Hello List and Particularly Joy:
My sincerest appologies for not this posted sooner. Life sure has been
interesting the last few weeks. Just so you have an idea, in a two week time
period I got a letter from the IRS saying I supposedly owed $38,000 in back
taxes on litigation which I had been told wasn't taxable, a letter from
Social Security wanting to know if I still had CP and that my benefits are in
jeapordy, a possible sexual harrassment lawsuit, and an ADA violation.
I rarely post to this list so I feel it appropriate that I reintroduce
myself. I am twenty -eight years old and was born with spastic athetoid
Cerebral Palsy. I utilize a power wheelchair, wear leg braces, have bowel
and bladder issues, and my speecy is somewhat affected. I am college
graduate with a Bachelor's in Business Administration in Human Resources
Management. Two years ago I graduated from college and have not been very
successful in finding employment. Another issue that I face is the fact that
I am bipolar. Despite these issues, I am determined to lead an active and
fulfilling life. I have the support of dedicated friends and family.
From about the age of eighteen, I began using personal assistance services.
My first experience was when I went away to school at Edinboro University of
Pennsylvania. Those of you familiar with this institution (and that's
exactly what I believe it is - an instituion) know that they are among the
top ten schools in the country for people with disabilities. What they fail
to tell you is that there are also in the middle of the Lake Erie snow belt,
and you can expect 100+ inches of snow in an average winter; with wind chills
around minus 40, its not exactly what I would call conducive for people with
disabilities. Furthermore, they would have you believe that they have one of
the best personal assistance systems in the country. I will grant you that
they are the only school of which I'm aware that offers these services.
Basically what they do is have a pool of assistants available twenty-four
hours per day. There might eight attendants on at a given time, to care for
forty people whose disabilities range from very mild Cerebral Palsy to being
a total quadriplegic and almost needing twenty-four care. While this system
may work for some people, I found that I felt very dehumanized - almost like
I was a piece of meat. I never knew who was coming it to get me up in the
morning, or put me to bed at night. Every new person had to learn my
routine, and often they were in a hurry.
Since leaving Edinboro I've had numerous experiences working with both people
from agencies and hiring people privately. For the most part, I've had
positive experiences. My advice to people that are doing this is that you be
extremely clear in what you need, up front. I prepare a job description that
is roughly five pages long, and I also develop a fairly extensive
application. Remember that these people are coming into our home, and
depending upon our level of disability, we are very vulnerable. If I may,
I'd like to briefly relate the story of something that happened to me about a
year ago.
I had in my employ a personal assistant who had been referred to me by an
agency. She came highly recommended and had previously done a significant
amount of work with people with disabilities similar to mine. I was going
through a period where I was very ill physically, so i was a lot more reliant
on my assistant than normal. Usually, I can walk some, and be somewhat
functional. I had contracted a severe urinary tract infection began to
poison my body, caused my ankles to swell, and that ultimately required
hospitalization. On the day that my doctor told me to go to the hospital, I
asked my assistant to drive me in my lift-equipped van to the hospital, which
she did. After I had been admitted to the hospital, I directed my assistant
to drive the van back to my home, place the keys under the floor mat, and
lock the doors.
Upon his arrival home from work that evening, my partner discovered that the
van was not at our apartment, and assumed that I had authorized my assistant
to take it to her home. Wrong! A short time later, we were on the
telehphone with the police department, our insurance agent, and our attorney.
It seems that not only did this woman take the van, she did not have a valid
driver's license. Thankfully, the van was found three or four days later at
another local hospital where the woman had been admitted after complaining of
chest pains. What an ordeal!
I don't know if this list keeps abreast of what is going on with the ADA, but
October 11, 2000 the United States Supreme Court is poised to hear oral
arguements in a case that could significantly erode the ADA.
In order to give you further information and with permission of the Bazelon
Center for Mental Health Law (web site www.bazelon.org) I submit the
following, which explains this matter in greater detail:
On Wednesday, October 11, 2000, the United States Supreme Court will hear
oral argument in a case, University of Alabama v. Garrett that challenges the
constitutionality of the Americans with Disabilities Act. The Alabama
Attorney General argues that parts of the federal law-known as the "Civil
Rights Act for people with disabilities"-violate states' rights. In their
briefs to the Supreme Court, lawyers for individuals with disabilities and
friends of the court contend that states' history of discrimination based on
disability was so egregious that Congress had the power to override state
sovereignty.
The Garrett case is really two cases that were combined at the trial level.
Patricia Garrett sued the University of Alabama's medical center in
Birmingham for demoting and then transferring her from her position as a
supervising nurse after she was treated for breast cancer. In the other case,
Milton Ash, a corrections officer with asthma, sued Alabama's youth
corrections agency for failing to accommodate him by enforcing the agency's
no-smoking rule and servicing the cars he is required to drive, which emit
noxious fumes.
In both suits, the state argued that Congress lacks the power to require
states to pay money damages for injuries caused when states violate the ADA.
The trial judge accepted Alabama's argument, but the U.S. Court of Appeals
for the Eleventh Circuit reversed the trial judge's decision.(1) The
appellate court found that Congress has the power, under the Fourteenth
Amendment to the U.S. Constitution, to require states to pay money damages
for violations of the ADA. The Fourteenth Amendment, passed after the Civil
War, guarantees all citizens equal protection of the law and due process of
law.
The U.S. Supreme Court has recently been attentive to arguments based on
"states' rights." Earlier this year, the court ruled in Kiel v. Florida Bd.
of Regents that Congress lacked the power to require states to pay damages
for violations of the Age Discrimination in Employment Act (ADEA).(2) Many
commentators believe that the Supreme Court is poised to declare as
unconstitutional similar provisions in the ADA.(3)
Although the two cases combined in Garrett involve plaintiffs with physical
disabilities, the potential impact of the Supreme Court's decision is of
equal-and very grave-concern to people with mental disabilities. An adverse
decision could reach beyond the ADA's protections governing public employment
to eliminate all of Title II, which bans discrimination in access to public
services such as education, health and mental health care, and other programs
operated by states and localities. Furthermore, while Section 504 of the
Rehabilitation Act imposes similar obligations on states and localities when
federal funds are involved, if the court were to rule against the ADA it
might also, in a later case, declare Section 504 unconstitutional.
The following situations could be among results of such a decision, depending
on how liberally the Court rules:
§ States would no longer have to comply with the ADA's integration mandate
as upheld last year by the Supreme Court's Olmstead decision. People
unnecessarily institutionalized in state hospitals, nursing homes and other
state institutions would no longer have recourse under the ADA.
§ State employers would be able to refuse to hire people with physical or
mental disabilities and to fire them at will, and would no longer have to
provide reasonable accommodations in the workplace.
To be sure, even if Title II of the ADA evaporates, states could adopt laws
with the same protections. However, history suggests that this is unlikely.
The ADA was enacted in 1990 precisely because states had refused to adopt
appropriate legal protections against discrimination based on disability.
People with disabilities worked too long and too hard to enact the ADA, only
to see it succumb to a "states' rights" argument. The National Association of
Protection and Advocacy Systems is mobilizing a grassroots campaign to
educate state officials and disability advocates on the implications of the
Garrett case.
The precise question before the Supreme Court is: "Does the Eleventh
Amendment to the United States Constitution bar suits by private citizens in
federal court under the Americans with Disabilities Act against
non-consenting states?"
Under the Supreme Court's current approach, the question of whether a
particular civil rights statute exceeds Congress' power largely depends on
two factors: (1) whether, when the statute was enacted, there was a
significant problem of unconstitutional discrimination, and (2) whether the
requirements of the statute are proportionate and reasonable responses to the
problem that Congress sought to remedy. We believe that the ADA passes muster
under both tests.
The Bazelon Center participated in the brief for Ms. Garrett and Mr. Ash.
Other amicus briefs have been filed by states, advocacy groups, consumers,
historians, law professors, members of Congress-even former President Bush-to
present these arguments. Links to the briefs appear below. A memorandum to
disability advocates discusses the state's likely argument on both questions.
Oral argument will be on October 11 and the decision should come early in
2001. On October 3, disability advocates will hold a March for Justice in
Washington. I will be leaving for Washington on Monday October 2nd to attend
meetings and take part in this rather landmark yet distressing event. Anyone
who is interested in joining me, please conact me. Also, if there are any
members of ADAPT on this list, please let me know.
Finally, I have two issues that I'm not sure are truly appropriate for this
list, but I am hoping that you will indulge my ignorance if this is so.
First, I am trying to locate a standard vibrator where the on off mechanism
is a toggle switch at the bottom. The ones I know of, you must turn a dial
and I lack sufficient dexterity in my hands. I am meeting with an OT on
other matters at my local rehab and I am considering broaching it with
him/her. Do you feel this is appropriate or have any ideas? Second, I am
looking for an adaptive chess set that would allow me to be able to move the
pieces independently. Initially I believe that a system in which Velcro were
applied to both the pieces and the board would be ideal. While this is still
a viable and far more effective option would be to drill a hole in every
single hole on a standard board. Then we need to obtain solid wooden chess
pieces and drill a hole in the bottom of each and glue a dowel rod that is
roughly 1/16th of an inch smaller then the holes made in the board. I idea
is to ensure as snug a fit as possible. I suspect that somewhere out there a
similar set to the one I described here. Does anyone have any ideas where to
look?
Brian
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