirements in the ADA apply to private Internet Web sites. In early March, the DOJ is scheduled to issue accessibility requirements applicable to Federal department and agency Internet sites. These are available at www.usdoj.gov.

On February 8, two Florida Congressmen, Rep. Mark Foley and Rep. E. Clay Shaw announced plans to introduce legislation to require that businesses be given advance warning that they are violating the ADA and an opportunity to correct the violation before a suit can be filed. It seems they are responding to the large number of suits filed by a local disability advocacy group against businesses allegedly not in compliance with the accessibility requirements of the ADA.

Upcoming Events, Conferences and "Celebrations"

Texas

"Torch Across America" Relay Begins in Houston - On February 24, 2000, former President Bush will light the torch that will then be escorted to the George Bush library in College Station. On June 11, the torch will cross the nation and arrive at its destination in New York City on August 7. The purpose of the relay is to celebrate the positive changes brought about by the ADA. Currently, more that 500 activities are being held across the country in celebration of the ADA. If you are planning any ADA celebrations in Region VI, Arkansas, Louisiana, New Mexico, Oklahoma or New Mexico, let us know so that your event can be publicized on our Web site and posted on the Initiatives 2000 national calendar.

American Foundation for the Blind's "Josephine L. Taylor Leadership Institute (JLTLI)"
When: March 3-5, 2000
Where: Dallas, TX
For more info: Gabriella Smith-Coventry at 212-502-7654 or gsmith@afb.net

Texas Society of Interpreters for the Deaf Conference
When: March 30-April 2, 2000
Where: Austin, TX at the Capitol Marriott
For more info: email TSID2000@tsid.org

Arc of Texas Annual Conference
Annual conference and business meeting for Arc of Texas members, volunteers, supporters, chapters, and staff.
When: April 14-15, 2000:
Where: Corpus Christi, TX at the Omni Bayfront Hotel
Contact: Dawn Roland, 800-252-9729, ext. 115, or droland@thearcoftexas.org

Texas Advocates Conference
A statewide self-advocacy convention for adults with disabilities. Texas Advocates is a nonprofit organization made up of and managed by people with mental retardation and other disabilities who are learning to "speak out for themselves."
When: July 7-9, 2000
Where: Corpus Christi, TX at the Omni Bayfront Hotel
Contact: Dawn Roland, 800-252-9729, ext. 115, or droland@thearcoftexas.org, or Lavern Bozant, 800-252-9729 or lbozant@thearcoftexas.org

Inclusion Works!
More than 1,500 educators, school administrators, students, and parents will gather in San Antonio for the state's premiere conference on inclusive education. Learn "best practices" from the best of the best inclusive educators in the state, and hear powerful messages from national inclusion experts.
When: December 4-16, 2000:
Where: San Antonio, TX at the Hyatt Regency on the Riverwalk
Contact: Dawn Roland, 800-252-9729, ext. 115, or droland@thearcoftexas.org

Training Opportunities Available

Biloxi, MS

Advocates, ADAAG Trainers, and Site Surveyors
The Southwest and the Southeast DBTACs are pleased to announce they are co-sponsoring a three-day informative and interactive training:
ADA Accessibility Guidelines: "Information and Strategies You Need to Educate Others"

April 12 - April 14 at the Isle of Capri Hotel in Biloxi, Mississippi

This training is open to individuals who offer trainings or technical assistance on the ADA Accessible Guidelines (ADAAG) and to those who conduct site surveys. This training will teach participants about the ADAAG, and prepare them to use the information to provide technical assistance and training, and site surveys in their communities.

The training will cover:

Title II & III scoping requirements
How to read and understand the ADAAG and related documents
New construction, alterations, and maintenance requirements
Communication requirements
The newly proposed ADAAG
Conducting and following up on site surveys
Strategies for providing effective ADAAG training and technical assistance in your community

For more information, or to register, please call the DLRP at 800-949-4232, visit our Web site at www.ilru.org/dbtac, or e-mail us at swdbtac@ilru.org

Arkansas

Join ADA Arkansas Roundtable network trainers at these trainings and get the latest information on the following topics:

Tuesday, February 29: ADA and Transportation
Tuesday, May 30: Requesting Accommodations
Tuesday, July 25: Higher Education and the ADA and 504
Tuesday, October 31: ADA and Service Animals
All trainings will be held from 1:30-3:30 at the training annex of the offices of the University Affiliated Program at 501 Woodlane, Suite 210, Little Rock, AR.
Interested in joining the Roundtable or finding out about the services available through its network? Contact Lisa Roberts or Mainstream ILC at 501-280-0012

New Mexico

These trainings have limited seating, you must call in advance if you are interested in attending.
"An In-Depth Look at Title III: Public Accommodations"
New Vistas Independent Living Center
1205 Parkway Drive
Santa Fe, New Mexico 87505
800-737-0330 or 505-471-1001
March 15 - 9:00am to 4:30pm

"ADA, IDEA, and 504*: What do They Stand for and What do Parents of Children with Disabilities Need to Know About Them"
New Vistas Independent Living Center
1121 Alto Street
Santa Fe, New Mexico 87501
505-988-3803
April 5 - 9:30am to 11:30am
*Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act

"An Overview of the Employment Provisions of the ADA"
Peanut Butter and Jelly Therapeutic Preschool
1101 Lopez Rd. SW
Albuquerque, New Mexico 87105
505-877-7060
March 17 - 1:30pm to 4:30pm
Call 800-949-4232 to register

Distance Learning

ADA Distance Learning 2000 utilizes a combination of teleconferencing and web-based technology to deliver continuing education on specific topics of the ADA. They are one-hour in length with interactive opportunity for questions and answers. Supplemental materials are posted to the Web for participants to review and prepare for each session.
Pre-registration is required. Remaining sessions include:
March 21: Effective Communication
April 18: Worker's Compensation and the ADA
May 16: Principles of Universal Design
June 20: Post-Secondary Education: ADA and Section 504
July 18: Breaking Ground: 10 Years of the ADA
August 15: Union Environments and the ADA
September 19: Accessibility & Technology: Section 508 and Telecommunications
Call 800-949-4232 to register or for more information on these sessions.

Resources

Obtain information and technical assistance on self-employment and small business ownership opportunities through the Small Business and Self Employment Service, a service of the President's Committee on Employment of People with Disabilities. The full range of information an individual needs to begin and manage a business, from developing business concepts to growing it and marketing its services is available through this service. Technical assistance on issues related to disability, i.e., social security and PASS plans may also be obtained. Visit www.janweb.icdi.wvu.edu/sbses/ABOUT.htm for more information.

Federal Agency Rulemaking

On November 16, 1999, the ACCESS Board issued a proposal to thoroughly update the ADAAG. The proposed guidelines revise both the substance and format of the existing ADAAG and reconcile the differences between the ADA and the Architectural Barriers Act to provide a more uniform level of access. There are also new figures and advisory material to make it more "user friendly." It is also more accessible to individuals with vision impairments because all features illustrated by figures are accompanied by written text. Throughout the document the ACCESS Board poses questions to solicit information before developing specific requirements. The deadline for public comment is March 15, 2000. View the full text of the guidelines by visiting www.access-board.gov. Also check the "Recommendations for a New ADAAG" to compare the advisory committee recommendations with the proposal from the ACCESS Board.
The Federal Communication Commission is looking for comment and ideas on the public interest obligations of TV broadcasters as they transition to digital transmission technology. They are looking at four general categories of issues, including how broadcasters might make their programming more accessible to persons with disabilities, through using video description and changing the size of captioning. For more information contact Eric Bash at (202) 418-2130 TTY or (202) 418-1169.

Litigation

Title I Employment
Definition of Disability Post Sutton and Abbott

In the wake of the Supreme Court decisions in Abbott v. Bragdon and Sutton v. United Airlines there has been some confusion over exactly how these decisions impact the definition of disability under the ADA. In finding that HIV was a disability in Abbott v. Bragdon, the Court recognized that an individual does not have to manifest actual symptoms to be covered under the ADA. In Sutton v United Airlines, the Court ruled that impairments should be evaluated in their corrected or "mitigated" state to determine whether they are disabilities. Although these rulings "increase" the burden of proving that an individual has a disability, the Court agreed with the EEOC on other important definitional considerations. The Court stated that each person must still be evaluated on an individualized basis, so there is no per se exclusion of persons with certain types of disabilities. People with disabilities, using mitigating measures, may still be substantially limited in major life activities and the effect of some mitigating measures such as medication can cause substantial limitations on major life activities.

Read together, these decisions require that an individualized determination be made to determine the full impact of the disability on the individual. Functional limitations should be evaluated after factoring in the effect of mitigating measures. Impairments that are not presently limiting should be considered in terms of how they substantially limit an individual's ability to pursue major life activities.

Subsequent Decisions

A secretary with bipolar disorder is disabled under the ADA because she was substantially limited in the major life activity of thinking. (Taylor v. Phoenixville Sch. Dist., 16 NDLR 115, No. 98-1273, 184 F.3d 296, 3rd Cir. 1999)

An attorney with epilepsy was able to prove that she was substantially limited in the major life activities of working and sleeping. The side effects of the medications caused mild sedation and insomnia. (Franklin v. Consolidated Edison Co. of N.Y. 16 NDLR 181 SDNY 1999)

An individual with polio, who used a brace, was still substantially limited in the major life activity of walking because he was unable to function as well as others. (Belk v. Southwestern Bell Telephone 16 NDLR 185, 8th Cir. 1999)

Instructions for Field Offices: Analyzing Americans with Disabilities Act Charges After Supreme Court Decisions Addressing "Disability" and "Qualified" from the EEOC also provides detailed instructions on evaluating disability in the wake of these decisions. E-mail us at swdbtac@ilru.org or call 800-949-4232, if you would like a full copy of the instructions or want to review a more detailed discussion of these issues.

Title II - State and Local Government

Applicability of Title II to State and Local Governmental Services (Sovereign Immunity)

The Supreme Court will hear two ADA cases in April regarding congressional authority to enact Title II of the ADA. The outcome of these cases will have important consequences for the enforceability of Title II of the ADA against states.
The cases coming before the Supreme Court are Alsbrook v. City of Maumelle, (Ark.15 NDLR 220, 8th Cir. 1999) and Florida Department of Corrections v. Dickson.

In Alsbrook, the court struck down the Title II claims stating that they were not "a proper exercise of Congress's power under Section 5 of the 14th Amendment." The court also took issue with the wording and requirements of Title II, noting, that "[t]he specter of open-ended obligations for a state under Title II is further compounded by the fact that, unlike the term 'reasonable accommodation' used in Title I, the term 'reasonable modification' is not defined anywhere in the statute." The court also noted that it was parting company with the Eleventh, Fifth, Ninth, and Seventh Circuits, which have held opposite.

In Florida Department of Corrections v. Dickson, the Court upheld the application of Title II to states finding that Congress clearly invoked its Fourteenth Amendment enforcement power in enacting the ADA, "the purpose of this chapter . (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment.." The court made note of the of the history of exclusion and segregation of persons with disabilities citing Congressional findings that "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment." Oral arguments are set for April, and the decisions should be issued in late June.

Several states and different disability groups are planning to file briefs.

In the "Wake" of Olmstead v. L.C. -Following the Roadmap Set out by the United States Supreme Court

In Olmstead, the Supreme Court found that institutionalizing a person with a disability, who can benefit from living in the community and wishes to do so, constitutes discrimination because it severely diminishes the individual's ability to interact with family and friends, work and make a life for him or herself. In its decision, the Court laid out the "roadmap" that states must use to develop their integration plans. The Court indicated that a state may demonstrate compliance by having comprehensive and effective plans for placing qualified individuals with disabilities in less restrictive settings and waiting lists that move at a reasonable pace.

On January 14, 2000, the Office of Civil Rights of the United States Department of Health and Human Services issued a "Preliminary Technical Guide" to State Medicaid Directors to help them develop their "Olmstead" community integration plans. Throughout the guidance letter, the importance of the role of individuals with disabilities in all phases of the process is emphasized. You may obtain a full copy of this letter by e-mailing us at swdbtac@ilru.org or calling 800-949-4232.

Welcome to the E-mail bulletin distribution list of the Southwest ADA Center. The bulletin is distributed monthly to provide subscribers with an update on the Americans with Disabilities Act events, trainings, resources, agency rulemaking and enforcement activities. We also want to use the bulletin as vehicles to post information on any ADA-related events your organization or group are planning in your state or community. Please feel free to forward us any information about your event(s). They will be posted the following month. Questions and feedback may also be submitted in the same manner.

Project staff are available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions. All questions are answered confidentially.

The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA. NIDRR is not an enforcement agency. The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

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Tajauna Dunning, Communications Director
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2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
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