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General E-Bulletin

Table of Contents

President's Committee to be Disbanded

US Access Board Issued Amendment to Advisory Note to Accessibility Guidelines for Play Areas

EEOC Rules on Disabled Temps: Agencies, Client Firms Both Must Make Accommodations

Social Security eNews:

Analysis of Burriola v. Greater Toledo YMCA by Pete Wright

'Belligerent' Worker Is Covered by ADA, Says Federal Court

Humana and PacifiCare Settle Landmark ADA Lawsuit in Texas

New Amendment Toughens California's Disabilities Law

President's Committee to be Disbanded

After 53 years of innovation and leadership, the President's Committee on Employment of People with Disabilities will be disbanded soon. In the new year, it will be replaced by the Department of Labor's new Office on Disability Policy. 

The President's Committee has given birth to many exciting initiatives like the Job Accommodation Network, High School/High Tech and the Business Leadership Network. It is expected that initiatives like these will not only continue, but will be made even stronger by this move. For details, please see: http://www.icanonline.net/news/fullpage/419.html

US Access Board Issued Amendment to Advisory Note to Accessibility 
Guidelines for Play Areas (amendment effective Dec. 20, 2000)

The U.S. Access Board issued an amendment to an advisory note to the
accessibility guidelines for play areas on November 20, 2000. The amended
advisory note clarifies that play components that are attached to a composite play structure and can be approached from a platform or deck (e.g., climbers and overhead play components), are elevated play components. These play components are not considered ground level play components also, and do not count toward meeting the number of ground level play components that must be located on an accessible route. The amendment is effective December 20, 2000. For more information:
http://www.sedbtac.org/whats_new/articles.cfm?id=184&title=What's%20New.

EEOC Rules on Disabled Temps: Agencies, Client Firms Both Must Make Accommodations

By Sarah Schafer
Washington Post Staff Writer
Thursday, December 28, 2000; Page E02

The U.S. Equal Employment Opportunity Commission yesterday issued a standard that spells out who is responsible for making sure disabled temporary workers are treated fairly on the job.

The guidelines apply to workers with disabilities who are placed by temporary-employment agencies or contract firms. They were meant to clear up confusion about whether the agency that places a worker or the company that uses a worker's services is responsible for providing special accommodations under the Americans With Disabilities Act.

Both are, according to the new guidelines: The temp agency and the company that uses the agency's workers are essentially co-employers for these purposes. Effective immediately, companies that don't comply with the guidelines could be liable if an employee files a complaint.

"There was confusion and some people fell through the cracks. That's why this was an important issue to give guidance on," EEOC lawyer Ellen Vargyas said.

"Disabled people often use temporary employment as a way to enter the work force, especially when they've been out of the job market for a long time," Vargyas said. "This is a huge and growing segment of the workforce, and it's very important that people with disabilities do not face artificial barriers."

The American Staffing Association, which represents 1,600 temporary-staffing agencies, said that while it agrees that temp agencies and companies should share responsibility for ADA provisions, parts of the new guidelines are impractical. And, according to association general counsel Ed Lenz, the commission acted without input from the temporary-staffing industry.

"As far as we were aware, no one in the industry was ever consulted about these guidelines," Lenz said, adding that he has not read the entire ruling.  One point of concern, Lenz said, was a provision that spells out when a temporary-staffing agency is allowed to ask a worker whether he or she has a disability. Under federal law, a company is not allowed to ask a job applicant about disabilities until a legitimate job offer has been made; at that time, an employer can ask general questions about whether the applicant will need special accommodations as long as the employer asks every new hire the same questions.

Until now, most temporary agencies considered it legal to inquire about special accommodations when they added an individual to their list of available temps. In yesterday's guidelines, however, the EEOC said that was too early, and that a temp agency could not inquire about accommodations until the individual was actually given an assignment. 

Lenz said that would not give an agency enough time to make the proper arrangements because workers are often given assignments that begin immediately. "It really makes it very difficult for us to operate as efficiently as we need to."

Roughly 3 million people perform temporary work on any given day, Lenz said, adding that only a small portion of them would be considered eligible for protection under the ADA.

The EEOC guidelines join other recent rulings that give temporary workers more rights. For example, the National Labor Relations Board voted in August to make it easier for temporary workers -- hired by staffing companies such as Manpower Inc. -- to join unions and receive benefits on the job. Like that made by the EEOC, the board decision stated that although those employees are hired by the temporary agency, in some cases they should be considered employees of the client company.

Social Security eNews Press Office Update Issue 14

Please note that there are two press releases found in this issue. Be sure to scroll through the entire message. To view this online go to http://www.ssa.gov/enews/enewspress010501.htm

Social Security Administration Announces Increase in SGA Level

The Social Security Administration today announced several new rules that took effect January 1, 2001, that will allow more persons with disabilities to test their ability to work without fear of losing their cash benefits and important health care coverage.  These new rules are part of a package of proposed regulations announced by President Clinton as part of the 10th anniversary of the Americans with Disabilities Act in July.  Final regulations were published in the Federal Register on December 29, 2000.

"These new regulations will encourage individuals with disabilities to test their ability to work," said Kenneth S. Apfel, Commissioner of Social Security.

The first new rule increases the amount of earnings that are considered to be gainful employment.  Beginning January 1, a Social Security Disability beneficiary can earn $740 a month and remain eligible for benefits.  The Social Security Administration uses the term  "substantial gainful activity" (SGA) to determine if work is substantial enough to make a person ineligible for benefits.  Under the new rule, the current monthly SGA earnings limit of $700, which became effective July 1999, will be automatically adjusted annually based on increases in the national average wage index.  This amount applies to people with disabilities other than blindness.

"This new rule is good news for Social Security Disability beneficiaries," commented Commissioner Apfel.  "Disability beneficiaries will now be able to count on having an SGA level that accurately reflects annual increases in the national average wage."

The second new rule affects the trial work period (TWP).  Currently, the TWP allows disability beneficiaries to test their ability to work for at least nine months.  During the TWP, Social Security beneficiaries may earn any amount and receive full Social Security Disability benefits.  Currently, earnings of $200 in a month count as a trial work month.  The rule increases that amount to $530 per month and links annual changes to increases in the national average wage index.  After completion of nine trial work months, the SGA level is used to determine whether earnings are substantial or not. 

If earnings fall below the SGA level, full benefits generally continue.  If earnings are higher than the SGA level, cash benefits are normally suspended while medical benefits continue.

The third and final rule in the package allows for more income to be excluded when a student who receives Supplemental Security Income (SSI) returns to work.  Under current SSI law, when a student under the age of 22 works, up to $400 of earned income (wages or self-employment) per month is not counted when determining eligibility.  The maximum yearly exclusion is $1,620.  The new rule increases the monthly excluded amount to $1,290 and the maximum yearly amount to $5,200.  This yearly exclusion roughly corresponds to what a student may realistically earn in part-time or summer employment.  In addition, both amounts will be automatically annually adjusted based on increases in the cost-of-living index.

SSA pays cash benefits to people whom, due to the onset of a disability that is expected to last more than a year or result in death, are unable to earn a substantial wage.  SSA administers two disability programs:  Social Security Disability Insurance and Supplemental Security Income.

Social Security Disability Insurance pays monthly benefits to people who have earned enough Social Security credits.  Credits are earned by working and paying Social Security taxes.  Benefit payments are financed by the Social Security Disability Insurance Trust Fund.  This program pays an average monthly benefit of $786 to 5 million workers with disabilities.  In addition, some 1.6 million members of their families receive monthly benefits.

SSI, a cash assistance program where eligibility is based on financial need, provides monthly payments to people who have low income and few assets. Although this program is run by the Social Security Administration, the payments are financed by the general revenue funds, not from Social Security taxes.  Nationwide, there are 6.6 million people receiving SSI benefits, including 900,000 disabled children.

The increase in the SGA level affects both Social Security Disability Insurance benefits and SSI benefits.  The term SGA is part of the statutory definition of disability that requires an individual to be unable to engage in substantial work for initial and ongoing eligibility under the Social Security Disability Insurance program and initial eligibility under the SSI program.

The trial work period is relevant only to the Social Security Disability Insurance program, while the student earned income exclusion is relevant only to the SSI program. 

Social Security Administration Announces Second Round of Grants to State and Local Community Organizations Assisting People with Disabilities Who Want to Return to Work

Kenneth S. Apfel, Commissioner of Social Security, announced today that the Social Security Administration is awarding $8.4 million in grants to 52 organizations in 16 states and the District of Columbia to provide benefit planning, assistance and outreach for persons with disabilities who are attempting to return to work.  These grants are part of The Ticket to Work and Work Incentives Improvement Act, which the President signed in 1999. 

Funded by newly appropriated Fiscal Year 2001 money, these are the second round of grants to be issued.  The organizations, which will be expected to be providing service in early 2001, will be awarded grants ranging from $50,000 to $300,000.  President Clinton previously announced $8 million in grants to organizations and state agencies in 26 states and two territories. 

"These grants will enable the Social Security Administration to provide critically important information to our beneficiaries that is tailored to meet their individual needs," commented Commissioner Apfel.  "When Federal, State and local community governments partner with private sector organizations to support the employment of people with disabilities, it's good for business, it's good for communities and it's good for all Americans."

The Ticket to Work and Work Incentives Improvement Act of 1999 was designed to help persons with disabilities who want to return to work.  The act increases beneficiary choice in obtaining rehabilitation and vocational services, removes barriers that require people with disabilities to choose between health care coverage and work and assures that more Americans with disabilities have the opportunity to participate in the workforce and lessen their dependence on public benefits.

The benefit planners will provide direct advice and assistance to Social Security Disability and Supplemental Security Income beneficiaries who want to work.  As one of the first partner agencies, these agencies will work closely with beneficiaries to explain SSA's work incentives. 

To see a state list of the Benefits Planning Assistance and Outreach Cooperative Agreement Awards for FY 2001 go to http://www.ssa.gov/pressoffice/ttw-fy2001-grantsbystate.htm

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Analysis of Burriola v. Greater Toledo YMCA 

by Pete Wright

On January 3, 2001, after four days of testimony and oral argument,  Judge James G. Carr of the U. S. District Court, Northern District of Ohio, Western Division, issued a scathing opinion against the Greater Toledo YMCA on behalf of Jordan Burriola. The case is Burriola v. Greater Toledo YMCA, et. al., (case number 3:00CV7593) 

Background

Jordan Burriola is an eight-year old child with autism. He was enrolled in the day care program in January 1999. He attended the M.O.D.E.L. Community School since the fall of 1998. Jordan exhibited some violent and destructive behaviors at the YMCA daycare program. With appropriate modifications by the day care staff, these behaviors could be eliminated or reduced. 

The school trained two staff members in simple techniques that would work with Jordan. Although these supports were to be implemented at the day care center, defendant, Kathy Miley, the Director of Family Services for the West Family YMCA "instructed the staff not to implement any of the supports." Two weeks after the last staff member trained by M.O.D.E.L left the center, Jordan was terminated from the program. 

Several days later, this suit was filed alleging violations of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. 

The plaintiff sought an injunction requiring the day care center to reinstate Jordan into the program. This was not an IDEA case. 

Decision

The Court discussed the facts of the case in detail and related them to the factors that must be balanced in determining whether to issue an injunction. These four factors are: "(1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the injunction; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced
by the issuance of the injunction." 

The Court held that the balancing of these four factors required an Order in favor of Jordan. 

The final paragraph states, "for the foregoing reasons, it is hereby ORDERED THAT plaintiff's motion for a preliminary injunction be, and hereby is, granted: 

1. All Calvary counselors and staff who will work with Jordan shall undergo the free training offered by the M.OD.E.L. Community School not later than January 20, 2001; 

2. The reasonable modifications proposed by plaintiffs shall be implemented not later than January 20, 2001; 

3. The defendants, their agents, and employees shall make a good faith effort to inform plaintiffs of expected changes in staff or other conditions at the Calvary site; and 

4. Jordan shall be reinstated to the Calvary daycare program not later than January 20, 2001."

____________________________________________________________________________

'Belligerent' Worker Is Covered by ADA, Says Federal Court The Legal Intelligencer

A worker suffering from major depression that makes her belligerent and hypersensitive to criticism has a right under the Americans with Disabilities Act to a reasonable accommodation from her supervisors, a federal judge ruled. Courts, said the judge, have held that "irritability" and "poor judgment" are not mental impairments in themselves, but can be linked to a mental impairment.
http://tm0.com/sbct.cgi?s=112046377&i=284728&d=732707

____________________________________________________________________________

Humana and PacifiCare Settle Landmark ADA Lawsuit in Texas

By Vicki Lankarge

insure.com 

Humana Inc. and PacifiCare Health Systems Inc. have settled a ground-breaking Texas lawsuit alleging that they denied medical care to chronically ill health plan members and that the denials violated their patients' rights under the Americans with Disabilities Act (ADA).

An out-of-court settlement was also reached with Health Texas Medical Group, a San Antonio clinic also charged with denying care. The lawsuit, filed in 1997 in U.S.  District Court in San Antonio, marks the first time the federal ADA statute has been used to sue an HMO to contest its decision to limit a patient's medical care or deny access to treatment. The plaintiffs - eight former patients and the widow of a ninth - are represented by Austin attorney Robert Provan who is himself a survivor of childhood polio.

11th Hour Settlement

The settlement came while jurors were in deliberations over whether the clinic was liable for damages as a result of the treatment denials. Had the trial continued and had the clinic been found guilty, the damage amounts would have been decided at a second phase of the trial.

A separate trial had also been planned to determine whether Humana and PacifiCare were liable. The HMOs opted instead to settle the allegations for an undisclosed sum and with no admission of wrongdoing.

Humana maintains its actions regarding treatment decisions were appropriate in the cases that involved patients with various illnesses and conditions, including a quadriplegic and patients with rheumatoid arthritis, lupus, coronary disease, and breast cancer. "The decision to settle is based on the inherent uncertainties, cost, and inconvenience of protracted litigation," says Humana spokesperson Ross McLerran.

A spokesperson for PacifiCare declined to comment and a lawyer for the medical clinic couldn't be reached.
____________________________________________________________________________

New Amendment Toughens California's Disabilities Law

A new California law expanding the definition of what constitutes a disability will make it easier for workers to have their discrimination cases heard in court. The law, an amendment to the state's Fair Employment and Housing Act, was a response to California courts that were beginning to interpret relatively broad state laws along the more narrow federal standards outlined in the ADA.
http://tm0.com/sbct.cgi?s=112046377&i=289145&d=825169

Welcome to the General E-mail bulletin of the Southwest ADA Center. The bulletin is distributed monthly via e-mail to provide subscribers with an update on the Americans with Disabilities Act events, trainings, resources, agency rulemaking and enforcement activities. We also use the bulletin as a vehicle to post information on any ADA-related events your organization or group are planning in your state or community. Please feel free to forward 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 also 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.

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