AHA NEWS
June News
By Linda Greenhouse
WASHINGTON, May 24-- The Supreme Court today examined two Federal laws aimed at protecting disabled workers and concluded that contrary to a lower court's view, there was no inevitable conflict between them.
One was the Social Security Act, which provides benefits to people whose disabilities are so severe that they cannot "engage in any substantial gainful activity" for at least 12 months. The other was the Americans with Disabilities Act, which protects disabled workers from discrimination as long as they can perform their jobs' essential functions, with "reasonable accommodation" if necessary.
Some lower courts have ruled that because someone who has applied for or received Social Security disability benefits is by definition unfit for employment, such a person is either barred from suing for disability discrimination or faces special judicial hurdles in pursuing a disability lawsuit.
In a unanimous opinion today by Justice Stephen G Breyer, the Court disagreed. The two laws appear "divergent," Justice Breyer said, but in context, they "do not inherently conflict" and "can comfortably exist side by side." He said the Social Security program, receiving more than 2.5 million claims for benefits every year, necessarily made broad determinations without a fine-tuned examination of an individual's situation--for example, whether employees who cannot work without accommodations can return to work if their special needs are addressed.
The decision overturned a judgment won by a company that had dismissed a woman who tried to come back to work after a stroke. The employer would not give her the extra time and training she said she needed. She applied for and received Social Security benefits, at the same time suing the employer for failing to accommodate her under the Americans with Disabilities Act.
In ruling for the employer, the US Court of Appeals for the Fifth Circuit, in New Orleans, held that the application for or receipt of Social Security disability benefits had created the presumption that a worker was not entitled to bring a discrimination suit against the employer. Only in "some limited and highly unusual set of circumstances" could the two laws not be seen as "mutually exclusive," the appeals court said.
In his opinion today, Cleveland v. Policy Management Systems Corp., No.97-1008, Justice Breyer said it was common in the legal system for people to pursue two alternative theories at once. To the extent that there was any apparent inconsistency in the disability context, he said, courts should not erect special burdens but should simply require the plaintiff to explain. He indicated that the explanation could be as simple as a medical condition that has changed over time. The case now goes back to the lower courts to give the plaintiff, Carolyn C Cleveland, a second chance at her discrimination suit.
Beatrice Dohrn, legal director of the Lambda Legal Defense Fund, a gay rights organization that filed a brief in the case, said the decision could be particularly beneficial to people with the virus that causes AIDS. With drug therapy, Ms Dohrn said, people with HIV often "move in and out of being able to work" and often face discrimination when they do work. The decision, she said, "broke down a barrier that people with HIV needed to get past."...
Source: New York Times, 5/25/99.
WASHINGTON (AP) May 25, 1999-- The Supreme Court made it easier Monday for disabled workers to sue their employers over alleged discrimination after they apply for or receive Social Security disability benefits. The justices, voting unanimously in a Texas case, said courts cannot presume that people who apply for such benefits are, in essence, admitting to be unqualified to hold a job and therefore cannot invoke the protection of a key anti-bias law, the Americans with Disabilities Act. The ruling is a victory for Carolyn Cleveland, a stroke victim who was fired after attempting to return to work. Today's decision reinstates her lawsuit.
The Work Incentives Improvement Act of 1999 (WIIA) almost came to the Senate floor for a vote on May 27. An agreement was reached with the Senate leadership to bring the bill, with relatively minor changes, to the floor by "unanimous consent". However, Senator Phil Gramm (R-TX) placed a hold on the bill just before the vote was to take place. He did not lift the hold and the Senate went out on recess until June 7.
Unanimous consent is a legislative process whereby a popular bill is agreed to ahead of time and comes before the Senate to be voted into law without amendments or changes. Any one Senator can block that process from happening when a bill is brought forward by the unanimous consent process.
The negotiated bill contained all the major health care, work incentive reform, and "ticket to work" provisions that we are familiar with in the bill. We will provide a summary of the negotiated bill as soon as available.
The four primary Senate cosponsors, Senators Jeffords, Kennedy, Roth, and Moynihan, are committed to bringing the bill back to the Senate floor after recess. With the new additions of Senators Ashcroft (R-MO) and Inhofe (R-OK), there are now 78 US Senate cosponsors of WIIA.
Yesterday's events took placed without advance
notice.
Everyone working on the passage of WIIA, take a bow
for the jobs you are doing with little or sometimes no advance notice. We have firm
intelligence that our state, regional and national advocacy work is moving this bill
through Congress AND keeping it strong. Please know that we -- all of us -- are part
of making some history here. WIIA stands for us, all of us.
See Washington Post article here.
Source: ADAPT Los Angeles, 5/28/99.
Q. I am getting direct deposit of my Social Security check. Do I still need to let Social Security know if I move?
Q. I have heard that there will be a
change in the dollar amount that Social Security considers to be "substantial gainful
activity." Can you tell me more about this?
A. Starting on July 1, 1999, the amount
of earnings that Social Security considers to be substantial for people who are receiving
Social Security disability benefits (based on a diagnosis other than blindness) will be
$700 per month. Months in which someone earns more than this amount will generally
demonstrate that s/he is able to work at a substantial level despite his/her
disability. If a person is able to work at the substantial level for a period of
time, it will likely result in the Social Security benefit being stopped. This
applies to Social Security disability benefits only, not other types of benefits.
By Robert Pear
WASHINGTON, May 24 -- The Clinton Administration intends to require that private health insurance plans for Federal employees provide coverage for severe mental illnesses comparable to that for physical ailments, say Administration officials and Tipper Gore, who is heading a White House conference on mental health next month.
Mrs Gore said today that a goal of the White House conference was to eliminate disparities in insurance coverage for mental and physical illnesses -- to "provide parity for all" while eliminating the stigma of mental illness. A longtime advocate for the rights of the mentally ill, Mrs Gore disclosed this month that she was treated for clinical depression after her son was injured in an auto accident in 1989.
The new standards for the Federal Employees Health Benefits Program being drafted by the Administration has authority to act on Federal employee benefits under existing law, without Congressional action.
Under the new policy, private health plans covering Federal employees and their families could not set limits on the number of outpatient visits or days in the hospital for treatment of mental disorders that are more stringent than those for the treatment of physical illnesses like heart disease or cancer. The policy would also bar co-payments for mental health care higher than those for the treatment of physical illnesses. ...
Shelley S Stewart, deputy director of Federal relations at the American Psychiatric Association, applauded the Administration. By testing the new policy in the health program for Federal workers, Ms Stewart said, the Government can "show that it's not that expensive."
Under a 1996 law, group health plans are forbidden to set annual or lifetime dollar limits on mental health care that are lower than the limits for general medical and surgical services. But insurers can get around the law by setting different limits on the number of covered outpatient visits or hospital days, or by charging different co-payments and deductibles.
Administration officials said they expected to disclose details of the new policy at a White House conference on mental health on June 7.
The Federal employee's health plan is the largest employer-sponsored health insurance program in the United States. It covers nine million people through 285 private insurance plans.
The standards would not affect the health benefits provided by private employers. Similar requirements for private employers have been proposed by members of Congress, including Senators Pete Domenici (R-NM) and Paul Wellstone (D-MN) and Representative Marge Roukema (R-NJ). ...In recent years employers, insurers and health maintenance organizations have found ways to provide mental health services at predictable costs. In many cases they hire specialized managed-care companies to monitor the work of psychiatrists, psychologists and other mental health professionals, to make sure patients receive appropriate and effective treatment.
Psychiatrists often resent such second-guessing. But Dr Jerome V Vaccaro, medical director of Pacificare Behavioral Health, in the Van Nuys section of Los Angeles, said the work of these companies often led to better outcomes for patients. ...
Source : The New York Times, 5/25/99
At its March meeting, the Board unanimously approved a rule to completely revise and update its Americans with Disabilities Act Accessibility Guidelines (ADAAG). This moves the rule one step closer to publication. Once published, the rule will be available for public comment. This will be the first comprehensive update of the guidelines since they were originally issued in July 1991.
The Board adopted the complete contents of the
proposed rule which includes not only the text of the rule providing updated scoping and
technical requirements (which the Board previously approved last September), but also new
illustrations and advisory material (commentary) developed in-house by Board staff, and an
accompanying discussion of the changes known as the "preamble" in the published
rule.
The preamble will provide a section-by-section
description of the changes and will ask questions of the public concerning various issues
and provisions. Public comment, including the information and input provided in
response to questions, greatly assists the Board in finalizing a proposed rule.
So, when does the proposed rule hit the
streets? Not until a few regulatory actions are completed. First, the proposed
rule, along with a regulatory assessment, must be reviewed by the Office of Management and
Budget (OMB) which reviews most Federal regulations. OMB has 90 days to complete its
review of the Board's rule. Once cleared by OMB, the rule will be published in the Federal
Register and be made available for public comment. The Board intends to provide a
120-day public comment period. During this time, it will hold several public
hearings that will provide a forum for submitting comment. The date and places for
these hearings will be indicated in the proposed rule along with instructions for
submitting comments to the docket. The text of the rule will contain a new ADAAG
based on recommendations from the ADAAG Review Advisory Committee. The committee's
report is available from the Board (publication S29) and on its web site.
In addition, the rule will provide updated
guidelines for federally funded facilities under the Architectural Barriers Act
(ABA). The ABA guidelines will be modeled after the new ADAAG so that a consistent
level of access is required for Federal facilities and for facilities covered by the ADA.
...
Under the ADA, the Board's final rules serve as the
basis for enforceable standards issued by the departments of Justice and Transportation
which follow a similar rulemaking process.
Sometimes the Board's rulemaking is done jointly
with the departments. It is the standards, not the Board's guidelines, that are used
to enforce the ADA's design requirements. Guidelines issued last year for State and
local government facilities and for building elements designed for children's use are not
yet part of the Department of Justice's ADA standards. ... For further information,
call 202/272 5434, 202/272 5449 TTY; e-mail here.
Source : Access Currents, March/April 1999.
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Illinois/Chicago news:
This year's Annual Awards Banquet will be at the Chicago Athletic Association. The festivities will begin at 6 PM with a cash bar, followed by dinner at 7 PM, followed by the Keynote Speaker. This year we are very fortunate that Dr Quentin Young will be our guest; we look forward to hearing his insights and information about the continuing struggle for universal health care.
This year the dinner ticket is $40; some
complimentary tickets will be available. For more information, please call the
office as soon as possible. We look forward to seeing you there.
CHICAGO (June 1, 1999) -- Mars Inc. the Delaware corporation engaged in the business of manufacturing food products including candy and ice cream specialty items, and Elizabeth M Buckley, 39, represented by Equip for Equality Inc (EFE), reached an amicable settlement agreement May 24 in a civil action filed in US District Court Nov. 30,1998, under the provisions of the Americans with Disabilities Act (ADA). The dispute involved allegations of failure by Mars to accommodate Buckley's depression while she was employed at its production plant in Burr Ridge, IL, a Chicago suburb.
"This lawsuit is important because it highlights the difficulties people with mental illness often encounter when seeking reasonable accommodations for their disability in the work place," says Karen Ward, Litigation Director of EFE. "Our client is pleased with the resolution of this case. She is now employed at a new job that permits her to work days."
Buckley, an Oak Lawn resident who had a medical diagnosis of major depression that substantially hampered her ability to sleep, was first employed by Mars in September 1990 in its Burr Ridge facility as a production worker; she was subsequently promoted several times to her most recent position as machine operator on a rotating shift. On June 2, 1997, she requested a day shift for her disability under Title I of the ADA. Although she originally was provided the accommodation, she was informed that there were no full-time non-rotating shift manufacturing jobs and that she would be required to return to a rotating shift even though a medical evaluation by Mars supported her need for the accommodation.
Mars discharged Buckley on August 15, 1997, because she was able to perform the essential functions as a machine operator, as well as qualify for announced openings of other positions, which the company refused to discuss. Buckley immediately filed charges with the Equal Employment Opportunity Commission (EEOC) charging Mars with discrimination against "a qualified individual with a disability" as defined by the ADA. On May 12, 1887, the EEOC issued a determination in favor of Buckley. However, the EEOC's efforts to conciliate were unsuccessful and a right to sue letter was issued.
The subsequent lawsuit filed by EFE attorneys on her behalf sought an injunction against any further acts of disability discrimination in violation of the ADA by Mars, back pay from time of dismissal until reinstatement, compensatory and punitive damages, attorney's fees and other equitable remedies to which the plaintiff may be entitled. By agreement, the terms of the settlement are confidential.
CHICAGO (May 10,1999)--At no cost and close to home, parents of children with special education needs in Illinois now have the opportunity to learn the fundamentals of self-advocacy for obtaining an appropriate quality education on their behalf. The Training Institute on Disability Rights (the educational arm of Equip for Equality Inc.) and the Illinois Dept. of Human Services are offering full scholarships for participation in group seminars as part of a major outreach project.
Any organization interested in co-sponsoring a seminar may reserve scholarships for groups of 15 or more without incurring any cost. The scholarships, valued at $49 per person, are distributed on a first-come, first-served basis, limited to family members of children with disabilities and currently available until June 30.
Topics covered in the two-hour training include explanation of the special education child's legal right to a free and appropriate education, the rights of the parents to actively participate in the process for making educational decisions for their child and methods for monitoring their child's progress. The seminar also reviews the child's right to be education in the least restrictive educational settings and the right to receive assistive technology devices and services necessary for learning, as well as provides information about the available options for resolving a conflict with the school. Advocacy strategies and techniques are emphasized. Each participant also will receive a comprehensive self-advocacy handbook and a certificate of completion.
The Training Institute also offers seminars on a variety of other topics including Rights under the Americans with Disabilities Act. Challenging Employment Discrimination, What People with Disabilities Need to Know about Guardianship, and What Family Members need to Know about Guardianship.
For further information about seminar scholarships, individual registration or co-sponsorship, call the Training Institute at 312/341 0022 or 800/537 2632 v/tty; FAX 312/341 0295.