Closed Captioning For The Hearing Impaired

Netflix is back in the news and this time it's not about price hikes but, rather, closed captioning for its hearing-impaired audience, or potential audience, and the extent to which Netflix is legally required to provide captioning for its video streaming service.

http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-netflix-closed-captioning-20120625,0,2349779.story

In the recent federal court case, National Association of the Deaf v. Netflix, 3:11-cv-30168-MAP (June 19, 2012), Judge Ponsor of the U.S. District Court of Massachusetts denied Netflix's motion to dismiss the case which is brought under the ADA, 42 U.S.C. §12182(a), for failing to provide equal access to the video streaming website.  An important issue in the case is whether the Internet can be considered a "place of public accommodation" under the ADA.  Judge Ponsor believed that it could be.   

For a brief and interesting analysis of this decision see: 

arstechnica.com/tech-policy/2012/06/will-the-americans-with-disabilities-act-tear-a-hole-in-internet-law/

Another interesting question this case raises, which is applicable not just here but in any instance of statutory or constitutional construction, is - To what extent was the law meant to encompass new technologies that come into existence after the law was written.  Judge Ponsor cited to the legislative history of the ADA where Congress explicitly addressed this issue: "[T]he committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly technology of the times."  The case will go forward, with broader implications than just Netflix.    

This morning I also received a link to a video emanating from the Collaborative for Communication Access via Captioning ("CCAC") on the importance of captioning.  Worth a look:

http://usodep.blogs.govdelivery.com/2012/06/13/dont-leave-us-out/

Recent Activity In Albany

I recently came across a quote about *change* while browsing the internet.  It said something to the effect of - You can find change in your couch, but not on your couch.  I thought it was cute and it has stuck in my head.  It seems like a lot of people in Albany are off their couches and trying to shake things up.  You may remember the January 25, 2012 blog post titled Proposed Amendments To The Regulations Relating To Impartial Hearings.  After public hearings that were held in February and in response to public comment, those proposed changes to state education regulations have not been implemented but, instead, revised to take into account the various public comments they received.  The current version of the proposed regulations is before the P-12 Education Committee, and it is expected that a notice of the revised rule making will be published by July 18, with public comment to follow.  For a closer look, check out:

Proposed Amendment of Sections 200.1 and 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Impartial Hearings

In addition, there has been a buzz about the bills recently passed by the NY Senate and Assembly (S7722A and A10722A) which amend provisions of N.Y. Educ. Law §§ 4402 and 4404.  Our office received a number of inquiries from the press to discuss the issue.  To learn more visit:

http://open.nysenate.gov/legislation/bill/S7722a-2011 
    

Charter Schools & Special Needs Students

As the influence of charter schools continues to grow, there is greater scrutiny about the extent to which they accept and accommodate children with special needs.  The word on the street is that charter schools who do accept children with learning disabilities, commonly "counsel them out."  This way, their acceptance numbers of such students are higher but their test scores and graduation rates are not lower.  I haven't personally undertaken an empirical study on the issue, but the U.S. Government Accountability Office (GAO) has:

http://www.gao.gov/products/GAO-12-543 

President Obama's Education Report Card

Say what you will about the president, but he has had a focus and impact on education.  E4E featured an interesting write-up about his education report card:

http://www.educators4excellence.org/news/2012-06-president-obamas-report-card-on-education-policy

The story brought out a couple of issues that I would want to investigate more thoroughly if I were a journalist with an interest in education policy, or an education lawyer with some more free time. 

• To what extent have states actually followed through with the promises they made to Washington in order to procure substantial Race To The Top (RTTT) funds?  The article suggests that promises made by states in the grant writing process in order to obtain the funds were empty, and that states have not made good on those promises. 

• How "beholden" is the presidency to the teachers' unions?  If this were Fight Club, and we pitted teacher quality and merit-based pay against the teachers' unions and their campaign contributions, who would win?  Is the president's discourse regarding implementing new mechanisms for judging and compensating teachers lip service and rhetoric, or does it reflect serious intentions to change the system?   

• What would a completely privatized education system look like and what would that mean for the most unfortunate of students who are not accepted to any private institution?

U.S. Office Of Personnel Management Concludes ABA Therapy Is "Medical"

See the below article from Disability Scoop about insurance-related developments regarding ABA therapy for individuals with autism:

Feds Approve ABA Therapy As Medical Benefit

By Michelle Diament June 4, 2012

A recent change in federal policy could lead many more families affected by autism to gain insurance coverage for applied behavior analysis, advocates say.

In a major shift, the U.S. Office of Personnel Management said that it has determined there is enough evidence behind the use of ABA therapy to deem it a medical rather than an educational service.

The office is responsible for managing benefits for federal government employees, so the announcement paves the way for health plans offered to government workers to include coverage for the popular autism therapy for the first time.

What’s more, autism advocates say it sets an important precedent since the U.S. government is the nation’s largest employer.

“The OPM decision directly contradicts a long-standing insurance industry claim that ABA therapy is not ‘medical,’ but rather ‘educational’ — provided by the schools at taxpayer expense,” said Peter Bell, executive vice president for programs and services at Autism Speaks. “Now, tens of thousands of families will have better access to more affordable, critical ABA treatment.”

Currently, 30 states require that health insurance plans include ABA therapy, according to Autism Speaks, which has lobbied heavily for such legislation.

Under the new rules, coverage for ABA therapy may be included in health plans provided to federal workers starting in 2013.

Proposed Changes To Statute Of Limitations For IDEA Cases

Please see the below circulation I received the other day from Advocates for Children regarding the proposed changes to the statute of limitations (currently two years) for cases arising under the IDEA: 

Subject: Action Alert: Protect the Rights of Parents of Students with Disabilities

Background:

At the request of the New York State Education Department, New York State Senator Flanagan and New York State Assemblywoman Nolan have sponsored bills (S6688 and A10290) that could mean that even when a school district completely fails to provide a free, appropriate, public education to a student with a disability, that student could be left without any rights if his or her parents did not sue about it fast enough.  

The Law Would:

• Drastically reduce the time in which a parent whose child with a disability has not been given an appropriate education can sue (this time period is a called the “statute of limitations”) from two years to one year from the date on which a parent first knew or should have known of the violation;
• Shorten the timeline even further for those parents seeking private school tuition from two years to 180 days from the date when the parent was first liable for private school tuition;
• Impact the neediest families the most, as they may not have access to attorneys or be aware of what to do to enforce their rights; and 
• Discourage families from trying to work out their disputes with a school because waiting to formally complain could mean a parent would lose the right to complain at all, no matter how badly a student’s rights had been violated.

Take Action:

Tell Governor Cuomo and the Chairs of the Education Committees to oppose the provisions in S6688 and A10290 which would reduce the statute of limitations for parents of students with disabilities to file an impartial hearing complaint.

1.            Click here to sign our petition. 1.           

2.            Send an e-mail to the Governor and the Chairs of the State Senate and Assembly Education Committees telling them that you oppose any reduction in the statute of limitations for due process complaints brought by parents of students with disabilities. You can cut and paste this language into an email or use your own words:

I oppose the provisions in S6688 and A10290 which would reduce the statute of limitations for parents of students with disabilities to file an impartial hearing complaint.  Reducing the timeline dramatically from the current two year time period to 180 days for parents who seek private school tuition and to one year for all other cases is unfair to these students who have not been provided with the programs and services that they were legally entitled to.  Please keep the current two year statute of limitations for these cases.

Governor Cuomo: Click here  

Senator Flanagan: Click here 

Assemblywoman Nolan: Click here

3.            Call the Governor and the Chairs of the Education Committees and tell them that you oppose any reduction in the statute of limitations for due process complaints brought by parents of students with disabilities. Use the language above or tell them in your own words why you oppose reducing the statute of limitations for these cases.

Governor Cuomo: (518) 474-8390 

Senator Flanagan: 631-361-2154 (Smithtown); 518-455-2071 (Albany) 

Assemblywoman Nolan: 718-784-3194 (Sunnyside); 718-456-9492 (Ridgewood); 516-455-4851 (Albany)

4.            Forward this alert to others who may be interested in taking action.

For more information, please contact Kim Madden at kmadden@afcnyc.org.

UN Calls For Investigation of Judge Rotenberg Center's Treatment Of Children With Autism

Recent stories about children with autism being mistreated by the teachers and staff at their schools have shocked and awed.  Most recently, the spotlight has been on the Judge Rotenberg Center in Massachusetts.  The school is believed to administer electric shock treatment to its children with autism as a means of "aversive therapy."   

http://www.guardian.co.uk/society/2012/jun/02/un-investigation-shock-treatments-autism

Student Loans Discharged For Individual With Asperger's

While the IDEA protects children with disabilities between the ages of 3 and 21 who are entitled to certain special education programs and services, and has the purpose of preparing children for employment and independent living, it generally does not provide for supports into adulthood (with some limited exceptions).  So what happens to individuals with disabilities who, as adults, struggle to secure and maintain employment?  What type of accommodations should be made? 

Well, in an interesting case, a federal court judge decided that an individual with Asperger's Syndrome who had struggled to hold down a job was entitled to having her student loans discharged as a result of "undue hardship."  In re Todd, 2012 WL 1862341 (Bankr. D. Md. May 17, 2012)
 
I haven't read the whole case.  Before even trying to pull it up, a number of questions came to mind.  What does the language in the loan agreement say about undue hardship and does that language support a finding of undue hardship in this case?  What, if any, firm criteria did the judge articulate for someone's disability to be deemed an undue hardship?  How severe/mild does a person's disability have to be?  How many times do you have to have been rejected by employers or fired from a job?  How, if at all, does the analysis change if the individual is receiving or not receiving counseling/support services to improve in areas of weakness?  Are there any factors that would reduce the % of debt that can be forgiven? 

I was able to pull up the case and glance at it briefly.  It turns out that the term "undue hardship" is not defined by the Bankruptcy Code but has been defined by the courts.  Student loan debt is generally not discharged unless holding the individual to the debt would impose an undue hardship on the debtor and the debtor's dependents, and there is a three-part test to make that determination:

(1) The debtor cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if forced to repay the loans;

(2) Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

(3) The debtor has made good faith efforts to repay the loans.

Brunner, 831 F.2d at 396.  The debtor has the burden of proof on all three points by a preponderance of the evidence. Frushour, 433 F.3d at 400.  Discharging student debt is a rare occurrence.  Here, however, the court found that all three requirements had been met and discharged all of the student loans.

It will be interesting to see whether the loan provider appeals and how this all shakes out.  Will there be a flurry of more cases like this?  How will this decision affect the way loan providers deal with individuals with disabilities in the future?

 

Story available at:

http://www.baltimoresun.com/news/maryland/baltimore-county/bs-md-student-loan-discharge-20120525,0,5262213.story

Case available at:
In re Todd, 2012 WL 1862341 (Bankr. D. Md. May 17, 2012)

2012 Medicaid Rankings

We previously blogged about the 2011 Medicaid Ranking released by the United Cerebal Palsy (UCP) organization (see July 7, 2011 blog post).  UCP has released the 2012 report.  The report has New York jumping up a few spots, but indicates that there is still room for improvement across the board. 

Access the full report here:
http://www.ucp.org/the-case-for-inclusion/2011/images/The%20Case%20for%20Inclusion%202012_Full%20Narrative_final%20.pdf

See also:
http://www.ucp.org/the-case-for-inclusion/2011/