Nonexistent Grandfather Clause in the ADA

Please share this note, and share the knowledge. I'm sick of the lawsuits and inaccessibility because people want to argue about the so-called Grandfather Clause.

there are grants businesses can apply for towards accessibility at sba.gov

"There is no Grandfather Clause in the ADA."

It looks like there is a lot of confusion about the distinction between the ADA's requirements related to new construction and alterations vs. requirements related to existing structures, and additional confusion about the distinctions between Title II (which covers state and local governments) and Title III (which covers many types of private businesses).

Section 12183 is the section of the original Act that established requirements related to new construction and alterations under Title III. (Other sections establish similar requirements for state and local governments under Title II.)

The section of the law that establishes the obligation for public accommodations covered by Title III to address accessibility in existing facilities by removing barriers when it is readily achievable to do so is 12182 (not 12183), specifically 12182(b)(2)(A)(iv); it basically defines "discrimination" to include "a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities ...  where such removal is readily achievable."

It should be noted that commercial facilities, which are also covered by Title III, are not subject to the "barrier removal" requirement, only to the requirements related to new construction and alterations. Commercial facilities are private businesses that are not open to the general public. They are generally places where people work but are not open to customers - places like warehouses and factories.

The obligation to ensure access to programs, services, and activities of state and local governments that are offered in existing facilities (commonly referred to as the "program access" obligation) works a little differently and is based on the concepts of the Rehabilitation Act of 1973 and its regulations.

You can find the ADA itself (the statute) online at http://www.ada.gov//pubs/adastatute08.htm, and the regulations for Titles II and III at http://www.ada.gov//regs2010/ADAregs2010.htm.  I hope this is helpful. Please feel free to contact our office if you would like to speak to an information specialist. --

 Mid-Atlantic ADA Center
401 N. Washington Street Suite 450
Rockville, Maryland 208501-800-949-4232 V/TTY301-217-0124 V/TTY
WEB: www.adainfo.org


This information is intended as informal guidance and assistance and should not be considered legal advice or binding on any agency or entity. Please consult an attorney for legal advice.



In summary:
The only entities not subjected to ADA accessibility standards are Churches and commercial facilities such as factories and private businesses that are NOT open to the public. But commercial facilities are required to follow ADA standards in new construction and in remodeling.

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Tax Incentives for Businesses (ADA)
http://www.ada.gov/taxincent.pdf
http://www.ada.gov/taxcred.htm

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Series: Top 10 Misconceptions About Title II And III Of The ADA

My letter to Judge Gibney asking for court support of the DOJ agreement to close Virginia's institutions

I mailed this on 4.2.12 because 4.6.12 was the deadline for public comment to Judge Gibney. I wonder how many letters he got?

Please support the DOJ agreement - right to live in our community



Dear Honorable John A. Gibney Jr.,

I'm a person with a disability that has lived in the community all my life. I have friends. I do activities in the community. I went to public school along side my non-disabled peers. I feel institutions are holding me back even though I have never lived in one. (and in order from me ending up in one, I demand that all Virginia's institutions be closed) The Olmstead Decision says I have the right to live in the community. Living at home saves the government money, because institutions cost three times as much to care for one person. I'm appalled the institution in Chesapeake is still open. There are thirteen states with NO institutions for people with disabilities, I want Virginia to be next on that list. Make home support stronger so people can receive quality home care in their communities.
Keeping institution staff employed and/or fear of weak home support is no reason to keep people with disabilities from their right to live in their community!

Regards,
Ivy Kennedy
Disability Rights Advocate


UPDATE: On 6.8.12 Judge Gibney ruled in favor of the DOJ agreement. I was there to hear the events in the courtroom! Read news articles and my opinion: HERE


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State Budget Hearing - 1.6.12 - Medicaid Waiver

Video: HERE

It's a pleasure to be here today. My name is Ivy. I've been using the Medicaid Consumer Directed Waiver for over a decade to live in the community. Medicaid pays my personal care assistants. The waiver assists me to give back to my community by volunteering, going to school, and getting a job.

It is three times cheaper to care for somebody in his or her home than in an institution. Virginia spends $250,000 per person annually to keep just one in an institution. If the state is really serious about closing institutions, and to see people with disabilities living independently and wants more of those individuals in the workplace, personal care assistants need to be paid more and given benefits. This will secure PCAs as a serious career field and increase the quality of care, which will eliminate a huge barrier to me and others.

Virginia can save a considerable amount of money by complying the Olmstead Decision of 1999, which states people with disabilities have the right to live in their community rather than segregated institutionally. People with disabilities should not have to wait to have a Personal Care Assistant. Long waiver waiting lists that Virginia currently has could force people into institutions, which is the exact opposite of what the state is trying to do.

The current budget allocates $262 million each year to fund the 5 state institutions. Virginia is one of only 10 states that haven’t closed a single institution. A big key to closing institutions is ending the waiting list for waivers so there can be care at home. As I said before waivers are three times cheaper, so what are you waiting for? The money could be used for issues talked about about today like education, mental health services and transportation.

This state is ranked 48th in the country for its community-based residential services for people with disabilities. That is shameful. I hope you act now to make Virginia a state we all can be proud of.

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Virginia Employment First Summit - Virginia Beach October 4-5 2011

First I'd like to say, I'm grateful to have gone. The ARC gave me a scholarship. It was good to hang out with friends I don't see often and awesome stay in an ocean front room. As a self advocate I was urged to attend even though I was reluctant to go. Turns out my icky feelings were justified.

The summit did not renew my faith in employment for people with disabilities. My same opinion was firmly held in place; All the agencies (the service system) finds jobs for people with disabilities. If all people with disabilities had jobs THEY wouldn't. So at the start it's flawed.

I had been out of that loop for over ten years and it makes me furious to see 'they' are still spewing the same bullshit! Though there were good concepts sprinkled in here and there. Even my personal aide who knows nothing of that field pointed out twisted policies she overheard. I'm grateful I was able to give a bit of my opinion but just know I had to bite my tongue a lot!

One example of a backwards policy they were talking about was the concept of paying a co-worker to help the person with a disability on the job.

Who wants a friend that's paid for?

Not enough self-advocates were at the summit. The people who were there were on the same side of 'the game' patting themselves on the back, blowing hot air, and painting pictures of happy unicorns flying over rainbows. Who was missing? EMPLOYERS.

Inclusion in the classroom and teaching awareness and rights (in school curriculum and at businesses) was mentioned a little but not enough, which DO effect employment so much I believe. No talk of changing people's perception of disability, which I think is the linch pin to everything. It also seemed backward to me, no talk of inclusion in school but then 'they' expect integrated employment to just happen? Good luck with that!

Another thing that bothered me was somebody said, "Go find a person with a disability who wants to work and then go back to your network and find them work."

NO! Your network is not my network. Swamping is not going to work. Every person alive needs their own social network to draw from. If you're being PAID to refer people it takes the creditability out of it. Right?

Inclusion in the classroom will build social network. Segregating kids with disabilities has to end for many reasons, but simply for the reason of employment. In the real world for anybody many jobs are found by social networking.

There was hardly no talk of college at the summit which made me mad but they talked about person centered planing and about setting goals early in middle school which will cover college for some students with disabilities. If person centered planning is done right it will bypass putting people with disabilities in convenient, over used job categories. These present categories are so limiting and demeaning. As some call these categories the three f's: filth, food and flowers. I realize some people with disabilities can only do these, but we all don't have to! Really if you're creative about it ANYBODY with a disability can do jobs way beyond the three f's. Rather in employment or education, the expectations need to be raised for people with disabilities.

Tax dollars are paying for this, a twisted broken service system! The employment summit meant well but the people there are not thinking straight. I felt very out of place. Wait, am I the crazy person here or are they? I had that same feeling years ago when I was wrapped up in employment services. It is NOT a good feeling.

UPDATE 10.18.11: Kathie Snow author of Disability is Natural featured this (stay out of job services) on her 'Your stories' webpage Here

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Disability History and Awareness Month public comment to school board

I spoke to my local school board on 9.20.11 Here's my speech.

The biggest barrier facing people with disabilities is not something you can touch. Can you guess what it is?
It's people's attitude towards disability. I hope we can all agree that kids are more open minded than adults. Kids minds can be molded to have different perceptions very easily. Which is why I'm asking you to recognize October as Disability History and Awareness Month in schools. Awareness is important but I feel that you can't necessarily teach someone how to feel towards one another. Though by teaching about the history of a group it will lead to respect, compassion, understanding and breaking stereotypes about people with disabilities.

By teaching this to the younger generation it would change the future of people with disabilities. The awareness would also improve the future of everyone in the community. When a person knows more and is more educated the community can't help but benefit from this knowledge. It would lead to including everybody in the community. No more leaving one out or shunning them due to the fear of the unknown.

Virginia has a resolution designating the month of October as disability history and awareness month. There is a ton of curriculum published online for teaching disability history and awareness. I also have a lot of these links listed on my website ivykennedy.com

Teaching in schools as part of our history curriculum, the history of the disability rights movement and about the positive impact people with disabilities have had on technology and society, IS necessary. Teaching the history of other diverse groups in our school systems, has been proven to have a positive impact on the group and society as a whole.

Even PBS is getting in on it. On October 27th they are airing a documentary about the Disability Rights Movement.

Just think about it, nearly every group that has fought for their civil rights are mentioned in school textbooks. Why aren't people with disabilities? Please teach disability rights and history in all classrooms.

Senate Resolution for Disability History and Awareness Month HERE

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Why current perceptions and policy on disability are horrible for the economy

You don't see it in the press much. When cable news network argue about the budget, it's never mentioned. Yet it plays a huge role in our nations economy….. the disability unemployment rate. I believe perceptions about disability play a huge factor in the disability unemployment rate. I realize there's many other facets to Disability Economics other than employment. This blog entry is just the tip of the iceberg.

Bottom line: When it is financially smarter to sit at home rather than work, something is terribly wrong.

There are many ways to change perceptions about disability. A few are: Ask your school to do something for Disability Awareness Month which is October. Molding kids perceptions would be a huge step forward. Read up on disability history. It's out there and (and until recently) it's not too hard to find, though still it's not in most school books. Advocate for Inclusion..... for students with disabilities to be in your child's classroom. I believe when kids are taught together no doubt the disability employment rate will improve.

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Published around the time of ADA's 20th anniversary

It's All About the Money by Bruce Blower

"Little more than two decades ago, once the U.S. Congress realized that it cost taxpayers almost as much as this entire nation’s defense budget to keep disabled persons at home on entitlements, out of the workforce passage of the ADA federal law became a sure bet. Congress had also then seen a Harris poll stating overwhelmingly that disabled people wanted to work."

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People with disabilities DO NOT COUNT.

The US national unemployment rate does not factor in people with disabilities.

What Is the REAL National U.S. Unemployment Rate – Why the Numbers Can Be Misleading

by Kalen Smith

"What’s most surprising is that the existence of this last group is completely ignored by the unemployment rate."

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A reverse twist on medical insurance

September 11, 2011

By Monica Yant Kinney, Inquirer Columnist

philly.com

"I want to work. I'm meant to work . . . but I'm being held hostage by a system that does not want to see me succeed," Curran tells anyone who will listen - a group that so far includes two state legislators, scores of state welfare officials, and a half-dozen advocates equally baffled by his dilemma.

Here is a young man eager to get off Social Security disability and become a productive tax-, rent-, and copaying member of society. And the government's trying to stop him?

This will be a waste of taxpayer money if he doesn't work," gripes Sen. Daylin Leach (D., Montgomery), who intervened for his constituent. Leach called the catch-22 "one of those boneheaded government policies" in dire need of a fix."

Long story short, when this young man switches over to his job's insurance the home care services won't be as good as it is on state services AND there's a wait list his name will be on the bottom of, meanwhile no home care for him. When he earns too much money (by being employed) he'll lose the state run home care.

Sounds like perpetual poverty to me and tax payers are footing the bill.

Why can't this young man continue to have the same level of care no matter what insurance plan he's on?

In my case....

What type of careers would pay a decent wage for home care, the price of a powerchair, the price of home modifications, and the everyday bills? I'm no Smarty McSmart, I doubt I could swing it. If I took out a loan to pay an aide to go to college, I'd have that and college loans to pay back. That's only saying if I could get hired in the first place.

And this infuriates me!

Some political groups say,

"The hand outs have to stop! Screw the freeloaders!"

It's offensive in the context of people with disabilities! Some can work and want to work.

Where is the American Dream for people with disabilities?

So you're telling me, in a capitalistic nation people with disabilities are limited to how much money they can earn. WTF?!

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Imparato speaks on future of disability policy at University of Pittsburgh

www.aapd.com

November 4, 2010

"Though its drafters and champions envisioned the ADA as a road to independent living, equal opportunity, and self-sufficiency, we are a long way from achieving those goals. Twenty years later, we spend 440 billion dollars per year on federal programs designed in the 50s, 60s and 70s to warehouse—not empower—people with disabilities.

Today—20 YEARS LATER—our country still requires 18-year-olds with disabilities to prove to the government that they cannot work in order to get income supports and the corollary acute and long-term care coverage provided by Medicaid. That’s right, 20 years after the ADA, our public policy continues to force young adults with disabilities to retire.

Every time we do this --every time a young person ends her bid for success before it starts—a piece of our civil rights mission fails. Independent living, equal opportunity, and hope for economic self-sufficiency die. We spend 440 billion dollars per year on giving up.

We spent a lot of money implementing that law, but because we didn't deal with the definition of disability the program was flawed from the get-go.

If you spend years proving to the government that you can't work, and they turn around and give you a ticket and say, here, take this ticket and go get a job, most people are going to mistrust that and assume that the government is testing them to see whether they are really disabled. So because of the definition, you have a program that undermines itself.

Until we deal with the baseline flaw in the definition of disability all this other stuff that we do around work incentives is window dressing.”

The Philly.com and AAPD articles can be read in their entirety HERE

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Read the April 2012 Report by The National Disability Rights Network: Beyond Segregated and Exploited - Update on the Employment of People with Disabilities HERE

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Did you know if you live in the USA you can be penalized for saving money? If you're a person with a disability this can happen to you. Currently person with a disability can loose Medicaid if they save too much. In a capitalistic country, people with disabilities can't earn and save like most American citizens. Go figure. 
To put it into perspective, does everybody pay for a power chair and home care assistants? No! 
So why is the freedom to save money being denied for people with disabilities?

The ABLE Act is working to change this. Ask your delegate to support it. Read more about it HERE


You can not have more than $2000 in your bank account on the last day of each month. All paychecks, SSA payments are considered income, even when put into an ABLE Account.

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Tax deductions, etc for hiring…..

Some of this money is a YEARLY payoff. Businesses are fools for not taking advantage. 
Our government can not fix the disability unemployment problem. (and I don't expect them to) The government can throw all the money it wants into this Hire People With Disabilities thing, not a damn thing will change though until attitudes change.

http://www.dol.gov/odep/topics/TaxIncentivesForEmployers.htm

http://AskJAN.org/media/tax.html


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The ABLE Act passed in Congress!

On December 3, 2014 the bill passed the often-fractious House of Representatives, 404 to 17. 

On December 16, 2014 the bill passed the Senate as part of a bigger tax package by the only slightly less impressive margin of 76 to 16.


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At the Annual Meeting of the National Council on Independent Living in July 2014, a delegation of approximately 700 individuals with disabilities passed a resolution urging NCIL to push for a redefinition of disability as it relates to the Social Security Act.

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My Life Changing Experience

(The opinions expressed here are the views of the writer and do not reflect the views and opinions of The Virginia Board for People with Disabilities and Partners in Policymaking)

Disability resource links gathered from this class HERE

For years people had been bugging me to take this class, Partners in Policymaking. I finally put in my application this year and got in. They tell us its hard to be accepted and many people resubmit applications year after year. First I wondered why they majority of the class was parents. They are the ones who need to be there the most I came to learn. I'm glad I sucked it up and finally took on the commitment of this class. Nine months, one Friday and Saturday a month, over 12 hours a session listening to amazing speakers.

I take great comfort in knowing each year Virginia turns out 30+ plus people who 'get it'. (each state has Partners in Policymaking)

This is a highlight of each class. I can not begin to cover what I truly gained from the class.

When I was younger and stupid I thought I could change everybody's perception about disability in the first ten minutes of meeting them, I had no idea this class existed. It is the only 'magic bullet' I know of that busts through ignorance about all things disability. This class reaffirmed that it's ok to be me!

Class 1: Heidi Lawyer, Jerry Adams, Ed Turner & Jack Brandt, Youth Leader Panel (Adam Amick, Mary McAdam, Matt Shapiro, and Erin Thompson)

When seeing the room full of my classmates for the first time I felt an intense joy that these people cared disability advocacy as much as I did. It was a relief to feel I wasn't alone in the fight. DRS (Department of Rehabilitation Services) will always have a job if people with disabilities don't. Think about the possibility of college for your child with a disability: Here's how: HERE

Class 2: Katherine Laswon, Steven Traubert, Jim Rothrock, Bobby Silverstein

You can't just advocate for what's good for you because you might be doing a large group of people a disservice. Now I won't advocate to get rid of options that I myself can't see myself ever using because there's a whole other group who need and like that option I despise. Instead I will advocate that the filters that help place people with disabilities stay strong and not pick the easy option when placing people. THAT'S what scares me. People need different options but as long as the options exists the filters will most likely place people where it's the easiest. Ex. I got placed at a vocational rehab after graduating high school. What, no college?

Right off the bat DRS (Department of Rehabilitation Services) speaker (Jim) made steam come out of my ears. He opened with something like, "Ya'll should receive a degree for this class." What the hell? The nerve! I didn't get one when completing my two year CAD drafting class. In my opinion DRS needs a overhaul. They should be doing community outreach to change perceptions about disability THEN focus on employment and/or college. I wanted to punch the him in the face because I was so mad at what he was saying. He painted a picture of roses and unicorns. It was all lies. The bar of expectation must be raised for sudents with disabilities.

Class 3: Fred Orelove, Charlie & Maria Girsch, Dana Yarbrough & Valerie Luther, Maureen Hollowell

Adult behavior hinders creativity. We become afraid to voice ideas because we slam them down before we can voice them. The best ideas are wild notions that are skimmed back. Adults must keep their brain opened to new ways of thinking by doing exercises.

Learn the ropes about any services before you request them. Offices that deliver services often don't know themselves. The only one that is going to keep you informed is you!

Class 4: Cyndi Pitonyak, Christina Gilley, Lynn Seagle, Kathie Snow

Special Education is a service not a place. Inclusion for all children is the way to go, no more special ed classrooms. As long as there's a special ed classroom in a school, there will be kids in it.

“Inclusion does not mean fitting students with special needs into regular schools. Inclusion means creating schools where everyone fits.” -Dr. Marti Snell

The world of Disability Services is a cash cow that needs to be gutted. ex. Group homes, institutions, job finding services, etc. Stay out of the system because it doesn't work. The disability unemployment rate is proof of that. If you start in special preschool you're likely never to be included in a regular classroom. EVERYBODY needs to read Disability is Natural by Kathie Snow (not just people touched by people with disabilities)

My blog about Kathie's book HERE

Class 5: Pete Wright, David Pitonyak

Even if a child with a disability is suspended from school he/or she is to have their IEP executed.

Positive reinforcement is not always the best way to modify their behavior. Never assume the behavior is caused by the disability. With people who can't talk a change in behavior may be because they're in physical pain. Don't take away the one thing/activity a person looks forward to as means of behavior modification. Some people need to be taught coping skills through repetition. A person may need help to learn ways to stay in the frontal lobe of the brain. When your brain switches to limbic things like speech can not take place. Limbic is where flight and fright happens and instincts kick in. Some people with disabilities have had horrific things happened to them so they stay in limbic. Always assume people with disabilities can understand what's being said to them. Most of the time when people do annoying behaviors it's because they're lonely. Did you know it's a fact that when studying the brain in say a CAT scan, the brain reacts the exact in same way: when a person is deliberately left out/rejected from a group activity & a person is physically punched in the nose? Make sure your child with a disability has true friends. People need to have choice to control their lives. No matter how insignificant the choice might be.

Class 6: Pat Carver, Mock testimony at State Capitol

People have the right to live how they want, where they want. Do not feel guilty for asking for want you want, no matter how small the detail is. Note to myself: You are not bossy and picky. You have the right.

Parents set the example to siblings how to treat siblings with disabilities. Building a strong community is the sure fire way to make sure you get the supports you need. When somebody goes into an institution they become institutionized. Their behavior and their physical appearance changes for the worse. It's sad for the families to witness so a lot of them stop visiting. When public speaking stick to one topic and keep it to three minutes. Practice with a video camera. The older parts of the State Capitol are scary in a power chair! Lol! Feels as if the floors will give out.

Class 7: Debra Ruh, Roy Grizzard, Susanne Croasdaile, Kelly Ligon, Ed Turner, Ginny Cooke

Positively Positive, People are mostly good.
Try not to take things personally, what people often say is a reflection of them and not you. Perceptions are based on a persons experiences. So you can only have so much control on the way you are perceived. There is no us Vs them. We are all rolling along making the changes we need at the time. All things that are set up for good reasons by nature derails and must be corrected or created new again.

“We cannot solve the significant social problems of the world at thee same level of thinking that created them in the first place.” - Albert Einstein

“As we think so shall we speak, as we speak, so shall it be.”

"Success is when preparation meets opportunity."

They're huge taxes incentives and paybacks if your hire people with disabilities for job accommodations.

Facts from national surveys about employees with disabilities: punctual and rarely miss work due to sickness, work safely, work independently, rarely seek special considerations, can be modestly accommodated, and considered assets by co-workers.

Class 8: Dr. Al Condeluci, Graduation! May 2011

Friendship and health are the two most important things many different cultures say. Average friends of "typical" adults: 150. Average number of friends for adults with disabilities: 20 (and half are family, other half are service providers) Any shared interest can start a friendship.

Social capitol gets you jobs. (not DRS, or workshops, etc) You yourself have to build social capitol.

(I'm so glad I'm naturally social! One of my nickname's is Social Butterfly)

We as a society are all connected. Look at the stats for disability, employment rate, housing, etc. We can make people's lives better and in turn that makes our lives better. If we claim health as so important we must try to change the sad stats of the uninsured.

Graduation was fabulous! I feel I have accomplished so much in the nine months than in ten years. I have made connections, seen people change their way of thinking, been offered and accepted a number of jobs, and MADE FRIENDS!


UPDATE 2.3.13
I'm still employed with Moms in Motion, a Medicaid Waiver Facilitator. The boss and I were PIP classmates.
I also have had many public speaking engagements because of networking through fellow PIP graduates.

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