Victory for Caregivers

New law expands the right to information

By Christina Clift
On June 6, 2019 A new state regulation went into effect that aims to help Tennessee's hospitals to integrate family caregivers into their loved ones’ medical records.  This only makes sense, since according to The Tennessee AARP, sixty percent of Tennesseans 45 and older are currently providing unpaid care for a loved one.  That’s nearly one million people that are caregivers for a family member. 

The Caregiver Advise, Record, Enable, or CARE, Act requires hospitals to inform family caregivers when their loved ones have been discharged from the hospital.

“The CARE Act is designed to improve communication and coordination between medical facilities and caregivers,” said Kim Daugherty, Executive Director of the Aging Commission of the Mid-South, “and is a step forward for improving healthcare in our state.”

In 2015, a telephone survey found more than 80 percent of registered voters in the state, age 45 and older, supported the CARE Act. In addition to household chores, family caregivers increasingly are performing medical and nursing tasks, such as managing multiple medications, administering injections and using special equipment. 

But despite that, these family caregivers were not kept informed on changes in their loved ones care by hospital staff.  This legislation removes barriers and facilitates communication by mandating that all Tennessee hospitals must comply with a patient's wish to give updates about their healthcare to designated individuals.

The Tennessee AARP, the state Department of Health and the Hospital Association of Tennessee worked to craft the regulation.  Similar CARE Act provisions have either been adopted or are under consideration in 40 states.  The CARE act provides for:

    The name of the family caregiver to be documented in a patient’s medical record upon being admitted to a hospital.

    The family caregiver is notified when a loved one is to be discharged to another facility or returning home.

    The facility must provide an explanation and live instruction of the medical tasks that need to be done for that patient.

With the passage of the CARE Act, caregivers will be more informed on how they can help their loved one and know when and where they are being discharged.  The enactment of this regulation puts even more control in the patients hands and gives them a stronger voice on who is involved with their care.

CAPTIONING HARVARD’S ONLINE CONTENT?

The National Association of the Deaf, Disability Rights Education and Defense Fund, Disability Law Center, Civil Rights Education and Enforcement Center, and the law firm of Cohen Milstein Sellers & Toll provide the following Notice.  A version of this notice that includes video in American Sign Language is available at www.harvardcaptioningsettlement.com.  We respectfully request that you post or link to this notice on your website. 

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT

ATTENTION: ALL PEOPLE WHO ARE DEAF OR HARD OF HEARING WHO WANT CAPTIONING OF HARVARD’S ONLINE CONTENT

 

If you are deaf or hard of hearing and have tried to access or would like to access Harvard’s online video content with captions or to access Harvard’s online audio content with a transcript, you may be a member of the proposed Settlement Class affected by this lawsuit. The Settlement Class in this case does not include students of Harvard University.  This is a court-authorized notice.

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY
BE AFFECTED BY LEGAL PROCEEDINGS IN THIS CASE.

NOTICE OF CLASS ACTION

The purpose of this notice is to inform you of a proposed settlement in a pending class action lawsuit brought by the National Association of the Deaf (“NAD”) and three Deaf plaintiffs on behalf of deaf and hard of hearing individuals against President and Fellows of Harvard College (“Harvard”).  The case is titled National Association of the Deaf v. Harvard University and the President and Fellows of Harvard College, No. 3:15-cv-30023-KAR, and is pending in the United States District Court for the District of Massachusetts.  The proposed class action settlement (“Settlement”) is set forth in a proposed Consent Decree, which must be approved by the United States District Court. 

BACKGROUND

This lawsuit alleges that Harvard violated the Americans with Disabilities Act and the Rehabilitation Act by failing to provide captioning for its publicly available online content. Plaintiffs and other deaf and hard of hearing individuals alleged that they attempted to access Harvard’s publicly available online content but were unable to do so because it did not have captions or had inaccurate captions.  

 

This is a class action. In a class action, one or more people or organizations, called Class Representatives (in this case the National Association of the Deaf, C. Wayne Dore, Christy Smith, and Lee Nettles (“Plaintiffs”)), sue on behalf of people who have similar legal claims. All of these people are a Class or Class Members. One court resolves the issues for all Class Members. United States Magistrate Judge Katherine A. Robertson is in charge of this class action.

 

The Court did not decide in favor of either Plaintiffs or Harvard in this case. Instead, both sides agreed to a settlement. That way, they avoid the cost, delay, and uncertainty of a trial. The settlement provides benefits that go to the Class Members. The Class Representatives and Class Counsel (the attorneys appointed by the Court to represent the Class) think the proposed settlement is in the best interests of the Class Members, taking into account the benefits of the settlement, the risks of continued litigation, and the delay in obtaining relief for the Class if the litigation continues.

 

THE SETTLEMENT CLASS

 

The Settlement Class includes all persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or

obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard.

SUMMARY OF THE PROPOSED SETTLEMENT

The following is a summary of certain provisions of the Settlement.  The complete Settlement, set forth in the proposed Consent Decree, is available as set forth below.

 

The Settlement requires Harvard to caption its online content as follows:

 

• Content created and produced at Harvard on or after December 1, 2019 and posted on a University Website will be captioned when posted.
• Content created and produced at Harvard prior to December 1, 2019 and posted on a University Website will be captioned upon request within five business days. 

 

Content on a “University Website” means any content on a public-facing website or web‐based application within a Harvard-controlled domain used to conduct University Business by Harvard faculty and staff. The term “University Website” includes websites operated by all of Harvard’s Schools and Academic Departments, News Organizations, Administrative Offices, Museums and Libraries, Academic Centers, Initiatives, and Programs. “University Business” includes activities carried out under the auspices of Harvard University but does not include activities organized or conducted by students or student organizations.

 

The following content will also be captioned when posted (after December 1, 2019) or upon request (if posted before that time):

 

• Content created and produced at Harvard by a Department Sponsored Student Organization, as defined in the Harvard College Handbook for Students, and posted on any public-facing website within a Harvard-controlled domain.
• Content posted as part of a Massive Open Online Course.
• Content created and produced at Harvard and on the official YouTube channel and, if any, the official Vimeo or SoundCloud channel for certain Harvard schools, museums,  libraries, and other units.

Harvard will also provide live captioning for University-wide events. 

The settlement also requires Harvard to report to NAD on its compliance with these terms and establishes a process by which members of the public can request that content be captioned.   

RELEASE OF CLAIMS

The Settlement resolves and releases all claims for injunctive, declaratory, or other non-monetary relief and attorneys’ fees and costs that were brought or could have been brought against Harvard relating to the lack of captioning or accurate captioning of free online audio or video content for the general public that is produced, created, hosted, linked to, or embedded by Harvard. 

REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES

The settlement class is represented by the Civil Rights Education and Enforcement Center, the Disability Law Center, the Disability Rights Education and Defense Fund, the National Association of the Deaf, and the law firm of Cohen Milstein Sellers & Toll PLLC (“Class Counsel”). Harvard has agreed not to oppose Class Counsel’s request for an award of their reasonable attorneys’ fees, expenses, and costs in the amount of $1,575,000.  This amount is subject to the approval by the Court. 

FAIRNESS OF SETTLEMENT

The Class Representatives and Class Counsel have concluded that the terms and conditions of the proposed Settlement are fair, reasonable, adequate, and in the best interests of the Settlement Class. In reaching this conclusion, the Class Representatives and Class Counsel have considered the benefits of the settlement, the possible outcomes of continued litigation of these issues, the expense and length of continued litigation, and actual and possible appeals.

THE COURT’S FINAL APPROVAL/FAIRNESS HEARING

The Court has preliminarily approved the Settlement, and has scheduled a hearing for February 25, 2020 at 11:00 a.m. in the Hampshire Courtroom, 300 State Street, Springfield, Massachusetts 01105 to decide whether the proposed Settlement is fair, reasonable, and adequate, and should be finally approved. Although you are not required to attend, as a Settlement Class Member, you have the right to attend and be heard at this hearing, as specified in the next section below. At the hearing, the Court will consider any objections to the Settlement.  Judge Robertson will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Settlement. The Court will also consider the agreed upon amount to award Class Counsel as reasonable attorneys’ fees, costs and litigation expenses. We do not know how long this decision will take.

 

If the Court approves the Settlement, all Class members will be bound by the provisions of the Settlement with respect to claims against Harvard for injunctive relief and attorneys’ fees and relating to captioning of online content.

OBJECTIONS TO THE SETTLEMENT

If you wish to object to the Settlement or to speak at the hearing, you must send any objection and/or notice of your intent to appear at the hearing to the Court in writing on or before February 10, 2020, and include the case number (Civil Action No. 3:15-cv-30023), to the following address:  Clerk of the Court, US Courthouse, 300 State Street, Springfield, Massachusetts 01105. 

 

You may also object by filling out this form:  https://public.mad.uscourts.gov/FairnessHearing.html

 

Please note that the Court can only approve or deny the Settlement.  The Court cannot change the Settlement’s terms.

 

All objections must be submitted or postmarked on or before February 10, 2020.

 

Any Class Member who does not object at or before the Final Approval Hearing will be deemed to have approved the Settlement and to have waived such objections and shall not be able to make any objections (by appeal or otherwise) to the Settlement.

IF YOU DO NOT OPPOSE THIS SETTLEMENT, YOU NEED NOT
APPEAR OR FILE ANYTHING IN WRITING.

FURTHER INFORMATION

The terms of the Settlement are only summarized in this notice. For the precise and full terms and conditions of the Settlement, please see the proposed Consent Decree available at www.harvardcaptioningsettlement.com/consentdecree, by accessing the Court docket on this case through the Court’s Public Access to Electronic Records (PACER) system at https://www.pacer.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the District of Massachusetts, 300 State Street, Springfield, Massachusetts 01105, between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.

 

You can also obtain more detailed information about the Settlement or a copy of the Settlement Agreement by calling 240-468-7109 (videophone) or 800-308-1878 (voice), by emailing harvardsettlement@creeclaw.org, or by contacting Class Counsel by mail at any of the following addresses:

 

Thomas P. Murphy Disability Law Center, Inc. 32 Industrial Drive East Northampton, MA 01060	Amy F. Robertson Civil Rights Education and Enforcement Center 1245 E. Colfax Ave., Suite 400 Denver, CO  80218
Joseph M. Sellers Shaylyn Cochran Cohen Milstein Sellers & Toll PLLC 1100 New York Ave NW, Fifth Floor Washington DC 20005	Arlene Mayerson Namita Gupta Disability Rights Education And Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703
Howard Rosenblum The National Association of The Deaf Law and Advocacy Center 8630 Fenton Street, Suite 820 Silver Spring, MD 20910

 

Please do not direct questions to the District Court.  To obtain copies of this Notice or the Consent Decree in alternative accessible formats, please contact Class Counsel listed above.

The MATA 30-Minute Window

MATA needs to update the Rider’s Guide to better inform riders with disabilities

By Stephen Tennial, MCIL
In today’s society, nearly everyone requires some form of reliable transportation. Transit can range from walking, driving, or bus riding, to even using peer-to-peer ride sharing services, such as Uber and Lyft. In-fact there seems to be an assortment of effective and efficient transportation services available to nearly every individual who resides within large metropolitan cities; with the exception of persons such as myself who assert a disability. For us, there is only the city’s paratransit service.

According to adata.org, “ADA paratransit is a transportation service that complements public transit bus and rail systems by providing origin-to-destination service for individuals with disabilities who cannot use the fixed route service.” Simply stated, paratransit transportation seeks to accommodate individuals who cannot adequately access their city’s fixed-route bus or rail systems. 

Additionally, there is a dissimilarity with the MATAplus Riders Guide and the ADA rule regarding the 30-minute pick-up window. MATA’s 30-minute pick-up window unfortunately has two divergent points of views. The first point of view is printed in the Rider’s Guide: “MATAplus is committed to arriving within the thirty (30) minute pick-up window. (NOTE: Thirty (30) Minutes before or after the scheduled pick-up time).”

Although, this is MATA’s policy in writing, please keep in mind that this statement is contrary to the Federal Transit Administration guidance on the ADA.

The second view point comes from a MATAplus employee, “In order for MATA to be considered an hour late two things have to occur: The first being that the rider has to take into account the 30-minute window, and give the driver the initial 30 minutes. Then the rider has to give the driver an hour past the initial 30 minute window for them to be considered an hour late.”

There is a third and correct point of view, which is reserved by the ADA and not observed by MATA. According to DREDF.org, https://dredf.org/ADAtg/OTP.pdf:

It is current practice in the paratransit industry to view an on time pickup as a vehicle arrival within an on time window established by the transit agency (alternatively termed the pickup window or the “be ready time”). This is the next important “window” in ADA paratransit. The pickup window serves to distinguish between an on time pickup and a late or early one; it also defines the period during which the rider is expected to be ready and waiting for the vehicle to arrive. Large transit agencies frequently use 20 to 30 minutes as their on-time pick-up window.

For example Pace ADA parasite service in Chicago has established a 20 minute on-time pick-up window from the scheduled pick-up time to 20 minutes after the scheduled pick-up time (0/+20). The Maryland Transit Administration in Baltimore regards a vehicle as on time if it arrives 30 minutes after the scheduled pick-up (0/30). Another variation on the 30 minute pick-up window is Miami Dade Transit, where the vehicle can arrive 10 minutes before or 20 minutes after the scheduled pick-up window (-10/+20). The pick-up window should not be longer than 30 minutes. A pick-up window of 30 minutes or less is standard in the industry. FTA has accepted pick-up windows up to that length, and found that 60 minutes to be too long (-30/+30). The pick-up must occur during the window, not earlier or later to be considered on time.

More specifically, MATA’s 30-minute, before-and-after, pick-up window is non-compliant because the 30-minute window according to the ADA is just that; a 30-minute window.

MATA is not supposed to get 30 minutes before-and-after a scheduled pick-up time. MATA is only allowed 30 minutes. The time can bet split 20 minutes before the actual pick-up time, and ten minutes after the pick-up time. MATA may choose to divide the 30 minutes however it sees fit as in the aforementioned example.

Moreover, I as a rider, would like to see all MATAplus employees properly trained on the ADA 30-minute window pick-up rule, and the MATAplus rider’s guide updated to reflect the ADA guidelines.

All in all, I am a proud user of MATAplus services, and also the interim chair of the Specialized Transportation Advisory Committee (STAC). I assure you that it is not my intention to shine an unfavorable light on MATA. However, it is my endeavor to highlight areas of concern so that MATA and STAC can foster a more robust partnership to make a good service even better.

For information on how to become a member of the STAC, or attend the meetings please contact Allison Donald 901-726-6404.

Student Loan forgiveness for people with disabilities

How to determine if you may get help with your loan

By Allison Donald
Many people with disabilities may be able to have student loans discharged.  However, most eligible borrowers with disabilities don’t know that they can qualify for this benefit.  If you receive a discharge, you will no longer be required to repay your loans or complete your TEACH Grant service obligation.

According to the Department of Education about 365,000 borrowers qualify to have their student loans discharged, of those, nearly a quarter of a million are in default.  In order to address this problem the Department of Education began sending out letters to eligible borrowers informing them that they could apply to have their student loan debt discharged. 

Since the inception of the program only one-third of eligible borrowers have applied.  More people who have total and permanent disability should be able to take advantage of this benefit, but it is important that the persons are aware of how to apply and complete the process for the loan dismissal program.

If you would like to apply for there are steps to follow to insure that you qualify for the program. Make sure that the Department of Education has your correct address on file.  After borrowers are approved you must provide three years of income verification. 

The program is called “Total and Permanent Disability (TPD) Discharge.”

• There are specific requirements for each type of supporting documentation that you can submit to show your eligibility. Veterans may qualify for a TPD discharge by providing documentation from the VA that shows you have received a VA disability determination because you (1) have a service-connected disability that is 100 percent disabling; or (2) are totally disabled based on an individual employability rating.
  
  
• If you’re eligible for Social Security Disability Insurance or Supplemental Security Income, you can qualify for a TPD discharge if you provide a copy of your SSA notice of award or Benefits Planning Query showing that your next scheduled disability review will be five to seven years or more from the date of your last SSA disability determination.
   
• If you are unable to complete the forms due to your disability you may appoint a representative to apply on your behalf.  The representative may assist throughout the TPD discharge process. To designate a representative, you and your representative must complete an Applicant Representative Designation form. The Department must receive and process this form before working with your representative. You must submit this form even if your representative already has a power of attorney to act on your behalf in other matters.  To download the Applicant Representative Designation form, visit the TPD Discharge website at disabilitydischarge.com and select “Forms.”

Student loan debt stops so many people from continuing their education, but the TPD program allows that window to remain open for students like Stephen Tennial.  

“This program will afford me the opportunity to not incur even more debt while I pursue a Master’s in Business Administration,” said Mr. Tennial.  “Additionally, I feel that a program such as this will not only encourage, but enable people living with disabilities to pursue higher education which leads them to more fruitful endeavors.”

There are conditions that must be met in order for a person to return to school without disturbing the status of their TPD process.  If you received a TPD discharge based on VA documentation, SSA documentation, or a physician’s certification, you must:

• Give your school a letter from a physician stating that you are once again able to engage in substantial gainful activity, and
  
  
• sign a statement acknowledging that you can't get a TPD discharge of the new loan or TEACH Grant based on a disabling condition that already exists when you receive the new loan or TEACH Grant, unless that condition substantially deteriorates in the future.

If you received a TPD discharge based on SSA documentation or a physician’s certification and your three-year post discharge period hasn’t ended, you must also resume repayment on your previously discharged loans or acknowledge that you are once again responsible for meeting the terms and conditions of your TEACH Grant service obligation.

The TPD program is a way out of debt for many people living with disabilities who are pursing higher education. For more detailed information about TPD discharge, visit the TPD discharge website at: disabilitydischarge.com.