Intersection of Disability and COVID-19

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-requirementkxly.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

Social Security Updates

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. 

Get updated on Civil Rights and Disability statutes in our October CLE

Here are the basics and more details on the OSB website:
October 13 and 14, 2020 ( lunch hours 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—OSB CLE Webcasts
Cosponsored by the Disability Law Section and OSB
3 Access to Justice credits and 2 Ethics (Oregon specific) credit

More info:

https://www.osbar.org/cle/2020/DIS20.pdf#page=2

Register at this link:

https://ebiz.osbar.org/ebusiness/ProductCatalog/Product.aspx?ID=3437

 

Face Masks for Courthouses!

Chief Justice Walters has reached out to the Oregon legal community and is asking us to pull together in this time of need to help our court system by either donating masks or making masks that can be used in courthouses around the state. We quite literally need thousands and the Judicial Department has limited ability to obtain extra masks.

Simple disposable or washable masks are great.  You can even make masks for donation!  Chief Justice Walters has assured us homemade masks would be very much welcome and we recommend any homemade masks be placed in individual bags for distribution.

Masks can be delivered to the Oregon Association of Defense Counsel (OADC) office for distribution at:   147 SE 102nd Ave, Portland, OR 97216.  However, if you would like the OADC to directly collect your member donations, OADC can do that too. Please contact Geoff Horning at the OADC office at [email protected] to coordinate the pick up of your organizations masks.

Anything and everything that you can do would be a help.  Every mask that is made or donated will help ensure a safer courthouse for all of us, and will help us remain open and effective for the citizens of our state.

 

 

Frequently asked questions on Title IV funding of PBIS

When school districts were asked how they planned to use their ESSA Title IV, Part A funds to improve student health and safety, 61% reported they planned to spend them on PBIS.

To assist interested SEAs and LEAs, this document provides background details on the ESSA and answers common questions about its use to fund PBIS.

Key terms: school safety, positive behavioral interventions and supports (PBIS), equity, Every Student Succeeds Act (ESSA), Title IV funding.

Audience: state educational agencies (SEAs), local educational agencies (LEAs), attorneys.

Cite: von Ravensberg, Heidi, Funding PBIS Implementation Through ESSA Title IV, Part A Funds (January 28, 2020). Available at SSRN:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3526527

The link takes you to the FAQ’s abstract page. Once there, you can open/download the full text paper in PDF for free.

Amtrak’s Charge to Accommodate 2 Extra Wheelchairs? $25000

Amtrak apologized in late January after officials told an advocacy group that it would cost $25,000 to accommodate two additional passengers in wheelchairs. The advocacy group for people with disabilities had planned weeks in advance for a two-hour trip outside Chicago, and had worked with Amtrak before.

It usually costs just $16 to buy a one-way ticket on the Amtrak train from Chicago to Bloomington, Ill.  To read more, follow these links:

https://www.npr.org/2020/01/17/797355136/amtrak-asks-two-people-in-wheelchairs-to-pay-25-000-for-a-ride

After NPR first reported on the price, Amtrak issued a statement saying it would accommodate the passengers as “they originally requested.” The rail service agreed to receive seven people with wheelchairs for the trip Wednesday, according to Access Living officials.

https://www.nytimes.com/2020/01/21/US-amtrack-wheelchairs-accessible

Research shows federal disability payments encourage more family caregiving

Findings, published online by the Journal of Health Economics, suggest that disability recipients are using to provide financial compensation to their caregivers.

“These findings provide new evidence that family shares in the burden of disability and that the impact of disability benefits extends beyond the beneficiary to the entire family,” said Stephanie Rennane, the study’s author and an associate economist at RAND, a nonprofit research organization. “Receipt of federal disability benefits allows a family to reoptimize how they support one another.”

The conclusions in the article below were promising: “The benefits of federal disability payments are shared in complementary ways within the , enabling a more-holistic network of both formal and informal caregiving,” Rennane said. “The resources from disability insurance allow children to reallocate their time to care for their parents.”

https://medicalxpress.com/news/2019-12-federal-disability-payments-family-caregiving.html

 

Implicit bias training every two years

Last month California signed in a bill, which should be effective 1/1/2020, that requires “all court staff who interact with the public” to complete implicit bias training “every 2 years.”  What a great law!  Maybe Oregon will follow?

The drafters defined implicit bias as shown below and it included bias based on mental or physical disabilities, medical condition or genetic information.  The requirement for repeat implicit bias training for all court staff dealing with the public was impressive and laudable.

The bill language stated:

(1) Existing law authorizes the Judicial Council to provide by rule of court for racial, ethnic, and gender bias, and sexual harassment training and training for any other bias based on sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation for judges, commissioners, and referees.
This bill would authorize the Judicial Council to develop training on implicit bias with respect to these characteristics. The bill would require all court staff who interact with the public to complete 2 hours of any training developed by the Judicial Council pursuant to this authorization every 2 years. The bill would authorize the Judicial Council to adopt a rule of court, effective January 1, 2021, to implement these requirements.

 

Read more here:

https://www.disabilityrightsca.org/legislation/2019-legislation-affecting-persons-with-disabilities

AB 242 (Kamlager-Dove) – Courts: Attorneys: Implicit Bias: Training

Authorizes the Judicial Council to develop training on implicit bias with respect to certain characteristics. Requires all court staff who interact with the public to complete 2 hours of any training developed by the Judicial Council pursuant to this authorization every 2 years. (DRC had a support position)

Signed 10/02/2019. Eff. 01/01/2020. Chapter No. 2019-418