Americans with Disabilities Act (ADA) accessibility guidelines for buildings and facilities; play areas. Architectural and Transportation Barriers Compliance Board. Final rule

The Architectural and Transportation Barriers Compliance Board (Access Board) is issuing final accessibility guidelines to serve as the basis for standards to be adopted by the Department of Justice for new construction and alterations of play areas covered by the Americans with Disabilities Act (ADA). The guidelines include scoping and technical provisions for ground level and elevated play components, accessible routes, ramps and transfer systems, ground surfaces, and soft contained play structures. The guidelines will ensure that newly constructed and altered play areas meet the requirements of the ADA and are readily accessible to and usable by individuals with disabilities. The Department of Justice must adopt the guidelines as standards for them to be enforceable under the ADA.     

Anatomy of an ADA case. Chatoff v. City of New York

This article addresses plaintiff and defense strategies in the context of an ADA case and is intended to serve as a ready reference to employer's counsel when faced with ADA litigation. In an ADA case, it is essential that counsel humanize the employer by keeping the "Our Business Supports Diversity" theme before the trier of facts at all times. This theme should be accompanied by the proposition that plaintiff's demands are not reasonable because they impose an undue burden on the employer or a risk to the safety of the employee or others in the workplace. It is also crucial for defense counsel to become familiar with the plaintiff's attorney's strategic considerations. ADA litigation strategy is illustrated by reference to Chatoff v. City of New York, a landmark ADA case instituted on behalf of the approximately 200,000 hearing-impaired residents of the City of New York, demanding equal and direct access to Emergency 911 services.     

Making non-discriminatory fitness-for-duty decisions about persons with disabilities under the Rehabilitation Act and the Americans with Disabilities Act

This article describes an assessment role performed by clinical psychologists in the employment context, and examines how it has been evaluated by the courts from the standpoint of discrimination against persons with disabilities. Guidelines are offered for making fitness-for-duty decisions which are legally defensible, and examples of the decision-making process are provided. Data-based limitations on professional expertise are articulated, and conclusions drawn are aimed at practicing psychologists and the courts dealing with these uncertainties. Issues are analyzed principally in courts dealing with these uncertainties. Issues are analyzed principally in relation to Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), which has been passed by both houses of Congress.     

The Effects of Attribution of Responsibility and Work History on Perceptions of Reasonable Accommodations

Under the Americans with Disabilities Act (ADA), employers must provide employees with disabilities reasonable accommodations that will enable them to perform job duties, as long as the accommodations do not financially burden the organization. Two studies were conducted to investigate whether disability origin and/or prior work history impermissibly influence the granting of reasonable accommodations under the ADA. In both studies, participants granted more accommodations for employees whose disability was caused by some external factor than for those whose disability was caused by the employee's own behavior. In Study Two, participants also granted more and costlier accommodations for an employee with an excellent work history than for an employee with an average work history. Implications of the use of extralegal factors in accommodation decisions are discussed.     

Serving two masters: the interaction between Family and Medical Leave Acts and the ADA

The complex interaction between family leave acts and the new Americans with Disabilities Act (ADA) is just coming to light as employers begin to analyze how to comply with both laws. Specifically, the ADA implicates the procedures set forth in most family leave acts for verifying an employee's need for a leave through mandatory medical examinations and doctor's certificates. Many employees who are entitled to a leave of absence under state law are defined as "disabled" under the ADA. The ADA protects these employees with disabilities by regulating medical examinations and inquiries, and protecting the confidentiality of information obtained in such inquiries. This article offers some practical guidance for employers in providing leaves of absence under state family leave acts, while verifying the need for leaves in compliance with the ADA.     

Why courts cannot deny ADA protection to plaintiffs who do not use available mitigating measures for their impairments

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.     

Peer influences on the dating aggression process among Brazilian street youth: a brief report

This study explored risk factors for adolescent dating aggression (ADA) among Brazilian street youth. Forty-three adolescents, between the ages of 13 and 17 years, were recruited at services centers in Porto Alegre, Brazil. Simultaneous multiple regression revealed that ADA was significantly predicted by adolescent dating victimization (ADV), and that this relationship was moderated by peer involvement in dating aggression. Results also revealed that peer involvement in dating aggression did not significantly predict ADA. These findings suggested that having peers who are involved in dating aggression exacerbates the effects of dating victimization on ADA among Brazilian street youth. However, ADV might be a stronger risk factor for dating aggression in this population, because when controlling for the effects of victimization in dating conflicts peer abuse toward romantic partners did not uniquely contribute to ADA.     

The impact of Federal Alcohol and Drug Abuse block grants on state and local government substance abuse program expenditures: the role of federal oversight

Are the federal Alcohol and Drug Abuse (ADA) block grant funds substituting for or supplementing state and local government spending on substance abuse? Using panel data on state and local government substance abuse programs, this study explores the fiscal effects of the ADA block grant money and the increased enforcement (after 1989) of federal restrictions on state spending of ADA block grants. The findings here reveal that for the current period, the federal ADA grant has no statistically significant effect on state and local government substance abuse spending both before and after 1989, and the increased enforcement of federal restrictions on the ADA grants after 1989 does not change this result. An additional finding is that lagged ADA grants have had a large effect on substance abuse spending both before and after 1989--a feature of the program not considered in previous studies.     

A guide to the EEOC's final regulations on the Americans with Disabilities Act

The Equal Employment Opportunity Commission (EEOC) recently issued its final regulations on the Americans with Disabilities Act (ADA). Although the regulations offer some guidance for employers on how to comply with the Act, they fail to provide specific answers to the many complicated compliance questions that will surely arise. Further, the regulations are almost totally silent on certain critical issues related to insurance, workers' compensation, and potential conflicts between ADA obligations and terms of collective bargaining agreements. The EEOC has essentially left the resolution of many important ADA questions to case-by-case determination and the litigation process.     

日本舆论监督的法律边界

舆论监督是世界各国宪法普遍保障的一项基本权利。日本法院在舆论监督的两大法律限制——事前限制与国家秘密,从原则上确认了表达自由和新闻监督的重要意义。但是在“《北方杂志》事件”和“家永教科书”等具体判例中,仍然采取相当谨慎的立场,政府在限制新闻出版过程中可以依据相当宽泛的公共利益行使自由裁量。     

Equal employment opportunity for individuals with disabilities--EEOC. Final rule

On July 26, 1990, the Americans With Disabilities Act (ADA) was signed into law. Section 106 of the ADA requires that the Equal Employment Opportunity Commission (EEOC) issue substantive regulations implementing title I (Employment) within one year of the date of enactment of the Act. Pursuant to this mandate, the Commission is publishing a new part 1630 to its regulations to implement title I and sections 3(2), 3(3), 501, 503, 506(e), 508, 510, and 511 of the ADA as those sections pertain to employment. New part 1630 prohibits discrimination against qualified individuals with disabilities in all aspects of employment.     

Medicare program; Medicare integrity program, intermediary and carrier functions, and conflict of interest requirements--HCFA. Proposed rule

This proposed rule would implement section 1893 of the Social Security Act (the Act) by establishing the Medicare integrity program (MIP) to carry out Medicare program integrity activities that are funded from the Medicare Trust Funds. Section 1893 expands our contracting authority to allow us to contract with "eligible entities" to perform Medicare program integrity activities. These activities include review of provider and supplier activities, including medical, fraud, and utilization review: cost report audits; Medicare secondary payer determinations; education of providers, suppliers, beneficiaries, and other persons regarding payment integrity and benefit quality assurance issues; and developing and updating a list of durable medical equipment items that are subject to prior authorization. This proposed rule would set forth the definition of eligible entities, services to be procured, competitive requirements based on Federal acquisition regulations and exceptions (guidelines for automatic renewal), procedures for identification, evaluation, and resolution of conflicts of interest, and limitations on contractor liability. In addition, this proposed rule would bring certain sections of the Medicare regulations concerning fiscal intermediaries and carriers into conformity with the Act. The rule would distinguish between those functions that the statute requires be included in agreements with intermediaries and those that may be included in the agreements. It would also provide that some or all of the listed functions may be included in carrier contracts. Currently all these functions are mandatory for carrier contracts. These changes would give us the flexibility to transfer functions from one intermediary or carrier to another or to otherwise limit the functions an intermediary or carrier performs if we determine that to do so would result in more effective and efficient program administration.     

行业协会自利性及其法律规制

行业协会不仅具有共利性和公利性,同时也客观存在自利性,即为其自身谋求利益的功能属性.自利性是任何一个独立主体与生俱来、无法摆脱的属性.尽管行业协会的自利性存在种种局限性,但在一定制度安排下,行业协会的自利行为亦有利于企业共同利益.对于行业协会的自利行为不应一味地加以否定,而是要从制度层面对其加以规范和约束,将其控制在良性发展的轨道之中.     

Special report on taxation. Prepare for impending legislation that could threaten your tax-exempt status!

With impending federal action, and the likelihood of "copycat" legislation at the state and local levels if a federal statue is adopted, nonprofit hospitals need to ensure that they will be in compliance if a mandatory charity care bill were to become law. Such facilities should take the initiative now, by clearly articulating their charity care policies and by describing their other undercompensated or uncompensated activities that are maintained in order to benefit their communities. They should also ensure that all of their activities that could be counted as charity care or community benefit are fully documented and quantified. Financial consultants and counsel may be helpful in this process. Exempt facilities also should, of course, closely monitor the progress of the bills discussed above. Most importantly, they should continue to test their charity care and community benefit statistics on a regular basis to determine if their facilities meet the thresholds specified in the bills as they proceed through Congress.     

Asymptomatic HIV as a disability under the Americans with Disability Act

The Americans with Disability Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected under the ADA, but that the analytic framework thus far employed by the courts is flawed. Asymptomatic HIV is a protected disability not because it is independently debilitating, but because the prejudices and fears of other may prevent HIV-infected persons from fully participating in society. The ADA was enacted to prevent exactly this type of discrimination.     

On the inefficacy of limiting instructions

The rationale for allowing into evidence a defendant's criminal record asserts that such evidence can be used for the limited purpose of impeaching a dèfendant witness's credibility and, in accord with judges' instructions, will not be used to assess likelihood of guilt. The effect that the defendant's prior record has on mock jurors' assessments of credibility and guilt was tested in a two (cases) x four (type of prior conviction) factorial design. Adults' ratings of the defendant's credibility did not vary as a function of prior record and were consistently the lowest of the credibility ratings of all witnesses. Conviction rates did vary by prior record, however, with the highest conviction rate occurring when the prior conviction was the same as the present charge and the lowest conviction rate occurring in the no-prior-conviction condition. Defendants with a previous conviction for perjury or a dissimilar crime were convicted at an intermediate rate. We concluded that the risk of prejudice to the defense under existing policy is greater than the unrealized potential benefit to the prosecution.Portions of this research were presented at the 90th Annual Convention of the American Psychological Association in Washington, D.C., August 23–27. 1982. The authors wish to thank Norman Berkowitz, Edward Krupat, and Marianne LaFrance for their comments on an earlier draft of this paper, and Hon. Robert J. Hallisey for providing us with sample instructions and for his counsel. Of course,the authors accept the responsibility for what they did, found, and concluded.     

The Americans with Disabilities Act as risk regulation.

Much disability based discrimination occurs because of fears that hiring or serving people with disabilities will pose a safety risk. Disability rights laws such as the ADA strictly regulate such risk-motivated discrimination. Many disability rights advocates and academic defenders of the ADA laud such laws as applying a "scientific" approach to risk rather than the "irrational" approach generally adopted by the public at large. That position is doubly strange: It stands in remarkable tension with disability rights advocates' general suspicion of "experts," and applies a technocratic approach to risk regulation-an approach that usually has politically conservative implications-to achieve the distinctly nonconservative goal of promoting the full integration of people with disabilities into our nation's economic and civic life. In this essay, Professor Bagenstos uses the problem of risk-motivated disability discrimination as a lens through which to examine the politics of risk regulation scholarship. He argues that the easy association of technocratic approaches with political conservatism-and of democratic approaches with political liberalism or progressivism-ignores the complex ways in which technocratic and democratic institutions may serve or disserve particular political interests.     

The ADA at three years: a statute in flux

In the three years since the Americans with Disabilities Act (ADA) was enacted, significant developments have occurred in the form of new administrative and judicial interpretations of the Act. The new guidelines and decisions will assist employers in complying with the ambiguous, and sometimes confusing, provisions of the ADA. Recent developments in areas such as the definition of a disability and the permissibility of medical inquiries, along with continuing developments in the areas of mental disabilities and defining reasonable accommodations, give employers insight into the obligations created by the ADA. These developments are a good starting point to understanding the ADA, but there is still a long way to go. This article surveys the recent developments in the law and examines the considerations that have become important to the Equal Employment Opportunity Commission and the courts in interpreting the ADA's provisions.