EEOC ISSUES FINAL RULE ON

MITIGATING MEASURES UNDER THE ADA . . . .

The U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule rescinding parts of its Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA) involving mitigating measures used by an individual to eliminate or reduce the effects of an impairment.

"In keeping with our commitment to provide timely guidance to our stakeholders, this revised guidance clarifies the legal standard for determining when a person who uses mitigating measures meets the ADA's definition of 'disability,' " said EEOC Chairwoman Ida L. Castro. "The Commission is rescinding portions of its Interpretive Guidance on the ADA to be consistent with Supreme Court rulings last term."

In 1999, the Supreme Court ruled in Sutton v. United Airlines, Inc., and Murphy v. United Parcel Service, Inc., that the determination of whether an individual has a current disability under the ADA must be made by considering any mitigating measures that a person uses to eliminate or reduce the effects of an impairment. Mitigating measures may include medication and assistive devices such as hearing aids, walkers, or canes.

EEOC's final rule rescinds parts of its Interpretive Guidance sections 1630.2(h) and (j), which had stated that mitigating measures should not be considered in determining whether an individual has a disability. The rule was published without a Notice of Proposed Rulemaking and solicitation for public comment because it is not a significant regulatory action. The rest of the guidance remains in full effect. The next publication of the Code of Federal Regulations (C.F.R.) will incorporate the revision to the Interpretive Guidance.

Issuance of the final rule follows the July 1999 release of the EEOC's Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing 'Disability' and 'Qualified.' The instructions modify previous field instructions and emphasize the individualized analysis that must be used in determining whether a charging party has a 'disability' as defined by the ADA and when a person is 'qualified.' The text of the final rule, ADA field instructions, and other information about the EEOC is available on the agency's web site at http://www.eeoc.gov. In addition to enforcing the employment provisions of the ADA, the EEOC enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and sections of the Civil Rights Act of 1991.

NEW FROM EEOC . . . .

New Guidance from the Equal Employment Opportunity Commission

EEOC Enforcement Guidance on Disability‑Related Inquiries And Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)

http://www.eeoc.gov/docs/guidance‑inquiries.html

Questions and Answers: Enforcement Guidance on Disability‑Related Inquiries and Medical Examinations of Empolyees under the Americans with Disabilities Act (ADA)

http://www.eeoc.gov/docs/qanda‑inquiries.html

A TENTH ANNIVERSARY REPORT ON THE ADA . . . .

ENFORCING THE ADA:  Looking Back on a Decade of Progress

A Special Tenth Anniversary Status Report from the Department of Justice

http://www.usdoj.gov/crt/ada/pubs/10thrpt.htm

Smithsonian Disability Rights Website ‑‑ NEW!

View Smithsonian's new website at:  http://americanhistory.si.edu/disabilityrights/index.html

UNDERSTANDING OLMSTEAD . . . .

The following provides information on the Olmstead Decision and can be found on the web at:      http://www.acf.dhhs.gov/programs/add/olmstead.htm

On June 15, 2000, the Office of Civil Rights (OCR), US Department of Health and Human Services, presented a summary of the Olmstead decision.  The presentation was conducted at the Oklahoma Health Care Authority office in Oklahoma City.  The full court opinion in Olmstead is located online at:  http://supct.law.cornell.edu/supct/html/98‑536.ZO.html     OCR is making available slides from the presentation if you want a copy of them.  They traced the integration mandate from the 1954 U. S. Supreme Court opinion in Brown v. Board of Education ‑‑ separate is not equal.  Three statutes since then are important steps in the integration mandate:  Civil Rights Act of 1964, Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.  OCR has the authority to enforce Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.  DHHS has designated OCR as the office responsible for investigation of Olmstead‑related charges.

Title II of the ADA is the statute upon which Olmstead rests.  It contains a general prohibition against discrimination, and its regulation, 28 CFR 35.130(d), requires services in the most integrated setting.  The US Supreme Court concluded in the Olmstead opinion that unnecessary segregation, isolation and institutionalization is a form of discrimination.  People with disabilities have a civil right to     services (for which they are qualified) in the community.  States have a burden to show they are remedying this situation unless it imposes an unreasonable burden.  In order to avail yourself of the rights conferred, the following must also be present:  the state's treatment professionals must agree to treatment in the community, it must not be opposed by the individual and must be able to be reasonably accommodated.  Reasonable modifications must be undertaken when necessary to avoid discrimination, although they are not required to undertake a fundamental alteration.  Three things are to be considered to determine if a fundamental alteration occurs:  cost of providing services in integrated setting, resources available to the state and how it impacts the states' ability to provide for others.  MOST IMPORTANT:  The state must have a comprehensive working plan.  The Supreme Court did not say that a comprehensive working plan was the only way to come into compliance, but that it was one way to demonstrate compliance.  People with disabilities and their families are to be included in development of a comprehensive working plan.

The full range of institutions are covered:  state mental health facilities, centers for developmental disabilities, ICFs, nursing homes.  All disabilities are covered.  KEY QUESTION:  Is the state conducting a thorough periodic review of all people with disabilities in institutional settings to see if they can reside in the community?  Nothing in the ADA terminates institutions for people unwilling or unable to move into the community.  Informed choice is the key.

The OHCA presented components of the development of a comprehensive working plan:

(a)  reduce time for ICF‑MR (1200 extra slots to be funded)

(b)  want to serve people with non‑cognitive disabilities in ADvantage waiver

(c)  want to continue to use EPSDT

      (http://www.healthlaw.org/pubs/19990323epsdtfact.html) for children and services, including

       children on waiting list)

(d)  want to look at WWIIA and apply for demonstration grant

       (http://www.ssa.gov/work/index2.html; see also

       http://web1.tch.harvard.edu/ici/publications/text/voice.html)

(e)  want to develop 24‑hour hotline so people can be referred to agencies who can assist, with outreach to make people aware of hotline

(f)  amend ICF/MR waiver with service gap (now only allows service over age 6)

(g)  legislatively fund OCCY to collect data on children (use data as blueprint)

(h) expand what OHCA spends for durable medical equipment (DME)  (see http://www.nls.org/medarts.htm; http://www.nls.org/goldesar.htm;  http://www.nls.org/booklets.htm)

There was a sense of cooperation created by the meeting.  The role of people with disabilities and their families is to tell the OHCA what the real world is like in planning a comprehensive plan.  There should be a mix of viewpoints on the working group.  Some people may be made uncomfortable in the process.  Home and community based care will make our nursing homes better through competition.  There may be fewer institutions but more choice.  People on this working group will be part of the solution, instead of part of the problem.  Nothing can be achieved with a team effort.

Our office is committed to working as a part of the team on behalf of people with disabilities and their issues.  Major issues that have concerned our clients for a long time are included on the agenda for the comprehensive plan.  If you are not sure how this impacts you personally, contact us and we will discuss your individual situation.

http://www.oklahomadisabilitylaw.org

http://www.redlands‑partners.org

For an Introduction to Medicaid, see:  http://www.nls.org/medaid99.htm

About three years ago, our office formed a Medicaid Managed Care Coalition.  The initial issue confronting the group was the transition of Medicaid recipients into a managed care system.  Although the coalition maintains its own leadership, our office continues to provide technical assistance to the group.  We maintain an internet listserv for the purpose of providing updates on Medicaid‑related information.  Membership on the list is limited to people with disabilities, their families and people who represent or advocate for them.  If you want to join the Medicaid listserv, send a blank message to:   subscribe‑oklahomamedicaidmanagedcarecoalition@egroups.com

If this does not get you subscribed, write an email to me at: kbower1@flash.net.

You must know your rights and what you are qualified for in order to benefit from the Olmstead opinion.  If you don't know your rights, then you'll never know what you are "qualified" for (either inside or outside an institutional setting).  For example, read the EPSDT Fact Sheet online (referenced above) and look through Attachment A to the Fact Sheet.  The scope of Medicaid/EPSDT services described in 42 U.S.C. ' 1396d(a) is extensive.

NEW LETTERS TO MEDICAID DIRECTORS . . . .

Olmstead Update No. 2

July 25, 2000

http://www.hcfa.gov/medicaid/smd72500.htm

Questions and Answers

Olmstead Update No. 3

July 25, 2000

http://www.hcfa.gov/medicaid/smd725a0.htm

This letter summarizes some of the recent Health Care Financing Administration (HCFA) efforts to review Federal policies in order to facilitate fulfillment of the ADA.

WORK SITE LAUNCHED . . . .

"Across America, employers are looking for new workers, and Americans with disabilities are looking for jobs.  To help bring the two together, the Social Security Administration today is launching a new website.  Go to http://www.ssa.gov/work and you'll find information on everything from training programs for people with disabilities to tax incentives for the employers who hire them.  We all win when all Americans have a chance to work," said President Clinton.  The Work Site contains important information and support for disability beneficiaries, employers, service providers, advocates, and anyone else who really wants to help people with disabilities work.

Find out about Social Security's return‑to‑work programs and work incentives.  Make sure you check out their Celebrity Gallery, where they've featured three wonderful artists with disabilities.  They invite you to contribute your own story or one about someone who would want to share their accomplishments and messages of success for their Celebrity Gallery.   http://www.ssa.gov/work

TWWIIA INTERNET GROUP FORMING . . . .

On December 17, 1999, President Clinton signed the Ticket to Work and Work Incentive Improvement Act (TWWIIA).  The Act contains a number of provisions to increase employment rates among people with disabilities.  One of the provisions is a Medicaid Buy‑In option for the State Health Care Authority.  A coalition is forming to provide support for the funding of this optional service under the state plan.  An organizational meeting has been scheduled in the State House  Chamber for June 27, 2000, from 10:00 a.m. until 12:00 p.m.  There will be a policy briefing on the Medicaid Buy‑In from Allen Jensen from the Center for the Study and Advancement of Disability Policy at George Washington University.  After lunch those interested in forming a steering committee will make plans for supporting implementation of the Medicaid Buy‑In in Oklahoma.

Oklahoma's protection and advocacy system maintains an internet listserv as a technical support to persons interested in TWWIIA.  You may join the list by sending a blank message to: TWWIIA‑subscribe@yahoogroups.com

NEW GUIDANCE ON DISABILITY-RELATED HARASSMENT . . . .

OCR and OSERS issued a joint statement on disability based harassment.  The full text of the statement can be seen at:   http://www.edlaw.net/service/harassment‑disab.html

SECOND NATIONAL SUMMIT OF MENTAL HEALTH . . . .

For more information about the summit, see:

http://www.mhselfhelp.org

http://www.mhselfhelp.org/pubs/key/sp00/zinman.html

Dart:  "We must create a society of profound love for each human life."

Excerpts from Remarks by Justin Dart, Summit 2000: The Second National Summit of Mental Health Consumers and Survivors, Washington, D.C., June 6, 2000

The individualized empowerment of every person is the first and only legitimate responsibility of human culture.  Now is the time to create a culture that fulfills that responsibility.

We must empower all to achieve their full personal potential to govern self and all, to create the best life for self and for all, and to enjoy the security of a life of dignity.

Individualized empowerment.  Sheilah Hill defined it well at your Portland summit: "To take responsibility and to take charge of my life.  To be able to utilize the abilities I have.  To be able to help others and be a contributing member of society."

One of the first priorities of the empowerment society will be real rights for all ‑‑ including people with psychiatric disabilities and psychiatric survivors.

We must create, strengthen and enforce laws that abolish the persecution which we suffer everyday in every aspect of life ‑‑ including involuntary confinement, physical and psychological abuse,  coercion and forced treatment.

But rights are only the beginning.  We must guarantee to each person ‑‑ with and without a psychiatric disability ‑‑ the tools to create the good life. I speak of the obvious: quality food, shelter, education, technology and comprehensive health care, including full, consumer controlled services for psychiatric disabilities.

And much more: we must guarantee a society of choice and of reinforcement for positive contributions.  We must create a society of profound love for each human life.  Love empowers a thousand times more than any drug ever made.

Justin Dart, Jr., 907 6th St. S.W., Suite 516 C, Washington,     DC  20024

Survivors Challenge the Psychiatric System . . . .

(from an article by Janine Bertram Kemp, a write based in Washington, DC)

People with psychiatric disabilities are organizing to defend their right to self‑determination. In doing so, these activists are raising crucial questions about the mental health field's philosophies and practices.

Thirty leaders of the Support Coalition International (SCI) came together in March for a three‑day meeting at the well‑known Highlander Center in the Smoky Mountains of Tennessee. The Highlander has been training activists and community organizers since the labor movements of the 1930s.  The song "We Shall Overcome" was written there, and the center still supports itself largely on its royalties. Martin Luther King Jr., Rosa Parks and many other leaders of the African American civil rights movement met and trained at Highlander.

SCI is a federation of organizations and individuals led by psychiatric survivors and sponsored by 64 American groups and 24 international groups. The coalition seeks to stop human rights abuses and atrocities in the current mental health system and create effective alternatives that allow people with mental illnesses to heal in ways that will "do no harm."

Vicki Fox Wieselthier, director of MadNation, discusses the term psychiatric survivor, saying, "It's a self‑defined term. If you think you've not only survived something called mental illness (but also) the psychiatric system, then you probably are one."

The Highlander meeting commemorated the 30th anniversary of the psychiatric survivor movement. In 1970, a group of organizers with psychiatric disabilities began discussing how to create change in what they viewed as a broken mental health system. Insane Liberation Front was started then by an anti‑war activist in Oregon. Other groups followed and networked with each other.

"The climate of social change in the 1970s was the planet around which we organized," says David Oaks, SCI's coordinator. "Other activist movements lent their help in small but significant ways."

Nearly all leaders of the psychiatric survivor movement were there.  Besides Oaks and Wieselthier, attendees included Judi Chamberlin of National Empowerment Center, Tom Behrendt of the National Association for Rights Protection and Advocacy and Beverly Jones of The Committed.

"We represented a range of views in this movement," says Wieselthier, "from those who take medication to those who think all medication is damaging, from those who say they have mental illness' to those who think there is no such thing."

Chamberlin says, "The Highlander meeting was a chance to reassess, re‑evaluate and be reflective with people we don't ordinarily get the chance to be with. We recognized that some of us have differences in some of the ways we see things but that doesn't mean we can't all work together."

The Highlander group issued two documents following the meeting. The first was "The Highlander Statement of Concern and Call to Action." It affirms that those with mental illness have an absolute right to self‑determination and calls for "humane, voluntary services and supports (to) become the foundation of a reinvented mental health system."

Call to Protest Tipper Gore

The group also issued a call for "mental health human rights protests of Tipper Gore." The wife of Vice President Al Gore has made mental health her special issue and garnered significant publicity and attention for it. But Highlander delegates consider her views too close to those of the psychiatric industry. "We are calling upon her to stand with us, especially on the issues of expansion of forced psychiatric treatment, especially outpatient commitment," says Oaks.

The statement calls for Tipper Gore to agree that "forced drugging and inpatient and outpatient commitment should be viewed as inherently suspect, because they are incompatible with the principle of self‑determination."

Gore has family members with mental illnesses. Oaks says he, too, is a relative of a person with mental disabilities and understands the pressures of concern about their safety. "But people deserve more than gavel therapy," Oaks says, referring to treatment programs mandated by judges. "There is an inexhaustible range of alternatives ‑‑ respite facilities, peer‑run residential programs, peer‑run support groups. What we're talking about is this primary emphasis on force, force, force, drugs, drugs, drugs as the be‑all and end‑all of treatment.  People deserve more than just a court order and a bag of pills."

The outspokenness of SCI members may be having an impact on Tipper Gore's views. On May 2, 15 representatives of the Coalition attended a meeting with Lisa Brown, chief counsel to Al Gore, and Trooper Sanders, senior policy advisor to Tipper Gore. "We were received with a lot of interest," says Oaks. "They agreed to recommend that Tipper and Al meet with us. They seemed to understand the civil rights aspects of these issues. But the question is when. They wanted us to wait until after the election. We demanded an answer by May 31 and mentioned that we would be protesting her appearances."  SCI will hold a rally at the Crowne Plaza Hotel in New York City on Sunday, June 4 at 8:30 a.m. to call on Tipper Gore to speak out against forced outpatient treatment.

The Disability Community Takes Notice

In recent years, as SCI has grown, people with psychiatric disabilities have become a larger part of the disability‑rights movement.

"The psychiatric survivor movement is going through a process of dramatic growth both in terms of numbers and in terms of its political clout," confirms Andrew J. Imparato, president of the American Association of People with Disabilities (AAPD) and a survivor himself.  "Psychiatric survivors are no longer the stepchildren of the disability movement."

Yet, leaders say, there is still a segment of the disability community which discounts the psychiatric survivor movement as a radical fringe with irrational ideas. "We've been demonized in such a way that people think, >I'm not like that. That's those crazy people,'" states Chamberlin. "Ultimately we're just like everybody else."

SCI and the psychiatric survivor movement are questioning some practices used on anyone labeled "mentally ill" ‑‑ and this label is becoming increasingly common.  According to the 1999 Surgeon General's Report on Mental Health, during any one‑year period, 22 to 23 percent of the U.S. population have a diagnosable mental disorder. The report suggests that only one‑third of those needing treatment are receiving it. The proliferation of Prozac and Ritalin indicate that mental  health is a mainstream issue.

In addition to the goal of building a humane mental health system, SCI is calling for an end to human rights violations in the psychiatric system. The coalition's strategy has three components: opposition to forced psychiatric drugging, opposition to electroshock treatment and the need for effective alternatives.

Forced Drugging

The medical field's prevailing attitude is that psychiatric disabilities are merely biochemical imbalances and that chemicals can heal these problems. SCI attributes this pervasive reliance on pharmacology to a concerted effort on the part of the pharmaceutical industry to market its products, neuroleptic drugs.

Societal misconceptions contribute to the increased push for forced treatment, says the SCI. Mainstream media stories generate public fear by implying that those with mental illness are responsible for most violent crime. In reality, individuals with psychiatric disabilities commit only 3 percent of violent crimes, controlling for substance abuse.

The National Alliance for the Mentally Ill (NAMI), a well‑known nonprofit advocacy group, has been accused of calling for involuntary outpatient treatment and forced drugging. A 1999 expose written by Ken Silverstein in Mother Jones magazine showed that NAMI received close to $12 million from the pharmaceutical industry from 1996 to mid‑1999.

Some published reports assert that psychiatric drugs can cause permanent brain damage. Recent articles in medical journals have documented progressive brain abnormalities, including shrinkage in the frontal lobes and swelling in the brain stem, caused by common neuroleptic drugs such as Thorazine, Haldol, Stelazine, Mellaril, Prolixin and the newer generation of "atypicals" such as Clozapine, Risperdal and Zyprexa. Two mainstream medical studies show neuroleptic‑induced brain changes severe enough to be visible under MRI and CT scans.

"There are dozens of studies showing neuroleptics can change the brain," says Oaks.

SCI calls for individuals' informed choice and control concerning their own bodies.

Electroshock Treatment

SCI says that subjects in the United States are being forced to undergo electroshock against their expressed wishes.

The psychiatric industry claims there is a new, improved form of electroshock treatment. A 1998 paper published by the Center for Mental Health Services states,  "There are very few double‑blind studies on electroshock, but what they show is that at best, electroshock produces a four‑week transient head injury high' similar to personality changes seen in survivors of head injury or strokes."

Survivors' groups call instead for more effective, alternative treatments, arguing that electroshock can lead to humiliation, memory loss, brain damage and death.

Alternative Treatments

"Our society isolates and overwhelms countless individuals, which may drive many to hopelessness and even self‑destructiveness," says Oaks.  "We need a new paradigm of recovery based on sustainability and empowerment that helps the whole person."

The survivor movement points to several successful treatment models.

Burch House in New Hampshire is a residential community of counselors and clients with no forced drugging.

San Joaquin Psychotherapy Center is a California counseling program that provides day‑long support for people diagnosed with "serious mental illness." Psychiatric drugs, labels and force are not used there.

Oaks also points to Patch Adams as a model. Portrayed in a popular movie with the same name, Patch Adams has been involved with SCI since 1992.  "He really challenges the medical paradigm," says Oaks.

"Instead of about broken brains, it's more about broken communities. It's about healing our communities, not DNA and chemicals," says Oaks.

Counting All People

At its core, the survivor movement is forcing society to reassess its views on the origins and definitions of mental illness and to reassess how it treats those who are different.

"If you're poor, if you're a different race, if you have a disability, if you're different in some way, there's a big element of society that says you don't count," says Chamberlin.

The movement is also asking how much of the psychiatric industry's treatment of mental disabilities is a way to avoid changes we need to make in society. Oaks notes, "If someone is having emotional difficulty or has a head injury or is having trouble at school, we'll do anything but change. We'll drug them, we'll label them, we'll institutionalize them, but we'll tend not to change the society, community and ourselves. This is a method of social control."

 These critical questions and the alternatives proposed by the survivor movement have gained momentum following the Highlander meeting, supporting SCI's demand for new responses to the problem labeled "mental illness."