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July 10, 1999
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is very low. When the word spreads through the disability community that you can go to work, even on a part-time basis, keep your earnings, and your MA, people will start looking for work.
Charlie Smith Editor
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innesota’s new Medical Assis-tance (MA) Work Incentive Option has gone into effect (see page 1). A number of people are already enjoying the benefits of this landmark legislation. The eligibility information is on page 8. The Department of
Human Services is estimating that 1,000 to 1,200 people will take advantage of this option each year. I think that number
People with disabilities have been forced into poverty long enough. With unemployment at a record-breaking low statewide, there are many entry level and part-time jobs available for people with disabilities. They may not be glamorous or high
paying, but they are a start and ability advocates across the the extra money certainly can nation are putting pressure on come in handy. House members to pass the WIIA bill (HR 1180) and dump **** the Ticket to Work (HR 1091). President Clinton supports HR The national work incentive 1180, and is asking Congress bill, Work Incentives Improve- to pass it before July 26, the ment Act (WIIA), passed the ninth anniversary of the pasSenate last month. The House sage of the Americans with companion bill is being held Disabilities Act (ADA). You up. A different bill, dubbed can help by calling your U.S. “Ticket to Work” is being Representative and urging pushed by some members of them to pass HR 1180. We will the House Ways and Means report on its status next month. Committee (see page 8). Dis****
Summer has arrived with a heat wave. On page 7, you will find a number of fun things to do throughout the metro area for the next few months. If you’re like me, the summer flies by too fast, so I try to pack in as many outdoor events as I can. So, tear out this page, stick it on the refrigerator, and when you’re wondering what to do some nice summer day, you’ll have a resource.
Supreme Court Affirms“Integration Mandate” For Your Information In Olmstead Case; Questions Remain Gas Station Access by Bud Rosenfield
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n June 22, 1999, the United States Supreme Court ruled that the Americans with Disabilities Act (ADA) and its implementing regulations prohibit the “unjustified institutionalization” by states of persons with mental disabilities. In Olmstead v. L.C., a case carefully watched by disability organizations and state human services departments alike, the Supreme Court concluded that unnecessary segregation in institutions is “discrimination... on the basis of disability.”
by Margot Imdieke Cross nity settings. Noting that the ADA does not require states to phase out all institutions, the Court also held that states may not be forced to serve otherwise-qualified individuals in the community where doing so would cause a “fundamental alteration” in a state’s service programs.
Case background Olmstead involved the claims of two women, who had been diagnosed with both mental retardation and mental illness, that the state of Georgia had violated the ADA by serving However, the Court stopped them in psychiatric hospitals short of requiring that states rather than in communityserve all persons in commu- based settings. The lower
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courts ruled in favor of the plaintiffs. Those courts had relied specifically on the “integration mandate,” a Department of Justice regulation that requires that all qualified persons be served in “the most integrated setting appropriate” to their needs.
disabilities. Essentially, the individual must be capable of being served safely and appropriately in the community. In making this judgment, the Court noted that deference will generally be given to the reasonable assessments of a state’s own medical professionals.
Supreme Court’s Decision The Supreme Court first addressed the question of what constitutes discrimination “by reason of . . . disability” under the ADA. The Court found that Congress had explicitly identified unjust segregation of persons with disabilities as a form of discrimination. The Court emphasized that institutional placement of persons who could properly be served in the community “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Finding further that confinement in an institution “severely diminishes the everyday life activities of individuals,” the Court emphasized that the requirement that persons with mental disabilities relinquish participation in community life in order to receive needed medical services demonstrates dissimilar treatment from persons who do not have such disabilities and are not therefore required to make a similar sacrifice.
Second, the Court noted that the ADA’s regulations require “reasonable modifications” to state programs to avoid discrimination, unless such modifications would “fundamentally alter” those programs. In response to a claim for community-based services, the state may try to show that “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Thus, as the Court suggested, a state with “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.”
Ultimately, however, the Court’s decision in Olmstead on the scope of the ADA contained two significant qualifications. First, the Court noted that persons seeking community-based services must be “qualified individuals” with
Unresolved questions The Olmstead case itself was returned to the lower courts for further consideration of Georgia’s asserted defenses. The ultimate result in, and impact of, the case therefore remains to be seen.
ACCESS PRESS Co-Founder/Publisher (1990-1996) ................................................................... Wm. A. Smith, Jr. Editor/Publisher/Co-Founder ............................................................................. Charles F. Smith Cartoonist ..................................................................................................................... Scott Adams Production .......................................................................... Presentation Images, Ellen Houghton Editorial Assistant .............................................................................................. Donna McNamara ACCESS PRESS is a monthly tabloid newspaper published for persons with disabilities by Access Press, Ltd. Circulation is 10,000, distributed the 10th of each month through more than 180 locations statewide. Approximately 650 copies are mailed directly to political, business, institutional and civic leaders. Subscriptions are available for $15/yr. Editorial submissions and news releases on topics of interest to persons with disabilities, or persons serving those with disabilities, are welcomed. Paid advertising is available at rates ranging from $14 to $18/column inch, depending on size and frequency. Classified ads are $8.00, plus 35 cents/word over 20 words. Advertising and editorial deadlines are the 30th of the month preceding publication; special scheduling available for camera-ready art. Access Press is available on tape. Call MN State Services for the Blind, 651-642-0500 or 800-652-9000. Inquiries should be directed to: ACCESS PRESS • 1821 University Ave. W. • Suite 185N • St. Paul, Minnesota 55104 • (651) 644-2133 • Fax (651) 644-2136
Numerous questions remain. For example, what constitutes “available resources” to a state? If a state participates in a waiver program that provides community-based services but does not fully fund it, can any
A
s more gas stations be come self-service, an increasing number of individuals with disabilities are having difficulty getting assistance at their local gas stations.
most always be readily achievable unless there is only one attendant on duty and that attendant is required to stay in a security booth to prevent public access to the cash register.
Gas stations are covered by the Americans with Disabilities Act under Title III (public accommodations) and they are required to make their goods and services accessible to individuals with disabilities in a reasonable manner. In 1992 the Council of Better Business Bureau Foundation, the Disability Rights, Education and Defense Fund, and the U.S. Department of Justice released a booklet that specifically answered the following questions:
Q. Are attendants at service stations that offer both full service and self-service pumps required to pump gas from selfservice pumps (usually at a lower cost) for customers with mobility or manual impairments who are unable to pump gas themselves?
Q. Are service station attendants on duty at “self-service only” stations required to pump gas for customers with mobility or manual impairments who are unable to pump gas themselves? A. Yes. This service will al“waiting list” for services under that waiver be justified? What sorts of “waiting lists” are permissible? Must they be based solely on seniority, as the Court seems to assume, or can they be based on need as well? What constitutes a “reasonable pace” for moving persons off of waiting lists?
A. Yes. This is the only practical alternative to barrier removal at a gas station. Attendants are not required to provide the full array of services available at full service pumps, such as cleaning windows and checking oil. However, attendants must pump gas for people who cannot do so themselves, and they must charge the selfservice price because businesses may not assess surcharges on individuals with disabilities for alternative services under the ADA. modifications” to Minnesota’s programs to serve persons living in other, not-fully-integrated settings (such as the family home) who are not receiving adequate services? Waiting lists for many such services are long. At the very least, the Supreme Court’s pronouncements in Olmstead make clear that the states must justify their programs. States must have an effective plan in place to ensure persons living in “segregated” settings and waiting for available, more integrated services will not be forced to wait an unreasonable amount of time to receive those services.
Moreover, the Court’s decision in Olmstead just scratches the surface of the applicability questions surrounding the “integration mandate.” In Minnesota, efforts to lessen reliance on institutional care have long been part of state policy and practice. While questions concerning institutional care remain, an even wider issue exists: To what extent does the Bud Rosenfield is a staff attor“most integrated setting” re- ney at the Minnesota Disabilquirement require “reasonable ity Law Center.
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