ADA Enforcement

 Amicus Brief Filed in U.S. Supreme Court Case Emphasizes Importance of Testers to ADA Enforcement

If testers are stripped of standing, the result will be less private enforcement of the ADA, a less accessible society, and the continued exclusion of people with disabilities from community life.

FOR IMMEDIATE RELEASE
August 10, 2023

Media Contacts:
Jackie Dilworth, The Arc of the United States, dilworth@thearc.org
Tina Pinedo, Disability Rights Education and Defense Fund, tpinedo@dredf.org
David Card, National Disability Rights Network, press@ndrn.org

WASHINGTON, DC – Eighteen leading disability advocacy organizations have filed a “friend-of-the-court” brief in the U.S. Supreme Court in Acheson Hotels v. Laufer, a case that will decide whether testers – disabled people who investigate compliance with the Americans with Disabilities Act (ADA) – have the ability to sue businesses for discrimination when their rights under that law are violated. The case is scheduled to be heard on October 4, 2023.

Civil rights testing – intentionally investigating and challenging discrimination – has been used as an effective tool of enforcement since the 1950s, helping ensure that public accommodations were integrated and housing discrimination, challenged. Congress included the same enforcement tools when it passed the ADA in 1990 that it had included in these earlier civil rights laws, and testing has proven to be an essential enforcement tool in this context as well.

Deborah Laufer is one such tester. She is a person with disabilities who has filed numerous cases against hotels for violating an ADA regulation that requires hotels to include certain information about accessibility features in their online reservation systems. Ms. Laufer is a “tester” in her cases because she voluntarily puts herself in a situation to experience discrimination – specifically, she visits hotel websites to investigate compliance with the reservation rule – and when denied the information to which the ADA regulations entitle her, she challenges that discrimination in court and seeks to make the hotels comply with the law.

Despite acknowledging that they were, in fact, violating the ADA, hotelier Acheson doesn’t think that tester standing is fair, and argues that people like Ms. Laufer should have an immediate plan to stay at a hotel before they can challenge the hotel’s discrimination. Acheson asks the Supreme Court to reverse a First Circuit opinion upholding discrimination claims brought against them by Ms. Laufer as a tester.

The brief of amici opposes Acheson’s request and defends testing as essential to the enforcement of the ADA, arguing that eliminating tester standing would frustrate the ADA’s goal of equality of opportunity. Amici discuss how the indignity of unequal treatment has long been recognized as the sort of harm that can be remedied in court and explains how an individual’s motive, or status as a tester, does not change that. Amici also dispel a number of false claims made by Acheson and its supporters about ADA litigation.

“If individuals with the fortitude to take on the burden of ADA litigation as testers are stripped of standing, the result will inevitably be less enforcement of the ADA, frustration of its goals, and the continued exclusion of people with disabilities from community life,” said Michelle Uzeta, Deputy Legal Director of amicus Disability Rights Education and Defense Fund.

“Given that the ADA was signed into law more than 30 years ago and thousands of businesses remain inaccessible to people with disabilities, it is critically important the Supreme Court affirms the ability of testers to investigate compliance,” said Executive Director of the National Disability Rights Network Marlene Sallo. “Testers ensure that travelers with disabilities do not discover their hotel is inaccessible when they show up at the door.”

“By the time a disabled person attempts to patronize a noncompliant public accommodation, it’s too late for a lawsuit to be much use,” added Amy Robertson of Fox and Robertson, PC, counsel for Amici. “Systemic investigation by those protected by the ADA can accelerate society’s progress toward a time when they and others can go about their daily lives expecting – and attaining – access to a wide range of facilities and services.”

Shira Wakschlag, Senior Director of Legal Advocacy & General Counsel at The Arc of the United States: “People with disabilities face rampant inaccessibility and discrimination that impacts every aspect of their lives – from travel to employment to health care and everything in between. Despite the ADA’s promise to create equal access, insufficient oversight and enforcement means that businesses frequently ignore the civil rights of disabled people, making their daily lives extremely difficult and undermining the rights guaranteed by the law. ADA testers are essential to ensuring the rights of people with disabilities are enforced and protected and that the full promise of the ADA is realized.”

Amici are represented by attorneys Karla Gilbride, Amy Robertson of Fox & Robertson, PC, Justin Ormand of Allen and Overy LLP, Thomas Zito of Disability Rights Advocates, and Michelle Uzeta of Disability Rights Education and Defense Fund.

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About The Arc: The Arc advocates for and serves people with intellectual and developmental disabilities (IDD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy, and other diagnoses. The Arc has a network of 600+ chapters across the country promoting and protecting the human rights of people with IDD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis. Editor’s Note: The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

About Disability Rights Education & Defense Fund: The Disability Rights Education & Defense Fund (DREDF) is a national, nonprofit law and policy center led by people with disabilities and dedicated to advancing and protecting the civil and human rights of disabled people. Founded in 1979 by people with disabilities and parents of children with disabilities, DREDF remains board- and staff-led by members of the communities for whom it advocates.

About National Disability Rights Network: The National Disability Rights Network works in Washington, DC on behalf of the Protection and Advocacy Systems (P&As) and Client Assistance Programs (CAPs), the nation’s largest providers of legal advocacy services for people with disabilities.

MATAplus Recertification

What the MATAplus Assessment Center Experience is Like

Allison Donald 

It had been two years since I rode MATAplus and three years since I had been recertified for the paratransit service. It's that time again! As you can probably guess I am overjoyed by the thought.  

I called the number located in the highlighted box of the upper right corner of the application after it was complete.  The administrative assistant worked with me and scheduled an in person appointment for August 8th.  I also inquired about the in-home assessment.  She informed me that if I chose the in-home assessment then my appointment would be pushed back until September. 

I was not expecting to hear that, so I took the appointment.  I must admit I didn't have any expectations. All I knew was that the assessment process had changed and now those individuals who applied for MATAplus must pass a two part assessment in order to become eligible to ride MATAplus. 

I was late, because I had entered the wrong address and ended up at the Domino's pizza across the street. I was a little disappointed that I had to pay for my ride there.  I remember when the assessment center first opened they were giving applicants free rides to and from their assessment appointments.  

Here are a few tips for your next assessment:

• Be On Time if you are running late the assistant will give you a call as a reminder of your appointment.  If you are more than 15 minutes late you are at risk of having your appointment canceled.

• Make sure that the application is Complete. The receptionist will assist with filling in minor details.  However, it makes the process more efficient if you come in with the application done as stated on the forms.

• Be honest during the physical assessment, don't try to sugarcoat your abilities when you are faced with climbing and walking down the stairs.  This is an essential function of being able to ride MATApus safely and independently.  Also during the interview please do not be afraid to disclose whether or not you will need a personal care attendant to accompany you on trips.

I was taken back into the office for the second and final part of the assessment.  I was asked to update my address and I also informed them that I also used a power chair.  My identification card was made on the spot. I was asked if I wanted to take a new photo or keep the one that was already on file.  The MATAplus assessment coordinator also told me what the fare was as well.  

Overall, it was a pleasant experience and yes it could be more comprehensive, but in my opinion it is much better than just answering questions over the phone about my disability. The MATAplus assessment center in person appointments  are  only done on Tuesdays and Thursdays.  If you have any questions about the process please contact the MATAplus assessment center at 901-722-7100 and follow the directions.

Medicaid Renewal

ACL needs your help to make sure people don’t lose their Medicaid benefits!  

At the beginning of the COVID-19 pandemic, significant, but temporary, changes were made to Medicaid enrollment and eligibility rules to prevent people from losing Medicaid coverage during the pandemic. With the end of the federal Public Health Emergency on May 11, 2023, all states are resuming their regular processes for renewing individuals’ Medicaid coverage. We need to get the word out to people enrolled in Medicaid. They need to know that they may have to take action to remain covered and that there are steps they can take if they lose Medicaid.

Based on data from 41 states and the District of Columbia, KFF reports that almost 3.8 million people have been disenrolled from Medicaid as of August 1, 2023. Many of these people may still be eligible for Medicaid, but lost coverage because they didn’t return forms, or they or the state made other mistakes. 

It is crucial to make sure everyone covered by Medicaid knows:

·        Over the next 12 months, everyone with health care coverage through Medicaid or the Children’s Health Insurance Program (CHIP) will need to renew their coverage. 

·        What they need to do to avoid losing coverage if they are still eligible.

·        Other options for coverage if they are no longer eligible for Medicaid or CHIP (such as the Affordable Care Act (ACA) Marketplace or employer-sponsored coverage), and how to find help navigating them.

·        Programs that can help if they want to appeal the loss of Medicaid coverage.

We need your help to spread the word. No one else can match the ability of the aging and disability networks to reach disabled people and older adults!

Every Medicaid beneficiary needs to receive these important messages:

·        UPDATE your contact information with your state Medicaid agency NOW.

·        RESPOND to the Medicaid renewal form when it comes in the mail. If you don't, you may lose your coverage even if you are still eligible.

·        PARENTS should respond even if you are not eligible or are enrolled in other coverage. Your children could still be eligible for coverage.

·        CONNECT WITH RESOURCES THAT CAN HELP: If you lose Medicaid coverage and think you may still be eligible, there are programs that may be able to help you appeal the denial of Medicaid coverage or find other insurance. 

·        State protection and advocacy systems and legal advocacy organizations funded under the Older Americans Act may be able to help with appeals. 

·        Disabled people of all ages can contact the Disability Information and Access Line (DIAL) for assistance.

·        Older adults can contact the Eldercare Locator to find local assistance. 

·        Older adults and people with disabilities who are eligible for Medicare can also find assistance through their State Health Insurance Assistance Program (SHIP). SHIP is a national program that offers one-on-one assistance, counseling, and education to Medicare beneficiaries of all ages, their families, and caregivers to help them make informed decisions about their care and benefits. 

·        Benefit Enrollment Centers can also help connect people with insurance or other benefits.

·        CHECK OTHER OPTIONS: If you are no longer eligible for Medicaid, you should check to see if you can get coverage through your employer or through the Affordable Care Act Marketplace at www.healthcare.gov. 

Please look for ways to share these messages widely. Include them in your newsletters and add them to flyers packaged with resources you may be sending out. Distribute information at training events. Work them into your information and referral activities, share on social media, post on bulletin boards – you get the idea. Be sure to include the name of your state’s Medicaid program and ACA Marketplace – many people don’t realize they have Medicaid coverage if it goes by another name in their state, and they may not realize that they need to look for renewal information. (You can find links to your state Medicaid agency online.)

ACL’s networks are a part of the communities you serve and your community connections can make a huge difference in this effort. Please work with your community networks and other groups who can help -- not only with getting the word out about redeterminations but also with finding creative ways to protect Medicaid eligibility and assisting people who may no longer be eligible for Medicaid in getting other health coverage. You also can make a big difference by working with your state to get state-specific information out. 

The Centers for Medicare & Medicaid Services (CMS) has developed a variety of materials that you can use to ensure your communities and networks have this important information. For example, their Communications Toolkit — available in English, Spanish, Chinese, Hindi, Korean, Tagalog, and Vietnamese — contains important messages and sample materials (like drop-in articles, social media messages, and flyers) for states and other partners to use. CMS has also created fact sheets, including one with suggestions for things you can do to help keep people covered.

We encourage you to work with your state Medicaid agency to ensure that the process of renewing Medicaid eligibility goes smoothly for older people and people with disabilities. Provide them information on how you and other network entities can help. Share success stories and problems that Medicaid beneficiaries and the organizations that work with them encounter. You can play an important role to help the renewal process move smoothly.

Additionally, CMS will be hosting a series of Medicaid and Children’s Health Insurance Program (CHIP) Renewals webinars focused on special populations, including one focused on reaching aging and disability populations on Thursday, August 17 from 3-4pm ET. This webinar series will provide partners with strategies to reach out to diverse communities and audiences to share information about Medicaid and CHIP renewals. Each webinar will also include a “train-the-trainer” presentation, during which CMS will walk-through a set of downloadable slides that partners can use to educate others in their communities about Medicaid and CHIP renewals. Registration is required.

For additional information and the latest resources, visit the "unwinding" page on ACL.gov.

Making sure people stay covered will take an “all hands on deck” effort, but together, we can make sure every American has access to quality, affordable health coverage.  

Thank you for your partnership.

Erica McFadden, MSW, PhD (she/her/hers)

Director, Office of Independent Living Programs