NEWSLETTER UPDATE – SEPTEMBER, 2005
FROM PHYLLIS F. RESNICK, PRESIDENT
TO OUR MEMBERS IN
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.
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
AND NOW, TO OUR UPDATE:
We now have 1,007 members representing 48 states plus
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
Miscellaneous Entities 1
Office Building 1
Sports Venues 3
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
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:
Red Lantern Restaurant,
The Clock Restaurant and the Buddha Bar & Grill of
Mellow Mushroom, Applebee's and Wildhorse Saloon, all of
McDonald's - Mount Penn in
Dockside Waterfront Restaurant,
Toys R Us,
Mac's One Stop,
Pembroke Lakes Mall,
Resort and Convention Center,
This hotel, situated near the Grand Ole Opry House in
Greer Baseball Stadium,
Southern Starz Gymnastics,
Kroger’s, Knoxville, TN
HG Hill Food Store,
Helen Keller Birthplace,
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:
FOR THOSE OF YOU WHO DID NOT HAVE
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.
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!
We have had quite a
tussle with the City of
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
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.
Greyhound Lines: The
modifications have been completed on the terminal in
Emory University: This settlement of this case in 2002 stands
as one of our landmarks, involving as it does a large university (in
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.
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,
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.
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!
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
In Spector v. Norwegian Cruise Line Ltd., the
Regal Entertainment Group, the nation’s largest theater chain, has agreed to a
settlement with the
· 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.
INFORMATION RESOURCES ON AND OFF THE WEB:
In its May 9th edition, The JHU Gazette reported that, in an effort
to provide equal access to online content,
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
· Resources for individuals, families and professionals;
· “Parallels in Time: A History of Developmental Disabilities”;
· Partners in Policymaking® materials;
· 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
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
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.
Important Medicare News:
For Immediate Release:
Wednesday, August 24, 2005
CMS Office of Public Affairs
For questions about Medicare please call 1-800-MEDICARE or visit http://www.medicare.gov/.
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.
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
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
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.
· Hoyt House Bed & Breakfast, Amelia Island, 800-432-2085; www.hoythouse.com.
The Ash Street Inn Bed &
Lilian Place Bed and Breakfast,
· Miss Pat's Inn – a Bed and Breakfast, Daytona Beach, 866-464-7772; www.misspatsinn.com.
The Laurel Oak Inn,
The Gardens Hotel,
Centennial House Bed &
Heritage Country Inn,
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
“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