Disabled In Action: DIA Activist Newsletter May 2006

After almost five years of litigation, Disabled In Action's access lawsuit against the Duane Reade drugstore chain has been settled, and it affirms our civil right to shop by being able to do such things as pass through store aisles, reach counters and credit card swipe machines, and communicate privately with pharmacists. We are looking forward to the improvements that Duane Reade has promised to make.

larger photo of Disabled In Action 2006 president Carr Massi speaking

Carr Massi, DIA President, speaking
Photo by Marianne Lado

Magistrate Debra Freeman, of the U.S. District Court, Southern District of New York, signed the consent decree on January 24, 2006, to end the lawsuit that Disabled In Action and 10 named plaintiffs initiated with New York Lawyers for the Public Interest, Inc. and Fish and Neave, LLP (now Ropes and Gray, with one of our principal attorneys now at Wilmer, Cutler, Pickering, Hale, and Dorr, LLP). Judge Freeman's order came more than a year after the parties agreed to avoid trial and settle on many issues. The two issues the parties could not agree on, and which Judge Freeman ruled on, were standards for stock in the aisles and whether or not the terms of the consent decree would be confidential. In a victory for Disabled In Action's long held view that civil rights cases have to be public knowledge, Judge Freeman ruled that the settlement and her decision would be open to the public, not confidential, but that the parties must try to collaborate on press about the case.

larger photo of Disabled In Action activists waiting for the start of the press conference

Activists Anne Emerman (left) and Fusun Ateser (right) with signs reading ACCESS EQUALS MORE SALES and BUILD RAMPS NOT STEPS
Photo by Marianne Lado

It is Disabled In Action's view that through publicizing information about civil rights cases, other people with disabilities can be inspired and encouraged to fight for their civil rights, and hopefully other businesses will realize their responsibilities and provide access without expensive, time-consuming litigation.

While several recent articles in the popular media have characterized Duane Reade stores as cluttered, too often, people with mobility and sensory disabilities have experienced their stores as inaccessible. We have been unable to get into some stores because of steps, locked doors(!), blocked entryways, or double sets of doors that don't allow enough clearance between them for a wheelchair. Thanks to the lawsuit settlement, most of these problems will be surveyed and corrected within two years.

Once in a store, we often could not get through the aisles because of displays on the floor or stock in the aisles or because of the way shelves (gondolas) are placed. Duane Reade has agreed to provide 36" of clear aisle space (typically the width of 3 floor tiles) with the exception of infrequent, very small sections of 32" width where the larger width is impossible to achieve.

Hooray! Not being able to get to merchandise has been frustrating, but literally being blocked by heavy boxes of merchandise or by empty boxes in a narrow aisle or in an elevator, unable to get out, and yelling for help, are experiences we are happy to put behind us.

After Judge Freeman participated in discussions with each side, Duane Reade offered to pack out (put away) new merchandise in 2, 4, or 6 hours (depending on the store) after the delivery truck leaves, and Judge Freeman incorporated this into her order. "That will be a great improvement over having merchandise on the floor blocking the aisles,", said Marty Sesmer, a plaintiff.

Duane Reade officials also agreed to lower high counters to 37" and in new stores have them be 36", and to have a private telephone to the pharmacist in bi-level stores without an elevator. No longer will a clerk be an intermediary when we have to communicate with the pharmacist about medication.

larger photo of the lawyers representing Disabled In Action

Three of our Lawyers – Marianne Lado (left) and Gavin Kearney (right) from NYLPI and William McCabe (center) from Ropes & Gray
Photo by Jean Ryan

Disabled In Action would like to thank New York Lawyers for the Public Interest, Inc., especially Marianne Lado, Dennis Boyd, and Gavin Kearney, as well as Ropes and Gray, LLP (formerly Fish and Neave, LLP) attorneys, especially William McCabe, Stanley Liang, Tom Vetter, Paul Keller (who is now at Wilmer, Cutler, Pickering, and Hale, LLP), Nina Horan, Shazi Malik, and Spencer Yee for their tireless, dedicated, and excellent work on this case. They attended countless meetings, calls, wrote depositions, e-mails, letters, and briefs, and researched the issues, surveyed stores, watched security tapes, and gave their time to come to DIA meetings to explain and discuss the issues.

DIA plaintiffs and officers put in a great deal of work, too, in this case. Sometimes suing seems easy because a disability rights group may think that the lawyers will do all the work and we'll get everything we want, everything that is necessary for access. The real world does not work that way.

We talked with our lawyers from the very beginning, telling them about access problems. We surveyed stores. We had conference calls and meetings at their offices and at DIA meetings. We had to provide documents, receipts, letters, e-mails, even our wheelchair and scooter manuals(!).

larger photo of Jean Ryan and two of the lawyers representing Disabled In Action

Jean Ryan (left) with attorneys William McCabe (center) and Gavin Kearney (right)
Photo by Marianne Lado

A number of plaintiffs and DIA officers were singly deposed (asked questions) in a room by Duane Reade lawyers for several days in 2004. It was grueling for all of us. I am very sensitive to cold and drafts, and, even though the weather was 95 degrees outside, I actually brought winter clothes and wore a blanket on the second day to cope with the cold inside. We were asked all kinds of questions about DIA and about store access, like when we could not get down an aisle, what did the outside of the boxes say?

Frieda Zames, bless her heart, was deposed on behalf of DIA. She was asked about her Duane Reade shopping experiences by the attorney for Duane Reade. If you knew Frieda, who died last year before the conclusion of this case, you knew she was not a shopper. Her partner, Michael, did all the shopping. As Frieda reported it, the deposition went something like this:

DR Lawyer – "What have been your experiences shopping in Duane Reade stores?"

Frieda – "I don't shop. I have not shopped in a Duane Reade store, but I want them all to be accessible."

DR Lawyer – "What? You don't shop?"

Frieda – "No, I don't."

DR Lawyer – "Then what are you doing here?"

Frieda – "I am here to represent DIA and answer questions about it."

larger photo of a female activist in a wheelchair holding a sign reading More Access Equals More Business

More access equals more business
Photo by Marianne Lado

Several of us went to court for long days. The first few days we were there, we actually had to go to the security office and be escorted to the hidden, locked accessible restroom. After complaining mightily that this was like kindergarten and is not what other people have to go through, we progressed to being able to independently get into the rest room, but it was still hidden and unmarked.

We also prepared for a trial that was to be held in mid-December, 2004. We found people to attend court every day, even in holiday season, but both sides were able to agree to settle on the eve of the trial so we did not have to go to trial. The two issues that the sides could not agree on, stock in the aisles and whether or not the case would be confidential, were decided in January 2006 by Judge Freeman.

Any lawsuit is hard work and is a gamble; you never know what the judge will order or what the two sides will be able to agree on. Also, the ADA does not mandate total access. While we sought only access for the plaintiffs and not money, Duane Reade agreed to donate $50,000 to Disabled In Action so we can continue our work.

Our lawyers repeatedly told us that in a settlement agreement, it is a good agreement if neither side is totally happy because you each have to compromise to agree. An example of something we wanted but could not get is the total elimination of displays in the aisles. As long as Duane Reade keeps 36" clearance in the aisles, they can have displays because we can still get through, and if merchandise is blocked by the displays, it is blocked for everyone, not just for people with disabilities.

large photo of a cop at the press conference

Every press conference needs a cop
Photo by Marianne Lado

Another thing we wanted was access to every pharmacy, even those currently on an inaccessible level, but the ADA does not require an elevator in every store, nor is there necessarily room for an elevator in every bi-level store.

The third thing we wanted and could not get, that the Kmart plaintiffs got (see http://www.foxrob.com/pleadings/Kmart/
Settlement%20Agreement%20-%20no%20exhibits.pdf, section 14.7) was for Duane Reade to agree to tie accessibility to the managers' evaluation, promotions, and pay because accessibility is not just structural – it is often a matter of practice, of people's behavior to keep the aisles clear. Hopefully, Duane Reade will realize as a company that this is a good way to assure access.

larger photo of Ramon Santos of CIDNY speaking on need for accessibility

Ramon Santos of CIDNY speaking
Photo by Marianne Lado

Follow-up is necessary for any settlement agreement and order. Duane Reade will have two years to make changes to all its stores which need it, but the 20 exemplar (sample) stores specifically noted in the agreement have to be modified within 6 months of Judge Freeman's signing the consent decree. Employees have to be retrained and pack-out policies that maximize accessibility have to be followed immediately. If problems come up, we need to report them. Duane Reade is required to post a customer service number in all of its stores, and it will have boxes for written complaints in some. It is important that anyone with an accessibility problem in a Duane Reade store report it directly to Duane Reade-they are only responsible for fixing problems of which they have notice. It is also important that we be informed of any accessibility problems so that we can ensure that they are properly reported and addressed by Duane Reade. The complaint forms will be available on DIA's website (www.disabledinaction.org) and a dedicated, toll-free telephone number is available through New York Lawyers For The Public Interest for reporting such problems. It is 1-888-DIA-DIA-8 (1-888-342-3428). If the parties cannot agree that something needs fixing, the settlement calls for a "neutral person", who is an accessibility expert, to settle that specific issue.

After all, access is good for business. We are customers. We buy, too, and where we can go, people with baby strollers and shopping carts follow. What store wouldn't want more customers?

Editor's note: Judge Freeman's order and the DIA vs. DR consent decree are available on DIA's website at www.disabledinaction.org. The Kmart settlement is available at http://www.foxrob.com/pleadings/Kmart/
Settlement%20Agreement%20-%20no%20exhibits.pdf.

Gavin Kearney contributed to this article.

More Duane Reade press conference photos on our website at www.disabledinaction.org

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March 13, 2006 - Denver - Fox & Robertson, a firm of Denver civil rights attorneys, announced today it has settled a nationwide class action lawsuit filed to resolve disability access issues at Kmart stores.

Under the terms of the settlement, Kmart will survey and bring all of its stores nationwide into compliance with Department of Justice Standards over a seven and a half year period following court approval, and will institute policies to ensure access to merchandise, counters, restrooms, fitting rooms and parking. Kmart has also agreed to pay $13 million in damages.

The lawsuit was filed in 1999 but was delayed during Kmart's bankruptcy proceedings. During those proceedings Kmart's top management team was replaced, and the settlement was reached with Kmart's new management. The case has been pending in federal district court in Denver, before Judge John Kane, with whom the settlement papers were filed today.

"This settlement ensures that people with disabilities can shop at Kmart just like anyone else," said Carrie Ann Lucas, one of three people who originally brought the complaint. "It also shows that Kmart values all of its customers and wants to do what it takes to make sure we can shop at their stores."

Ms. Lucas and the other plaintiffs filed suit under the Americans With Disabilities Act.

"Kmart did the right thing for its customers," said Amy Robertson of Denver-based Fox & Robertson and co-lead counsel for the plaintiffs. "The company's management chose to make the changes necessary so all their customers have access to the wide range of products in these stores."

"Kmart's comprehensive commitment to provide access for individuals with disabilities in all of its stores is a landmark in the implementation of our national civil rights laws," said Bill Lann Lee, of the San Francisco law firm of Lieff Cabraser Heimann & Bernstein. Mr. Lee, former head of the United States Department of Justice Civil Rights Division, joined the case as co-lead counsel for the class after it was certified last July.

The settlement contains several innovative features, including a Kmart-initiated plan to provide customers with disabilities with two-way communication devices that permit them to request assistance retrieving merchandise and a website through which Kmart and the plaintiffs will seek feedback on the implementation of the settlement.

In addition to wide-ranging architectural and policy improvements, the settlement requires Kmart to pay $13 million in damages to members of the settlement class in California, Colorado, Hawaii, Massachusetts, New York, Oregon and Texas, states which impose statutory minimum damages for failure to comply with disability access laws. This is the largest recovery in a lawsuit filed over access for individuals with disabilities.

In addition to the damages, Kmart will pay the plaintiffs' attorneys' fees and costs.

"We have been very pleased with Kmart's approach to the resolution of this case. We hope that all companies will act as responsibly as Kmart has in addressing these issues," Robertson said. In the papers filed today, the parties request that Judge Kane give preliminary approval to the settlement. If he does so, notice will go out to potential class members and they will have an opportunity to review and comment on the settlement.

The settlement agreement is available on Fox & Robertson's website: www.foxrob.com.

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January 15, 2006 – Albany Times Union - Governor Pataki's recent State of the State address discussed a wide range of topics, but the issue of election reform was conspicuously absent. This is because New York has been in violation of the full implementation deadline of the federal Help America Vote Act since January 1.

New Yorkers with disabilities have the most to lose because of this. They still are being denied full access to voting machines, the ballot and polling places after more than 200 years in the history of our state and country.

At issue is HAVA's mandatory requirement to remove barriers and increase access so that citizens can vote "privately and independently," as further supported by Title II of the federal Americans with Disability Act of 1990 and the 14th Amendment to the U.S. Constitution.

Modest estimates project that the state won't be able to meet this requirement until 2008. This is both unacceptable and another dismal example of how dysfunctional New York state government has become.

Other groups have expressed additional concerns about HAVA- related issues, including the types of voting machines that the state Board of Elections will certify for use, and the requirement for a paper trail for each voter. These issues must still be resolved.

Since our state government has yet to uphold its moral and legal obligations to fully implement HAVA, I suggest that the state should demonstrate an interim act of good faith by immediately establishing a new program for New Yorkers with disabilities.

The "Fundamental Right" state income tax break would give qualified enrollees a two-fifths break on their state income tax. Only a person enrolled in the program could take advantage of the tax break.

To qualify for the tax break, a person would have to:

Be a resident of and registered voter in New York state.
Have a disability, as defined under the federal Americans with Disabilities Act.
Sign a sworn statement to verify that he or she cannot vote privately or independently at his or her designated polling site.

In return, participants in the program would agree not to file and pursue legal action related to their voting rights against New York State during the time that they are enrolled and take the tax break.

The tax break would end the year after the U.S. Department of Justice verifies that New Yorkers with disabilities can vote privately and independently, as specified under HAVA.

It must be understood that this program is an interim measure, not meant to replace or prolong providing New Yorkers with disabilities their fundamental rights to vote privately and independently as American citizens. The money the state saves from avoiding extensive litigation costs, fines, and awards would more than pay for the program.

In his State of the State address, the governor called for several new breaks, while stating, "We've led the nation in cutting taxes -- 81 cuts to 19 different state taxes."

He capped his speech by talking about how the new Freedom Tower in Manhattan will "transcend great challenges," similar to the way the dreams and aspirations of our forefathers led to "limitless hope, opportunity and freedom."

New Yorkers with disabilities have been waiting over two centuries to gain full access to their voting rights, which directly impacts their hopes, opportunities and freedoms. Time will tell if the governor extends his penchant for tax cuts to New Yorkers with disabilities, consistent with our forefathers' belief in "no taxation without representation."

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NYSILC Press Release - On Thursday December 15, 2005, one day before a court mandated hearing before State Supreme Court Justice Thomas McNamara, the New York State Board of Elections formally appointed Dennis Boyd as the New York State Independent Living Council (NYSILC) representative to the new Citizen Election Modernization Advisory Committee.

"I am happy to be a formally approved member of the Advisory Committee and hope that NYSILC's role will ensure accessible voting machine systems for people with disabilities throughout the state," said Dennis Boyd of NYSILC and the New York Lawyers for the Public Interest (NYLPI).

This appointment came two months after NYSILC filed an Article 78 action with the New York Supreme Court demanding that the New York State Board of Elections comply with Section 1A of the Election Reform and Modernization Act of 2005 under New York State Election Law. This law mandates the inclusion of a NYSILC representative on the Citizen's Election Modernization Advisory Committee.

"It was inevitable that NYSILC would prevail in its lawsuit against the Board of Elections because the New York State Election Law is clearly on NYSILC's side," remarked Martin Coleman, the lead attorney for this lawsuit.

In addition to this matter, New York State has the dubious distinction of being the last state to implement HAVA by the mandatory deadline of January 1, 2006, which is only two weeks away.

"This lawsuit is evidence that the disability community refuses to back down regarding access to our voting rights," stated Susan Cohen, who provided an affidavit in the lawsuit. "This could be just the beginning in terms of litigation."

It is the vision of the New York State Independent Living Council, Inc. (NYSILC) to achieve a world where people with disabilities realize equal rights and opportunities in all aspects of society.

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Editor's Note: Margie Rubin of DIA has been working very hard to get the NYC Parks Department to make their parks accessible to people with disabilities, especially when Parks renovates or re-designs a park. Instead of really dealing with the issues and improving accessibility, some Parks people and some politicians have tried to make Margie the issue. This is typical when we fight for our rights. It isn't easy to keep on pushing for change through so much resistance. This report validates what Margie and others have been saying all along. Great work, Margie! Let's hope the Parks Department can redeem themselves and now make our parks truly accessible to people with disabilities. They could start with Washington Square Park! We will be following Parks accessibility closely.

December 28, 2005 - The New York City Department of Parks and Recreation will make improvements in accessibility for people with disabilities recommended by a State Comptroller's audit, Comptroller Alan G. Hevesi and Parks Commissioner Adrian Benepe announced today. While many sites operated by Parks have been upgraded in recent years to improve accessibility for persons with disabilities, other Parks facilities are not accessible even after renovations, and a lack of on-site signage and other information regarding accessible sites increases difficulties for persons with disabilities, the audit found.

Auditors found that the department has not fully met the legal requirements of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act (ADA) and U.S. Department of Justice Rule 28 CFR Part 35. Parks does not provide adequate information to the public regarding how to find facilities that do meet ADA accessibility requirements and also does not have a required formal process to investigate complaints about accessibility issues.

"New York City's parks should be open to all. I am pleased that Commissioner Benepe has committed to doing a better job following both the letter and the spirit of laws and regulations that make New York City's parks accessible to people with disabilities," Hevesi said.

"Parks & Recreation is committed to meeting or exceeding ADA recommendations in our parks. For the last four years we have reached out to the disabled community in many areas, and have invited groups, including the United Spinal Association, to advise us on the building and reconstruction of parks and park facilities," said Commissioner Benepe. "We look forward to working with the State Comptroller and our non-profit partners to implement these suggestions as part of our commitment to work on behalf of all our visitors, regardless of their abilities."

U.S. Department of Justice Rule 28 CFR Part 35 requires identification of accessibility barriers in existing facilities, needed modifications and a timetable for making the changes. Auditors determined that Parks did not meet these requirements and that the agency's policy was that accessibility standards would be met only in new construction and major alteration projects, although the department has not defined what constitutes a "major alternation."

Auditors reviewed a sample of 50 new Parks construction projects to see whether ADA accessibility requirements had been included in the department's scope of work document, which provides a general description of the project and helps to guide the actual design process. Twenty-nine of the projects included no specific plans to address ADA-accessibility requirements and some of the projects did not have accessibility elements.

At the Queens County Farmhouse, for example, the scope document failed to note needed work on an access ramp. Moreover, the ramp was not accessible for wheelchair users because it could only be reached by crossing a grassy area. At the Gorman Playground in Queens, a $654,000 playground renovation project did not include converting restrooms for ADA accessibility. However, auditors did find that ADA-accessibility elements were included in some projects even though they were not noted on the scope documents.

While there is no requirement that all Parks facilities be ADA-accessible, the department is required to help the public locate those that are accessible. In visits to 50 Parks facilities, auditors found no signage indicating accessibility or directing users to ADA-accessible entrances. Ideally, signage should also direct persons with disabilities away from potentially hazardous conditions. At Riverside Park, for example, auditors found that there was no posted information regarding excessive slopes, steps and stairways.

Auditors recommended that Parks enhance information on its website regarding accessibility, because information on the site was not always complete.

The department agreed with all of the recommendations in the audit, and said that it would take steps to implement them. The complete response is included in the audit.

The New York City Department of Parks & Recreation has some 4,000 facilities including playgrounds, athletic fields, tennis courts, swimming pools, recreation centers and beaches, and encompassing 28,700 acres. Its facilities include Central Park in Manhattan, Prospect Park in Brooklyn and the Bronx Zoo. The department's capital budget was about $406 million in fiscal year 2003 and $465 million in 2004.

The audit covered the period from January 1, 2000 through January 19, 2005.

For a copy of the audit, visit www.osc.state.ny.us

For more information on ADA Guidelines:

US Access Board - http://www.access-board.gov
"Play Area Guidelines" - http://www.access-board.gov/play/finalrule.htm
(800) 872-2253; (800) 993-2822 (TTY)

National Center on Physical Activity and Disability - Fact sheet on "Designing Accessible Play Areas" - Information about specific sports - http://ncpad.cc.uic.edu/
(800) 900-8086 (voice and TTY)

For help with planning a safe and accessible playground: The National Program for Playground Safety - http://www.uni.edu/playground - 1-800-554-PLAY

Boundless Playgrounds - http://www.boundlessplaygrounds.org/

ADA guidelines require that:

Children in wheelchairs can move around on the playground surface or path to the play area.
There are transfer ramps with wheel stops and guardrails for children to get on to higher equipment.
There is separate equipment for all developmental levels.
The playground equipment and surface are maintained.
There is space for adults to help children play on the equipment.
All openings on elevated play platforms are limited in width.
There are hands-on areas for children sitting in wheelchairs.

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I fell into the dreaded Donut Hole on February 3rd, when my pharmacy's computer printed out a receipt with a $61 co-payment instead of $28. The next day, my insurance provider said something was wrong and I should call back in four days. When I did, they still didn't know why I'd been charged $61. I asked, "Could I be in the donut hole?" "Oh no, it's too early," was the response. After checking another computer she said, "Oh yes, you are. Have a nice day."

You don't know you're in the Donut Hole because it is based on the plan's payments. By mid March when the insurance company sent EOB's (Explanation of Benefits), I was rapidly exiting the Donut Hole for catastrophic coverage. I was out of the Donut Hole on March 27th.

Since you must be 65 to be eligible for EPIC (New York State's Elderly Pharmacy Assistance Coverage), I will be facing eleven Donut Holes before I am 65. EPIC participants are protected from paying into the Donut Hole. I was thankful my father's estate had finally been settled. I was thankful my father's estate had finally been settled so I can pay the Donut Holes. In today's money we calculated it was over $40,000!

Did the President and Congress really think beneficiaries would have $3,600 or more available to fill the annual Donut Hole and move over to the other side of the Donut for catastrophic coverage? It seems as if there are article daily about seniors, often cancer patients, who had received their medication on Pharmaceutical Assistance Programs but now being forced into Part D and dreading the Donut Hole. In New York State, financially eligible seniors are protected by EPIC, but people who are on Medicare but who are not seniors are not eligible for EPIC.

In 2007, Part D's costs are all increasing: The initial deductible from $250 to $265; Out of pocket expense from $3,600 to $3,850. Co-payments are increasing: those who qualify for Extra Help (Low Income Subsidy): full benefit from $1/3. $1/3.10 to $2/$5; partial subsidy from $2/$5 to $2.15/$5.35; catastrophic coverage (beyond the Donut Hole) from $2 to $2.15 (generics) and from $5 to $5.35 (brands). These may seem like small and inconsequential increases but they add up, particularly for those who take numerous medications.

So, recalculating, I can look forward to probably over $50,000. But many Medicare beneficiaries do not have the means to pay even one Donut Hole much less eleven. Unfortunately, there are no estates pending as I slog through future Donut Holes to EPIC when I finally reach 65.

The cost to expand EPIC to younger Medicare beneficiaries would be $15 million in the first year. In this year's proposed $110 billion state budget, the legislature and governor are fighting over a much greater amount for member items. The Manhattan Institute's Empire Center for New York State Policy has calculated that over the past three years member items have cost just over $479 million.

This year, could the Mets and Yankees get only $135 instead of 150 million in member items, so younger Medicare beneficiaries can have EPIC and be protected from the financial ravages of the Donut Hole?

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This past January I received an urgent telephone message, from a friend who was trying to find a lawyer to help release someone from the clutches of the King's County Psychiatric Hospital. In responding to this request, I spoke with Connie Lesold, who is one of the coordinators of the Brooklyn Mental Hygiene Court monitoring project. In Brooklyn, as in many other jurisdictions, a special court has been established to address mental health issues. Connie, and the other monitors, attend these proceedings to keep track of how folks are being treated.

Despite my lack of direct experience with mental health issues, Connie suggested that simply another person, particularly an attorney with a disability, could perhaps be helpful. Since Mental Hygiene Legal Services (MHLS) had already become involved in this case, I headed to court to simply support a fellow member of the disability community that I didn't even know. What I saw that day in the Brooklyn Mental Hygiene Court has caused me to reflect on the tenuous grasp that we all have on our freedom.

As we waited for the hearing to begin, I started to see some disturbing trends in almost all of the cases that were presented. Apart from the almost complete lack of wheelchair accessibility to the courtroom, there appeared a remarkably fast rush to invoke judicial intervention in considering whether mental health services should be officially imposed.

From my limited perspective it seemed that the testimony of family members, psychiatrists and social service entities, were given more credibility. It also appeared that there was a heavy-handed, authoritarian dynamic present between those who were supposedly there to help and the people "alleged" to be mentally impaired. From a number of the court monitors I learned that in too many instances the result of these proceedings is forced treatment and medication in a psychiatric facility, and occasionally, the sanctioning of electro-conclusive therapy. It seems that once a person has some sort of "psychiatric label" the rules change dramatically.

The person in question, as mentioned earlier, ended up getting legal representation from MHLS and they did an excellent job. I am happy to report that the person is back in the community, doing just fine. But what happens to the people that are not as fortunate to get adequate legal representation?

When I first became involved in the disability rights movement in the early ‘90s, a large part of a national conference I attended was dedicated to the importance of our movement truly being represented in a cross-disability perspective. There are 54 million people with disabilities in America and our strength is only magnified when we work together. There are all sorts of clichés about "weak links in a chain" and "hands washing each other" but I especially like what Benjamin Franklin said: "We must all hang together, or assuredly we shall all hang separately."

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January 10, 2006 - State Attorney General Eliot Spitzer has just offered a report on staffing levels in nursing homes. You can access the report with the following link: http://www.oag.state.ny.us/press/2006/jan/final.pdf

According to the report, "Numerous studies have shown a strong relationship between the hours of care a resident receives and the quality of care..."

The report further states that "about 98% of New York's nursing homes fall into the range at which, in the comprehensive federal study, quality of care for long-stay residents was shown to suffer. Staffing levels in about 70% of our homes do not meet the standards set in Florida; about 38% do not meet the standard in California; about 26% do not meet Vermont standards; about 25% do not meet Ohio's standard for registered nurses and about 3% don't meet the standards in Illinois...

"The consequences of understaffing can sometimes be tragic."

The staffing levels are based upon information provided by the nursing homes themselves, and even this paints a sorry picture. Unfortunately, New York State, unlike Florida, California, Vermont, Ohio and Illinois, has adopted no minimum standard, and a large number of nursing homes in New York City reported staffing levels below the minimum standards in all but one of these states, and several reported staffing levels below the minimum standard in all of them!

As you may know, many of us believe that nursing homes are similar to prisons, where senior citizens and persons with disabilities are warehoused. There is a governmental bias in favor of nursing homes, perhaps because of the money that nursing home owners funnel to political campaigns. The Olmstead Supreme Court decision is supposed to guarantee the right of individuals with disabilities to living in the community, but this decision has been difficult to implement because, among other things, the difficulty in locating low income accessible housing and the seeming lack of will of both the State and City governments.

Studies have shown that many are happier and live longer when living in his or her own home, and nursing home placement often shortens the lives of individuals.

While the Attorney General's Report focuses on staffing levels, which have a great deal to do with the health and well being of nursing home residents, I believe that this is not the entire story.

My mother-in-law was placed in a nursing home in my community several years ago. This nursing home comes off rather well in the AG's report, which does not jive with what I observed while visiting her there. There was always a foul odor in the hallways (which experts often cite as reason to avoid a particular nursing home). Moreover, I was appalled by what I called the "Alzheimer Room," in which residents who weren't lucid were herded into. In this room a television set, which virtually no one paid attention to, was turned "on." Many were lost in their own selves or talking to no one in particular. At the door, there was a burly aide standing guard to make sure that no one left the room. I was relieved that, for the first month or so, I never found my mother-in-law in that room. However, not long afterward, that was her permanent station for the day, and she died shortly after that.

According to this report, the top nursing homes in New York City were the William D. Beneson Rehabilitation Pavilion in Flushing and the Elizabeth Seaton Pediatric Center in Manhattan. These are the only two in the City who meet the Centers for Medicare and Medicaid Services (CMS) standard for staffing levels.

The worst were the following nursing homes: Brooklyn/Queens Nursing Home, East Haven Nursing and Rehabilitation (Brooklyn), Haven Manor Health Care Center (Far Rockaway), Lilly Pond (Staten Island), Terrace Health Care Center (Bronx), Throggs Neck Extended Care (Bronx). CLOSE THEM DOWN!

According to my figures, there are about 21 others who meet the minimum staffing standard of only one state cited in the rankings. Noticeably, this includes Coler-Goldwater Hospital on Roosevelt Island, where over 2,000 members of our community are warehoused, the largest facility of its kind in the country. CLOSE IT DOWN!

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Despite the terrorism attacks on the World Trade Center, Madrid, and London, I'm more concerned with power outages, natural disasters and emergencies.

Emergency planning must be more than how much water you need and certainly more than what goes in a GO BAG. We need to focus on telephones that do not require electricity and networking in out buildings. Telling us not to use elevators and to plan on meeting on a specific corner is problematic. If you're home how do you get out and if you're out how do you get home? If you end up in a shelter, will it have the equipment and supplies you need?

In November 2004, the National Organization on Disability commissioned Harris Interactive to determine the degree to which jurisdictions included the needs of people with disabilities and also if people with disabilities were included in the emergency preparedness planning process. Harris found 69% said they had incorporated the needs and 22% reported a plan was in development. But only 42% included an informational campaign and only 16% were available in accessible formats.

The instructions posted by elevators simply say not to use them in case of fire and sometimes directs you to wait for further instructions. If you're able to use the stairs finding them from the map can be confusing. And if you can't climb stairs, do you just wait to be found?

Recently, a settlement was announced in a suit against Marshalls department store requiring they adopt evacuation procedures for shoppers with disabilities. They became the first national retailer to agree to address the emergency evacuation needs of people with disabilities. The suit was brought by a shopper who exited into a basement level of a mall from which there was no accessible egress.

When the MTA tested the single operator L train, on the train were 100 MTA employees, three of whom were designated as people with disabilities. The 97 able bodied employee passengers were successfully evacuated, leaving behind the 3 individuals with special needs and the test was considered a success!

Several months ago, I was on a Long Island Railroad train that struck and killed a pedestrian. Other passengers were walked through the train, and put on buses to their destination while I waited. What if it had been a major blackout, would the conductor and I have sat on the train for a day or more?

A passenger with auditory and visual impairments was on a D train that was evacuated due to a fire. It was another passenger who noticed her sitting as the police evacuated them from the train. In that circumstance, what would a wheelchair using passenger do? I guess, the Fire Department would carry us out, but getting me out is only the first step, would they get us to the street and leave us there?

The first step is for emergency planners to include individuals with special needs in the dialogue, and that includes making sure the dialogue is accessible. Having a special need does not preclude your capacity to engage in the planning process and the process itself.

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New York City - December 02, 2005 - WNYC Radio [Transcript of report] — In 1984, New York City Transit agreed to make its buses and subways more accessible for people with wheelchairs. The move followed a landmark lawsuit by disability advocates. Now, a 21-year-old college student is fighting to make sure that agreement is enforced throughout the transit system. WNYC's Beth Fertig has more.

REPORTER: Almost everyone at Manhattanville College seems to know Michael Harris.

STUDENTS ON LINE: Michael, Michael Harris!

REPORTER: As he waits in life for sushi in the college cafeteria, Harris is greeted by friends and acquaintances. He's easy to recognize. He whizzes by on a 350 pound motorized wheelchair. And he doesn't dress like your typical college student. He's almost always wearing a suit.

MAN: Hey, how are you?

HARRIS: California please.

REPORTER: But Harris will be the first to admit his visibility is also by choice. He's the kind of student who gets involved in almost everything, from the debate club to campus politics.

HARRIS: When I ran for freshman class president, I did not run a very discrete campaign. I spent several hundred dollars on my campaign for freshman class president and won with a very large margin. But, I mean I've chosen to stand out by getting actively involved in on campus activities, in student organizations, by going to on campus events.

REPORTER: Lately, Harris has been spending a lot more time organizing events OFF campus. As the founder and campaign coordinator of the Disabled Riders Coalition, Harris has been coming to every MTA monthly board meeting for almost a year. He speaks out about all kinds of issues affecting the disabled.

HARRIS: The MTA has been violating its own rule. As I have documented for the past 2 years the MTA consistently places masking tape covering the auto gates installed for the purposes of allowing disabled riders to enter and exit photo stations. As you can see by this photograph...

REPORTER: MTA Board member Barry Feinstein says some of his complaints aren't true.

Michael Harris grew up in Brooklyn and he's been using a wheelchair since he was a child. He suffers from generalized dystonia – a neurological disorder that causes constant, painful muscle spasms. He's able to control the spasms with medications, two titanium rods in his spine and two pacemakers connected to his brain. And he gets around campus easily with his wheelchair.

The Disabled Riders Coalition started off as an independent study project. A professor suggested that Harris write about his frustration with the public buses near Manhattanville's Westchester Campus. He then attended an MTA hearing last fall about the impending fare increase and a plan to close token booths.

HARRIS: And it was just bothering me. That you had all of these elected officials talking about the disability issues. And there was nobody from the community saying anything and I felt that had to be done. And so I sort of sought out to try to figure out what I could do to give a voice to disabled riders.

REPORTER: Harris now has a website and an email list with almost 2000 names. He's constantly taking phone calls on his earpiece and he uses a blackberry to send out press releases to the media. But despite his professional demeanor, Harris is an infamous slob. He calls his dorm room an ecological hazard. And it is. The floor is littered with trash, clothing and books.

HARRIS: I have my fax machine just sitting there in the middle of the floor.

FERTIG: How can you find anything the floor is covered with papers?

HARRIS: Yes it is but I keep the important papers in a file drawer. Those are the unimportant papers!

REPORTER: His important photographs are prominently displayed. There's Harris posing with John Kerry, Al Sharpton, and Ben Affleck. As the only child of two city teachers, Harris grew up in a political family. He's extremely active with the Democratic Party. His college buddy Jonathan Reed Fallon says Harris is relentless. He recalls when Harris had brain surgery during their sophomore year – just as he was campaigning for Democrat Howard Dean.

FALLON: No lie. I kid you not. The surgery I think took place on a Thursday, I got the call on a Wednesday. Friday I see Michael in the wheelchair...

MICHAEL: Working.

FALLON: Yeah, in a suit in the wheelchair, and I said you've got to be kidding me. You just had brain surgery. I said what are you doing on campus right now? And he says to me, well, I have to campaign tomorrow for Howard Dean.

HARRIS: I just don't believe in letting things get in my way. And so yeah, I had brain surgery one day. But the next day is a new day. And so my philosophy is it's a new day, I'll start fresh and so I went to work – so I went to work the next day.

REPORTER: Harris still isn't slowing down. He recently sued the Transit Authority over broken elevators. He appears to have had more success with Metro North. The railroad has been working with him to make sure conductors always look for disabled passengers on the platforms, so they can bring out ramps when necessary. On a train bound for New York City, Harris says he's no longer left behind because conductors always notice him now on the platform.

HARRIS: I got the guy who saw me on the platform, came over, took out a bridgeplate put it on eliminated the gap, I got on, he came over, took my ticket, I paid my fare and I'm good to go.

REPORTER: The disabilities movement has come a long way. The Americans with Disabilities Act was signed in 1990 to provide more access in public spaces. New York City got a jump start when the MTA signed a consent decree in 1984 agreeing to install wheelchair lifts in buses, and elevators in dozens of key subway stations. Jim Weissman won that lawsuit as an attorney with the United Spinal Association of New York. He sees Michael Harris – who was born that same year - as part of the next generation of advocacy.

WEISSMAN: He's the constituency, he's the guy we did it for, he's the guy who's taking public transit to school and work which just didn't exist before and people didn't think it would.

REPORTER: Harris never saw himself as an advocate. When he started college three years ago, he says, he wanted to be a lawyer or a politician. He never thought he would be an advocate for the disabled.

HARRIS: Mostly I saw this as being selfish and advocating for myself. I never really thought that I would do this as advocating for a larger community. But it ended up happening that way and I'm in a sense glad that it did.

REPORTER: Harris is already working on another project. He's making a student documentary comparing the accessibility of Metro North trains with New York City subway cars. For WNYC I'm Beth Fertig.

Editor's Note: Michael Harris' website is www.disabledriders.org. You can contact him at mharris@disabledriders.org

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April 4, 2006 – Boston Globe - The Massachusetts Bay Transportation Authority would spend more than $310 million over the next five years to make the transit system one of the most accessible in country to disabled riders, under a settlement announced yesterday by T officials and groups representing people with disabilities.

The agreement calls for upgrading elevators and escalators, speeding the purchase of low-floor buses, replacing unreliable mobile wheelchair lifts on subway and trolley platforms, accelerating a new $23 million public address system, training MBTA employees with the help of disabled riders, and creating an assistant general manager for accessibility who will answer directly to the T's general manager.

"Certainly for 20 to 30 percent of our customers at the MBTA, we are an essential component in their ability to live their life, enjoy their lives, go to work, go to a movie, and to get there in a reliable fashion," said MBTA General Manager Daniel A. Grabauskas. "Therefore, it merits a substantial investment."

Plaintiffs and their supporters planned to celebrate the settlement by wearing T-shirts today reading, "To boldly go where everyone's gone already."

The settlement still needs the approval of the federal judge overseeing a four-year-old class-action lawsuit against the T under the Americans with Disabilities Act. If it is approved, a court-appointed monitor would oversee progress, which would include using undercover passengers. After the five years covered by the pact, the monitor would have to give passing grades on three quarterly reports before the settlement officially ends.

Daniel S. Manning, lead counsel for the 11 plaintiffs and the Boston Center for Independent Living, said 100 depositions and other information gathered for the lawsuit detailed extensive impediments facing the disabled throughout the T system.

For example, when many elevators and escalators were not working last year, some of the plaintiffs in the lawsuit told of having to take both outbound and inbound trains simply to reach a working elevator or to change tracks.

"One of our goals is to really try and bring riders back" through this settlement, said William Henning, executive director of the Boston Center for Independent Living. "We know a number of folks who have had problems and haven't used the system in two, three, four years, and it's time we get them back in as part of the mainstream community."

Both Manning and Henning said the settlement talks over the last nine months were the most productive they ever had with the T. They credited the agency with being open to change. "I know my clients are very excited both to have a seat at the table and to be partners going forward in this," Manning said.

The settlement calls for no monetary damages to be paid to the plaintiffs, though the T will incur all or a portion of the plaintiffs' legal costs. That figure was not disclosed yesterday.

The list of settlement terms includes:

Spending $122 million over the next five years to add, replace, or upgrade elevators and escalators and to ensure continued, uninterrupted service. Park Street, Downtown Crossing, Harvard Square, and Porter Square stations would get additional elevators.
Involving disabled passengers in rider-assistance training for MBTA employees. In past training, T employees either viewed videos or practiced maneuvering wheelchairs with fellow T employees who were not disabled.
Continuing to buy accessible low-floor buses, which are easier for disabled people to board. The T has about 610 of those buses now and plans to get 400 more so that they would be on almost all T routes by 2007.
Closing platform gaps on subway cars and repairing and replacing the tactile yellow warning strips at the edge of some subway platforms.
Whenever possible, assigning one low-floor car to each streetcar train on the Green Line.

T officials and the plaintiffs declined to release a copy of the settlement, which includes the deadlines, until US District Judge Morris E. Lasker signs off on it.

Grabauskas made accessibility his top priority when he took over the agency about a year ago. The settlement now makes those pledges binding, with little or no room for the T to delay accessibility projects.

Much of the funding for these changes was already part of the MBTA's capital budget. T officials could not say yesterday how much more they are spending to reach the settlement's terms.

"Every investment that we're going to make that's essential for a subset of our customers in the disability community is going to be a huge plus for every one of our customers," Grabauskas said.

For instance, getting rid of the cumbersome wheelchair lifts, mostly on the Green Line, should speed service for all riders.

Many passengers also complain about not being able to understand public address announcements, which Grabauskas compared to Charlie Brown's mumbling teacher.

The lawsuit, which was filed in 2002, accused the T of failing to keep elevators and escalators in good repair, preventing the disabled from riding buses and trains 10 percent to 20 percent of the time.

According to the lawsuit, the groups said the T had 1,900 elevator failures in 2004.

The number of broken or out-of-service escalators and elevators at T stations hit a five-year high at the start of 2005, prompting the Federal Transit Administration to begin monitoring the problem.

On some days in the late winter and early spring of last year, more than 20 percent of the MBTA's 167 escalators and more than 15 percent of the 143 elevators were not working, T documents indicate.

Those numbers have vastly improved: 98 percent of the system's elevators have been in full operation in the last two months, official say.

Mac Daniel can be reached at mdaniel@globe.com

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November 27, 2005 - USA Today - Bad service for passengers using wheelchairs drew more attention than any other problem on the government's first tally of disability-related complaints to airlines. In all, according to the recent report from the U.S. Department of Transportation, passengers filed 10,193 complaints with U.S. airlines in 2004, and about two-thirds involved wheelchairs.

In addition to inadequate assistance, passengers also complained of damaged chairs, poor seating arrangements, inaccessible aircraft and excessive waits for stored chairs upon landing. About 17 million disabled passengers fly each year, according to the government's most recent estimate.

The complaints about poor assistance don't surprise Bob Herman, senior attorney with Paralyzed Veterans of America. "That's where they fail the most often," he says of airlines.

Wheelchair users might wait an hour for help, and the person who arrives might not know proper lifting techniques or speak English, he says.

Congress ordered the report to draw attention to special travel challenges of the disabled.

The government will use the data to identify trends and bolster enforcement of laws meant to protect the disabled, says DOT lawyer Sam Podberesky.

Advocacy group officials say airlines have grown more responsive to their needs in recent years, but they hope the new information prompts even more action.

"The DOT is watching, so (the airlines) have to be a little more careful," says Kleo King, program counsel for the United Spinal Association, an advocate for people living with a spinal cord disability.

Partly due to the complaints from disabled passengers, Tempe,-Ariz.-based America West in the last year has changed its wheelchair-service vendor, doubled the number of wheelchairs at its Phoenix and Las Vegas hubs and added employees to oversee the operation, spokesman Carlo Bertolini says. The airline — now part of US Airways — has seen complaints fall 19% compared with the same time last year, he says.

Delta, too, upgraded its program. In August, it increased training for employees and vendors likely to deal with disabled passengers. Delta also has had customers with disabilities address front-line employees to give them their perspective on travel. Complaints are down from a year ago, Delta spokeswoman Chris Kelly says.

Four big carriers — American, Delta, United and Northwest — accounted for nearly 60% of the complaints in 2004.

Contributing: Barbara Hansen

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