Disability Rights Bar Association

DRBA Policy Newsletter August 2023

In celebration of the 33rd anniversary of the Americans with Disabilities Act, the Disability Rights Bar Association Quarterly includes July as a bonus.
This is the sixth edition of this newsletter. DRBA members are encouraged to share cases or policy information for inclusion in future newsletters. Suggested articles for the next quarterly newsletter are due by October 30th, 2023, to Heather Ansley, DRBA Policy Committee Chair, HeatherA@PVA.org.
Download Disability Rights Bar Association Newsletter – August 2023

Disability Rights Bar Association Quarterly educates advocates on federal government guidance and updates, recently enacted legislation, new regulations and proposed rules, issued reports, and additional news.

Contents

Special thanks to DRBA member, Danica Gonzalves, Advocacy Attorney with Paralyzed Veterans of America, for compiling this newsletter.

Federal Updates

DOJ Issues NPRM on ADA Title II Website and Mobile App Accessibility

The U.S. Department of Justice issued a notice of proposed rulemaking (NPRM) for website and mobile app accessibility requirements under Title II of the Americans with Disabilities Act. Under Title II, state and local governments’ services, programs, and activities must be accessible to people with disabilities. The NPRM proposes specific technical accessibility standards for services, programs, and activities offered by state and local government entities to the public through the web and mobile apps. Members of the public can submit comments until October 3, 2023.

Access Board Publishes Final Rule on Public Rights-of-Way

The U.S. Access Board issued a final rule on accessibility standards for public rights-of-way. The standards ensure that newly constructed or altered facilities or routes used by pedestrians are readily accessible and useable by people with disabilities. The standards cover pedestrian access routes, including sidewalks and shared-use paths; accessible pedestrian signals; crosswalks; transit stops, boarding areas, and transit shelters; and on-street parking. The Access Board’s enforcement authority extends only to federal facilities. The standards will not apply to state, counties, or cities until standards are adopted by the U.S. Department of Justice and U.S. Department of Transportation.

DOT Issues Long-Awaited Aircraft Lavatory Rule

On August 1, 2023, the U.S. Department of Transportation (DOT) released the long-awaited final rule for accessible lavatories on larger single-aisle aircraft. The rule requires at least one wheelchair accessible lavatory on larger single-aisle aircraft (minimum seating capacity of at least 125 seats) reachable by an on-board wheelchair. The lavatory must accommodate a passenger with a disability, a caregiver, and the on-board wheelchair behind a closed door. The final rule requires airlines to comply within 10-12 years. The final rule also includes specifications for on-board wheelchairs.

White House Hosts Accessible Transportation Meeting with Advocates

On July 11, 2023, the White House hosted a meeting on accessible transportation with disability rights advocates. The U.S. Department of Transportation (DOT) Secretary Pete Buttigieg and Vice President Kamala Harris addressed the group and listened to advocates’ concerns. In addition, DOT disability advisors held a panel to discuss further concerns of transportation accessibility.

HUD Issues ANPRM to Update Section 504 Regulations

The U.S. Department of Housing and Urban Development (HUD) issued an advance notice of proposed rulemaking (ANPRM) to consider updating its regulations under Section 504 of the Rehabilitation Act. HUD requested comments on the need to update the regulations and federal accessibility standards. Posed questions sought public comment on revising its definition of an individual with a disability; examples of discriminatory actions; appropriate steps to interact with the community; updates to accessible housing scoping requirements; and other issues HUD should consider when updating its Section 504 requirements. The ANPRM public comment period closed on July 24, 2023.

Agencies Release Guidance for Emergency Response For Behavioral Health Crises

The U.S. Department of Justice and U.S. Department of Health & Human Services released the Guidance for Emergency Responses to People with Behavioral Health or Other Disabilities. The guidance addresses core principles informing best practices for responders; best practices, policies, and training components; crisis response models; crisis stabilization services; de-escalation; access to ongoing community-based services; and key factors for local jurisdictions to consider. The agencies also summarize recommendations and next steps.

Access Board Holds Public Town Hall Meeting in Baltimore

On July 25, 2023, the U.S. Access Board held a public town hall meeting in Baltimore, Maryland. A recording of the event is online. During the meeting, the Access Board updated the community on rulemaking, Maryland officials spoke on recent initiatives, and the public was offered an opportunity to voice concerns. The Board will host their next board meeting virtually on October 25, 2023.

CMS Proposes Rule to Improve Medicaid Access

The Centers for Medicare & Medicaid Services (CMS) issued a notice of proposed rulemaking (NPRM) on May 3, 2023. The NPRM proposed a comprehensive approach to improve access to care, quality and health outcomes, and better address health equity issues in the Medicaid program across fee-for-service, managed care delivery systems, and in home and community-based services programs. Through the proposed rule, CMS seeks to increase transparency and accountability, standardize data and monitoring, and create opportunities for states to promote active beneficiary engagement in their Medicaid programs. The public comment period ended on July 3, 2023.

New Extra Help Program Assists with Medicare Part D Payments

The Biden-Harris Administration announced new tools to lower prescription drug costs for low-income people with Medicare through the Extra Help program, which provides eligible seniors and disabled people with assistance in paying their Medicare Part D premiums and cost-sharing. The Administration expressed that the expansion of the Extra Help program will provide an important opportunity to those who could benefit from the program’s lower cost premiums, deductibles, and copayments now and when the program expands in 2024.

Access Board Issues NPRM for Low-Transfer Height of Medical Diagnostic Equipment

The U.S. Access Board issued a notice of proposed rulemaking on the low-transfer height for medical diagnostic equipment. In January 2017, the Board issued a final rule establishing technical criteria for medical diagnostic equipment. But, due to insufficient information, the Access Board issued a five-year sunset provision for low-transfer heights. After a public meeting and feedback last year, on May 23, 2023, the Access Board issued a proposed rule to require the low-transfer height be set at 17-inches. The open comment period initially ended on July 24, 2023. But, the public comment period was re-opened until August 31, 2023. However, even after a final rule is issued, medical providers will not have to meet the requirement unless adopted by the U.S. Department of Justice and U.S. Department of Health & Human Services.

DOJ and DOE Issue a Joint Dear Colleague Letter to Post-Secondary Education Institutions

The U.S. Department of Justice and U.S. Department of Education issued a joint Dear Colleague Letter reminding colleges, universities, and other postsecondary institutions that their online services, programs, and activities must be accessible to people with disabilities. The letter reiterates that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act require colleges, universities, and other postsecondary institutions to provide equal opportunities to people with disabilities in all their operations. These requirements extend to courses on learning platforms as well as podcasts and videos on social media and third-party platforms like YouTube, Spotify, and Apple Podcasts.

DOJ Finds Arizona Correctional Facilities Fail to Provide Accessibility Accommodations for Incarcerated Individuals with Vision Disabilities

The U.S. Department of Justice (DOJ) issued a letter finding the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) violated the Americans with Disabilities Act (ADA) by discriminating against individuals with vision disabilities. After its investigation of multiple complaints by incarcerated individuals, DOJ found that ADCRR violated the ADA by failing to reasonably modify its policies or provide auxiliary aids and services, such as Braille materials and displays, audio recordings and screen reader software; failed to provide accessible processes to request accommodations or file disability-related complaints; and over relied on other incarcerated people to help individuals with vision disabilities without properly training or supervising those providing help.

DOT Awards $703 Million in Funds to Replace Aging Passenger Railcars

On May 5, 2023, the U.S. Department of Transportation, Federal Transit Administration announced six grantees of federal funds to replace aging passenger railcars to improve reliability, safety, and accessibility. The approximately $703 million represent the first grants under the new Rail Vehicle Replacement Program, created by the Bipartisan Infrastructure Law. The program will invest a total of $1.5 billion through 2026.

GAO Report Examines the Access Board’s Collaboration with Federal Agencies

The Government Accountability Office published a report, Interagency Efforts to Promote Accessibility for People with Disabilities Generally Followed Leading Collaboration Practices, to examine how the U.S. Access Board collaborates with federal agencies and the extent to which the collaboration on selected efforts aligns with leading collaboration practices. The report found the Access Board collaborated with federal agencies to carry out the three key areas of its mission: developing accessibility guidelines, providing related technical assistance and training, and enforcing certain accessibility requirements applicable to federal facilities.

Legislation

Bill Seeks to Expand Accessible Health Services for Medically Underserved Communities

On April 19, 2023, Senator Bob Casey (D-PA), Chairman of the U.S. Senate Special Committee on Aging, introduced the Health Equity for People with Disabilities Act (S. 1219) to amend the Public Health Services Act to provide grants to community health centers to ensure the centers and medical equipment are accessible for people with disabilities. The bill seeks to expand accessible, quality health care services for medically underserved populations.

Latonya Reeves Freedom Act Clarifies Right to LTSS

The bipartisan, bicameral Latonya Reeves Freedom Act (S. 1193/H.R. 2708), introduced by Senator Michael Bennet (D-CO) and House Representative Steve Cohen (D-TN-9), intends to prohibit discrimination against individuals with disabilities who need long-term services and supports (LTSS). The bills clarify that eligible individuals have a right to receive services and supports; require public entities and LTSS insurance providers to deliver services that allow individuals with disabilities to live in the most integrated setting; establish state comprehensive plans to transition people with disabilities out of institutions and into the community; and require public entities to address the need for affordable, accessible, and integrated housing.

Bills Introduced to Ban Disability Discrimination for Organ Transplants

The Charlotte Woodward Organ Transplant Discrimination Prevention Act (S. 1183/H.R. 2706), a bipartisan and bicameral bill, aims to prohibit disability discrimination for organ transplants. Although federal law prohibits discrimination against individuals with disabilities in organ transplantation and the allocation of organs, legislatures cite continuing cases of discrimination and the need for further federal clarity. Under the bill, covered entities that match human organs and individuals must carry out its functions in a nondiscriminatory manner, by not denying transplants, determining that a person is ineligible to receive a transplant, refusing to refer the person to an organ transplant or specialist, or refusing to place the individual on an organ transplant wait list solely because of their disability.

Freedom to Move Act Addresses Transit Equity Gaps for People with Disabilities

The Freedom to Move Act (S. 1282/H.R. 2488) establishes a U.S. Department of Transportation  grant program for state and local entities to fund efforts to provide fare-free transit service and for other purposes. Grants would focus on improving the safety and quality of public transportation to address transit equity gaps for low-income and historically underserved communities, including people with disabilities.

Kaine Introduces Bill to Address Caregiver Staff Shortages

Senator Tim Kaine (D-VA) introduced a bill to address the low wages and high turnover for direct care workers. The Supporting Our Direct Care Workforce and Family Caregivers Act (S. 1298) directs the Administration on Community Living to awards grants for the creation, recruitment, training and education, retention, and advancement of the direct care workforce and to award grants to support family caregivers.

Cases

Hotel Website ADA Tester Case Moves to Oral Argument

The U.S. Supreme Court case, Acheson Hotels, LLC, v. Laufer, is scheduled for oral arguments. Deborah Laufer, a self-appointed tester, sued Acheson Hotels for failure to have accessibility information about the hotel on its website. The Americans with Disabilities Act requires hotels to identify and describe accessibility features in the hotel and guest rooms. The district court dismissed the case, finding Laufer failed to establish standing because she had no imminent plans to visit the hotel. The U.S. Court of Appeals for the Fourth District found that Laufer suffered an informational and stigmatic injury solely when she was denied the information. Acheson Hotels filed a writ of certiorari to the Supreme Court. Despite Laufer’s counsel’s request to find the case moot, the Supreme Court denied the request and the oral argument is scheduled for October 4, 2023.

Court Finds Chicago’s Inaccessible Pedestrian Signals Violate Federal Disability Laws

A U.S. District Court found the city of Chicago, Illinois, violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to provide accessible pedestrian signals (APSs) for those who are blind or low vision. Since at least 2006, the city recognized the needs to install APSs, outlining the need in multiple city documents. In 2021, the U.S. Department of Justice moved to intervene in the case and found that of the nearly 2,700 intersections, over 99 percent were equipped with visual-only pedestrian signals. The court found the city failed to provide meaningful access to people with visual disabilities and the city must ensure newly constructed signals are designed and constructed to be accessible for those with visual disabilities.

Complaint Filed Against the State Bar of California for Failure to Provide Accommodations for the California Bar Exam

On behalf of four law school graduates, the Disability Rights Education and Defense Fund (DREDF) filed a complaint with the U.S. Department of Justice against the State Bar of California for allegedly failing to provide accommodations for the California bar exam. DREDF is collecting additional stories about students who were denied accommodations or were required to provide onerous documentation for the California bar exam.

11th Circuit Court Reverses Summary Judgment in Employment Accommodations Case

The Court of Appeals for the 11th Circuit reversed the district court’s summary judgment in Beasley v. O’Reilly Auto Parts. Beasley alleged the company discriminated against him by failing to provide reasonable accommodations. The Deaf plaintiff requested a sign language interpreter for mandatory company meetings and events. The district court granted O’Reilly’s motion for summary judgment on the basis that Beasley failed to establish that his accommodation related to his essential job functions and that he suffered an adverse employment action. In a de novo review, the circuit court found genuine issues and remanded the case for further proceedings.

SCOTUS Upholds Talevski Ruling

The United States Supreme Court upheld the right of Medicaid beneficiaries to seek relief in federal court, ruling in favor of the family of Gorgi Talevski, who sued alleging that his nursing facility under the Federal Nursing Home Reform Act (FNHRA). The appellants argued nursing home residents are not able to seek private legal action under the FNHRA. The Court held that the provisions of the FNHRA unambiguously create rights enforceable under the 1871 Civil Rights Act.

DOJ Settles Case with San Juan on Accessible Public Sidewalk Systems

On June 23, 2023, the U.S. Department of Justice filed a proposed settlement agreement with San Juan, Puerto Rico, that would require the city to take critical steps to make their public sidewalks accessible for pedestrians with disabilities. In the case of Betancourt-Colon et al v. City of San Juan, individuals with mobility disabilities sued the city for failing to install and maintain accessible sidewalks and curb ramps. The proposed stipulated order requires San Juan to train all city employees who supervise construction, repair, or maintenance related to public sidewalks on federal accessibility standards; solicit public input from people with disabilities regarding accessibility; conduct a self-assessment to identify sidewalk barriers; and ensure any construction or alterations of public sidewalks are compliant with the Americans with Disabilities Act.

Three New York Federal Judges Dismiss ADA Cases for Lack of Standing

Three New York federal judges dismissed multiple cases involving claims against businesses under the Americans with Disabilities Act (ADA) for lack of standing. In Winegard v. Golftec Intellectual Property LLC., the plaintiff with a hearing disability alleged an ADA violation over non-captioned video content on the business’ website. In Rendon v. Berry Global Inc., the blind plaintiff sued regarding content that was inaccessible for his screen reader. In Suris v. Crutchfield New Media, LLC, the plaintiff alleged the videos on the business’ website lacked closed captioning. The three judges found that the plaintiffs lacked standing for failure to establish an intent to return to the websites.

Federal Lawsuit Alleges Physical Accessibility ADA Violations for Voting in LA County

On June 29, 2023, the United States Attorney’s Office for the Central District of California filed a lawsuit against Los Angeles County alleging violations under the Americans with Disabilities Act (ADA) for inaccessible voting centers, inaccessible ballot drop boxes, and inaccessible curbside voting. The office surveyed over 300 polling places and voting centers in the June 2016, March 2020, November 2020, and November 2022 elections and found that only a small percentage of them complied with the ADA. Los Angeles County disputes the findings and allegations.

SCOTUS Denies Review on Gender Dysphoria Disability Discrimination Case

The U.S. Supreme Court denied a petition for a writ of certiorari to review a case from the Court of Appeals for the Fourth Circuit, which held the plaintiff reasonably argued that gender dysphoria is protected under the Americans with Disabilities Act. In Williams v. Kincaid, the plaintiff, a transgender woman, challenged her placement in a Virginia men’s prison and the denial of care related to her gender dysphoria. The district court had dismissed Williams’ claims, holding that gender dysphoria did not constitute a protected disability, and for failure to state grounds for relief and for statute of limitations reasons.

Judge Finds Florida Violated the ADA for Institutionalizing Children

A district judge sided with the U.S. Department of Justice (DOJ) finding Florida violated the Americans with Disabilities Act (ADA) by unnecessarily placing children with disabilities in nursing homes, instead of in their family homes or other community-based settings. DOJ filed a lawsuit in July 2013, after issuing a Letter of Findings in September 2012. The lawsuit alleged the institutionalization of these children violated the ADA and separated them from their families and community. Under the ruling, Florida must take steps to ensure children can access services to live in their homes and families can make informed decisions about where their child live.

CUNY Agrees to Adopt Statewide Policy to Provide Accommodations

The United States Attorney for the Southern District of New York’s office announced a voluntary compliance agreement under Title II of the Americans with Disabilities Act with the City University of New York (CUNY) for relief to a student with visual impairments. An investigation found, among other things, that CUNY failed to make qualified learning assistants available to ensure an integrated learning setting for the student in numerous courses. Under the agreement, CUNY will permanently purge all of the affected student’s grades in the relevant courses in which reasonable modifications were not provided and adopt new systemwide policies and procedures.

Advocacy in Action

CCD Urges HHS to Publish Section 504 NPRM

The Consortium of Constituents with Disabilities sent a letter to the White House and U.S. Department of Health and Human Services (HHS) urging HHS to immediately publish a notice of proposed rulemaking to update its Section 504 of the Rehabilitation Act requirements. In 2021, HHS issued a request for information on discrimination in health care. However, proposed rulemaking has not yet been issued. Advocates are concerned that without prompt actions, a final rule will not be issued by the end of the Administration’s first term.

Advocacy for Accessible AVs

Before the House Innovation, Data, and Commerce Subcommittee Legislative Hearing, Self-Driving Vehicle Legislative Framework, the Consortium for Constituents with Disabilities Transportation Task Force sent a letter, along with 15 signatory organizations, to voice that any legislation on autonomous vehicles (AVs) include disability accessibility and antidiscrimination against people with disabilities provisions. The letter was submitted into the record twice during the hearing. Mark Riccobono, President of the National Federation of the Blind, also testified on the importance of accessible AVs. A recent report released by the National Disability Institute found AVs have the potential to provide employment opportunities for millions of people with disabilities. But, nearly all AV rideshare companies have no fully accessible AVs.

Learn More

NCD Releases Report on Extreme Weather Events and Impacts on People with Disabilities

The National Council on Disability (NCD) released a report, The Impacts of Extreme Weather Events on People with Disabilities, that evaluates how people with disabilities are disproportionately impacted by emergencies and major disasters. The report reviews how the needs of people with disabilities are being overlooked in disaster management policy and planning. NCD examined federal law compliance to applicable federal programs and policies and their implementation in health care, housing, education, and emergency management. The report offers findings and recommendations for policy and systematic changes.

AFB Reports Survey Results on Digital Inclusion

The American Foundation for the Blind (AFB) released a report, Barriers to Digital Inclusion , with the findings from a survey conducted in late 2022. The Barriers to Digital Inclusion Survey sought feedback about the prevalence and impacts of digital inclusion barriers faced by individuals who are blind, have low vision, or are deafblind. AFB’s survey results found that participants faced pervasive challenges in the digital environment.

ADA Talk Series

On the fourth Thursday of every month, from January to October 2023, the ADA National Network hosts a free ADA Talk Series. Topics include, employment, program access under Title II of the Americans with Disabilities Act (ADA), higher education, digital access, and ADA in the courtroom.

JAN Report Explains Benefits of Employment Accommodations

The Job Accommodation Network completed a survey on the costs and benefits of accommodations in employment. The survey found that workplace accommodations are not only typically low in cost, but also positively impact the workplace in many ways. The report includes information from over 3,500 employer surveys completed between 2019 and 2022. Approximately half of the employers responded that the accommodations cost nothing to implement. The report concluded that accommodations are effective, with both direct and indirect benefits.

Research and Resources on Pregnancy for Women with Disabilities

The National Center for Disability & Pregnancy Research and Brandies Heller School for Social Policy and Management released new reports and resources to improve pregnancy experiences and outcomes for women with disabilities through research, training, and education. The website includes research summaries, webinars, and resource videos and recordings.

PBS Releases Documentary on Disability Rights Movement

PBS released a series of documentaries looking at the history of the disability rights movement and activists in honor of Disability Pride Month. A documentary covers the history of the disability rights movement, a short film depicts an individual’s experience living with a disability, and an episode of Eat Your Catfish is posted. A recording of an inclusive live performance of Shakespeare’s Richard III is available with a donation..

Upcoming Webinars & Conferences

Amtrak Will Hold Public Meeting and Accept Comments On Long Distance Trains

Amtrak is hosting a hybrid public meeting on Wednesday, August 30, 2023 from 10:00am-2:00pm (eastern) and accepting feedback on its long distance trains and the future of accessible train travel. The public can attend the meeting in-person in Washington, DC. Registration for in-person attendance ends August 25th and virtual attendance registration is open until August 30th. Feedback and comments will be accepted until September 7th.

NARPA Will Host its Conference from September 6-9

The National Association for Rights Protection and Advocacy (NARPA) is hosting a conference in New Orleans, Louisiana, from September 6-9, 2023. NARPA’s mission is to support people with psychiatric diagnoses to exercise their legal and human rights, with the goals of abolishing forced treatment and ensuring autonomy, dignity and choice.

Accessible Mobile Apps & Kiosks Webinar

Accessibility.com will have a webinar, Accessible Mobile Apps & Kiosks, on August 22, 2023, at 1:00pm eastern. The webinar will address considerations for developing an app or kiosk, key features and assistive devices, testing and deployment, and creating a feedback loop for ongoing accessibility monitoring.

Disability Etiquette and the Media Training

The Rocky Mountain ADA Center released a training on disability etiquette and the media. The training is focused on disability awareness and etiquette in media settings; designed to help understand the magnitude of the disability community; provide a better understanding of proper language to use when addressing people with disabilities; and address etiquette considerations across multiple media modalities. The center offers additional online courses on the Americans with Disabilities Act’s application to various topics.

RespectAbility Hosts Ten Year Anniversary Celebration Event

RespectAbility will host its ten tear anniversary celebration event on November 2, 2023, in Los Angeles, CA. The event will not only celebrate the many wins within the disability community over the last ten years, but also help RespectAbility prepare for an even more successful future. Registration is required by October 10, 2023.

BIPOC Disability Justice Summit

The BIPOC Disability Justice Summit will be held on August 30th (virtually) and September 6th (in-person in Washington, DC). The two day leadership summit is addresses empowering disabled leaders of color and allies to drive meaningful change.

Other Disability Rights Newsletters

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