Don’t forget to register for the two-day webcast CLE, Getting Oriented in the Civil Rights Statutes That Protect People with Disabilities: Where We Are, How We Got Here, and What’s New on the Horizon. The CLE will be held October 13th 11:00AM-1:05PM and October 14th 11:00AM-2:10PM.
Find more information here: Disability Law CLE
Register here: Register
Portland Public Schools is hiring a Senior Legal Counsel-Special Education. The first screening of applicants will take place October 23, 2020. Find more information on the position here: Senior Legal Counsel Job Description and apply here: https://www.pps.net/Page/2158 (Job Number #21619).
There are still scholarship funds available for use in 2020! A scholarship can be used to pay for a CLE (including the Disability Law CLE coming up next month- more info here: Disability Law CLE), conference, or other educational training/materials. The application is short, and applications are considered on a rolling basis. Reach out with any questions, and please share the application link with others who may be interested in applying: Disability Law Section Scholarship Application
Medical Care and Access to Support
Early in the pandemic, conversations began about hospitals trying to conserve scarce equipment such as ventilators and emergency beds by prioritizing who would receive the equipment. Reports were shared about policies that would deny potentially life-saving equipment to individuals with disabilities. Patients being treated for COVID who needed someone present to assist with their treatment (ie: a caregiver to help with decision-making, or someone to help with communication) were being denied access to those they relied on, because hospitals were not allowing any visitors to prevent the spread of COVID- and there were no exceptions for any visitors even as a disability accommodation. You can read about one of the patients impacted by these rules, Sarah McSweeney, here: https://www.opb.org/news/article/law-bars-disability-discrimination-covid-19/
SB1606 was signed in July (SB1606), and it requires hospitals to let a guardian/advocate be in the hospital with patients who need their assistance. It also requires notification to the state protection and advocacy organization if there is a plan to withhold or withdraw life-sustaining measures from a patient with an intellectual or developmental disability. It further makes it an unlawful practice to deny medical treatment or restrict/limit allocation of medical resources to protected class or based on patient’s race, color, national origin, sex, sexual orientation, gender identity, age or disability.
Masks and the Americans with Disabilities Act (ADA)
Masks have become a common topic of conversation in America. Accommodations are required for individuals with disabilities who cannot wear a mask because of their disability. However, the accommodation may not be what the individual is requesting; for example, they may not be allowed to enter a store without a mask, instead, the store may offer free delivery or curbside pickup. Nationwide, lawsuits over mandatory mask policies have been receiving media attention (oregonlive.com/mask-opponents-sue-to-invalidate-statewide-mask-requirement ; kxly.com/washington-mask-lawsuit ; natlawreview.com/article/pennsylvania-mask-lawsuit ).
Read more about the rights of individuals with disabilities on Disability Rights Oregon’s COVID-19 Know Your Rights page, which covers the right to medical care, access to supports while receiving care, mask-wearing and the ADA, and more: COVID-19 Know Your Rights
Telephone and video hearings
SSA has announced they will continue offering the option of telephone hearings, and video hearings will be offered via Microsoft Teams this fall. There has not yet been an announcement as to when in person hearings will again take place.
Read more here: https://www.ssa.gov/news/press/releases/2020/#9-2020-1; https://www.ssa.gov/coronavirus/
Video Consultative Examinations
POMS DI 22510.012 continues to allow psychological consultative examinations via video, only if the claimant agrees to the video CE, and if no testing is required.
Read more here: https://secure.ssa.gov/apps10/poms.nsf/lnx/0422510012
Delays in Preparation of Certified Administrative Record (CARs) Impacting Federal Appeals
COVID-19 has impacted SSA’s ability to compile and prepare Certified Administrative Records (CARs), which has resulted in delays in appeals before district courts. For example, the Central District of California ordered on April 17, 2020 that all Social Security case deadlines are stayed for: 1) actions brought against the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g) filed on or after the April 17, 2020, and 2) those previously-filed actions in which the Commissioner has not prepared and served Plaintiff with the CAR. (Read the Order here: Order. ) Check with individual courts to determine how they are handling the delay in CARs.
Lawsuit Regarding SSA’s Wet Signature Requirements
In May 2020, the National Federation of the Blind filed suit against SSA for its “wet signature” requirement, 20cv1160 in the District of Columbia. In July 2020, the court denied Plaintiff’s motion for preliminary injunction. The case is still pending. Read/listen to an interview regarding the suit here: federalnewsnetwork.com/
SSA’s SSI Award Rate Lowest in 20 Years
David A. Weaver, Ph.D., economist and retired Federal employee, authored the linked article regarding SSI awards being the lowest rate they have been in 20 years: Weaver Article
Maxwell v. Saul, 9th Cir., 18-35992
In August, the 9th Cir. affirmed in part, and reversed in part, the district court’s decision affirming the denial of claimant’s application for disability insurance benefits and supplemental security income. The court considered whether two occupations was sufficient to satisfy the “significant range of work” requirement of the Medical-Vocational Guidelines of 20 C.F.R. pt. 404, subpt. P, app 2, Rules 202.00(c), 202.07. The court rejected the Commissioner of Social Security’s contention that claimant forfeited any challenge to the ALJ’s finding that she was not disabled by failing to raise the issue of significant range of work before the ALJ or Appeals Council.
Previously, in Lounsburry, the court held that for the ALJ to find the Plaintiff has transferrable skills to a “significant range of work,” more than 1 job must be identified. Now, the court held that two occupations also did not constitute a “significant range of work,” and were insufficient to satisfy Rule 202.00(c)’s requirement. The panel held further that because claimant’s skills were readily transferrable to only two occupations, the ALJ erred in concluding that she was not disabled. The panel reversed in part and remanded with instructions for calculation and payment of benefits for the period after claimant reached 55 years of age.
A bright-light rule for the number of jobs required to constitute a significant range was not established.