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2007 September - October

"Should They Be Asking Me That?"

Advising People with Disabilities About the ADA's Inquiry and Examination Provisons

By Barry C. Taylor

The Americans with Disabilities Act protects potential and current employees against discrimination based on medical examinations and disability-related inquiries. Employees and advocates should know the prohibitions on such examinations and inquiries conducted before a conditional offer of employment, whether personality tests are medical examinations, the confidentiality rules on employee and applicant medical records, and legal remedies when the law is violated.

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Protecting Disability Benefits from Creditors

By James W. Speer

Federal and state laws that exempt disability benefits from creditor process are intended to protect the debtor’s family from impoverishment. The best way to help a client who has a disability and whose sole source of income is frozen by garnishment of an otherwise exempt account involves determining the source of benefits, where the benefits are being deposited, the creditor’s identity, and the nature of the debt. Not commingling exempt with nonexempt funds and depositing exempt funds in special electronic transfer accounts are ways to help clients avoid frozen accounts.

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Medicaid Managed Care and People with Disabilities

Challenges and Opportunities

By Sarah Somers & Jane Perkins

Each year states are placing greater numbers of people with disabilities into managed care. All signs indicate that this trend will continue and likely accelerate. When enrolled in managed care, Medicaid beneficiaries with disabilities face particular challenges, but managed care also has the potential to improve and streamline care for people with disabilities. Advocates should closely monitor developments in their states to guard against risks posed by managed care but remain open to opportunities to increase community integration and the quality of care, and life, for people with disabilities.

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Expanding and Preserving Affordable Housing Opportunities for Persons with Disabilities

By Susan Ann Silverstein

The Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and U.S. Department of Housing and Urban Development regulations and guidance are among the advocacy tools for ensuring that local agencies and federally subsidized landlords are held accountable for meeting the housing needs of persons with disabilities. Advocates should be prepared to seek accessible design and construction, physical modifications in the already built environment, and reasonable accommodations in rules, practices, and procedures.

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School Discipline and Education

By Shawna L. Parks & Maronel Barajas

Students with disabilities are disproportionately subjected to school discipline, which can cause the students to drop out of school. The Individuals with Disabilities Education Act requires schools to assess students and develop plans to deal with their disabilities and, with certain exceptions, prohibits schools from imposing discipline for behavior that is a manifestation of a student’s disability. Advocates should be familiar with both the preventive steps they may take and the protections for students with disabilities.

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Disability Rights Law

Roots, Present Challenges, and Future Collaborations

By Arlene Mayerson

Although we have made progress in the fight against disability discrimination since the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, subsequent U.S. Supreme Court cases have reinforced traditional notions of disability and continually narrowed protections and remedies for people with disabilities. Fixing the damage caused by the Supreme Court is only one of the many actions that need to be taken. To serve clients with disabilities best, “disabilities rights lawyers” and legal aid offices need to forge ahead with much more collaboration.

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The Protection and Advocacy Network--a Resource for Legal Aid Attorneys

By Joan Magagna

The Protection and Advocacy system is a valuable resource for legal aid attorneys. Present in every state and territory, these agencies have statutory authority to litigate and advocate on behalf of persons with disabilities. They have access to facilities so that they can assess and monitor conditions in both institutional and community settings. They also cocounsel with legal aid attorneys and partner with advocacy coalitions to enforce the rights of persons with disabilities.

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Interplay Among Unemployment Insurance, Welfare, Social Security Disability, and SSI Benefits

By Kevin Liebkemann & Raymond Cebula

The primary public benefit programs accessible to persons with disabilities are unemployment insurance, Temporary Assistance for Needy Families, general assistance, Social Security Disability Insurance, and Supplemental Security Income. Advocates must understand how these programs work, the criteria for eligibility in each, and, most important, how they interact with one another in order better to advise and assist clients with disabilities in meeting their financial and medical needs.

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Social Security: Changes on the Horizon

Changes on the Horizon

By Linda Landry & Gerald A. McIntyre

While social security privatization, which was to be the centerpiece of President Bush’s second-term domestic policy agenda, has evaporated for now, less momentous changes have been under way. Changes are being implemented in disability determination and appeals. People with certain disabilities may receive expedited determinations of eligibility. And the long-term solvency of the Social Security Trust Fund remains in question as proposals abound to solve the problem by tinkering with benefit levels or calculation formulas rather than implementing straightforward fixes such as removing the cap on wages subject to the payroll tax.

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Disability Law

Another Tool for Advocacy on Behalf of Low-Income Seniors

By Daniel B. Kohrman

Census data show a link between age and disability. Older people and people with disabilities often face similar challenges in the workplace, housing, transportation, and health care. As the U.S. population grays, these challenges will increase in prominence. Experience shows that disability law may be an effective tool with which to combat discrimination against older persons. Advocates for seniors may find in disability law new ideas and answers to long-standing advocacy challenges.

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Medicare Prescription Drug Coverage for People with Disabilities

By Vicki Gottlich

Access to medically necessary prescription drugs is critical to the health and well-being of all beneficiaries with disabilities, regardless of their age. Navigating the Medicare prescription drug benefit is difficult for all beneficiaries, but beneficiaries with disabilities face additional challenges in enrolling in drug plans, in getting their drugs covered, and in paying for their drugs.

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Making the ADA Work for Social Security Disability Beneficiaries

Life After Cleveland v. Policy Management Systems

By Alan M. Goldstein & Barbara Siegel

In 1999 in Cleveland v. Policy Management Systems Corporation the U.S. Supreme Court unanimously and (seemingly) clearly held that for plaintiffs to claim that they were disabled from working under the Social Security Act but able to work under the Americans with Disabilities Act (ADA) is not inherently inconsistent. However, eight years after Cleveland, ADA plaintiffs who are social security beneficiaries usually lose in federal court on the basis of their having applied for and received social security benefits. Cleveland and lower court rulings do provide some guidance in suggesting strategies to pursue when representing individuals in social security or ADA claims.

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Using the Reasonable-Accommodation Provision of the Fair Housing Act to Prevent the Eviction of a Tenant with Disabilities

By Fred Fuchs

People with disabilities have a powerful tool at their disposal—the reasonable-accommodation provision of the Fair Housing Act. Among other protections, the Fair Housing Act prohibits discrimination against persons with disabilities in the sale or rental of a dwelling. Advocates need to know who is protected under the Fair Housing Act, the steps that a tenant must take to obtain a reasonable accommodation, and how a tenant may defend an eviction lawsuit on the basis of the landlord’s failure to grant a reasonable accommodation.

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Representing Clients Who Have or May Have "Diminished Capacity"

Ethics Issues

By Robert D. Fleischner & Dara L. Schur

The legal profession’s ethics codes offer some, albeit incomplete, guidance on representing clients who have or may have “diminished capacity.” Attorneys need to know Rule 1.14 of the American Bar Association Model Rules of Professional Conduct and Rule 1.14’s interpretations, representational models for people with limited capacity, client-capacity issues, how to interview people with “diminished capacity,” and possible approaches to representing people with questionable capacity.

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Immigrants with Disabilities

Eligibility for Federal Benefit Programs

By Tanya Broder

The 1996 welfare reform law largely governs immigrants’ eligibility for public benefits. While the law is especially harsh for immigrants who have disabilities, it gives states discretion to offer benefits to certain categories of immigrants. The law created new categories of “qualified” and “not qualified” immigrants, but, due to the complexity of immigration statutes, “qualified” immigrants are ineligible for certain benefits while even “not qualified” immigrants are eligible for others.

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Scorched Earth and Fertile Ground

The Landscape of Suits Against the States to Enforce the ADA

By Rochelle Bobroff

Using an expansive notion of state autonomy under the Eleventh Amendment, the U.S. Supreme Court under Chief Justice William Rehnquist made it difficult for individuals to enforce civil rights, including disability rights, in federal court. The Roberts Court will likely continue this approach. Nonetheless, the Court’s decisions in Tennessee v. Lane and United States v. Georgia and lower courts’ interpretations of those decisions suggest that the Americans with Disabilities Act remains a viable tool to protect the rights of people with disabilities.

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