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Gargoyle Awards 2003 : The Winners!

The Gargoyle Awards are CDR's annual advocacy awards. For more information and bios of past winners, see the Awards page.

This year's winners:

Winged Gargoyle (Lifetime Achievements)
Stuart Ferst, President, Anixter Center
winner's bio

Razzberry Gargoyle (Self-empowering Action)
Carole Howard, President, Chic. Chronic Fatigue Assn.
winner's bio

Gnawing Gargoyle (Public Policy)
Martha Younger-White, Chief, Bureau of Accessibility & Safety Systems (DHS)
winner's bio

Crane Gargoyle (Unique Achievement)
Edward J Bannister
Mayor Roger C Claar
winners' bios

Brian Hall Hooded Gargoyle (Young Professional)
Laura Serinsky, Caseworker, Epilepsy Foundation
winner's bio

David Iris Dragon Gargoyle (Child Advocacy)
June Prusak, Chicago Hearing Society
winner's bio

Invitations are in the mail. Please contact the office if you've not received one.

The fun will begin with a cash bar at 6 PM on Friday, October 17th, at the Chicago Hilton and Towers, 720 South Michigan Avenue, in the Waldorf Suite.

Raffle tickets will be available from CDR staff that evening. Prizes include a pair of airplane tickets, restaurant dinners, hotel weekends, free passes to museums, and so on.

We all hope you will join us for the party and celebration of this year's outstanding advocates — each of whom has given new meaning to advocacy to improve the lives of people with disabilities and their families. Do join us!

Questions about 1991 Civil Rights Act

Did the Civil Rights Act of 1991 improve employment opportunities for women and minorities?

The legislation — which significantly expanded the rights of plaintiffs in discrimination complaints on the federal level — was basically ineffective, according to an article in the summer issue of Regulation, published by the Cato Institute, a libertarian research group.

The act fueled invalid fears about quotas and did not improve hiring "in fields with traditionally low representation of women and minorities," the authors of the article say.

The study was conducted by Paul Oyer, an Associate professor of economics at Stanford University, and Scott Schaefer, Richard M Paget, associate professor of management policy in the Kellogg School of Management at Northwestern University.

They write that the act mainly increased the cost of dismissing workers protected by the legislation.

As a result, employers reduced their hiring of protected workers, shifted their means of dismissing protected workers toward layoffs and away from individual firings and placed a premium on protected workers who are least likely to sue.

"Firing-based protections lead employers to hire fewer protected workers, not more," the authors say.

Source: The New York Times, 7/28/03.

Chandler Firm Sued Over Diabetic's Firing

By Dennis Wagner and Edythe Jensen

The Equal Employment Opportunity Commission has sued a Chandler company that reportedly fired an industrial worker after learning that he has diabetes.

The EEOC alleges in a U.S. District Court complaint filed Wednesday that Pimalco Inc. violated the Americans with Disabilities Act when it terminated Roy Merritt of Surprise 10 days after he went to work at the company's plant on the San Carlos Reservation near Globe. Officials at Pimalco and its parent company, Alcoa, could not be reached for comment.

According to the lawsuit, the 54-year-old Merritt was hired in 2001 to operate heavy equipment. Merritt said he had been an industrial electrician for 32 years, suffering from diabetes and using an insulin pump during most of that career.

"It has always been under control and has never affected my work," he added.

At Pimalco, Merritt said, he did not conceal his disability. However, after taking a required physical, he reportedly was told, "No diabetics can run the equipment." Merritt said he contacted the American Diabetes Association, which put him in touch with the EEOC.

The lawsuit, filed after conciliation efforts with Pimalco failed, seeks back pay and punitive damages on behalf of Merritt. Merritt said he hopes his case will send a message to employers.

Source: The Arizona Republic, August 29, 2003.

Businesses Unite to Deal with ADA Litigation

Vallejo business owners are getting ready to take on the Americans with Disabilities Act (ADA) related lawsuits filed against them.

According to the story in the Vallejo Times-Herald, they got together with attorney Jack Burstein to decide on a strategy to deal with the lawsuits.

George Louie of Oakland has filed the lawsuits against more than a dozen Vallejo businesses and property owners over accessibility for people in wheelchairs. He also said another reason for suing was the rude behavior of the clerk at the business license counter in the City Hall, the Times-Herald reported.

Jennifer Duggan of a Sacramento law firm said if the buildings are not in accordance with the ADA, Louie has the legal right to sue, the newspaper said.

However, many business owners and City Councilwoman Joanne Schivley are questioning Louie's motives and are terming his activities "economic terrorism."

Duggan told the newspaper, "Louie is a career plaintiff, one of several in the country." She suggested that the businesses get in touch with an ADA consultant to bring their property into compliance with ADA regulations in an inexpensive and easy manner.

Duggan said Louie's lawsuit can be devastating for small businesses and result in closure of some of them.

Source: The Vallejo News, August 27, 2003.

Dyslexic Cop Prompts New Reading of ADA

By Thomas B. Scheffey

U.S. District Judge Stefan R. Underhill, departing from the holdings of three of his Connecticut federal colleagues, has ruled that only the narrow Title I of the Americans with Disabilities Act applies to employment discrimination.

The majority of federal judges, and the U.S. Justice Department, have construed the ADA to also allow employment claims under its Title II section entitled "Public Services," and let them enjoy a three-year statute of limitations period. But Underhill, in a carefully reasoned May 6 ruling, concluded that only Title I ("Employment"), with a 300-day limitations period, applies to employment discrimination cases against a public entity.

In the case of Filush v. Town of Weston, a police candidate for promotion to sergeant contends the town violated Title II of the ADA when it failed to accommodate his dyslexia in testing, and then manipulated promotion procedures to prevent his advancement. In his 17-page ruling, Underhill carefully compared the language of both titles of the ADA and found the only proper vehicle for an employment claim is Title I, which in Connecticut must be initiated with a complaint to the Commission on Human Rights and Opportunities (CHRO).

Congressional intent

Representing Weston, Michael J. Rose, of Hartford's Howd & Ludorf, argued that Title II does not apply, and that Congress never intended it to encompass employment claims against municipalities.

Underhill's analysis led him to conclude that the U.S. Attorney General, through the Justice Department, made a mistake in promulgating a Title II regulation which states that a qualified person with a disability cannot be discriminated against in employment "under any service, program or activity conducted by a public entity."

After noting two Connecticut decisions that rule otherwise, by Senior Judges Ellen Bree Burns and Peter C. Dorsey, Underhill wrote, "Although reluctant to depart from the rulings of other courts in the district, I decline to follow the majority view."

The regulation from the Justice Department does not have any weight in affecting the meaning of what Congress wrote, Underhill concluded, because "Congress unambiguously expressed its intent that Title II not apply to employment."

Output vs. input

The judge noted that employment isn't a subject of Title II, only that a person not be discriminated against or excluded from "the benefits of services, programs or activities of a public entity." These are "outputs" of the town's activities, Underhill noted.

But in this case, plaintiff John Filush isn't contending he was denied the benefit of an "output" public service, such as public transportation. Instead, "Filush's claims relate to his treatment as an 'input,' not on discrimination incurred while trying to take advantage of the town's 'outputs.'"

A 1997 ruling by the 2nd US Circuit Court of Appeals, Innovative Health Sys. Inc. v. White Plains, states that Title II's anti-discrimination language was "a catch-all phrase that prohibits all discrimination by a public entity, regardless of context."

Underhill distinguished that case on two grounds — its subject matter and its age. The case dealt with whether zoning issues fell within Title II, not with employment, which has its own specific section in Title I. Furthermore, Underhill wrote, since 1997 several U.S. circuit courts have analyzed whether Title II covers employment matters and found it did not. Those views, he suggested, would likely prove persuasive to the 2nd Circuit.

Plain meaning

The judge's statutory construction approach strikes at the most controversial topic this year for the Connecticut Supreme Court, which has been divided over revocation of the so-called plain meaning rule. The state legislature introduced and is expected to pass a bill to revoke the effect of State v. Courchesne, which allows statutes to be analyzed in the broad context of legislative history and other state laws, without finding an obvious ambiguity at the start.

To begin with, Underhill found the names of the two titles to provide obvious direction. Title I is labeled 'Employment." On the other hand, he noted that Title II contains no references to employment. "The plain language of the two titles indicates that Congress purposely included references to employment in Title I, and omitted them from Title II, because it intended that only Title I should apply to employment," he concluded.

It is unlikely that Congress wanted to allow public employees a separate procedure which avoids the administrative process, and gives them an exemption from the Title I time limits, Underhill wrote.

Gary Phelan, of West Hartford's Klebanoff & Phelan, is representing Filush. He said Underhill departs from several additional Connecticut judges, including Dominic J. Squatrito.

Phelan called the decision thoughtfully reasoned. Although it denies Filush an opportunity to pursue his Title II claims of employment discrimination, Phelan said he also has filed those claims in good time with the CHRO, and his client will not lose legal rights.

Other attorneys' cases, however, have relied on the previous view that a longer limitations period applies for public employees claiming under Title II of the ADA, a litigation strategy that, according to defense lawyer Rose, is now seriously in question.

Source: The Connecticut Law Tribune, May 28, 2003.

Advocacy Strategies for Durable Medical Equipment

By Steve Gold

In a recent "Dear State Medicaid Director" letter (SMDL #2-006), the Centers for Medicare and Medicaid Services [CMS] wrote that "States may facilitate the transition of individuals from institutional to community settings through Medical Assistance [MA] coverage" by providing the Durable Medical Equipment (DME) that persons need to live in the community. Before elaborating what CMS suggested, some background information is important.

Persons on Medicaid have an entitlement to certain DME. As CMS stated, "DME is a mandatory component of the home health benefit under the State Plan" for MA recipients in the community. That is, States must provide DME. Certain DME are "covered" and CMS will reimburse your State for DME that is a "medical necessity" for a disabled person. Mandatory/covered DME includes: power-operated wheelchairs, self-contained pacemaker monitors, white canes, home use of oxygen in some medical situations, alternating pressure pads and mattresses, commodes, augmentative communication devices, and many, many more. A full CMS list of "covered" DME can be found here.

The CMS letter reminds your State that even those DME not under your State MA plan can nevertheless be provided to persons with disabilities either as part of a Home and Community Based Services Waiver (e.g., stair glides, home modifications, etc.), or included in two other ways (see SMDL #2-006). CMS correctly notes that DME is often provided only after a person is in the community. But many persons in nursing homes and other institutions cannot move into the community without actually having the DME before leaving the nursing home — a MAJOR "Catch 22" that often prevents a person from moving into the community.

CMS has told your State how it could "facilitate successful transitions to the community by making medically necessary DME available" BEFORE the person moves into the community.

What advocates should do

1. Make sure your State's DME includes those items which are "mandatory" and are "covered" by CMS.

2. Use the above CMS letter to negotiate with your State so that "medically necessary" DME is provide BOTH in the community and in the institution (e.g., some States have not required the nursing homes to provide power-operated wheelchairs).

3. Ask your State Medicaid office how it plans to ensure that disabled persons receive needed DME BEFORE they leave the institution.

4. Use the development of a "DME Transition" plan as part of your Olmstead and Waiver process.

Source: The Disability Odyssey continues, 8/5/03.

Back issues of other Information Bulletins

Engineers Sponsor Workshop on the Use of Elevators in Fires and Other Emergencies

As a result of the terrorist attacks on the World Trade Center, the building, engineering, and life safety communities are re-examining various aspects of emergency egress from high rise buildings. One issue under consideration is the use of elevators in emergencies. Typically, elevators are programmed so that they cannot be used during an emergency except in limited cases by fire fighters and rescue personnel. However, the challenges posed by egress from tall buildings have renewed interest in the ways in which elevators can be safely used to evacuate building occupants during fires and other emergencies.

The American Society of Mechanical Engineers (ASME) International will hold a workshop on this subject next March in Atlanta from the 2nd to the 4th.

ASME International maintains and distributes various codes and standards for the design, manufacturing and installation of mechanical devices, including elevators. Workshop cosponsors include the Board, the National Institute of Standards and Technology, the International Code Council, the National Fire Protection Association, and the International Association of Fire Fighters.

The workshop will focus on the use of elevators by building occupants and fire fighters during emergencies. The goal is to develop specific proposals that can be submitted to various codes and standard-setting organizations for consideration. The workshop will consist of plenary sessions at which selected papers will be presented and breakout sessions where attendees can discuss and prepare recommendations. Following the workshop, a steering committee comprised of representatives from each of the sponsoring organizations will convene to review the proposals.

Those encouraged to participate include representatives from building, fire, and elevator code organizations, code enforcement officials, elevator and fire alarm manufacturers, fire protection engineers, fire fighters and emergency personnel, architects and structural engineers, and building owners and operators, among others.

ASME

What is the Campaign for a Healthy Smoke-free Chicago?

The Campaign for a Healthy Smoke-free Chicago is a coalition of health and community organizations committed to strengthening Chicago's clean indoor air ordinance to protect workers and patrons from the dangers of secondhand smoke. Its members include the American Cancer Society-Illinois Division, the American Heart Association-Midwest Affiliate, the American Lung Association of Metropolitan Chicago, the Illinois Academy of Family Physicians, the Illinois Coalition Against Tobacco and nearly 40 other groups.

What does the campaign hope to accomplish?
The campaign supports passage of a clean indoor air ordinance under consideration by the Chicago City Council that would eliminate smoking in workplaces and public areas, including restaurants. Freestanding bars would be exempted.

Why is a stronger clean indoor air law a priority?
There are two main reasons the Campaign supports strengthening the current clean indoor air law:

1) Secondhand smoke is a very serious public health threat. Secondhand smoke is deadly, and workers and patrons of Chicago businesses should be protected from this threat. The threat to hospitality workers, who are exposed to more secondhand smoke than any other workers, is well documented. Workers exposed to secondhand smoke are 20 to 30 percent more likely to develop cancer, and have 25 to 35 percent higher coronary death rates. No amount of exposure to secondhand smoke is safe, and there are no ventilation systems that remove the toxins found in secondhand smoke. Secondhand smoke contains 63 known carcinogens and more than 4,000 chemicals. No matter how well smoke is removed from the air, the harmful toxins remain.

2) A majority of Chicagoans — 71 percent — wants smoke-free workplaces, including restaurants. Most Chicagoans recognize the danger of secondhand smoke and want a stronger clean indoor air law. A recent survey commissioned by the Campaign for a Healthy Smoke-free Chicago showed that more than seven in 10 (71%) Chicagoans favor a law that would prohibit smoking in most public indoor spaces, including restaurants. More than nine in 10 (92%) Chicagoans believe secondhand smoke is a health hazard.

How can others help?
The Campaign for a Healthy Smoke-free Chicago welcomes the help of individuals and organizations. The Campaign suggests sending letters and e-mails to City Hall voicing support for stronger clean indoor air laws, calling or visiting Aldermen, writing to Mayor Daley and writing letters to the editor of the Chicago Tribune, the Chicago Sun-Times and other local newspapers.

For more information about how to get involved with the Campaign for a Healthy Smoke-free Chicago, please call 312/346-4675.

Smoke-free Chicago

Expansion of Charity Care at Advocate

In response to considerable public pressure, Advocate Health Care announced reforms in its treatment of the uninsured. A new charity care policy, which was presented to the hospital's faith sponsors, included expanding consideration for charity care for patients with income from two to four times the federal poverty level, and offering a discount of 50 to 100 percent to the uninsured based on income. Advocate also vowed to cease putting liens on people's homes, and to lower prices at Advocate Illinois Masonic — the hospital with the highest gross charges for the uninsured in Cook County.

The Service Employees International Union (SEIU) Hospital Accountability Project applauds Advocate's first step in changing how it does business. These policies are a victory for low- and moderate-income uninsured people, and they are more consistent with a faith-based, charitable health care mission. But Advocate still needs to be held accountable for following through with its commitments. Will these new policies be implemented? And, if implemented, will they protect the uninsured from discriminatory pricing?

Initial research and testing by the Hospital Accountability Project indicates that these new policies are not being implemented — even though it's been several months since these policies were first announced. Further, research shows that even with these new policies, the uninsured are not protected from discriminatory pricing at Advocate hospitals.

The Hospital Accountability Project is an SEIU initiative to make quality health care more affordable and accessible for all Chicago residents. The project is improving health care by organizing consumers, the community, and caregivers to have a voice in holding hospitals accountable to their charitable mission of placing community needs ahead of financial objectives.

The SEIU is America's largest health care union, representing more than 750,000 health care workers nationally and more than 25,000 in Illinois.

For more information, contact SEIU at 40 N Wells, 3rd floor, Chicago IL 60606, 312/541.9566.

Source: SEIU's Hospital Monitor, Late Summer 2003.

SEIU

Two New Publications Explain Housing Rights of People with Disabilities

August 26, 2003 — The Bazelon Center for Mental Health Law has released new editions of its popular publications on the housing rights of people with disabilities, a fair-housing handbook and a review of court cases and other materials interpreting federal and state laws that ban zoning and housing discrimination based on disability.

The 2003 edition of What Does "Fair Housing" Mean for People with Disabilities has updated references to judicial decisions and federal laws supporting text in question-and-answer format. The 52-page booklet is addressed directly to people with mental or physical disabilities who want to rent or buy a home-an apartment or house, condominium or co-op-whether privately or publicly owned or operated. Like its two prior editions, the booklet is also useful for landlords, housing developers and administrators, real estate agents and advocates for people with disabilities.

The 94-page Digest of Cases and Other Resources in Fair Housing for People with Disabilities, updated in August 2003, includes abstracts and analyses of more than 50 new cases. Decisions are listed by states according to federal judicial circuits. Each case is coded for its relevance in one or more categories under the broad headings of brokerage, lending and insurance; homelessness; landlord-tenant relations; procedural issues; and zoning, land-use and health and safety requirements. An index lists cases within these key codes; another lists them alphabetically.

Authored by Bazelon Center staff attorney Michael Allen, both publications explain how people with disabilities are protected from housing discrimination under three federal statutes: the Fair Housing Act as amended in 1988, the Americans with Disabilities Act and section 504 of the Rehabilitation Act.

The cost of the booklet is $4, of the digest, $13.50. Shipping and handling are extra ($2 for the booklet alone, $4 for the digest or for both together). Both can be ordered online through the Bazelon Center's website, or contact the publications desk at 202/467. 5730, ext 110 to request an order form. Discounts are available for bulk orders.

For more information: Lee Carty, 202/467.5730 ext 121.

Lee Carty

Landmark Ordinance Added to Chicago's Building Code

Mayor Richard M Daley introduced an ordinance to City Council that will create a Chapter of the new Chicago Building Code (CBC) devoted exclusively to accessibility provisions.

Chapter 18-11 of the CBC incorporates all federal, state and newly recommended accessibility codes, standards and guidelines into one comprehensive and technically coordinated set of requirements. It includes new proposed federal ADA Accessibility Guidelines legislation — reducing the need for possible future rewrites of the CBC accessibility standards. It also includes requirements proposed and approved by the CBC Accessibility Subcommittee, drafters of Chapter 18-11, that reflect local building conditions.

"Providing architects, builders and developers with a building code that is clearly defined, concise and user-friendly will result in increased accessibility and usability of public facilities, including housing, for people with disabilities and the elderly," Mayor Daley said.

There are new requirements in the code for adaptability and visitability that will increase housing options for people with disabilities and seniors. Adaptability allows a residential unit to be modified for accessibility without requiring major structural modifications, while visitability provides minimal accessible housing features allowing a person who uses a wheelchair to visit the home of a friend or neighbor.

To date, Chapter 18011 has the support of Building Owners and Management Assoc., Home Builders Association of Greater Chicago, American Institute of Architects, Metropolis 2020, related City departments, sister agencies and representatives of the disability community.

This Chapter on accessibility standards is part of the overall revision of the entire Chicago Building Code, its first comprehensive rewrite in over fifty years.

The Code is being updated by chapter and subject, so appropriate committees of experts in that field can contribute to writing a strong building code. The revision of the chapters on Mechanical, Structural, Building Planning and Life Safety is currently underway.

The goal of the Mayor's Building Code Initiative is to provide the City with a building code that is consistent and predictable, that reflects the latest standards in building advances and provides conformity with nationally recognized requirements.

Source: Access Notes, 9/5/03.

Chapters on Electrical, Elevator and Plumbing codes have been revised and a summary of the changes made is available.

Nursing Home Freedom Requests

By Steve Gold

Illinois' nursing "home" operators report that 20% (or 15,125) of their "residents" are requesting freedom! — Kevin Irvine, Equip for Equality

265,286 persons with disabilities want their freedom. Yes, at least 265,286 persons with disabilities have expressed a preference to live in the community but are being unnecessarily segregated in nursing homes.

Your State and CMS know who these people are and know these people want out of nursing homes. Your State has the names of these people and the names of the nursing homes where they reside.

Each Medicaid/Medicare certified nursing home in the country completes a form entitled Minimum Date Set (MDS) for Nursing Home Resident Assessment. The completed MDS information is sent from the nursing home to your State, which then electronically sends the information to the federal Centers for Medicare and Medicare Services (CMS). This information has been collected for years.

Because the MDS is completed by the nursing home staff, we assume the 265,286 is actually understated. It is like asking the fox that guards the coop how many chickens want to leave. Regardless, this is a huge number of disables persons who have said they want their freedom.

For advocates who have been fighting their States to develop and implement a program to move the people into the community, the MDS (though a medically oriented assessment) provides critical information and ammunition.

The MDS question "Q1a," asks if the "Resident expresses/indicates preference to return to the community." The nursing home staff answers yet or no for each resident.

Despite the nursing home staff asking the residents (can you imagine the number of disability advocates asked them), without the residents even being told of the potential community options, without the residents even possibly knowing what services could be provided in the community, at least 265,286 persons with disabilities said "yes," they wanted their freedom. Nearly 20% if the 1,418,641 nursing home residents who answered the question — one in five — do NOT want to live in nursing homes.

These people are being discriminated against and their ADA rights are being violated each day. How does your State intend to provide services to these people "in the most integrated setting?"

Tell your Congressional people that these 265,286 people are why our elected officials must enact MiCASSA now!

Source: Information Bulletin #58

Data for each state as of 6/30/03.

For Sale: Accessible Naperville Townhouse

Ranch-style with 1-car attached garage, roll-in shower, 2 bedrooms, 2 baths. Asking $165,000. Call Dave at 630/717.0779.

For Sale: Aramark Wheelchair

Unused 5 year old Hooverround chair. Cost $3500; asking $800. Weight capacity is 350 pounds; will clear narrow openings/halls. Call Jackie or Jesse at 708/489.0358.