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Disabled Action Committee
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"We shall never cower down to the bureaucracy,
but we will rise to challenge the archaic laws that need to be amended.
Together as 'one' large group of people, with or without disability, we
will demand and receive responsible representation by our elected
Representatives. No more will we be treated as third rate citizens in a
first rate country. Today is the beginning of our new tomorrow, lest we
rise to the occasion and gather our strength through each other. United
we will win, divided we will fail. Not only for ourselves, but for all
future generations to come."
The following selections
are from the most recent DAC Newsletters. Contact DAC to get your
electronic copy of the DAC Newsletter.
========================================================
DAC News
V9-#05 Tuesday, August 05, 2008 -- No Vote, No Voice!
========================================================
I'm
LQQKING for a few good volunteers (in Virginia but will consider elsewhere)
to assist in a project for creating brochures, flyer's, handouts and such
regarding questions and answers that may be asked by individuals relating to
Consumer Direction (CD) and choice in their lives. Yes, one of the several hats
that I wear, now has me as the Team Leader for our Resource Team under the
Systems Transformation Grant (STG) Goal 2 group for our "objective 3" in self
direction. We (the Q & A team) will conduct our work mainly via email and I
look for a 7 day turnaround period so I can draft the plans on each of our
question and answer sheets to report back the entire Resource Team for a final
decision and/or approval.
If you'd like a chance to participate in real
CD/self direction options then I urge you to write back to me stating you'd like
to join the Q & A Team. The reward for you will be in actually
helping to create documents to be used in CD for persons not only coming out of
institutions under our MFP demonstration but for all of those currently
receiving CD Waivers wanting to use real choice initiatives. I promise you'll
not only have fun working with me but you'll actually see the results of your
ideas and labor put into practice. So send me your email addresses today so "we"
can begin the first of many projects. I'll soon be in touch with you after I
receive your mail. Thank you:)
Keith-
NOW, ON WITH THE
NEWS!!!!!!!
August 2008 Center for PAS Bulletin
A pdf
version of this newsletter can be found at http://www.pascenter.org/newsletter/CenterforPASBulletinAug08.pdf
Previous
newsletters can be found at http://www.pascenter.org/newsletter
Salem
quadriplegic sues Oregon in fight for independence - OregonLive.com
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1217044560193670.xml&coll=7
Guess
what? Steve Gold from The Disability Odyssey continues, which we post often, has
involved himself in this lawsuit. If this suit wins it could set a precedent for
other states to follow. Go Steve...........
Oregonian articles on the
disability system backlog. 2 good articles to read...kk
http://www.oregonlive.com/special/index.ssf/2008/08/getting_disability_payments_ca.html
http://www.oregonlive.com/special/index.ssf/2008/08/benefits_backlog_swells_as_soc.html
AIDS
Imaging
Techniques Yield New Information on How HIV Infects Cells and Provides Clues to
Vaccine Design
http://www.nih.gov/news/health/jul2008/nci-30.htm
National
Cancer Institute
Bipolar Disorder
FDA Approves First
Generic Divalproex Sodium to Treat Seizures, Migraine Headaches and Bipolar
Disorder
http://www.fda.gov/bbs/topics/NEWS/2008/NEW01867.html
Food
and Drug Administration
9 charged in death of disabled Philly teen
http://apnews.myway.com/article/20080801/D92985F80.html
Smart
specs for the blind
http://technology.newscientist.com/article/dn14407-invention-
smart-specs-for-the-blind.html?DCMP=ILC-hmts&nsref=news3_head_dn14407
McCain
vows to back changes in the disabilities law
http://apnews.myway.com/article/20080727/D925T9T00.html
Health
Checkup
http://www.nlm.nih.gov/medlineplus/healthcheckup.html
Sore Throat
http://www.nlm.nih.gov/medlineplus/sorethroat.html
NEXT
How can health bureaucracies consult effectively about their policies
and practices?: some lessons from an Australian study
http://heapro.oxfordjournals.org/cgi/reprint/12/4/299.pdf
Award-Winning
Mental Health / Depression DVD
You may be interested in an educational
film that has won 25 film festival awards and was featured on the Voice America
Health Channel. Aquarius Health Care Media (888-4402963) is currently
distributing this 30-minute mental health / depression / suicide prevention
educational DVD titled "Eternal High.” The film was produced by my son, a
student who discusses his experience with depression, suicidal thoughts,
anxiety, self-injury, self-medicating and his treatment. If interested, a
preview and discussion guide is available at:
http://aquariu
sprod uctions.com/cart/pr
oducts.
php?&cat_id=&prod_id=1712&session
_id=
2008010223061867.177.144.58&pid= .
NEXT
2008
Reinventing Quality Conference
Speakers from Virginia include Jill
Egle, Co-Executive Director of The Arc of Northern Virginia, Eileen Hammer,
Partnership for People with Disabilities at VCU, and Lee Price and Sheri Stierer
of DMHMRSAS.
2008 Reinventing Quality Conference
It’s All About
Change
August 10-12
The 2008 Reinventing Quality Conference in
Baltimore, Md., Aug. 10-12, will focus around the concept of real “change” as it
is reflected in the conference’s title – Embracing Change: New Voices, Vision
and Approaches.
The conference will begin on Sunday, Aug. 10, with
registration from 3 to 6 p.m. at the Renaissance Baltimore Harborplace Hotel.
The Welcoming Reception will be held from 5:30 to 7 p.m.; The conference will
continue all day Monday Aug. 11 and will conclude at 3:30 p.m. on Tuesday, Aug.
12.
To learn more about the conference or to register online for the
conference, visit the conference website at www.reinventingquality.org. If you
have questions, send them via email to reinventingquality@udel.edu.
The
conference is directed at people with developmental disabilities, family
members, Direct Support Professionals, administrators of community support
agencies, advocates, and state and federal officials.
AND in Virginia
at DMAS
Link for Assistive Technology and Environmental Modifications
Providers
Our website has been updated to include a link to an excel
spreadsheet for currently enrolled AT and EM providers. This should make it
easier for folks to find these providers of service.
The link is: http://www.dmas.virginia.gov/ltc-home.htm#Waiver_Services_Program_
WOW
Governor
Announces Approval for PAS to Workers with Disabilities
Governor
Timothy M. Kaine recently announced that Virginia has received approval from the
federal Centers for Medicare and Medicaid Services to expand services available
to workers with disabilities who are enrolled in Virginia's Medicaid Works
program.
"With the approval of this alternative benefits package, we can
further extend opportunities for Virginians with disabilities to work and
achieve greater self-reliance," Governor Kaine said. "As we continue efforts in
workforce development for the Commonwealth, it is important to include this
often untapped pool of potential workers so that they, too, have access to
meaningful career opportunities."
In late 2007, the Virginia Department
of Medical Assistance Services sought authorization to establish an "alternative
benefits package" for program enrollees that will include personal assistance
services, in addition to the standard health care services available through
Medicaid. Personal assistance services, sometimes called attendant care,
provide individuals with disabilities non-medical support in the home or the
workplace so that they may continue to live at home, maintain employment and
participate in community activities.
"The addition of personal
assistance services to the Medicaid Works program will have a tremendous impact
on enhancing the lives of people with significant disabilities," said Jim
Rothrock, Commissioner of the Virginia Department of Rehabilitative Services.
"It not only gives people with disabilities greater choice in how to care for
their needs both in the home and at work, but more importantly, prevents the
entry into nursing facilities or other institutional settings unless absolutely
necessary."
Medicaid Works is Virginia's Medicaid Buy-In program, a work
incentive opportunity developed with funding from a federal Medicaid
Infrastructure Grant. Established in 2007, this voluntary plan enables workers
with disabilities to earn higher income and retain more in savings than is
typically allowed by Medicaid, while ensuring continued health care
coverage.
DON'T FORGET THIS
DEADLINE EXTENDED TO AUGUST 15
FOR DMHMRSAS NAME CHANGE FEEDBACK
Richmond, VA - Given the great
public interest in potential new names for the department, the Department of
Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) has
extended the deadline until August 15, 2008 to ensure stakeholders have the
opportunity to register their feedback.
Four carefully-worded options
were offered for public input. The language in each option meets three goals:
shortening the current name and acronym, using positive terms related to the
department's services, and using language more reflective of the department's
mission, values and programs. Also, the public was encouraged to submit comments
or alternative suggestions to the four choices. The options include:
*
Department of Behavioral and Developmental Services (DBDS)
* Department of
Behavioral Health and Supportive Services (DBHSS)
* Department of Behavioral
and Supportive Services (DBSS)
* Department of Supportive and Recovery
Services (DSRS)
Many of the over 1,250 responses include alternative
suggestions to the four choices. The final decision for any change in a state
department's name lies with the Governor and the General Assembly.
The
public may submit its feedback via the DMHMRSAS Web site at
http://www.dmhmrsas.virginia.gov/.
NEXT
UDL goes Google
Google Launched Elections Video Search Gadget
"Today, the Google
speech team (part of Google Research) is launching the Google Elections Video
Search gadget http://tinyurl.com/6rjakw,
our modest contribution to the electoral process. With the help of our speech
recognition technologies, videos from YouTube's Politicians channels www.youtube.com/members?s=mv&t=a&g=8
are automatically transcribed from speech to text and indexed. Using the gadget
you can search not only the titles and descriptions of the videos, but also
their spoken content. Additionally, since speech recognition tells us exactly
when words are spoken in the video, you can jump right to the most relevant
parts of the videos you find."
NEXT
4th annual abilities
fair
My name is Terri Warden-Fioravanti and I am the chair person
for the Coatesville VA Medical Centers' Employment of Persons with Disability's
committee. This year our committee is hosting our Fourth Annual Abilities Fair
as part of our October Disability awareness month. This is our fourth year at
hosting this type of awareness program and we would like your organization to
come and take part in celebration of abilities. If your organization cannot take
part and would like to send information please send to the address below. The
Abilities Fair will run October 22, 2008 from 10am till 3pm EST in at the
Coatesville VA Medical Center building #5 2nd floor Great Hall. Tables will be
available. Set up for this awareness day will begin at 9:00am.
Thank
you for your consideration,
Terri
Terri Warden-Fioravanti RN,
MSN
MDS Coordinator Building 4 QI
Coatesville VA Medical Center
1400
Blackhorse hill rd.
Coatesville, PA 19320
610 384-7711 x2110
Fax
number: 610 383 0293
NEXT
Request for Public Comment on
Proposed Amended Regulations
Regulations for Respite and Emergency
Care Admissions to State Training Centers-12VAC35-200-10 et seq.
In
accordance with the Virginia Administrative Process Act, the State Mental
Health, Mental Retardation and Substance Abuse Services Board is requesting your
comments on the above referenced proposed regulations. The regulations are
attached to this email and scheduled for publication Virginia Register of
Regulations on August 4, 2008. You may also view the regulations and background
statement on the Department's website at www.dmhmrsas.virginia.gov and on the
Virginia Regulatory Townhall website at www.townhall.state.va.us.
Please provide your written comments on the proposed regulations by
October 3, 2008 to:
Dawn Traver
DMHMRSAS
P.O. Box
1797
Richmond, VA 23218-1797
Telephone 757-253-4316 FAX
804-253-5440
dawn.traver@co.dmhmrsas.virginia.gov
If you have any
questions or would like to request a copy of the regulations please contact Dawn
Traver at the above address or Wendy Brown via email
wendy.brown@co.dmhmrsas.virginia.gov or telephone 804-225-2252. Thank you.
FINALLY <-------odd thing that, huh?........kk-
FAST
FACT
In 2006, prices paid for drugs used by people with Medicare and Medicaid
under the Part D drug benefit cost $1.7 billion more than when Medicaid paid for
the same drugs before the start of Part D. (Medicare Part D: Drug Pricing and
Manufacturer Windfalls, House Committee on Oversight and Government Reform, July
2008)
Much more news so read, enjoy and comment if you wish:)
Keith-
========================================================
1.
ACT TO PROTECT ADA REGULATIONS
2. S.N.A.F.U. ALL OVER
AGAIN
3. NEW MEDICARE RULE OUTLINES RIGHTS OF HOSPICE
PATIENTS
4. TEXAS, ONE SUCCESSFUL EXAMPLE OF MOVING FOLKS OUT OF
NH'S
5. DEAR MARCI - WILL MEDICARE PAY TO HELP ME QUIT
SMOKING?
6. SpEd AND THE LAW? GET IT WRIGHT! - 10 QUALITIES OF A GREAT
TEACHER
7. CASH AND COUNSELING WORKS WELL FOR MENTAL HEALTH
CONSUMERS
========================================================
********************************************************
ACT
TO PROTECT ADA
REGULATIONS
********************************************************
Act to Protect the ADA Regulations -Information Bulletin, # 256 (7/08)
About five weeks ago, I wrote "Good-Bye Full Accessibility," Information
Bulletin #250 in which I focused on only two disastrous aspects in the proposed
Department of Justice Regulations that significantly change both Title II and
Title III.
Recently, the NDRN and DREDF, as well as other disability
attorneys, wrote a set of "model" comments in response to the Department of
Justice's (DOJ's) Notice of Proposed Rule Making (NPRM) on these proposed
changes.
The model comments are now available on the DREDF website:
http://www.dredf.org/DOJ_NPRM.
Once you get to this website, you can see
all the proposed changes, not just the two I raised, by clicking on the left
column. DREDF and NDRN intend that the model comments be a starting point for
disability rights groups and other interested parties to use in drafting and
submitting their own comments. Feel free to "cut and pasted."
Where
possible, please provide personal anecdotes and experiences to adapt and
personalize the model comments. Tell DOJ what accessibility problems you have
faced since the ADA was enacted, what you have tried to do, how it's been
unsuccessful, and why making the proposed changes will only make it more
difficult to achieve "equal opportunities" and "full access." You might even
mention, if it's true, whether or not you filed a complaint with DOJ and what,
if anything, happened with it.
Even if you block and copy, please take a
few minutes to submit comments using the Regulations.gov website.
Remember, the deadline for submitting comments to the proposed changes
is very soon! Don't mourn, organize and get your friends to also write in their
personal stories.
Steve Gold, The Disability Odyssey continues
Back issues of other Information Bulletins are available online at
http://www.stevegoldada.com with a searchable Archive at this site divided into
different subjects. To contact Steve Gold directly, write to stevegoldada@cs.com
or call
215-627-7100.
********************************************************
S.N.A.F.U.
ALL OVER
AGAIN
********************************************************
S.N.A.F.U.
All Over Again
July 31, 2008 • Volume 8, Issue 31
This week’s
report by the Government Accountability Office (GAO) confirms what Medicare
Rights Center caseworkers know well: winter and early spring are the peak season
for consumer complaints about the Part D drug benefit.
Starting in
January, complaints start to pour in about some foul-up triggered by a change in
Part D plans. Most of these complaints stem from data transfer problems between
the different computer systems used by the Centers for Medicare & Medicaid
Services, the Social Security Administration, state Medicaid programs and the
companies running Part D.
There seem to be a near infinite variety of
such systems problems. One typical problem involves a low-income person with
Medicare who enrolls, or is automatically enrolled, into a new Part D plan.
After the plan switch, the new plan often does not have a record that its new
enrollee is entitled to premium assistance and reduced copayments through the
Extra Help program. Part D plans are obligated to accept evidence of eligibility
for Extra Help—a Medicaid card presented at the pharmacy, for example—but too
often they refuse to reduce copayments. Until a caseworker intervenes, a person
may go without his medicine because he cannot afford to pay for
it.
According to the GAO, complaints stemming from data exchange problems
take twice as long other complaints—more than a month on average—to resolve. CMS
officials told GAO that there was “no easy solution” to the data exchange
problems, and that several work groups had been established to identify
improvements that “could reduce” the number of complaints in this
area.
That is not good enough.
If we can put a man on the moon, we
can get CMS and SSA computers to talk to each other. It is a matter of making it
a priority to find a solution, and allocating the resources for the fix. Part D
enrollment problems, data exchange foul-ups and the interruptions to drug
coverage that result are persistent and recurring problems. The time to resolve
these problems is now. Winter is coming.
(thax
medicarerights)
********************************************************
NEW
MEDICARE RULE OUTLINES RIGHTS OF HOSPICE
PATIENTS
********************************************************
New
Medicare Rule Outlines Rights of Hospice Patients
For the first time
since 1983, the federal government has issued major new rules outlining broad
patient rights for Medicare beneficiaries who have elected the hospice benefit.
"As more patients and their families come to understand and select
hospice care, we felt it was critical to outline what rights patients have to
control= the care they receive in their final days," said Kerry Weems, acting
administrator of the U. S. Centers for Medicare & Medicaid Services (CMS),
in a government press release.
Electing hospice care is a decision those
with terminal illnesses can make when they wish to forego further curative
treatment in favor of care designed to ease pain and other symptoms. Hospice
services provide comfort care to the patient and can include services for family
members. Hospice services can be provided in the patient's home or in an
inpatient setting.
The rules set out new Medicare Conditions of
Participation (CoP), which include explicit language on patient rights that had
not existed under the previous regulations. A Medicare-approved hospice program
must comply with the new rules. Currently there are nearly one million Medicare
beneficiaries receiving care from over 3,000 Medicare-approved hospices
nationwide.
The rule outlines specific rights for patients who choose
hospice or palliative care over curative treatment, the release says. These
patients are entitled to:
participate in their treatment plan;
receive effective pain management;
refuse treatment; and
choose
their own physicians.
In addition to the new patient rights' section, final
regulation also includes:
-A requirement that patient needs be initially
assessed within 48 hours of electing the hospice benefit. The rule also requires
that a comprehensive assessment occur within five days of electing the hospice
and that updated assessments be done at least every 15 days thereafter.
-A requirement that each patient receive a full drug profile that
examines issues ranging from the effectiveness of current drug therapies to
potential drug interactions to drug side effects. A treatment team will consult
with a qualified individual, such as a pharmacist, to ensure that drugs meet the
needs of every hospice patient.
-A provision allowing a hospice to
contract with another Medicare-certified hospice for nursing, medical social
services, and counseling services under extraordinary or other non-routine
circumstances, including travel of a patient outside of the hospice's service
area.
Removal of a provision requiring an inpatient facility only providing
respite care to have an RN on duty 24 hours a day. The patient's needs, acuity
and plan of care will drive the nursing and staffing requirements.
The
regulation is online at
http://www.cms.hhs.gov/CFCsAndCoPs/05_Hospice.asp.
Elder Law Practice of
Timothy L. Takacs
201 Walton Ferry Road, Hendersonville, TN 37075 · (615)
824-2571
1680 S. Jefferson, Suite A-B, Cookeville, TN 38506 · (931) 526-3828
http://www.tn-elderlaw.com
********************************************************
TEXAS,
ONE SUCCESSFUL EXAMPLE OF MOVING FOLKS OUT OF
NH'S
********************************************************
Texas,
One Successful Example of Ending Discrimination by Helping People
Move Out of
Nursing Homes.
Information Bulletin # 255 (7/08).
Texas has
compiled impressive data regarding its commitment to move people out of nursing
facilities, and its Medicaid expenditures reflect its efforts.
Between
9/1/2001 and 5/31/2008, Texas implemented its own "Money Follows the Person,"
and did not wait for or need the federal program. During these years, Texas
moved 15,626 people out of its nursing homes.
Here are some interesting
demographics:
43% or 6,719 people were 64 years old or
younger;
53% or 8,282 people were 65 or older.
Of the total, 27% or
4,219 people were 85 years old or older.
67 % or 10,469 people moved from
the nursing facility to either live alone or live with family members or other
people.
A breakdown of the 67 % shows that 22% or 3,438 people left the
nursing facility to live alone, and 45 % or 7,032 people moved in with their
families, relatives, or others .
28% or 4,375 people live in assisted
living and 5% or 781 people live in a group homes (adult foster).
Now
let's look at how Texas allocated its Medicaid expenditures:
In FY 2001,
Texas spent 70.6% of its long-term care Medicaid funds on nursing homes. In FY
2006, it reduced its nursing home expenditures to 54.6%.
Conversely, in
FY 2001, it spent only 29.4% of its long-term MA funds on waivers and other
community-based services. In FY 2006, it spent 45.6% in the
community.
Big surprise. There is a relationship between how a state
spends its money and whether or not people moved out of nursing
facilities.
To determine if your state is truly committed to ending
unnecessary institutionalization of people with disabilities in nursing
facilities, and therefore ending discrimination against people with
disabilities, look at how your state allocates its Medicaid "long-term care"
expenditures.
Look at the numbers of persons who moved out of nursing
facilities and returned to the community. After the 1999 Supreme Court decision
in Olmstead, many disability and elderly advocates waited to see how their
states would implement the "integration mandate." Well, it's been nine
years!
Disability and older American advocates:
Do you know how
many people in your state have been moved out of nursing facilities and where
they moved to? Do your state officials know this information? Can you or they
find out? Since Texas can track this information, other states probably can and
do, too.
In Information Bulletin # 251, we calculated by state the
changes in long-term care expenditures from 1999 thru 2006, and we expect to
have the FY 2007 data available soon.
Steve Gold, The Disability
Odyssey
continues
********************************************************
DEAR
MARCI - WILL MEDICARE PAY TO HELP ME QUIT
SMOKING?
********************************************************
Dear
Marci,
My husband has been a smoker for more than 30 years. Earlier this
year, he had to have surgery to remove a blood clot. Now, he’s trying to quit
smoking. Will Medicare pay for counseling services to help him
stop?
—Laura (Midland, TX)
-----------------
Dear Laura,
Yes, Medicare Part B will pay for one initial evaluation and up to eight
counseling sessions in a 12-month period to help your husband quit smoking, as
long as he has a disease or condition that is caused by smoking (in this case,
cardiovascular disease) or is taking a prescription drug that interacts with
tobacco. He must receive services from a qualified physician who is
Medicare-certified.
To learn more about how Medicare covers counseling
and other services to help you quit smoking, read the full article on Medicare
Interactive. You can also learn how Medicare covers other kinds of outpatient
counseling
services.
http://www.medicareinteractive.org/page2.php?
topic=counselor&page=script&slide_id=1066
—
Marci
(thax
medicarerights)
********************************************************
SpEd
AND THE LAW? GET IT WRIGHT! - 10 QUALITIES OF A GREAT
TEACHER
********************************************************
Special Education and the Law? Get it
Wright!
Wright's Law is a definite bookmark for those individuals
clearly wishing to understand the laws governing special education in the United
States. Regardless of your position, (parent, student, educator, advocate,...read more
Top 10 Qualities Of a Great
Teacher
So you think you can teach? Do you know what both teachers,
students and parents want in great teaching? I used to think that a lifelong
desire to learn, patience...read more
Literacy on the Roll!
When traveling in the car, turn off those mini DVDs and have some fun
extending language growth. Here are some things you can do: Brainstorm as many
words as you can...read
more
(thax
about.com)
********************************************************
CASH
AND COUNSELING WORKS WELL FOR MENTAL HEALTH
CONSUMERS
********************************************************
Cash
and Counseling Program Works Well for Mental Health Consumers
A recent
study published in The Gerontologist examined how Cash and Counseling---a
self-directed care approach allowing consumers to choose and pay for services
and supports---meets their personal care needs and affects their well being.
Comparisons involving elderly consumers with and without mental health diagnoses
who had been a part of the Cash and Counseling Demonstration Evaluation in
Arkansas were done. Several outcome measures were examined including
satisfaction with care arrangements and the paid caregiver’s reliability and
schedule, unmet needs, and satisfaction with the relationship with the paid
caregiver.
Researchers found that Cash and Counseling works well for
persons with mental health diagnoses. In fact, those with mental health
diagnoses who participated in Cash and Counseling fared better than those
receiving traditional treatment. A consumer-directed service option can be a
valuable alternative for persons with mental health needs.
See
http://www.hcbs.org/moreInfo.php/nb/doc/2280 for further information on the
study---Does Mental Illness Affect Consumer Direction of Community-Based Care?
Lessons From the Arkansas Cash and Counseling Program, The Gerontologist, Vol.
48, No. 1 pp. 93-104. Partial funding for the developm= ent of this article
came from the Administration on Aging and the Assistant Secretary for Planning
and Evaluation of the U.S. Department of Health and Human Services.
(thax
SAMHSA)
========================================================
DAC News
V9-#06 Wednesday, August 06, 2008 -- No Vote, No Voice!
========================================================
I normally don't
do this but I feel it is important enough for you to respond. So read and be
informed of what needs to be done. Thank you.
Keith-
There is a
deadline for comments so please let your "voices" be heard by the Department of
Justice (DOJ).
Be certain that your comments are important and are
due by August 18, 2008. Tell DOJ that the regulation is vague and will harm
persons with disabilities.
Mobilizing PWD against a rollback of the ADA
We need people to file comments on DOJ's newly proposed reg
(28 CFR § 36.304(d)(5)) to exempt small businesses from removing architectural
barriers when it is readily achievable to remove barriers.
So far, few
comments have been filed.
The newly proposed regulation has been added
by DOJ to the proposed new ADAAG drafted by the ATBCB.
DOJ has to learn
that the proposed reg is vague and is going to harm people with disabilities.
Attached is a full statement about the proposed reg. You can also download an
entire copy of DOJ's proposed regulations and the new ADAAG at this site.
You can post your comments via the internet by:
1. going to
regulations.gov
2. search for "DOJ-CRT-2008-0015" in the brown or blue
search box
3. click on any of the brown icons (shaped like a small bubble)
below any of the names of people who have filed comments and fill out the form
and comment section.
Here are the details:
COMMENTS RE:
DOCKET ID DOJ-CRT-2008-0015 Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities
The bottom line:
The U.S. Department of Justice plans to exempt "small businesses" from having to
remove architectural barriers under a newly proposed 28 CFR § 36.304(d)(5).
Nearly all shopping centers ("existing") are "small business" entities. Since
shopping centers spend, on average, 8% of revenue on maintenance, they are in a
perfect position to claim that they have already met the 1% requirement. The
proposed regulation neither defines gross revenue nor defines which "measures"
are counted towards the 1% exemption threshold. Existing shopping centers
shouldn't have any trouble avoiding further barrier removals, such as ramps,
curb cuts, and level parking, under this regulations since they can easily claim
that they spent more than 1% of their gross revenue the previous year on items
that relate to accessibility.
The U.S. Department of Justice plans to
exempt "small businesses" from having to remove architectural barriers under a
newly proposed 28 CFR § 36.304(d)(5). Thus, "small businesses" that have failed
to make their businesses accessible for the last 16 years will be rewarded by
the DOJ with a new excuse and method to avoid making their business accessible.
The newly proposed DOJ regulation 28 CFR § 36.304(d)(5) to Title III of the ADA
can do significant harm to the ADA as it is vague and designed to reward
"existing facilities" who have still not made their facilities accessible since
1992. The proposed regulation does not directly apply to newly constructed or
altered facilities.
This proposed, so-called, "safe harbor" for "small
businesses" actually exempts millions of public accommodations in this country.
The biggest problem concerns shopping centers. A shopping center owner is a
small business if its revenue is less than $6.5 million. The average total
revenue per square foot (Urban Land Institute, "Dollars and Cents of Shopping
Centers" 2008) for lease space in a community shopping center is about $15 per
leased square foot. Thus, an average community shopping center with $6.5 million
revenue has, on average, about 433,333 square feet of leaseable space. A
community shopping center near me has, for example, has over 30 retail stores
with several anchors including a supermarket, Best Buy, movie theater, Bed Bath
& Beyond, 1800 parking spaces -- all on about 35 acres of land -- with only
about 375,000 square feet of leaseable space. Thus,. except for large regional
shopping centers, the great majority or nearly all of the existing shopping
centers in this country will be exempt "small businesses".
If exempt,
then the following proposed regulation [36 CFR § 36.304(d)(5)] would apply:
A qualified small business has met its obligation to remove
architectural barriers where readily achievable for a given year if, during that
tax year, the entity has spent an amount equal to at least one percent (1%) of
its gross revenue in the preceding tax year on measures undertaken in compliance
with the barrier removal requirements of this section.
This single
sentence is one of least defined sentences in the ADA. This proposed regulation
defines nothing, it invites noncompliance and leaves small businesses open to
expensive litigation.
Lets take the two major elements of this proposed
regulation and give them the slicing they deserve. First, what is the definition
of "gross revenue?" That's not a hard problem for a retail store, but what about
banks, insurance offices and stores that sell warranties. Shopping centers, for
example, have "Common Area Maintenance." Is CAM part of gross revenue which
automatically adjusts when maintenance costs go up or simply money collected by
the landlord from all the tenants that is used for their benefit and therefore
isn't really part of his gross revenue?
The second part which is
undefined is determining what money is spent on "measures undertaken in
compliance with the barrier removal requirements of this section." Does money
spent on maintenance count? If a shopping center pays to remove snow from the
sidewalk, isn't that a measure undertaken to remove a barrier? Shouldn't all or
part of snow removal, sidewalk cleaning, restripping expenses be counted? If the
manager or president of the shopping center spends time working on maintenance
issues, shouldn't, at least, part of his salary, bonuses, benefits and insurance
be included in the 1% threshold? If 36 CFR § 36.304(d)(5) were meant to simply
refer to 36 CFR § 36.304(b), it should say so. Since the average shopping center
spends more than 8% of its revenue on maintenance alone, it can easily claim
they have met the 1% threshold. Then, will there ever be any money for curb
cuts, ramps and handrails under this proposed regulation?
Next, if a
shopping center puts in a number of ramps and depreciates them over five years,
what part of this cost is included in the "1% qualified expense"? Do we use
depreciation figures from a shopping center's tax return or from a version of
their internal financial statement? Or is depreciation or accelerated
depreciation even allowed? Similarly, do we count the money paid to an ADA
expert who happens to be the otherwise unemployed child of the shopping center
owner as a qualified expense?
Next, how do we separate expenditures
involving alterations and additions from the undefined expenditures of this 1%
threshold? If an existing shopping center, puts up a new Best Buy store, what
part of those costs should be counted as part of the 1% threshold? How should we
account for a new curb cut that serves the new store and the adjoining old
store?
Finally, how should we apportion barrier removal expenses between
the tenant and the landlord. If the landlord spends the money, isn't he really
spending the tenants money? If the tenant is spending the money, isn't he doing
so because the landlord tells him to do so? Should both the landlord and the
tenant each receive credit for what was spent? Is there a way to stop this
double dipping? Is there going to be any way to sue a shopping center without
listing all of the tenants also as codefendants?
Vague regulations that
use undefined accounting terms are as bad as law that promise access but have no
ADAAG or definitions behind them. Laws regarding accessibility existed for many
years before the ADA was passed. It was the adoption of uniform, objective
standards that allowed courts and business to understand what needed to be done.
Proposing a new regulation that is vague and rewards those few places that have
still not been made accessible undermines the Americans with Disabilities Act.
Persons with disabilities will be harmed by this proposed regulation.
Help make the DOJ understand that the proposed exemption of small
businesses is an unworkable loophole. Don't let the ADA be destroyed.
You can find the complete DOJ documents and make comments at the
following web addresses:
http://www.regulations.gov/fdmspublic/component/
main?main=SubmitComment&o=090000648062a604
or at: http://www.regulations.gov
for Docket ID
DOJ-CRT-2008-0015
Docket Title:
Nondiscrimination on
the Basis of Disability by Public Accommodations and in Commercial Facilities
Document ID DOJ-CRT-2008-0015-0001
Be certain that
your comments are important and are due by August 18, 2008. Tell DOJ that the
regulation is vague and will harm persons with disabilities.
Submitted by,
Barry Weintraub, Esq. bw@myadalawyer.com
and
Mr. Anthony J. Brady, Jr., Esq. ladbrady@gmail.com
=============================
Comments and news of interest
are always welcome. Please feel free to use or disseminate the information in
these newsletters however you want and while DAC likes to be recognized, do so
only if you wish.
Keith Kessler - Founder of DAC (disabled Action
committee)
14405 Artery Ln#11
Dale City, VA
22193
703-878-1737
Email: DAC4VA@aol.com
Website:
http://members.aol.com/DAC4VA/main.htm
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