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Hello and welcome to the Disability Law Lowdown. I'm your host, Jacquie Brennan.

This podcast is being recorded in July, 2008. Now, normally, I don't mention when I'm recording a podcast because, well, I don't know when you'll be listening to it. But part of the promise I made when we started the Disability Law Lowdown was that we would bring you the latest in Disability Law and ADA news. I want to keep that promise, but I just need to tell you when this is being recorded so that if you don't end up listening to it for several weeks or several months, you won't think I just recorded old news. So for what I'm about to share, keep in mind I'm recording this in July, 2008.

Ok, I've got a lot of little bits of news to share so I'm just going to sort of jump around from subject to subject just to catch up on what's been happening in the last month or so.

The Department of Justice had a settlement with the International Spy Museum in Washington, D.C. The International Spy Museum is going to be using state-of-the-art technology to make exhibits accessible. Acting Attorney General for Civil Rights, Grace Chung Becker, describes the settlement as establishing a level of access for cultural and informational educational settings. The museum, of course, is in D.C. and it agreed to provide tactile maps of the museum floor plan, use qualified audio descriptors and readers to provide information in exhibits, and communicate the themes of exhibits through touchable objects that represent the displayed material. The museum also agreed to provide captions, scripts or wall text to communicate audio narration or ambient sounds. The museum will provide sign language interpreters and real time captioning, as long as there is an advance request for that. And it will also appoint an ADA coordinator, which it didn't have before, and create advanced physical access to facilities, train supervisors, display information about accessibility features on its web site, in brochures, in print and video advertisements.

The Social Security Administration is revising its regulations governing the Ticket to Work and Self-Sufficiency Program. These new regulations will encourage Social Security Disability beneficiaries to return to work. "These rules outline a new and improved Ticket to Work program and are based on learning from our experiences, listening to input from interested parties and responding to their suggestions," said Michael Astrue, Commissioner of Social Security. Beneficiaries with disabilities will have greater flexibility and expanded choices in obtaining the services they need to obtain their employment goals. Essentially, the changes add an educational and technical training option to supplement the work requirement for Ticket to Work eligibility and would tighten up the progress requirements for continued participation in the program. The final regulations will be effective July 21, 2008.

Olympian sprinter, Justin Gatlin, sued the US anti-doping agency, and several related entities, to overturn a drug suspension that has prevented him from participating in this summer's Olympics. The case is called Gatlin vs. United States Anti-Doping Agency et. al. and it was filed in Florida in the northern district. Back in 2001, Gatlin had tested positive for trace amounts of amphetamines and it was due to the prescription medicine that he took for his Attention Deficit Disorder. At that time, he dropped his challenge to the test results because he received an early reinstatement from the International Association of Athletics Federation. In 2006, Gatlin received a 4-year suspension for steroid use because it was a second offense. He alleged the enhancement based on his prior offense violated the Rehab Act and the ADA because the Attention Deficit Disorder drugs accommodated his disability and did not enhance his track performance. So he was asking for an injunction and he received that injunction and that allowed him to compete in the Olympic trials on June 27th.

In Doe vs. The Salvation Army, which was a case in the 6th Circuit, doe alleged violations of the Rehabilitation Act and Ohio law after salvation Army refused to hire the plaintiff after finding out during a job interview that the plaintiff took psychotropic medications. Summary judgment for the defendant was reversed by the 6th Circuit and the case was remanded. And the reasons that existed for that were, one, there exists a genuine issue of material fact about whether the plaintiff established a record of disability under the Rehab Act, and two, there exists an issue of material fact about whether the defendant discriminated against the plaintiff because of his record of having a disability.

So, what do you think? Are hand-held electronic bingo machines auxiliary devices described by the ADA, or slot machines prohibited by the California penal code? A Federal judge preliminarily ruled in favor of the ADA argument and issued an injunction to cease the enforcement of the cease and desist orders banning the devices by the California Bureau of Gambling Control. The case is called Video Gaming Technologies, Inc. et. al. vs. Gambling Control, et. al. and it was filed in the eastern district of California. the order says that the plaintiffs, the company that manufactures the machines and two charities that hold bingo fund-raisers and two individuals with disabilities, are all the plaintiffs. And that they have a strong likelihood of success on their claim under Title II of the ADA. The court found that the injunction served to ensure equal access of services to bingo players with disabilities and the court also found that the devices did not function as slot machines because they produced paper cards.

A new assistive technology developed by engineers at the Georgia Institute of Technology can help individuals with severe disabilities lead more independent lives. The novel system system allows individuals with disabilities to operate a computer, control a powered wheelchair and interact with their environments simply by moving their tongues. The tongue operated assistive technology called the tongue Drive System was described on June 29th at the 2008 Rehabilitation Engineering and Assistive Technology Society of North America (RESNA) annual conference in Washington, D.C. An article about the system is scheduled to appear in an upcoming issue of the Journal of Rehabilitation Research and Development. The research was funded by the National Science Foundation and the Christopher and Dana Reed Foundation. To operate this tongue drive system, potential users only have to be able to move their tongues. Attaching a small small magnet, the size of a grain of rice, to an individual's tongue by either implantation or piercing or even tissue adhesive, allows tongue motion to direct the movement of a cursor across a computer screen or a powered wheelchair around the room.

Governor Sonny Perdue of Georgia announced Tuesday that government officials signed a voluntary compliance agreement with the U.S. Dept of Health and Human Services Office of Civil Rights that formalizes an effort to transition individuals with mental illness and developmental disabilities out of state hospitals in Georgia. "Every Georgian who faces mental illness or developmental disabilities has a right to be treated in a way that not only ensures the best outcome but allows for the highest quality of life," said Governor Purdue. "We've worked hard to make this agreement work and the state of Georgia is committed to completing this effort."

Under the Olmstead Strategic Plan, Georgia has worked for years to make quality community services more available to those with mental and developmental disabilities. The Olmstead Plan was created after a 1999 U.S. Supreme Court ruling (L.C. and E.W. vs. Olmstead) that interpreted the Americans with Disabilities Act to mean that states must provide appropriate services for people with disabilities in the most integrated settings, meaning where the individual can interact with non-disabled people to the fullest extent possible. The Georgia Department of Human Resources Commissioner, B.J. Walker, welcomed the agreement. "We know that community based treatment solutions work and that for many patients, it's best to treat them outside of state hospitals," she said. "The Olmstead Plan is more than a standard we have to live by. It embodies our philosophy of strengthening families by doing everything we can to keep people with disabilities connected to their homes, their loved ones and their lives."

on June 17th, the Dept of Justice published proposed changes to the ADAG (that's the Americans with Disabilities Act Accessibility Guidelines) in the Federal Register. The DOJ will be accepting comments on the proposed regulations through August 18th and probably will be holding a public hearing sometime in July. There are a lot of changes proposed in the regulations and these are just a few of the highlights, I guess, of those.

Renovation of prison cells. This proposal provides options to help correctional institutions provide equal access to prison programs and services without retrofitting older facilities. Design and construction of accessible swimming pools is covered, as well as miniature golf courses, boating facilities, amusement rides, playgrounds, and other recreational areas. Accessible seating, such as in theaters and sport stadiums and captioning of emergency announcements in large stadiums is covered. Also in the regs, identification of accessible hotel room features. The proposal would require guaranteed reservations of such rooms to the same extent that the entity guarantees reservations for others. It includes the use of auxiliary aids to include technology advances such as video interpreting services that weren't around when the ADAG was first published.

The definition of "interpreter" now includes, but is not limited to, sign language interpreters, oral interpreters and cued speech interpreters. The proposal states that not all interpreters are qualified for all situations.

The use of service animals by people with disabilities will change under the regs int hat the animal must be a dog or other common domestic animal that is trained to perform specific tasks and to assist the owner. The proposed regulations exclude attack dogs as well as farm animals or wild animals. The proposed amendments redefine service animal to include individually trained animals that do work or perform tasks for the benefit of individuals with disabilities and they include psychiatric, cognitive or mental disabilities with really good explanations on how those service animals work. But it does definitely leave out some service animals that people use such as monkeys or miniature horses are specifically excluded from these new regulations.

The proposal also includes a new definition of the term "wheelchair" which will now include manual wheelchairs, power-driven wheelchairs, mobility scooters and other power-driven mobility devices, like the motorized personal transporters known as the Segways.

An agreement has been reached between the Equal Employment Opportunity Commission (EEOC) and Walmart, and it includes a change to Walmart's reasonable accommodation policy that makes employees with medical conditions eligible for job aids or environmental adjustments. The policy specifies that it includes medical conditions that do not rise to the level of "disabilities" under the ADA. The policy defines "job aid" or "environmental adjustment" as "a change of practices or the work environment which is both easily achievable and will have no negative impact on the business". These can include an employee's use of an assistive device or allow someone to assist an applicant in completing a job application. The policy states that this does not mean that the company will create jobs, offer light or temporary alternate duty or make reassignments to accommodate medical conditions. When an employee or an applicant requests accommodation, Walmart will first determine whether it can grant the request with a job aid or environmental adjustment. The company will consider reasonable accommodation requests for individuals who have disabilities that it cannot accommodate with a job aid or environmental adjustment. Under the consent decree, Walmart must maintain this policy for at least one year.

We get a lot of calls from colleges and universities about their service animal policies, because of course they want to balance the right of the student to bring a service animal with the rights of other students when the service animal poses a health risk. The Office for Civil Rights determined in a case against Northwestern Missouri State University that there was insufficient evidence to support the student's allegation that Northwest Missouri State university's policy regarding the use of service animals on campus violates Section 504 of the Rehabilitation Act and Title Two of the ADA. She said that the policy, which was published on the university's website, was discriminatory in that it established conditions, limitations and procedural prerequisites to the use of service animals which had the effect of excluding or limiting students or other individuals with disabilities from accessing the facilities, programs and services of the university. But based on the Office of Civil Rights' review of the service animals policy and the application of 504 and Title Two, it determined that the university is in compliance with Federal Law.

For example, the student cited the following excerpt of the Service Animal Policy. It says "Vaccination: The animal must be immunized against diseases common to that type of animal." The student claimed that this provision was discriminatory but OCR found that the University to ensure service animals do not endanger the safety or welfare of the public or the University students and staff. Such requirements when applied in a non-discriminatory manner such as this are legitimate exercise of the University's ability and obligation to ensure the safety of those who are present on its campus and facilities, OCR said. The specific limitations and rules the student objected to were health requirements for the service animals, requirements for service animal waste disposal on campus and and requirement that the service animal user document her disability. The student provided no information to support her conclusion that the health requirements were subjective standards that could be discriminatory, that the University had subjectively applied the requirements in a discriminatory fashion or that the health standards had been arbitrarily applied. Nor did her complaint provide any information suggesting that any of the requirements were adopted for a discriminatory purpose.

The Equal Employment Opportunity Commission is suing a new Kensington Drug Treatment Center for allegedly discriminating against an employee who is a recovering addict. According to the law suit, an official with Greenbriar Treatment Center fired a full-time intensive treatment counselor after she tested positive for methodine in a random drug test. The woman, who is not identified in the legal complaint, told her boss that she had a legal prescription for methodine and that she'd been in a methodine treatment program since she was hired in Sept, 2002. She was fired anyway, the lawsuit contends. Later, when she met her boss to turn in her office keys, he berated her, telling her she should be ashamed of herself and that he was considering pressing charges. The lawsuit asserts a violation of the Americans with Disabilities Act because the woman's past issues of addiction rendered her substantially impaired and therefore as a person with a disability. The EEOC is seeking to stop Greenbriar from taking similar actions in the future. They're seeking back pay for the woman as well as compensatory and punitive damages.

The U.S. Department of Labor has created a new resource for the job market. The Workforce Recruitment Program for College Students with Disability, as the name implies, focuses exclusively on college students who have disabilities. The job candidate must be a US citizen with a substantial disability. The term "substantial" is not defined in the program's brochure, though. As an additional requirement, the candidate must be seeking a degree and be enrolled in an accredited institution on higher learning on a full-time basis unless the severity of the disability precludes the student from carrying a full-time course load. Recent graduates also qualify if they received a degree within the past year. The program offers a unique opportunity for colleges and universities to combine the resources of their Offices of Disability Services with their Career Placement capability. The goals of the two services can then be used to harness the job seeking skills and career readiness of students with disabilities. Best of all, the program bears no cost to the school, to the student, or to the employer.

I hope you've enjoyed this little update of what's going on in disability law this month and that you'll join us for future podcasts of the Disability Law Lowdown. You can reach your local ADA Center by calling 1-800-949-4232.

Thanks again for listening and we'll see you next time.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at DisabilityLawLowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.