NEWSLETTER UPDATE – SEPTEMBER, 2005

 

 

FROM PHYLLIS F. RESNICK, PRESIDENT

 

TO OUR MEMBERS IN LOUISIANA, MISSISSIPPI AND ALABAMA:

 

On behalf of all of us at “Access Now, Inc.” and our members, please allow us to express our heartfelt wishes to all of you and your loved ones who have suffered and are continuing to suffer the disaster of Hurricane Katrina and its aftermath. We deeply hope that, at least by the time we send our next newsletter (approximately 6 or 7 months from now), if not sooner, we will have learned that you are all well on your way to recovery and that your new and, we hope, vastly improved life will have begun!

 

 

HELLO, AGAIN, EVERYBODY!!!!!

 

It has now been seven months since our last newsletter and we have several cases and other items of interest to report. Many of our larger cases, such as those involving hospitals and municipalities, are proceeding, but of course, as we are sure you can understand, those types of cases take a very, very long time to come to conclusion; more on those later in this newsletter. As you will see further along herein, where we acknowledge the achievements of other disability advocacy groups, the passage of several years from the inception of a case to its conclusion is not unique to “Access Now, Inc.” It is just the nature of litigation.

However, we at “Access Now” take pride in the fact that we do not limit our efforts to the high profile cases of first impression, but do, in fact, become involved in many, many small cases which have a great impact on the daily lives of members of the disabled community. Entities such as grocery stores, hotels, motels, restaurants, shops, gas stations and the like continue to fail to comply with the A.D.A. (Americans With Disabilities Act), despite the fact that the law was enacted in 1990. Therefore, we continue to receive complaints daily from disabled persons who are routinely being denied their rights under this civil rights law. Some of those which we have undertaken and which have been settled will be detailed later in this newsletter.


 

AS AN INTRODUCTION TO OUR WORK, FOR THOSE OF YOU WHO ARE NEW TO US, WE WOULD LIKE TO BEGIN WITH THE FOLLOWING LETTER SENT TO A MEMBER: This letter was received by James Lawson, a member and plaintiff in Oklahoma.(Those of you who received our February, 2005 newsletter will have read the fine letter which we received from James and subsequently re-printed.) The author of the letter herein (slightly edited) is a man with loss of vision in Ponca City, Oklahoma, a town about 60 miles north of James’ home in Stillwater. It shows that, although we are making progress, there is still a lot of work to be done in the educational and legal arenas. We want to share it with all of you:

 

May 5, 2005

Hello, James:

We have heard many fine things about you and your work in achieving benefits for the disabled and handicapped. We have been working many years in attempting the same, but you have done more in a few months than we in those years. Dave keeps us informed of your activities. You are a blessing to all of us.

We do now have ramps in nearly every part of our city. I asked some time back for audible signals and was told they would check into the cost. A bit later they told me they would try to get them as money became available. As of now we still have none. I have forwarded this article to many of our staff and members. It is time for us to contact the city commissioners again.

Representative Jim Newport has been very supportive of us. I contacted him asking for a bill to raise the distance between a person with a white cane and an oncoming car be amended to 7 feet as it is in Texas, instead of 3 feet we had. He worked with us so well and did get the distance raised to 15 feet.

A group of us attended a televised meeting of the city commissioners about the time the law went into effect. We outlined the change and commented on the law, the rights and responsibility of both the person using the cane as well as the drivers. Also our police chief posed with some of our members and the Lions, our sponsors for a picture announcing the new amendment to the law. The picture appeared in our local newspaper Sunday. We have had the police chief make a presentation for our group, as well as at different times a patrolman and a detective. This gives them an opportunity to outline their duties, as well as we get to tell them our needs. Our mayor has also been a guest speaker. We feel each contact we make is helpful to our program.

It is humbling to realize that in a few months you have achieved more than we have in our 4 years. We appreciate what you are doing and would like to keep in contact with you. Please send any information you have to me. I have attempted to get our cable system to broadcast SAP, descriptive TV programs and had little luck with it. I got promises and one channel so far. When I checked back with them was told I was the only person that had ever approached them about it. It seemed they thought I was the only one concerned. I told the station manager that I represented a fairly large group and could easily have forty people in his office the next day that would use the service. He agreed that was not needed, that he would immediately check into getting it installed. About that time we had some personal family difficulties and so my attention has not been on TV. Dave and you are an inspiration to all of us and we will get back in the saddle again.

Keep the good work up and know we appreciate all you are doing.

Sincerely,

Ron Covill.

 

AND NOW, TO OUR UPDATE:

Membership – We now have 1,007 members representing 48 states plus Canada, Hong Kong, Australia and Puerto Rico. Our Board of Directors stands at 40, our Executive Committee at 8, our Attorneys number 14, representing 7 law firms, and our Consultants number 5. We wish to express our appreciation of the fine work of all of these people, who, contrary to public opinion, DO put accessibility achievements ahead of fees. We who work here at “Access Now” every day can definitely attest to that! We also want to acknowledge here our debt to our Board of Directors and our Executive Committee for their support, their encouragement and their many kinds of contributions to our goals. Most particularly, we want to express our appreciation for the efforts of our First Vice-President, Marla Dumas, and the absolutely herculean contributions (for seven years!) of our former Treasurer, Miki Speijers, who remains on our Executive Committee, having been a charter member! We want to give special commendation to our new Treasurer (another charter member of our Executive Committee) Estelle Michelson, who stepped in immediately and seamlessly when Miki could no longer continue with the responsibilities of being Treasurer. Estelle assumed the duties of this very important office on short notice and has been doing an excellent job! We cannot go without mentioning here the enormous contributions of our computer consultant, Gregory Arkin, without whom we would not be able to function! We also wish to express our gratitude to attorney Frank Herrera, who continues to serve as our legal consultant quite expertly and expeditiously on a totally pro bono basis. His efforts on behalf of “Access Now” have been, and continue to be, invaluable. We want to thank Jay Acevedo of Color Express Printing for kindly printing our (letterhead) stationery free of charge. Finally, I want to thank my assistant, Thomas Miller, for his efforts in making certain that the administrative aspects of the organization run smoothly.

A BRIEF OVERVIEW OF OUR LITIGATION:

Since our February Newsletter, “Access Now” has made progress in settling cases in several states. As we continue to settle more cases, “Access Now” and its attorneys have instituted a management system to guarantee that the agreed upon work is finished in a timely fashion. Of the 57 cases in which modifications and alterations were supposed to have been completed over the past seven months to make properties A.D.A.-compliant, we are proud to report that the majority were completed on or ahead of schedule.

“Access Now” has filed a total of 937 cases since its inception. Presently, there are 112 cases with Settlement Agreements outstanding, requiring alterations or modifications to be completed on August 1, 2005, or later. During the past seven months, “Access Now” has entered into 32 additional settlements to make properties A.D.A.-compliant. They include:

 


Grocery Stores 2

Hotels/Motels 3

Malls 5

Miscellaneous Entities 1

Museums 1

Office Building 1

Restaurants 10

Sports Venues 3

Stores 5

Transportation 1


 

“Access Now” continues to become more national in scope. The states in which cases have been settled range from the South and the mid-Atlantic to the Great Plains. Our headquarters state of Florida accounts for 16% of settlements over the past seven months.

 


Alabama 6

Florida 5

Maryland/DC 6

 

Oklahoma 4

Pennsylvania 2

Tennessee 9

 


We will keep expanding our geographical presence as we continue to receive requests for information and assistance from around the country and internationally. Please notify “Access Now” if you become aware of situations where access continues to be denied. Contrary to rumors, we remain in the forefront of the fight for accessibility.

The following is a brief listing of the cases that have been settled since our last newsletter:

Restaurants

Red Lantern Restaurant, Trussville, AL

Spezie Restaurant, Washington, DC

The Clock Restaurant and the Buddha Bar & Grill of Ft. Myers, FL

Mellow Mushroom, Applebee's and Wildhorse Saloon, all of Nashville, TN

Taco Mayo, Stillwater, OK

McDonald's - Mount Penn in St. Lawrence, PA

Dockside Waterfront Restaurant, Stuart, FL

Stores

Alabama Thrift Stores of Birmingham and Midfield, AL

NAPA Auto Parts, Stillwater, OK

Toys R Us, Antioch, TN

Mac's One Stop, Birmingham, AL

West Lawn Printing, Reading, PA

Malls

Westfield Shoppingtown, Annapolis, MD

Rosewood Hills Shopping Center, Stillwater, OK

Bryant Square, Edmond, OK

Pembroke Lakes Mall, Pembroke Pines, FL

Hotels

Best Western, Mobile, AL

Quality Inn, College Park, MD

 

Opryland Resort and Convention Center, Nashville, TN:

 

This hotel, situated near the Grand Ole Opry House in Nashville, is among the largest in the country. We have been extremely pleased with the comprehensive nature of the settlement which has been arrived at and delighted to share this news with our members. Kudos to the owners and operators of the hotel for their outstanding cooperation with our attorney and consultant!

 

Sporting Venues

Greer Baseball Stadium, Nashville, TN

Southern Starz Gymnastics, Cape Coral, FL

Talladega Superspeedway, Talladega, AL

Grocery Stores

Kroger’s, Knoxville, TN

HG Hill Food Store, Nashville, TN

Other

National Aquarium, Baltimore, MD

Helen Keller Birthplace, Tuscumbia, AL

Commonwealth Office Building, Washington, DC

NOTABLE CASES – There are some cases that are especially important because of their value as precedents or because they remove significant numbers or types of barriers. Several of those types of cases are listed below. Please remember that most defendants in non-class action cases insist on confidentiality as a condition of signing settlement agreements. Therefore, we cannot discuss those cases by name, although they number quite a few. However, several of them are included in the cases listed above. The highlights of our accomplishments since the last newsletter are:

Hospitals:

FOR THOSE OF YOU WHO DID NOT HAVE THE OPPORTUNITY TO READ OUR FEBRUARY NEWSLETTER, WE WOULD LIKE TO REPEAT A REQUEST THAT WE MADE REGARDING HOSPITALS AND MUNICIPALITIES.

We continue to receive complaints regarding various hospitals nationwide. We are doing our best to address those concerns through the remainder of the year. To do so we need your feedback. The healthcare accessibility issues typically raised by our members are:

·                     Parking problems

·                     Lack of accessible restrooms, both in patients' rooms and in public areas of facilities

·                     Inaccessible entrances and paths of travel throughout medical facilities

·                     Exam rooms and examining tables

·                     Mammography areas

·                     Emergency area, including their restrooms, examining tables, etc.

·                     No effective communication for the visually and hearing impaired.

If any of you has had bad experiences regarding handicapped accessibility with hospitals or other medical facilities in your communities, we want to know so that we can incorporate those concerns into our current efforts. In addition, if you are aware of any hospitals that are doing a great job with accessibility, we want to know that as well, so that we can alert and educate our members.

North Mississippi Medical Center: This is the largest hospital in northeastern Mississippi. “Access Now” signed a settlement agreement with the hospital in July that resolved the case to the mutual satisfaction of the parties.

Municipalities:

We also continue to receive complaints regarding various cities and municipalities nationwide. We are doing our best to address those concerns. Accordingly, we are again asking for your feedback. The typical issues raised by our members concerning access to government services, programs, or activities are:

·                     Parking problems at government buildings and facilities

·                     Inaccessible city streets and sidewalks

·                     Lack of curb ramps/cuts at city street intersections

·                     Lack of accessible public restrooms

·                     Lack of wheelchair ramps, inaccessible entrances and paths of travel to government buildings (courthouses, post offices or voting facilities)

·                     No effective communication in government facilities for the visually and hearing impaired.

If any of you has had bad experiences regarding handicapped accessibility in your communities, we want to know so that we can incorporate those concerns into our efforts. We are interested in working hard to create accessibility in all communities.

We are committed to creating the legacy of an accessible world. Please help us to help ALL of us! Thank you!

 

 

a.                 City of Miami, Florida

We have had quite a tussle with the City of Miami. They have not met the deadlines to which they previously agreed. We are trying to get them to do the “right thing”, but it has proven increasingly difficult. We may have to return to court if the city does not live up to its commitments in the very near future. We will keep you informed.

b.                 City of Sonora, California – The city has agreed to make all of its facilities, programs and services A.D.A. compliant. There have been several intermediate evaluations and milestones for the city to meet. Sonora is to be A.D.A. compliant by March 31, 2006. The objective of the settlement agreement is to remove all barriers that deny disabled individuals their right to full participation in the city’s activities and affairs. When completed, Sonora will have one of the finest municipal plans to insure participation by its disabled community.

c.                  City of Midfield, Alabama – This case involves modifications at the Midfield Recreation Center to bring it into A.D.A. compliance. It was filed in May, 2002, and a settlement agreement was reached eleven months later. The settlement required that all modifications agreed upon would be completed by February, 2004. The time was then extended to allow the city the opportunity to apply for Community Development Block Grant funds from the federal government. The city’s application was successful. These funds allowed it to perform more modifications than would have been possible without them. Construction commenced early in January 2005 and was completed in April. This is another example of a defendant doing the right thing after being informed of alternative solutions.

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3.                 Collier County, FL: Last December we entered into a settlement agreement with the county to make Golden Gate Community Park accessible to the disabled community. We are pleased to announce that the alterations and modifications have recently been completed. This makes an important public recreational resource accessible to the entire community, including its disabled residents and visitors.

4.                 SeaWorld Theme Parks: These parks, owned and operated by the Busch Entertainment Corporation, one of the Anheuser-Busch Companies, have been simply extraordinary in their approach to increasing accessibility at their several parks across the country. SeaWorld and the other BEC Parks have worked with “Access Now” and its consultants to continually improve access for individuals with disabilities.

The outcome of all this is that their theme parks are outstanding in terms of accessibility to the disabled community. They have gone so far as to prepare and review with “Access Now” a large, comprehensive policy which clearly sets forth which of their attractions and rides are SAFELY accessible to people with a wide variety of disabling conditions, whether temporary or permanent.

 

SeaWorld's amazing understanding and acceptance of the needs of the disabled community stand as a shining example of what can be done when the will is there. We salute them and we are very, very proud to have been a part of their exemplary effort!!! We will keep you apprised in future newsletters of their progress.

5.                 Holland America and Costa Cruise Lines: A fairness hearing was held and the class action certification was granted in these cases by Judge Shelby Highsmith. Judge Highsmith also had words of praise for all involved, saying that everyone had done a beautiful job! It means so much to us to be able to report this to you, as well!!! These two cruise lines have been added to the Cunard and Carnival settlements, bringing to 22 the total number of cruise ships having been made or in the process of being made accessible.

6.                 Greyhound Lines: The modifications have been completed on the terminal in Seattle, as per the agreement. Modifications were previously completed on the Birmingham terminal.

7.                 Talladega Superspeedway: “Access Now” reached an amicable resolution of litigation pending in federal court in Alabama with the owner of this track. In reaching the agreement, the owners of this facility have demonstrated they are committed to providing equal access at Talladega Superspeedway.

8.                 Emory University: This settlement of this case in 2002 stands as one of our landmarks, involving as it does a large university (in Atlanta, Georgia). Originally, the complaint centered on the housing afforded to one of its graduate students in the law school, who is a permanent wheelchair-user. The case evolved into one encompassing all of the buildings on the entire campus and, as such, extends accessibility compliance to a student body of 11,300, in both the undergraduate and graduate schools of the university, as well as 2,500 faculty members. Therefore, the positive impact of this settlement cannot be overstated!

9.                 Malls and Shopping Centers: Of the 20 cases we mentioned in our last newsletter that have been settled against malls and shopping centers with Time Up Dates (when work is to be completed) through the end of 2005, “Access Now”, work has been fully completed in 7 more cases. This is one more indication that these comprehensive settlements are improving the quality of life for the disabled.

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CLASS ACTIONS – Class actions affect a large number of disabled persons, usually because a large number of facilities are involved. We still have class actions pending against Brookstone Stores, , the cruise line industry and cases against five hospital chains. These cases move slowly, but there is progress to report in several of them:

Arby’s: “Access Now” brought suit against Arby’s (RTM Operating Co., Inc.) based on the A.D.A. non-compliance of approximately 773 of its restaurants in the United States, Puerto Rico and U.S. Territories. Arby’s has agreed to the removal of architectural barriers in the restaurants. That will allow the disabled better access to this restaurant chain. U.S. District Judge Jose E. Martinez held a Fairness Hearing in the case on April 7, 2005. He had not issued a final decision at the time this newsletter went to press.

Brookstone Stores: The parties have agreed in principle on all major issues. What remains is for the legal papers to be drafted and then presented to the court. This is not an easy task since almost all of the stores have unique floor plans that do not lend themselves to “one-size-fits-all” accessibility language that would be expected to be found in most class action settlements. At a recent hearing held in his chambers, Magistrate Judge Peter Palermo, who is overseeing this case for Judge Joan Lenard, was highly complimentary to all parties involved, saying that he has been involved with many A.D.A. cases, and this one has been handled exactly as they should all ideally be! We look forward to seeking the court’s approval for this settlement in the very near future.

Norwegian Cruise Line Ltd.: This case has been scheduled for trial during the three week period beginning December 27, 2005. In the interim, settlement discussions are continuing. We hope to have this case resolved before the trial date. Should that goal prove to be elusive, we will be ready for trial. ________________________________________________________________

NON-“ACCESS NOW” LITIGATION – We want to keep you informed about important recent litigation around the country, of which you might not be aware, affecting the rights of the disabled. We think it is important for our members to keep abreast of successes realized by and within the disabled community, whether accomplished by “Access Now” or by other organizations. We are all in this fight together!

·               First, KUDOS to the Association for Disabled Americans, which has been successful in its seven-year effort to have the Publix Super Markets chain improve access for the disabled. On July 22 U.S. District Judge William M. Hoeveler of Miami approved a settlement that requires Publix to cure A.D.A. violations at its 857 stores in five states over a six year period. The alterations and modifications at the stores will include changing the heights of ATMs, service counters, deli ticket dispensers and produce bags to accommodate people in wheelchairs. Publix will also provide a text telephone in each store and additional handicap parking where necessary.

·               In Spector v. Norwegian Cruise Line Ltd., the U.S. Supreme Court held that Title III of the A.D.A. applies to foreign flagged cruise ships. The decision means that Title III’s protections will make the ships’ facilities and procedures less onerous for disabled passengers and potential passengers. One of the plaintiffs’ attorneys remarked that “This decision goes a long way toward ending the pervasive discrimination long faced by cruise line passengers with mobility impairments.”

·               The Regal Entertainment Group, the nation’s largest theater chain, has agreed to a settlement with the U.S. Department of Justice (D.O.J.) that requires it to provide increased accessibility to mobility impaired patrons at nearly 1,000 of its stadium-style theaters over the next five years. The improvements will include integration of wheelchair seating spaces into their seat rows, unobstructed views of the screen, at least one companion seat next to each wheelchair space and away from the less desirable seats in the very front of the theater. In its other 5,000 plus theaters, Regal will relocate wheelchair seating away from the screen to the extent possible without major construction. This settlement is much stronger than the judgment that the D.O.J. won in 2003 in the same case. The case is U.S. v. Hoyt Cinema Corp. et al, (D. Mass.).

·               The Archstone-Smith Trust, the nation’s third largest apartment real estate trust, has agreed to pay more than $20 million to remedy design and construction defects to allow greater access to the disabled. These include such things as widening bathrooms and doorways that are too narrow and lowering mailboxes that are too high for people using wheelchairs. The company will renovate approximately 12,000 units at 71 apartment complexes it owns nationwide. See Equal Rights Center et al v. Archstone-Smith Trust (D. Maryland).

·               Finally, a case that gives us cause for concern. In Doran v. Del Taco, Inc. 373 F. Supp. 2d 1028 (C.D. Cal. 2005), U.S. District Judge Gary Taylor denied attorney’s fees under the A.D.A. because prior to bringing suit the plaintiff had not given a pre-litigation warning notice to the defendant allowing it to cure any A.D.A. violation (which is not required under the A.D.A.). The judge did this of his own accord; the parties only disagreed over the amount of the fee. The action looks like a judicial end run around Congress’ consistent refusal to enact a pre-suit notification requirement. It is part of a seeming trend to render the law ineffectual undertaken by some judges hostile to the A.D.A. We will have to see if the trend continues. An appeal is pending.

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INFORMATION RESOURCES ON AND OFF THE WEB:

Online Accessibility: In its May 9th edition, The JHU Gazette reported that, in an effort to provide equal access to online content, Johns Hopkins University has recently launched a website intended to serve as a resource clearinghouse for the creation of fully accessible internet-based systems. The Johns Hopkins Web Accessibility site, webaccessibility.jhu.edu, offers tools, guidelines, training and other support to help those in the university community and beyond to fashion web pages, library resources and distance learning systems that are accessible to individuals with visual impairments, learning disabilities and other conditions that may limit or prevent their access to and use of such services. The Web Accessibility site's function is to offer free basic information on developing fully comprehensible web pages, such as how to write code for a keystroke option that will display a text description of an image or animation. The site, in addition to defining web accessibility and identifying the laws that require it, has a "What Can I Do?" section that lists resources and checklists to help identify and test the elements of an accessible website. Items on one checklist include providing captions or transcripts of important audio content, offering text-only pages and ensuring that color information can also be conveyed for those with black-and-white monitors. You can find the full JHU Gazette article at http://www.jhu.edu/~gazette/2005/09may05/09access.html.

Developmental Disabilities: The Minnesota Governor’s Council on Developmental Disabilities has an ongoing project to enhance independence, inclusion, individual productivity and self-determination for people with disabilities. To this end the Minnesota Council offers free material and features on its website. The information includes:

·         Resources for individuals, families and professionals;

·         “Parallels in Time: A History of Developmental Disabilities”;

·         Partners in Policymaking® materials;

·         The Learning Center: A library comprising over 10,000 pages of documents produced by the Council on a wide array of topics;

·         Self-paced online learning courses for those wanting to increase their knowledge and skills in self-advocacy, education and employment.

These resources are available at http://www.mncdd.org/ for anyone interested. The Minnesota Council also encourages the creation of reciprocal links between their website and yours. Notify them at MinnesotaDDCouncil@msn.com to set up the reciprocal links or for any other reason.

Spinal Cord Research: Producer Danny Murphy (a longtime, disabled member of AN) and Bill Johnston have released a new short film made in conjunction with the Staff and Students at the UCLA Human Locomotion Research Center. (The Christopher Reeve Foundation is also involved with this film.) It is an inspirational look at the possibilities produced by “cutting-edge” research in the use of electric stimulation and control to facilitate ambulation by people with spinal cord injuries. You can view this film, and the vision it evokes, at http://www.glasssidewalk.com/films/goforwardreeve.mov .

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GOVERNMENTAL NEWS:
 

Comments on ACAA Proposed Rule: “Access Now” filed its comments regarding the U.S. Department of Transportation’s proposed new rules to the Air Carrier Access Act - the law that provides access to air travel for people with disabilities. “Access Now” expressed its view (see below) that the USDOT’s proposed rules were more about protecting business interests than in protecting the rights of people with disabilities, and the proposed changes in the law only limit the ability of people with disabilities to travel by commercial aircraft. No date has been set for the issuance of the final regulations.


 

COMMENTS OF “ACCESS NOW, INC.” – MARCH 22, 2005

 

What has become all too common under the current federal administration is that executive branch agencies, such as the USDOT, are more interested in protecting business interests than in protecting the rights of people with disabilities. This Notice of Proposed Rulemaking (NPRM) makes a number of changes in the regulatory law that will serve to limit the ability of people with disabilities to travel by commercial aircraft. The NPRM weakens our access rights under the Air Carrier Access Act (ACAA) and its current implementing regulations in several ways at the same time as the weaker proposed regulations will be applied to foreign flag air carriers.

 

Those most harmed by the proposed rule are those with legs that do not bend (due to fusions, braces, etc.) and those with service animals. This rule proposes that people with legs that do not bend simply put their unbending leg out into the aisle. (They ignore those who have two legs that do not bend). They do not address what such people should do with their legs during take off and landing, when the FAA requires that the aisle be clear, or what one does with an unbendable leg when the cabin crew rolls the beverage or food cart up the aisle. As far as service dogs are concerned, this proposed rule would require a service dog to fit in the 16 inch wide space under the seat in front of the passenger with a disability. People with guide dogs and mobility assistance dogs, all of which are too large for that small space, would no longer be able to fly on any commercial aircraft.

 

Similarly, the lack of accessible lavatories on aircraft with one aisle means that some mobility-disabled passengers will be subjected to the indignity of wearing special undergarments if they must travel on commercial aircraft. This is simply unacceptable, inasmuch as it eviscerates the intent of the ACAA.

 

On behalf of the members of “Access Now, Inc.”, we wish to register our objection to the Proposed Rule as delineated above. Thank you for your consideration.


 

Important Medicare News:

 

For Immediate Release:

Contact:

Wednesday, August 24, 2005

CMS Office of Public Affairs
202-690-6145

For questions about Medicare please call 1-800-MEDICARE or visit http://www.medicare.gov/.


 


CMS ISSUES UPDATED REGULATIONS FOR POWER WHEELCHAIR AND POWER OPERATED VEHICLE CLAIMS

CERTIFICATE OF MEDICAL NECESSITY NO LONGER REQUIRED

 

On August 26th the Centers for Medicare & Medicaid Services (CMS) published an Interim Final Rule in the Federal Register regarding appropriate access for people with Medicare to power operated vehicles – commonly called “scooters” ‑ and power wheelchairs. The Interim Final Rule will become effective for services on or after October 25. Comments will be accepted until November 25, and a final rule will be published at a later date.

The Interim Final Rule is the latest action by CMS implementing a Power Wheelchair Initiative first announced in April 2004 provisions in the Medicare Modernization Act of 2003 affecting power wheelchairs and power scooters. It is meant to underscore the principle that a beneficiary’s physician or treating practitioner is in the best position to evaluate and document his or her clinical condition and medical needs. “This Interim Final Rule is a critical step in ensuring that people with Medicare have access to appropriate technology to assist them with mobility,” said CMS Administrator Mark B. McClellan, M.D., Ph.D. “[T]his Interim Final Rule is part of a comprehensive strategy to help Medicare beneficiaries get the mobility assistance equipment they need while avoiding unnecessary administrative burdens and inappropriate Medicare spending.”

CMS is eliminating the requirement that a Certificate of Medical Necessity (CMN) signed by the prescribing physician or other treating practitioner accompany claims for power wheelchairs and scooters. In place of the CMN, the Interim Final Rule describes the clinical documentation from a patient’s medical record that must be submitted along with a written prescription to the supplier before the supplier delivers a power wheelchair or scooter to the beneficiary. “Documentation in the medical record of the beneficiary’s need for assistance with mobility in the home, as well as the type of technology needed, not only is the best evidence of medical necessity – it also helps to promote continuity of care for our beneficiaries,” said CMS Acting Chief Medical Officer, Barry Straube, M.D. “And we are recognizing this in our payments to providers.”

CMS is notifying physicians, other treating professionals and power mobility device (PMD) suppliers, of this Interim Final Rule through its Medicare listserves. CMS is also targeting educational efforts to physicians, other practitioners who prescribe power wheelchairs and power scooters as well as to PMD suppliers, to help them understand the new criteria and documentation requirements before the implementation date. This includes new billing instructions for suppliers.

In early September, CMS will hold a special Open Door Forum to address power wheelchair and power scooter issues. The Open Door Forum will offer physicians, suppliers and other stakeholders the opportunity to participate in person or by conference call in a discussion with senior staff about Medicare policies.

For further information you can view the Interim Final Rule and Fact Sheet on the CMS Website at http://www.cms.hhs.gov/coverage/wheelchairs.asp The official contact for the Interim Final Rule is Karen Daily; you can telephone her directly at (410) 786-0189 (reference file code CMS-3017-IFC). You can also telephone CMS toll-free at (877) 267-2323 or (866) 226-1819 (TTY) or locally at (410) 786-3000 or (410) 786-0727 (TTY).

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MISCELLANEOUS ITEMS OF INTEREST:

 

On July 26th the Screen Actors Guild issued a report entitled “The Employment of Performers with Disabilities in the Entertainment Industry”. The report indicates that, in spite of the A.D.A. and SAG’s own Non-Discrimination and Diversity policy, there are significant problems for disabled SAG members. 36% of the performers with disabilities felt they had encountered some form of discrimination in the workplace, including not being cast or being refused an audition because of their disability. 60% of performers with disabilities who said that a reasonable accommodation would help them and never asked for one “because they believed employers would be reluctant to hire them.” The greatest difficulty was getting an audition. This is important because performers who got more auditions worked more often. Stereotypical attitudes about disability and being considered only for limited roles” were “the most frequently encountered obstacles”. You can read the Executive Summary at http://www.sag.org/Content/Public/exec-sum-pwd.pdf. The full version of this very informative report will be posted on the SAG website in the coming weeks.

 

 

The following article appeared in The Palm Beach Post on Sunday, July 24, 2005, and was subsequently reprinted in The Miami Herald on August 14, 2005. It contains very interesting information regarding accessible inns and bed-and-breakfast establishments in Florida. Please pass this article on to those residing in the Sunshine State as well as those who are considering a visit and desire accessible lodging at intimate hostelries. (One caveat, however – “Access Now” has not visited any of these sites and cannot vouch for the accuracy of the information contained in the article.)

 

 

Copyright © 2005, The Palm Beach Post. All rights reserved. Reprinted by permission.

 

 

MORE B&BS MAKING ROOM FOR DISABLED

 

Steep staircases, narrow doorways and bathrooms not equipped to accommodate guests in wheelchairs make getaways to bed-and-breakfasts difficult for the handicapped. Many Florida inns, however, have at least one room considered handicapped accessible.

Casa de Suenos in St. Augustine, for example, has a lovely first-floor room with its own entrance and ramp to permit easy access for guests in wheelchairs. Innkeeper Kathleen Hurley says the Nieves Room, which has a queen-sized canopy bed and a double-sized roll-in shower, is a favorite of guests who enjoy the private entrance and the ease of unloading luggage. The nightly rate is $145 during the week and $195 on weekends. For reservations or more information, call 800-824-0804 or see www.casadesuenos.com.

Other Florida inns with handicapped-accessible rooms include:

·         Hoyt House Bed & Breakfast, Amelia Island, 800-432-2085; www.hoythouse.com.

·         The Ash Street Inn Bed & Breakfast, Fernandina Beach on Amelia Island, 800-277-6660; www.ashstinn.com.

·         Lilian Place Bed and Breakfast, Daytona Beach, 877-893-7579; www.lilianplace.com.

·         Miss Pat's Inn – a Bed and Breakfast, Daytona Beach, 866-464-7772; www.misspatsinn.com.

·         The Laurel Oak Inn, Gainesville, 352-373-4535; www.laureloakinn.com.

·         The Gardens Hotel, Key West, 800-526-2664; www.gardenshotel.com.

·         Centennial House Bed & Breakfast Inn, St. Augustine, 800-611-2880; www.centennialhouse.com.

·         The Quilter's Inn, Wauchula, 877-664-8989; www.thequiltersinn.com.

·         Heritage Country Inn, Ocala (all rooms are handicap-accessible), 888-240-2233; www.heritagecountryinn.com.

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CONCLUDING THOUGHTS:

I believe that you can see from reading this newsletter that we continue to strive to fulfill our mission and to perpetuate the magnificent legacy left by our strong, courageous and inspiring founder, my late, beloved husband, Edward S. Resnick. Not a day goes by that we do not receive either a phone call or an email from or on behalf of a disabled person telling us of a problem which can only be categorized as a violation of that person’s civil rights with regard to handicapped accessibility. For those of you are new to us, and as a reminder to those of you who have been members for some time, the A.D.A. is a civil rights law, under which complaints are handled through either the United States Department of Justice (the D.O.J.) or through individual pieces of litigation against the offending entity. The D.O.J. is totally overwhelmed and backlogged and usually will accept only very large, high profile cases. While an individual can mount A.D.A. litigation on his or her own, we feel that the entry into the case of a non-profit organization such as ours lends much-needed support to that effort. Therefore, the larger our numbers, the louder our voice and the greater our strength! If you are not already a member, won’t you please consider becoming one? We are open to both able-bodied as well as disabled persons. Membership is free, easy and quick. You may either fill out the enclosed membership form and mail it to us (or, if you are already a member, pass it along to someone else) OR log onto our website at www.adaaccessnow.org and click on the “Membership” link and fill it out right online! Please join us and help us to become bigger and better every day! Thank you for your time and attention!

“Access Now” deeply appreciates the support of all those who have joined with us and we look forward to reporting ongoing successes in our mission of helping to bring about as much accessibility as possible to as many members of the disabled community as possible.

 

Thank you all and please:

 

IF YOU HAVE A CHANGE OF ADDRESS, PHONE NUMBER OR EMAIL ADDRESS PLEASE, PLEASE LET US KNOW SO THAT WE CAN KEEP OUR FILES UPDATED AND SO THAT WE CAN CONTINUE TO COMMUNICATE WITH YOU.

 

BEST WISHES FOR A HAPPY, HEALTHY YEAR AHEAD!!!!!

 

 

Access Now, Inc.

 

Phyllis F. Resnick

President