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Braille Monitor

Vol. 53, No. 7                                                                July 2010

Daniel B. Frye, editor

Published in inkprint, in Braille, and on cassette by

The National Federation of the Blind

Marc Maurer, president

National Office
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Baltimore, Maryland  21230
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National Federation of the Blind
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THE NATIONAL FEDERATION OF THE BLIND IS NOT AN ORGANIZATION
SPEAKING FOR THE BLIND--IT IS THE BLIND SPEAKING FOR THEMSELVES

        ISSN 0006-8829

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Contents


Vol. 53, No. 7                                                                         July 2010

 

Lead Photo

Something Amiss in Michigan
Part II
by Daniel B. Frye

Achieving the Promise of the Americans with Disabilities Act
in the Digital Age: Current Issues, Challenges, and Opportunities
by Daniel F. Goldstein

Carmakers Agree to Make Electric Cars Noisier
by Peter Valdes-Depena

Comments on the Draft National Educational Technology Plan 2010

Special Report:
A Study on the Accuracy of Dosing with Insulin Pens by Blind and Sighted People
by Ann S. Williams

More Absurd Research to Bother the Blind

San Francisco Organization Makes More Than One Million Books
Available Online to Blind, Dyslexic  
by Brooke Donald

Fall Risk
by Hannah Lindner

Featured Book in the Jacobus tenBroek Library
by Ed Morman

Ask Miss Whozit

NFB/Cardtronics Settlement

Recipes

Monitor Miniatures

Copyright 2010 by the National Federation of the Blind

 

NFB President Marc Maurer was awarded the honorary Doctorate of Laws from the University of Notre Dame on Sunday, May 16, 2010. He is pictured here after receiving his award from Professor Walter Nicgorski. We congratulate our President on another appropriate recognition of his service to the blind of America and his accumulated expertise in the blindness civil rights arena.

 

Something Amiss in Michigan
Part II

by Daniel B. Frye

From the Editor: In this second part of our investigative story on the Michigan Commission for the Blind (MCB), we offer a brief update on events surrounding the Christine Boone issue featured in last month's report. We will also examine allegations of agency noncompliance with Americans with Disabilities Act (ADA) and Rehabilitation Act guidelines in the installation of Braille signs, use of inaccessible state computer systems, and failure to provide clients written materials in their preferred accessible format in a timely manner. Additionally we will review assertions that agency director, Pat Cannon, inappropriately exercises influence over the composition and operation of the agency’s governing board. We will alert readers to questionable business and fiscal practices at the Commission and survey some of the Business Enterprise Program (BEP) challenges faced by blind vendors in Michigan. This is what we know:

An Update on the Christine Boone Issue

Despite the fact that Christine Boone's appeal of her termination as director of the Michigan Commission for the Blind Training Center (MCBTC) is pending before the state's Civil Service Commission, with a first pre-arbitration and mediation date scheduled for July 9, 2010, Commission officials recently announced that Sherri Heibeck, a twenty-four-year employee of the MCB and most recently administrative services manager for the agency, would assume this role as of Monday, June 14. This appointment has attracted criticism from the National Federation of the Blind of Michigan since Heibeck's education and experience have been limited exclusively to matters of organizational business management and information technology. A June 12, 2010, article in the Kalamazoo Gazette highlights her limited background in the actual substance of blindness rehabilitation programming. The Monitor has also learned that Heibeck will continue to be based out of MCB headquarters in Lansing instead of being officially based in Kalamazoo, where the MCBTC is located. Heibeck's commuting time, which will be authorized as part of her work day, will have her at the center only about five hours a day, a significant absence for a leader who must be present to set the proper tone and expectation for students being trained to adjust to blindness. We can only infer that MCB management is confident in the decision to terminate Boone in view of its announcement that this vacancy has been filled. We are left to wonder if Heibeck's appointment can represent a positive development for the state's only adult rehabilitation training center for blind people when she does not possess any real history in working directly with blind consumers.

The ADA and Rehabilitation Act Compliance Issues

Some agency observers accuse Cannon and MCB management of lax adherence to the letter as well as the spirit of the ADA and Rehabilitation Act in not installing Braille signs throughout MCB facilities, adopting inaccessible computer systems limiting the ability of blind employees to function independently, and failure to provide timely access to public documents and individual consumer records in accessible formats. Each of these claims appears to have some merit. These lapses disadvantage blind Michigan residents, and they have been perpetrated by the ADA coordinator for the executive branch of state government, Pat Cannon.

Former MCBTC Director Christine Boone observed, "When I arrived, I learned that the center had recently undergone some remodeling in the name of ADA compliance, but whoever did it sold the state a bill of goods. Many aspects of the remodel were noncompliant. I found only homemade signage; I found no professionally manufactured accessible signage. Additionally, the reception area was not accessible to wheelchair users. Yet Pat Cannon sat on the governor's cabinet as the ADA coordinator for the state of Michigan." Boone reports that during her tenure these deficiencies at the MCBTC were remedied. We observed adequate signs during our visit, and the entryway to the center, while small, appears to be wheelchair accessible, if not completely compliant.

In addition to the ADA issues identified at the MCBTC, multiple complaints have been lodged with various state and federal authorities about the absence of ADA-compliant Braille and raised-letter signs in the Victor Building, the MCB headquarters in Lansing. Paul Joseph Harcz has registered most of these complaints, and he seems to possess a technical understanding of the standards that ADA regulations require. We have been unable to ascertain if any of Harcz's complaints or grievances have been formally responded to or adjudicated. While we found some doors in the Victor Building labeled, Harcz accurately observes that not all appropriate signs have been installed at the MCB headquarters. Since acquiring ADA-compliant signage is now a fairly standard practice, we are at a loss why the MCB would not already be a model of excellence in this regard decades after such regulations have been adopted.

When invited to comment on the signage issue, Cannon said that he had "just heard of a signage complaint this morning." He noted, "When you look at accessibility, signage is often most overlooked." He recalled a visit to a hotel in the shadow of the nation's Capitol, and he was appalled that inaccessible signs could exist at the end of the twentieth century. It seems likely that, if signage issues are brought to Cannon's attention, he will take measures to address this issue.

Harcz and several others have also complained about not receiving materials for public meetings and client records in accessible formats. At this writing we don’t know how these complaints have been resolved. We were given access to Braille and electronic materials at the March 2010 meetings we attended.

Reports surfaced during our investigation that the MCB has several inaccessible computer systems that blind agency staff must use to do their jobs. Specifically, Boone reported that the fiscal software was not entirely accessible to blind employees. She noted that a blind intern working at the MCBTC with the center's fiscal specialist was unable to work independently using this system. Other blind staff reported that the agency systems for personnel management and timekeeping were also inaccessible.

Cannon responded to the allegations about the compromised intern and the fiscal software by indicating that he was unfamiliar with the problem. He noted that during his tenure as chairman of the U.S. Access Board he had been instrumental in bringing the section 508 technology access guidelines to the fore, and he explained that he urged Michigan's Department of Information Technology to work toward these goals. Cannon reported that the state's Information Technology Department indicated a willingness to strive toward accessibility, but that they acknowledge continued deficiencies in some of the state's systems. Cannon did admit that problems exist with the personnel evaluation system and timekeeping programs, and he reported that steps have been taken and are ongoing to address these challenges.

Commission Influence

Critics inside and outside the Federation accuse Cannon of exercising undue influence over the Commission board. They allege that Cannon has usurped the Commission's legislative responsibilities through personal manipulation and exertion of political influence. Distinguishing between a strong executive and an inappropriate power-grabbing leader is sometimes hard to do, so we will review several of the most striking examples of alleged abuse.

Objectors say that Cannon does not tolerate an independent, probing Commission board. They allege that he does not permit Commission members to exercise a policy-making role or to speak to agency staff members about particular matters. When invited to comment, Cannon said that the Commission board is authorized to conduct an annual evaluation and appraisal of the director's work. "One of the phrases often used is that the Commission can `direct the administrator but cannot administrate directly.'" Cannon said that during his administration the Commissioners have always discussed new agency policies. He added that, to avoid a top-down approach, one of the principles outlined in his Vision 2020 initiative is to involve the Commission board in policy-making activity. Cannon said that he recognizes that advocates were disappointed that they couldn't get the state legislature to give the Commission a stronger policy-making role in the state's enabling legislation, PA-260.

Clearly Cannon interprets the state's enabling legislation conservatively in the power that it grants to the Commission board. During the MCB board meeting on March 19, 2010, the National Federation of the Blind of Michigan submitted several strongly worded position papers for the members of the Commission board to consider. One analyzed the powers of the Commission board, and argued that the Commission--defined as the governing body and not just the agency--is "vested with the power to oversee comprehensively the activities, the budget, the director, and the staff of the organization known as the Michigan Commission for the Blind." To the Commission board's credit, in response to our Michigan affiliate's advocacy, the members of the MCB board have recently begun evaluating what powers they actually have in overseeing the agency.  In a May 3, 2010, meeting (now being challenged by our Michigan affiliate for being held in closed executive session), the MCB board apparently received counsel that they had the legal right to be more engaging with the agency's director. As a consequence, the MCB board has asked to revisit some administrative law judge decisions that it originally endorsed, at the director's recommendation, to see if they were in fact fair. While the Monitor was present in March, the Commission board appeared quite weak and reliant on the MCB director and staff for guidance and simple functioning (on occasion uncertain whether or not to subject items to a motion or other procedure), but in recent weeks the board appears to have found some measure of leadership resolve.

Cannon is charged with working to remove individual members of the Commission board with whom he has disagreed or whom he has found troublesome. Former Commissioners Mark Eagle and Don Bowman accuse Cannon of working to orchestrate their ouster from the MCB board. The former commissioners and Cannon offer different versions of each story, but the one consistent fact is that both of these commissioners appeared to be uncharacteristically activist members of the Commission board prior to their unconventional departures. Here is what we have been told by both sides of each disputed story:

Mark Eagle was one of the youngest members of the Michigan blind community ever to serve on the MCB board. He resigned in the spring of 2009 because of alleged ethical conflicts as articulated in an opinion from the State Ethics Board, relating to "pervasive" personal conflicts resulting from Mark Eagle's father’s frequent representation of blind vendors before the board. Mark says:

My resignation was not, in fact, voluntary. Pat and the Governor's office wanted me to be gone. To my knowledge none of my colleagues on the board ever expressed any concerns about ethical issues I might face. I believe Pat was the one behind all of this. He is the one who drafted the letter requesting an opinion from the Ethics Board. I believe I was too strong a voice for blind people on the board. I advocated on behalf of the grassroots blind community in Michigan. I objected, for instance, to receiving staff recommendations, including proposed voting directions, on various topics. I thought this was inappropriate since the adversely affected parties did not get an equal opportunity to make arguments to us. I objected to specific contracts that the agency proposed entering into, and Pat thought I crossed the line. I always recused myself whenever my father would represent a vendor before the board. I never did anything remotely unethical. As a candidate for the state legislature I was warned of consequences from my own political party, though, if I failed to do anything other than resign quietly.

Cannon disagrees with Eagle's characterization of events. He says:

The former commissioner was a capable young man named Mark Eagle. I always tried to play a mentoring role with regards to his hopes and dreams. I originally encouraged Mark to become a part of our Youth Leadership Forum, which served to help distinguish him. Before joining the MCB board, Mark was chair of the Consumer Involvement Council. The bottom line is that he resigned from the Commission board. He participated in activities that some of our commissioners saw as a conflict of interest. Whether or not it was a clear conflict is something to be pondered or debated; it was not clear cut. I said to people that I couldn't make the decision that his behavior was a conflict. I did point out instances to Mark where I did perceive there was a conflict. Almost without exception, Mark listened well and took steps to mitigate that perception. As these concerns continued to arise and I didn't want to be the determinative factor, we considered the role of the State Ethics Board. Mark was granted a hearing where he could present his information. Ultimately they issued an advisory opinion suggesting that his efforts to mitigate his personal conflicts could not be overcome. He ultimately chose to resign.

Don Bowman, a blind retired GM employee, served on the MCB board from 2000 to 2002. He resigned his position several months prematurely. Bowman reports that he determined to seek the chairmanship of the MCB board on the death of Earl Stenstrah, and he believes this prospect disturbed Cannon. "He and his staff did not want me to exercise conservative leadership over the board. I don't think they were being dishonest, but they were promoting themselves more as an agency than as an entity committed to helping blind people. They were spending too much money on travel, dinners, luncheons, and sighted assistants for blind staff members. I was going to effect change by voting on policy that would not approve things that were unreasonable." Bowman believes that, after advocating that Cannon be replaced, he was not reappointed because of Cannon's political influence. According to Bowman, Cannon asked him to resign several meetings prematurely so that the agency would not have to conduct two distinct orientations. He reports that he told Cannon he would be happy to relinquish his post if Cannon would write Bowman’s resignation letter. Bowman says this is what happened. Cannon does not concede that he personally drafted Bowman's letter of resignation.

While we cannot report with absolute certainty on these facts, it seems clear that in at least these instances Cannon has exercised some influence in ridding the MCB board of certain commissioners. Readers will have to determine for themselves what to believe.

Business and Fiscal Irregularities

In the course of our investigation, we discovered several fiscal irregularities at the MCB that warrant brief attention. Sources familiar with Opportunities Unlimited for the Blind (OUB), the entity that runs Michigan's camp for blind youth at Camp Tuhsmeheta, report concerns about the way in which Cannon and MCB management manipulate matching federal dollars through the cash-match process. Basically this is a partnership with several entities that uses local, state, and nonfederal resources to draw down matching federal rehabilitation dollars. The concern is that Cannon may use his discretion to give some of the matching federal funds back to the entities that worked with his agency on terms favorable to the Commission. Cannon could not say whether the MCB ever used its leverage to compel OUB to pay the agency for services the commission theoretically provided through the cash-match process in exchange for the Commission's ultimate support of the camping program. Many believe, however, that Cannon and the MCB use the cash-match process to reward its friends and punish its enemies.

George Wurtzel, a former blind contractor with the MCB, reported that Cannon saw to it that Wurtzel’s livelihood was largely destroyed in 2004, after over five years of providing satisfactory services to the agency. According to Wurtzel, he contracted with the Commission to warehouse, transport, and set up vending equipment for the state's Randolph-Sheppard program. He says that his services were professional and competitive. Because George’s brother, Fred Wurtzel, was the former manager of the Commission’s Business Enterprise Program, special arrangements were made to guarantee that his contracts were fairly awarded, leaving Fred Wurtzel free of any conflict. At some stage, however, Cannon apparently objected to this contract and directed that it not be renewed. Wurtzel alleges that nobody ever complained about his performance, and he says that the state paid more for the services he had provided after Cannon terminated his contract. Cannon declined to comment in detail on Wurtzel's allegations, saying only that the facts as presented were not entirely accurate. In view of these conflicting data, we are able to conclude only that Cannon may have used his influence to terminate the employment opportunities of a blind contractor, resulting in the purchase of services at costs greater than those that the blind contractor offered.

Vending Issues

Considerable turmoil in the Randolph-Sheppard Business Enterprise Program (BEP) is brewing under Cannon's leadership at the MCB. In general Michigan blind vendors allege in multiple cases on appeal that the Commission, the certified state licensing agency, has abdicated its responsibility to provide BEP participants the opportunity for active participation in the administration of the program and basic due process rights. The crisis in this program reached a fever pitch when, on Saturday, March 20, 2010, the MCB board, agency staff, representatives from the state's Committee of Elected Operators, and delegates from the two major consumer organizations of the blind gathered at MCB headquarters to air grievances and discuss solutions to the growing number of BEP issues. As of this writing the Michigan BEP program faces additional change with the promotion of James Hull, former assistant BEP manager, to the top spot for this program, following Constance Zanger's relocation to administrative services manager, a position made available with Heibeck's assumption of duties at the MCBTC.

Although we researched a number of individual vendor cases, we will limit our consideration in this report to broader themes brought to light through these challenges. This survey approach should not minimize the often compelling and distressing circumstances of the individual cases currently being argued in the state. Some blind vendors have been summarily removed from their locations, forced to modify their standards of living, and occasionally required to file bankruptcy or take other extreme measures because of adverse action that the MCB has taken. Two of the vendors subject to agency discipline have been presidents of our Michigan affiliate's blind merchants division. Cannon and the agency's BEP management are accused of not thoroughly advocating for the vendors’ federally guaranteed priority by acquiescing to the presence of competition in federal and state facilities and adopting a lenient posture toward the definition and presence of catering services that threaten vendor opportunities in their locations. In one notable case a sighted temporary BEP operator was kept in the Hall of Justice location as a result of pressure from building tenants and a hostile letter from a member of the Michigan Supreme Court urging that the MCB not replace this operator with a qualified blind vendor. Fortunately this issue has recently been resolved with the agency's agreement to place Roxanna Mann, a blind temporary operator, in this facility, but this came about only after considerable pressure from blind vendors and consumers.

Further, the agency is accused of unfairly suspending the licenses of blind vendors and having them immediately removed from their vending locations without adequate opportunity for hearings. Operators allege that the BEP management has created an unequal playing field by attaching a BEP management comment to the ALJ (administrative law judge) decision for the MCB board to consider and by canceling the practice of providing hearing transcripts for arbitrations and other appeals, harming vendors already displaced from their source of income. Blind vendors also say that a disproportionate number of cases in the last several years have been assigned to a hostile administrative law judge, Robert Meade, who regularly fails to address the legal merits of the cases presented for his consideration. While this is by no means an exhaustive list of issues facing blind vendors in Michigan, it is a fair summary of the problems that exist within the program.

Cannon argues that the MCB has strongly advocated for preservation of the priority for blind vendors and has specifically worked to craft a catering policy that will benefit BEP operators. He asserts that the State Office of Administrative Hearings and Rules has an arbitrary method for assigning judges without the input of state agencies, and he discounts the assertion that one judge has primarily managed this caseload. But the Monitor has counted at least eight cases in the last few years that have been heard by Meade, and we find it inconceivable that this count is merely the product of coincidence.

We are moderately comforted, however, by the prospect that a newly empowered MCB board may decide to revisit some of the vendor decisions that they previously endorsed at the agency's urging. If this occurs, the individual disadvantage visited on several blind operators may be fairly addressed. We can hope that the consumer advocacy that has pressed the MCB board into a new posture of resolve will benefit blind vendors in Michigan. Only time will tell.

Conclusion

Something clearly is amiss at the Michigan Commission for the Blind. The Boone termination alone is cause for serious concern. But the violation of ADA standards, Cannon's relatively heavy-handed management of the MCB board, a suspicion of fiscal irregularities used to intimidate or retaliate against blind people and small entities that serve the blind community, and grave concerns about the Randolph-Sheppard Program all suggest that problems are widespread in this separate rehabilitation agency for the blind. In an era when separate services for blind consumers are jeopardized, we are particularly alarmed to see that an ideally structured agency would find itself in the middle of so much controversy. If this series of articles does nothing else, it should call blind consumers to action in vigilantly watching and working with their rehabilitation agencies across the country to ensure that they represent the interests of our constituency and reflect the values that we determine are right. Let us not allow what appears to be amiss in Michigan to go unheeded there or anywhere else across the country.

 

Achieving the Promise of the Americans with Disabilities Act in the Digital Age:
Current Issues, Challenges, and Opportunities

by Daniel F. Goldstein

From the Editor: Dan Goldstein, a longtime friend and attorney for the NFB with the firm of Brown, Goldstein, and Levy, LLP, delivered remarks on access to technology in the digital age and the Americans with Disabilities Act (ADA), to the U.S. House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, on Thursday, April 22, 2010. Mehgan Sidhu, an associate in Dan's firm who works closely with him on these issues is largely responsible for drafting the comments that he offered. The testimony provides an excellent survey of current matters in this arena, so it seems useful for Monitor readers to have this nicely organized presentation in one place. Inevitably details will change in this area of the law, but Dan's statement provides an effective snapshot of our advocacy and positions on matters as of today. Here is what he said:

Mr. Chairman, members of the Committee, thank you for inviting me here today. As a partner in the Baltimore, Maryland, law firm of Brown, Goldstein, & Levy, LLP, I have been engaged in disability-rights law, principally on behalf of the National Federation of the Blind (NFB) since 1986. In 1999 the NFB asked me to assist it in devising a strategy to promote the accessibility of digital information through education, negotiation, and litigation. I have devoted much of the last eleven years to that effort.

The ADA has played a valuable role in that undertaking as we have worked to make Websites, workplace software applications, ATMs, voting machines, cell phones, and eBook reading devices accessible to people with vision and print disabilities. The challenge is immense. Digital information is everywhere, from consumer electronics and home appliances to the Internet, from computer screens and mobile devices to ticket kiosks and ATMs. It is difficult to identify an activity in modern American life in which digital information does not play a role.

Because digital information is composed of zeros and ones, it is not inherently visual, aural, or tactile, but can be presented in any one or all of those modes with equivalent facility. Thus the ubiquitous use of digital information should be great news for those who cannot access print because of a disability—whether it’s a vision disability, a learning disability, an intellectual disability, or a manual impairment or spinal cord injury. Similarly, digital information that was traditionally presented as speech can now produce mainstream accessibility for those with hearing impairments.

Sadly, however, the potential for the disability community to have mainstream and therefore equal access has not been realized. So much electronic information is presented so that it is accessible to only one sense, resulting in persons with disabilities having unequal access and therefore being denied the opportunity for equal participation in all spheres of life. Thus, to give you a homely example, something as simple as setting the thermostat in one’s house, which a blind person could formerly do by adding tactile markings to the dial that controlled the thermostat, is now an inaccessible activity. Even though digital temperature controls could communicate both visually and audibly, most provide only visual information, leaving blind people worse off than before.

A.) The ADA and Public Accommodation Websites

The ADA is key to unlocking these doors. Title III of the ADA applies to public accommodations, defined as twelve categories of commercial entities that interact with the public. We believe both the intent and the language of the ADA cover Websites and other digital information and services provided by those covered entities, regardless of whether those entities also operate brick-and-mortar locations.

In 1999, on behalf of the NFB, I filed suit in federal court in Massachusetts against America Online for violating Title III of the ADA by failing to make its service accessible to the blind. The First Circuit had held in the context of insurance services that a public accommodation may be covered under Title III of the ADA without the activity being linked to a physical place of public accommodation. We were anxious to follow that case law to its logical conclusion, that Websites that offer the services of a public accommodation, as delineated in Title III, are likewise covered by the ADA. However, AOL quickly decided to make its Website fully accessible, so the matter was settled without creating any judicial precedent.

In 2006 we filed suit against the Target Corporation over the inaccessibility of its Website. After the federal court in San Francisco ruled that the portions of the Website that had a nexus to the physical stores were covered by the ADA, Target settled and has since made its Website fully accessible.

Opponents of the application of Title III to commercial and educational Websites might argue that some federal case law supports the proposition that e-commerce is outside the scope of the ADA. There is a line of reasoning adopted in some circuits that a place of public accommodation, within the meaning of Title III, must be an “actual, physical” place. These courts have held that, to state a claim under Title III, the plaintiff must allege either that there has been discrimination in a physical place or that there is a nexus between the challenged act of discrimination and a physical place of public accommodation. This approach stands in stark contrast to the more commonsense view adopted by several other circuits that the phrase “public accommodation” encompasses more than just physical structures.

Most cases addressing the place argument have been in the context of insurance, considering whether the ADA’s nondiscrimination requirements govern the substance of insurance policies. None of the circuit courts adopting the physical-place line of reasoning have addressed the precise question of whether public accommodations that operate through the Internet or its Websites are places of public accommodation under Title III. So we do not currently know what conclusion these circuits would reach on that issue.
In today’s increasingly online society, limiting the ADA (or any civil rights law) to only those businesses that operate in physical facilities would undermine the fundamental goals of civil rights. Given that one of the essential purposes of Title III is to eliminate discrimination against people with disabilities in the basic, day-to-day activities that are a fundamental part of living and functioning in a community, it is hard to imagine that coverage would depend on whether a covered entity offers its services and goods in a physical location, door-to-door, by phone, or online. In an age where hundreds of millions of Americans are increasingly using the Internet every day to shop for groceries, plan their travel, conduct business, do their banking, attend college classes, and socialize with friends and family, it is undeniable that these Websites are an indispensable part of basic, day-to-day life in the community.

Despite this obvious reality of life in the Internet era, one district court, in Access Now v. Southwest Airlines Co. has erroneously extended the physical-place line of reasoning to conclude that it would not apply Title III to prohibit discriminatory access to Southwest’s Website, where the plaintiff had failed to allege a nexus between the site and a physical, brick-and-mortar place. I have no doubt that the district court’s interpretation of Title III in the Southwest case was incorrect and that a federal court of appeals squarely presented with the issue should reach the conclusion that Title III applies to goods and services provided over the Internet. But the fact that the district court strayed so far from Title III’s fundamental purpose was troubling and is one of the reasons that I applaud the Committee’s decision to hold this hearing.
In light of Assistant Attorney General Perez’s affirmation last week that the Department of Justice continues to believe that public accommodations are covered by Title III, even when they reach the public only via Websites, it seems to me that the time has come to test this proposition in the courts as well as through the development of regulations by the Department of Justice.

Court cases aside, in the years since the Internet has become a mainstay of American life, some advocates and covered entities have reached agreements about accessibility of Internet sites. Among the Websites that have reached such agreements, variously with the NFB, the American Council of the Blind, and the New York and Massachusetts Offices of Attorney General are Amazon.com, Apple’s iTunes, Major League Baseball, CVS, Radio Shack, Rite Aid, Staples, Ramada Hotels, and Priceline.com. Other companies with commercial Websites have reached out proactively to secure certification from the NFB that their Websites are accessible, including both large companies like G.E. and NewEgg and small businesses like my law firm.

These agreements and the Target case have had a positive impact in increasing Website accessibility across the commercial industry. A study of the top thirty-two online retailers’ Websites that analyzed the Websites’ accessibility one year before the Target decision and one year following the decision found a significant improvement in overall accessibility. Using the standards and tools provided by the ADA, we are seeing voice-guided ATMs and accessible point-of-sale machines. In the case of the former, with the recent announcement by Bank of America that all of its ATMs now have voice guidance and my settlement with the largest nonbank deployer of ATMs, Cardtronics, inaccessible ATMs are becoming the exception rather than the rule.

ATMs, however, provide an important lesson. The technology to make ATMs accessible is older than the technology to make ATMs, and the additional cost of accessibility in manufacturing and deploying ATMs is marginal. However, delay by banks and other deployers of ATMs to comply with the ADA until the national fleet of ATMs was mature led to a tremendous and unnecessary increase in costs in retrofitting or replacing functioning inaccessible ATMs. It also needlessly delayed the blind from having this convenience that so many rely on.

When new technologies find acceptance in the marketplace, their adoption and improvement often occur with dizzying speed. When accessibility is not built in from the outset, however, the disability community suffers significant competitive disadvantages, whose later correction may come only as that technology is being replaced by something newer or better. When a Microsoft offers first Windows Vista and then Windows 7 that were accessible from the day each went on the market, or Apple develops, as it has, a technology that allows the controls of its iPad to be accessible to the blind, this is cause for celebration.

The list of other technologies that have been accessible from their entry into the market, however, remains far too short. Gratuitous barriers to accessibility are still the rule and not the exception. Improved clarity about the application of the ADA to public accommodations operating over the Internet will help. As is demonstrated by the experience of educational institutions, once the purchasers of technology understand their obligations and insist on accessibility by their suppliers, accessibility becomes mainstreamed.

B.) Inaccessible Digital Information in Education

Nowhere is the impact of digital information felt more than in the field of education. The impact is pronounced here, perhaps more than in any other sphere, because digital information and electronic technology have the potential to change the game for students with print disabilities. However, educational institutions are not meeting that potential. For example, a 2008 study that examined the accessibility of postsecondary education Webpages found that 97 percent of the institutions in its sample contained significant accessibility barriers. The study examined only top or home pages of university Websites, suggesting that the significant barriers are even more deeply entrenched than indicated by the study.

That the vast majority of educational institutions fail to recognize their obligations under the ADA to make their Website information accessible is only the tip of the iceberg. Reliance on online education is steeply increasing, with online enrollments growing substantially faster than overall higher education enrollments in the past six years. Meanwhile, digital books, course management systems, and other educational technologies have become an integral part of postsecondary education. Many of these technologies are completely and gratuitously inaccessible to students and others with print disabilities. While universities and institutions have often failed to appreciate their obligations under the ADA and their commercial power as consumers of educational technology, some positive examples of success demonstrate the kind of impact institutions can have if their obligations under the ADA are made clear and enforceable.

i.) Universities and Amazon’s Kindle DX

In February 2009 the Kindle 2 was introduced with a read-out-loud feature but with on-screen navigation that was not voiced and was therefore inaccessible to the blind. The Association of American Publishers and the Authors Guild sought to have Amazon terminate this feature. In response the Reading Rights Coalition was formed, thirty-two nonprofits representing the print-disability community—including, among others, the blind, people with dyslexia and other learning disabilities, those with cerebral palsy, and those with upper spinal cord injuries. The Coalition worked on one hand to protect the inclusion of Text-to-Speech while fighting to have Amazon allow its menus to talk and thus make the device accessible.

In May 2009 Amazon announced the launch of its Kindle DX eBook reader, which it had designed for educational use. Because Amazon failed to include accessible navigational controls, the device was inaccessible to the blind. Six colleges and universities simultaneously announced they would be deploying the Kindle DX during the 2009-2010 academic year. The National Federation of the Blind and the American Council of the Blind filed a complaint in federal court against Arizona State University and filed complaints with the Department of Justice and Department of Education against the remaining schools (Pace University, Case Western Reserve University, Reed College, Princeton University, and the University of Virginia’s Darden School of Business). These complaints alleged that, by deploying the inaccessible Kindle, the colleges and universities violated their obligations under Titles II and III of the ADA to provide equal access to their services. While sighted students would benefit from the instant access, note-taking, and other services of the Kindle, blind students would be left behind, forced to rely on separate methods of access that are significantly inferior to even the print textbook experience. The complaint against the University of Virginia is still pending with the Department of Education, but the NFB, the ACB, and the Department of Justice secured settlements with the other five schools under which those schools agreed, after the end of this semester, not to deploy inaccessible eBook readers.

While those complaints were pending, other universities stepped forward to pledge publically they would not adopt eBook technologies on their campuses—including the Kindle—unless and until they were accessible. Those universities included Syracuse University, the University of Wisconsin, and the University of Illinois. In response to this pressure Amazon announced that it would release a fully accessible Kindle in the summer of 2010. And on March 9, 2010, the Reading Rights Coalition, the Association of American Publishers, and the Authors Guild issued a joint statement, released on the White House blog, supporting mainstream accessibility when books are issued in formats other than print, such as eBooks and audio books.

ii.) Libraries and Adobe Digital Editions

Adobe Digital Editions is the leading commercial eBook format used by libraries and also the format that can be read on the inaccessible Sony eBook reader. Until March 2009 Adobe eBooks had been accessible to those who require speech to access text and who downloaded those books to a PC. In March 2009, however, Adobe stopped support of that accessible system and switched to a new, inaccessible eBook platform, called Adobe Digital Editions. As a result numerous public library patrons with disabilities could no longer access their libraries’ digital collections.

Advocacy from the Burton Blatt Institute and the Reading Rights Coalition prompted the American Library Association to adopt a resolution strongly recommending that libraries ensure that all electronic resources they procure are accessible to people with disabilities. Shortly thereafter the Los Angeles Public Library, responding to a letter from the Reading Rights Coalition, agreed to suspend future procurement of Adobe Digital Editions books until they are fully accessible. In response Adobe announced that it would release an accessible Adobe Digital Editions in 2010. Thus, when institutional customers of technology like libraries act on their obligations under the ADA, the developers of those technologies find strong economic motivation to remove the barriers to accessibility.

iii.) California State University and BlackBoard

California State University succeeded in moving one of the leading course-management software systems, BlackBoard Learn, toward accessibility. In the late 1990s the Department of Education’s Office of Civil Rights launched an investigation into California State University campuses’ compliance with, among other statutes, Title II of the ADA. In response the Cal State system revamped its approach to providing access to students with disabilities and has become a leader and model for educational institutions to follow. Specifically, rather than delegating accessibility obligations to an isolated disability student services office, as most universities do, Cal State established a system-wide, coordinated approach to accessibility. Under this approach accessibility experts work closely with the university’s information officers to ensure that the technology the university employs is accessible. Through this arrangement Cal State requires that new technologies it procures be accessible to its students. When Cal State put out a request for proposals for new course-management software, it turned down BlackBoard—the leading purveyor of course-management software—because it did not meet Cal State’s accessibility requirements. Since that time BlackBoard has issued two new releases of its software that greatly enhance its accessibility.

C.) The Next Steps to Access to Technology

We are not even halfway there on making the Internet accessible and in making accessible the technologies used in the workplace and offered through public accommodations, like educational institutions. And, of course, new technologies continue to develop and flourish with astonishing speed. The barriers to accessibility, however, are not the result, for the most part, of intractable technological issues and need not (and as a practical matter, would not) slow down innovation. The biggest contributor to the growing accessibility gap continues to be a lack of commitment to making technology accessible.

The ADA was a tremendous normative statement of the importance we attach as a nation to equal opportunity without regard to disability. But, while the disability community has the responsibility to use the ADA and the other tools offered by federal and state laws, government must continue to make clear its commitment to that promise as well. The National Broadband Plan, for example, states as one of its goals that all Americans should have affordable access to robust broadband service and the means and skills to subscribe if they so choose. It envisions, among other things, improvements in public education through e-learning and online content and improvements in healthcare through the expansion of e-care. Without concrete steps to build in accessibility at every stage and level, this promise to every American will not be realized. Recognizing this, the National Broadband Plan specifically states that hardware, software, services, and digital content must be accessible and assistive technologies must be affordable. The Plan calls on the federal government to be a model of accessibility; to specifically support innovation in accessibility; and to clarify and modernize its accessibility laws, enforcement efforts, and subsidy programs. In that respect the federal government has a long way to go since it has failed to monitor and enforce the provisions of Section 508 of the Rehabilitation Act.

The National Education Technology Plan, currently in draft form, addresses to some degree the need for education technology to be designed for mainstream accessibility for those with disabilities, and we hope the final draft will be more robust. However, recent draft rules regarding Health Information Technology fail to incorporate accessibility wholeheartedly. Again, the federal government must make sure that the execution follows the good intentions.

Our milestones under the ADA thus far have been significant, but we remain far behind where we ought to be in an era that relies so intrinsically upon digital information. The near future will only expedite the transition to digital information in critical sectors—including education, employment, healthcare, commerce, and social life. If we do not ensure that people with disabilities have equal access to digital information, they face exclusion from participation in our society.

The commitment we have already seen from the Department of Justice will take us nearer that goal. The Department of Education, Department of Health and Human Services, General Services Administration, Federal Communications Commission, and others have important opportunities to advance accessible technology as well. There are good reasons to believe that the disability community, acting for itself and with the support of governmental entities, can make great strides toward the day that it no longer must settle for separate and unequal access to technology but will have, instead, the same access to mainstream technology and thus an equal opportunity to participate in the educational, economic, and social life of this country.

Thank you.

 

Carmakers Agree to Make Electric Cars Noisier

by Peter Valdes-Depena

From the Editor: The following article was taken from <CNNMoney.com> after its posting on May 20, 2010. It reports on the joint industry and blindness community agreement to have the terms of our legislative proposal advanced in Congress. Provisions of our original legislation have now been incorporated into the Motor Vehicle Safety Act of 2010, H.R. 5381 and its Senate companion, which is broader legislation that addresses the recently published difficulties with Toyota cars. At this writing we are optimistic that having our quiet car language incorporated into this mainstream legislation promises great potential for its passage later this fall. Monitor readers should stay tuned for any additional direction issued from Jesse Hartle, NFB government programs specialist. He is primarily responsible for our advocacy of this legislation. Here is the article:

Automakers and advocates for the blind have agreed on a plan to address an unintended problem caused by electric and hybrid cars: they endanger sight-impaired and distracted pedestrians because they make no noise when running on electric power. The groups joined together to present Congress with a proposal for minimum noise levels that future electric cars would have to make. Sometimes even sighted pedestrians can be unaware of the cars' approach. "As a person who walks my dog in Virginia, where there are no sidewalks, I've been startled by hybrid cars, too," said Gloria Bergquist, vice president of the Alliance of Automobile Manufacturers.

A study done last year by the National Highway Traffic Safety Administration showed that hybrid cars tend to hit pedestrians more often than other cars in situations where the approaching car cannot be seen. The AAM, along with the Association of International Automobile Manufacturers, the American Council of the Blind, and the National Federation of the Blind, presented Congress with suggested language that could become part of the Motor Safety Act of 2010, a bill now moving through Congress that would create a host of new auto safety rules.

The proposed language would have NHTSA create a new safety standard for electrically powered cars involving some sort of minimum sound required when operating at low speeds. At higher speeds wind and tire noise are typically enough to make the car detectable.

The sound couldn't be just anything. For instance, vehicle owners would not be able to customize the sound of their car the same way they can download ringtones for cell phones. That's specifically prohibited in the proposed rule. Instead, car manufacturers would provide an approved sound or set of sounds for a given make and model of car. It would be up to NHTSA to set the minimum noise level a vehicle would have to make at givens speeds and to determine what sort of sounds would be allowed. The sounds would need to communicate something about the car's speed and acceleration, just as the sound of a rumbling gasoline engine does.

 

Comments on the Draft National Educational Technology Plan 2010

Prepared by the National Federation of the Blind

We appreciate the opportunity to provide comments on the draft plan entitled "Transforming American Education: Learning Powered by Technology" as released by the Office of Educational Technology, U.S. Department of Education, on March 5, 2010. The comments offered below by the National Federation of the Blind express our serious concern that this plan fails to recognize the need for the U.S. Department of Education to provide concentrated leadership in both policy and practice, in order to ensure that students with disabilities can take full advantage of the opportunities offered by emerging educational technologies in America's classrooms.

We are pleased to see the National Educational Technology Plan (NETP) embraces principles of universal design for learning, including for students with disabilities. However, the attention the NETP pays to accessibility for people with disabilities is disproportionate to its great importance. The significance of accessibility to people with disabilities must play a more prominent role throughout the NETP. Because accessibility to students and teachers with disabilities impinges on every aspect of the NETP, the impact on people with disabilities should be acknowledged consistently and repeatedly throughout the report. Further, because accessible mainstream technology requires specific and significant considerations beginning in its design phase, accessibility for people with disabilities must be treated with greater detail in the NETP, as opposed to merely being a bullet point within the section on universal design.

Overall, what is missing from the NETP is an appreciation of the opportunity and challenge that technology presents for teachers and students with disabilities. We have the opportunity for the first time to change the paradigm--to reduce drastically the necessity for separate and unequal special education resources by allowing people with print disabilities to have the same access to education as their nondisabled peers. If appropriate standards are properly implemented, we have the opportunity to ensure that access to educational materials is a nonissue for a blind student or one with cerebral palsy who cannot hold her head and hands steady enough to read a book. At present these students are consigned to separate and not equal access, and the mainstream resources (many of which will be developed by mainstream, highly capitalized technology companies) will always outstrip any separate special resources.

The challenge is that, as technologies are adopted in the schools, the disability community will be left behind and thus left out. Because of the logarithmic pace at which technology develops, there is no such thing as being a near-follower of technology, and, if the early decisions are made without consideration of students and teachers with disabilities, the educational gap between those with disabilities and those without will widen from the width of the Grand Canyon to that of the Pacific Ocean. If the message of inclusive technology is not to be lost, it must be stated, not just as a bullet point in a section on universal design, but be included consistently, repeatedly, and in detail (as when a goal is stated for equal outcomes for persons without regard to income or race, but not for persons with disabilities).

So that the report can strike effective notes, let's briefly consider some of the barriers. First is the cubby-holing of accessibility at the Department of Education. For example, the Department of Education funds grants for both accessible technology and mainstream educational technology, but in the latter case it fails to include accessibility as a requirement in the RFP or in the actual grant itself, thereby perpetuating a separate and unequal status for those with disabilities. This dichotomy is to be found throughout the educational system. Universities and colleges, for example, routinely procure and adopt new technologies, such as course management systems, iTunes U, and digital reading systems like the Kindle without any consideration of their accessibility, and it is nearly unheard of for the CIO of a college, university, or school system to consult with its own disability service offices in selecting the technology that is adopted.

Without market demand or insistence by the Department of Education on compliance with federal law, the inevitable result is inaccessible technology and a deepening discrimination against those with disabilities. It should be noted that the barriers are not technological and that mainstream access occurs when it is required, as witnessed by (1) the latest version of Blackboard’s becoming substantially more accessible after Cal State refused to let Blackboard bid while its course management software was inaccessible; (2) iTunes U’s becoming fully accessible after the NFB threatened Apple's collegiate partners with lawsuits; and (3) Amazon’s announcing it would produce an accessible Kindle after the Department of Justice secured consent decrees from the colleges to cease and desist its inaccessible Kindle pilot projects.

Although these examples come from higher education, the lesson is equally true for K-12. Unfortunately, however, disability groups do not have the legal opportunities to be an agent for change in K-12 that they do in the college arena. Thus the responsibility of the Department of Education to take a leadership role here is greater.

At present, by largely confining accessibility to people with disabilities to a bullet point within the NETP, the Department of Education loses a unique opportunity to ensure that technology is transformative for this group. It is also critical that the demand be stated unambiguously: that all technology adopted be accessible. Since this is the law, it is a reasonable request. It is in that spirit that we offer the following suggested actions for inclusion in the final version of the plan:

1. Throughout the NETP "disability" should be added when identifying achievement gaps. Blind students and other students with disabilities are underserved in the same way as students of a racial minority or of a lower socioeconomic status. To ensure the current inequality of service delivery is addressed, the NETP must include disability as an overarching theme as it does race, income, and neighborhood.

2. The standard of Universal Design for Learning (UDL) cited in the NETP is very broad and as a result deemphasizes the type of accessibility required for viable nonvisual access. The UDL definition should be appended to include items 3.a.i and 3.a.ii below.

3. Far too many of the interactive educational technologies that enrich the learning experiences of students today are inaccessible to blind, dyslexic, and other print-disabled children. If educational technology continues to be made without consideration of accessibility at the outset, the gap in service delivery--and consequently achievement--between those students with print disabilities and those without will grow exponentially. Accessibility fits the definition of a "grand challenge problem" as outlined in the NETP and should be added as an additional problem to address. The problem should be addressed in the following manner:

a. Research should be done in collaboration with the National Federation of the Blind and other blindness and print-disability organizations to create standards for the development of accessible educational technologies.
            i. The standards will ensure the nonvisual experience with technology is as rich as the visual experience.
            ii. The standard will require that the ease of use of all technologies is the same regardless of whether the means of access is visual or nonvisual.
b. Once standards are developed, they should be published, and manufacturers of educational technology should be required to adhere to those standards when producing new technologies.

4. Accessibility must be treated with particularity within the NETP. Though there are some overlapping issues between students with disabilities, English language learners, pre-k students, and low-income and minority learners, accessibility for learners with disabilities is distinct. Substantial action must be taken in the design phase of technological development to produce an accessible product. For this reason accessibility should be addressed both throughout the report and in a separate section. The necessity of accessibility needs to be prominent in this report to ensure that all learners can truly benefit from the resulting technological and pedagogical reform.

5. As the medium of textbook production shifts from physical books to digital content, the field must move away from the NIMAS standard--a separate and inferior regulation--and capitalize on mainstream technology. The production of mainstream accessible textbooks is a far superior solution for students with disabilities. This issue should be addressed in the separate section on accessibility that we recommended in item four.

 

Special Report:
A Study on the Accuracy of Dosing with Insulin Pens by Blind and Sighted People

by Ann S. Williams, PhD, RN, CDE

From the Editor:  Ann Williams has worked in the field of diabetes and blindness for some time. She has been a frequent contributor to our former publication, Voice of the Diabetic.  Here is a report on a research project she undertook, in consultation with the National Federation of the Blind, during last year's convention.

Last summer, through the Diabetes Action Network (DAN) and the Jernigan Institute, the National Federation of the Blind collaborated with me in a small but significant research project. Its purpose was to compare the accuracy of blind and sighted people who used insulin pens to deliver doses of insulin into a small rubber ball.

Background

To understand the importance of this project and why the NFB was involved, it helps to know a little about insulin pens and the history of their use. Insulin pens were first invented in the late 1980s as a convenient, easy, and accurate way to deliver precise amounts of insulin. They are the size and shape of an old-fashioned fountain pen except that instead of ink they are filled with insulin, and instead of pen tips they have disposable, screw-on needles. To set the dose, the person using the pen turns a knob on the end opposite the needle, which makes a small click that can be heard and felt for each unit of insulin dialed. (A few pens make a click for each 1/2 unit.) People who see well can confirm the dose set by reading a number in a small window near the knob.

Although insulin pens were not specifically designed for use by blind people, they are particularly useful for blind diabetics because a person merely needs to count the number of clicks to determine the amount of insulin dialed. Consequently, blind people with diabetes began using them almost as soon as they appeared on the market. Many blind people have used them safely for years. For a more detailed discussion of how to use an insulin pen, see an article by Tom Ley that first appeared in the Voice of the Diabetic, archived on the NFB Website at <http://www.nfb.org/images/nfb/publications/vod/vod215/vodwin0708.htm.>

Shortly after the pens were first introduced, the major manufacturers began including a disclaimer in the instructions saying that insulin pens should not be used by people with visual impairment. This disclaimer has remained in the packaging for many years, even though thousands of blind people all over the world have used insulin pens safely. Unfortunately, the disclaimer causes some healthcare professionals to doubt that blind people can in fact safely use insulin pens. Some doctors and other prescribers therefore refuse to write prescriptions for insulin pens for people who do not see well.

The Diabetes Action Network has recognized this as a problem for blind diabetics. In 2008 the NFB passed a resolution calling for the removal of this disclaimer. You can read the resolution at <www.nfb.org> by following links from the Publications page.

My experience with insulin pens, both as a nurse diabetes educator and as a person with diabetes, has been very positive. I have used insulin pens myself and have taught hundreds of blind and sighted people how to use them. I have seen in clinical experience that most blind people are able to use insulin pens accurately unless they have additional problems such as numb hands or impaired memory. Sighted people who have such problems often have trouble using insulin pens. Both because of this experience with insulin pens and because I know some people who were denied the benefits of using insulin pens because of vision loss, I decided to do a research project to develop the rigorous evidence that could encourage manufacturers to remove the disclaimer from the insulin pen instructions. 1

Design of the Study

The study was designed to compare the accuracy of dosing between thirty sighted and thirty blind people. Each person either read the instructions included with the pen or listened to a recording of those instructions, depending on their eyesight. The recordings contained the same information included in the printed instructions, with verbal descriptions of all pictures and nonvisual techniques for steps in the procedures that assumed good vision. While people read or listened to the instructions, they handled the pen and the supplies that go with it, trying it out until they felt sure they knew how to use it. Each person injected ten doses of insulin into a rubber ball. The ball was weighed on a very precise scale immediately before and after each injection, giving the exact weight of the insulin delivered into the ball. This allowed us to calculate exactly how much insulin was delivered in each dose.

The reason for designing the project as a comparison is that any group of people delivering a lot of insulin doses would make at least some mistakes. If only blind people had participated in the study and had made mistakes, people reading the study report might debate what level of accuracy was acceptable. However, if blind people made some mistakes with their dosing but overall were about as accurate as sighted people, manufacturers would have no reason to keep the disclaimer on their insulin pens.

Funding for the Study

I was able to obtain funding for this study through a small grant from the American Association of Diabetes Educators and Sigma Theta Tau, an international nursing honors society. The Jernigan Institute of the NFB also contributed to the project by making the pilot study possible, by helping recruitment of blind participants for the larger study, and by allowing me to do part of the study at the 2009 NFB Convention.

Doing the Study

The first part of the study was a small pilot conducted with twelve NFB staff members at the National Center. The purpose was to try all the procedures and work out the problems before doing the larger study. I went to Baltimore with a research assistant, and the NFB provided a room to conduct the study while we were there. The NFB staff members who tried out the study procedures gave me valuable feedback that we used to fine tune the instructions and procedures. This feedback also helped us understand how to ensure accurate measurements of the doses that the participants in our main study actually delivered.

After the pilot was complete, we did the main study. The Jernigan Institute helped by publicizing the study and asking NFB members to participate. To do the study itself, I went to the 2009 NFB convention in Detroit along with two research assistants. There we met with blind diabetics so they could listen to the recordings, deliver insulin doses into the ball, and have the doses weighed. Being able to meet with so many blind diabetics in one place was an important part of making this study possible.

After I returned home, I recruited thirty sighted people with diabetes who also received instruction in insulin pens, gave ten doses into a rubber ball, and had the doses weighed.

Results

After the study was completed, we found no significant differences in the accuracy of doses between those given by blind people and those given by sighted people. Both groups delivered many accurate doses, and both also made some mistakes. The level of mistakes was about the same for both groups.

The results of this study have been published in the May issue of the Journal of Diabetes Science and Technology. I chose to publish in this journal because many people who design diabetes equipment and make decisions about manufacturing it read it.

The first major lesson of this study is that the evidence does not support inclusion of a disclaimer warning against use of insulin pens by visually impaired people. The study was small enough that the insulin pen companies and government regulatory agencies may not accept the evidence as conclusive. They will probably want to see a study that includes many more people before they actually remove the disclaimer. However, this study represents an important first step, one that will make it easy for interested researchers to justify doing a larger study to confirm these results.

Another lesson of this study for manufacturers of health care technology is that it is important to include people with disabilities in research about the usability of their products. For example, according to the U.S. Centers for Disease Control, about 3.6 million people have diabetes and visual impairment. This is about 20 percent of the people with diagnosed diabetes. However, many manufacturers ignore this 20 percent when they conduct their studies. They should, however, be interested in knowing whether their product can be used properly by this very large minority group. Including people with disabilities in diabetes technology studies is not only ethically right, but also financially sound. The 20 percent of people with diabetes who do not see well do buy products for treating diabetes. Any company that has tested their products in this population and found them useful to blind people will have a marketing advantage. With proper product testing among people with disabilities of all kinds, a company could market to all groups that can use their product--not just to people who happen to have no current disability.

Finally, a third important lesson concerns the importance of intelligent collaboration between the NFB and researchers. We need each other and can benefit each other greatly. As a researcher I was very grateful for the help I received from the Jernigan Institute--from the use of a room for the pilot study, to the expert advice from NFB staff members, through the help with recruitment of participants and access to people at last year’s national NFB convention. Without this valuable assistance I would have had a much harder time conducting sound research with blind participants, and overall it would have been much more difficult to complete the project. NFB’s help benefited me greatly. In return this project will ultimately benefit NFB members and all blind diabetics by providing real evidence of the true abilities of blind people and ultimately by enhancing the access of blind people to a useful product. Our collaboration in this project has been a win-win situation for us all and is a good model for further work together.

 

1. Patrick Schnarrenberger, a graduate student, was the research assistant for both the pilot project and the full research project. He reviewed this article and gave many valuable suggestions to make it clear and easy to understand.

More Absurd Research to Bother the Blind

From Barbara Pierce: In the past, would-be helpful Hannahs have invented combination white canes and snow shovels for the blind, special toilet paper dispensers for the blind, red strobe lights and flashlights clipped to the cane for use at intersections, and dozens of other pointless devices. Now Swedish researchers have decided that, because we can’t identify facial expressions, we need computerized assistance in order to converse effectively with others. It is possible that such technology might be helpful to some people on the autism spectrum who cannot make connections between facial expressions and the emotions that cause them, but aiming such research at solving nonexistent problems for blind people is perverse and will only complicate our efforts to persuade people that we are normal folks who can’t see. As Mary Ellen Gabias pointed out in her message transmitting the following report, “This sort of research is particularly harmful to parents of blind children who already wonder how their kids will interact socially. If some of these researchers have their way, the blind will become bionic people with computers and other machines poking out of every pocket and attached to every body part. I understand that some sighted people don't know what to do at first when they can’t make eye contact with a blind person, but let's not get carried away.”

Mary Ellen is a longtime Federationist who lives with her husband and children in British Columbia, where she is a leader of the Canadian Federation of the Blind. After she read this article in the April 28, 2010, issue of Science Daily, she wrote the following letter to the chief researcher. Here is her letter followed by the Science Daily article:

I read in Science Daily for April 28 about a new device which your organization has researched to help blind people read the emotional content of facial expressions through a tactile display. I believe your research is predicated on a false premise. It is true that sighted people use facial expressions to determine the emotional state of the person with whom they are interacting. However, the fact that millions of telephone conversations take place every day, some including highly emotional content, demonstrates that observing facial expression is not necessary for complete communication.

Human beings are highly resilient and adaptable. Deaf people have developed a thoroughly articulate language that requires no sound transmission. Blind people are able to understand nuanced emotions using auditory cues and without visual clues. The fact that most people use one sense for gathering information does not mean that other sources of that information are inaccurate or inferior.

I recommend that your organization work with the Jernigan Institute, an internationally renowned research organization operated by blind people for blind people. I also invite you to read The Value of Decision, a speech delivered by Dr. Marc Maurer at the annual convention of the National Federation of the Blind in the United States. It can be found at < www.nfb.org > by following the links from the Publications page.

I have shared the news report of your research with a number of blind friends and colleagues. Their reaction has been universally derisive. They feel, as I do, that blind people suffer more from negative attitudes reinforced by the promulgation of such research than we do from being unable to see facial expressions.

I have written bluntly because scarce research dollars should be spent on truly meaningful projects, not on creating devices that have the effect of increasing social isolation by reinforcing the notion that sight is necessary for normal communication.

Very truly yours,
Mary Ellen Gabias

 

New Braille Technology Helps Visually Impaired “See” Emotions

Without vision it's impossible to interpret facial expressions, or so it's believed. Not any more. Shafiq ur Réhman, Umeå University, presents a new technology in his doctoral thesis—a Braille code of emotions. "It gives new opportunities for social interactions for the visually impaired," he says. Lacking the sense of vision can be very limiting in a person's daily life. The most obvious limitation is probably the difficulty of navigation, but small details in everyday life, which seeing people take for granted, are also missed. One of those things is the ability to see a person during a conversation. Facial expressions provide emotional information and are important in communication. A smile shows pleasure, amusement, relief, etc. Missing information from facial expressions create[s] barriers to social interactions.

"Blind persons compensate for missing information with other senses such as sound. But it is difficult to understand complex emotions with voice alone," says Shafiq ur Réhman. His thesis addresses a challenging problem: how to let visually impaired "see" others' emotions. To make this possible, the research group has developed a new technology based on an ordinary Web camera, hardware as small as a coin, and a tactile display. This enables the visually impaired to directly interpret human emotions. “Visual information is transferred from the camera into advanced vibrating patterns displayed on the skin. The vibrators are sequentially activated to provide dynamic information about what kind of emotion a person is expressing and the intensity of the emotion," he explains.

The first step for a user is to learn the patterns of different facial expressions by displaying the emotions in front of a camera that translates the emotions into vibrational patterns. In this learning phase the visually impaired person [has] a tactile display mounted on the back of a chair. When interacting with other people, a sling on the forearm can be used instead.

The main research focus has been to characterize different emotions and to find a way to present them by means of advanced biomedical engineering and computer vision technologies. The project was funded by the Swedish Research Council.

The research group's spin-off company Videoakt AB has been granted a patent for the technology, which soon will be available as a product on the open market. Tactile feedback is also interesting in other areas as a future communication tool for seeing people as well. "We have successfully demonstrated how the technology can be implemented on mobile phones for tactile rendering of live football games and human emotion information through vibrations. This is an interesting way to enhance the experience of mobile users," explains Shafiq ur Réhman.

 

Consider a Charitable Gift

Making a charitable gift can be one of the most satisfying experiences in life. Each year millions of people contribute their time, talent, and treasure to charitable organizations. When you plan for a gift to the National Federation of the Blind, you are not just making a donation; you are leaving a legacy that insures a future for blind people throughout the country. Special giving programs are available through the National Federation of the Blind (NFB).

Points to Consider When Making a Gift to the
National Federation of the Blind
            •  Will my gift serve to advance the mission of the NFB?
            •  Am I giving the most appropriate asset?
            •  Have I selected the best way to make my gift?
            •  Have I considered the tax consequences of my gift?
            •  Have I sought counsel from a competent advisor?
            •  Have I talked to the NFB planned giving officer about my gift?

Benefits of Making a Gift to the NFB
            •  Helping the NFB fulfill its mission
            •  Receiving income tax savings through a charitable deduction
            •  Making capital gain tax savings on contribution of some appreciated gifts
            •  Providing retained payments for the life of a donor or other beneficiaries
            •  Eliminating federal estate tax in certain situations
            •  Reducing estate settlement cost

Your Gift Will Help Us
            •  Make the study of science and math a real possibility for blind children
            •  Provide hope for seniors losing vision
            •  Promote state and chapter programs and provide information that will
              educate blind people
            •  Advance technology helpful to the blind
            •  Create a state-of-the-art library on blindness
            •  Train and inspire professionals working with the blind
            •  Provide critical information to parents of blind children
            •  Mentor blind people trying to find jobs

Your gift makes you a part of the NFB dream!

 

San Francisco Organization Makes More Than One Million Books
Available Online to Blind, Dyslexic

by Brooke Donald

From the Editor: Earlier this year we described the emerging partnership between the Internet Archive and the National Federation of the Blind and introduced Monitor readers to the organization's services. On May 6, 2010, the San Francisco Examiner ran a story about the Internet Archive's announcement that it has now posted one million books in DAISY format on its Website, addressing the interests of the blind and other print-disabled readers especially. Some in the blindness field have countered this claim with cynicism, raising questions about whether the Internet Archive has in fact posted a million titles and, more important, whether they are fully honoring the provisions of America's liberal special formats copyright law. While these questions remain unanswered, Monitor readers should certainly know of this new resource and use it to the extent that it is available. Our access to information is sufficiently limited that any new resource that broadens our exposure is inherently valuable. Here is the article:

Even as audio versions of best-sellers fill store shelves and new technology fuels the popularity of digitized books, the number of titles accessible to people who are blind or dyslexic is minuscule. A new service being announced Thursday by the nonprofit Internet Archive in San Francisco is trying to change that. The group has hired hundreds of people to scan thousands of books into its digital database—more than doubling the titles available to people who aren't able to read a hard copy.

Brewster Kahle, the organization's founder, says the project will initially make one million books available to the visually impaired, using money from foundations, libraries, corporations, and the government. He's hoping a subsequent book drive will add even more titles to the collection. "We'll offer current novels, educational books, anything. If somebody then donates a book to the archive, we can digitize it and add it to the collection," he said.

The problems with many of the digitized books sold commercially are that they're expensive, they're often abridged, and they don't come in a format that is easily accessed by the visually impaired. The collections are also limited to the most popular titles published within the past several years. The Internet Archive is scanning a variety of books in many languages so they can be read by the software and devices blind people use to convert written pages into speech. The organization has twenty scanning centers in five countries, including one in the Library of Congress. "Publishers mostly concentrate on their newest, profitable books. We are working to get all books online," Kahle said.

Marc Maurer, president of the National Federation of the Blind, says getting access to books has been a big challenge for blind people. "Now, for the first time, we're going to have access to an enormous quantity," he said. Maurer, who is blind, said that, when he was in college, he hired people to read books to him because the Braille and audio libraries were so limited. "That has been the way most students have gotten through school," he said. "This kind of initiative by the Internet Archive will change that for many people." Only about 5 percent of published books are available in a digital form that's accessible to the visually impaired, Maurer said, and there are even fewer books produced in Braille.

Ben Foss, a San Francisco man with dyslexia, says having so many more books available is liberating. He compares it to a million more ramps being added throughout a city for a person who uses a wheelchair. "For me it's about access. They have provided flexibility and freedom to get books in a format that I use every day," said Foss, thirty-six, who is the director of access technology in the digital health group at Intel Corp.

The digitized books scanned by the Internet Archive will be available for free to visually impaired people through the organization's Website. The organization does not run into copyright concerns because the law allows libraries to make books available to people with disabilities, Kahle said.

Jessie Lorenz, an associate director at the Independent Living Resource Center, San Francisco, who has been blind since birth, said it has been hard to find controversial or edgy titles in a format she can use, and choices are often dictated by institutions or service groups who have selected certain books for scanning. "For individuals living with print-related disabilities, this is groundbreaking," she said. "This project will enable people like me to choose what we read." Lorenz, thirty-one, has already decided what she wants: Howard Stern's autobiography, Private Parts, Andrew Weil's The Natural Mind, and, perhaps most important, her grandmother's cookbook.

 

Fall Risk

by Hannah Lindner

From the Editor: Hannah Lindner is a college student at Union College in Lincoln, Nebraska. She has already learned that disagreeable experiences can sometimes strengthen and empower us. They can also teach us to speak up and advocate for ourselves and our right to equal treatment. Of almost equal importance, they can provide a powerful opportunity to teach others about the abilities of blind people. Here is her story:

For the most part the day had been typical. It was a Monday in the middle of the semester. I had gone to classes, including one in which I had taken a mid-term. I worked and squeezed in a little homework. I had barely enough time to attend to my personal needs. The only new addition to my routine was to have a dorm nurse come to my room to check my blood sugar once or twice a day because my levels had suddenly begun to read high and I did not yet have a talking glucometer. I had begun taking an oral medication, and I needed to know how well it was working.

That night, however, things went crazy. It was around 9:00 as I was finishing homework and getting ready for bed, anticipating spending eight hours at my internship the next day. That was the time the dorm nurse could visit, and, being at least two hours after a meal, it was an appropriate time to check my blood sugar. The procedure was typical until the student nurse announced 538 as the level displayed on the meter screen. She was worried that I might have to go to the hospital for insulin to bring the level down. I called my mother, who is also a nurse, and told her the situation. She said that I should go to the hospital because the high level could begin to damage my internal organs, particularly my transplanted kidney. By this time I could hear the deans and residential staff gathering in the lounge across the hall for their weekly meeting, so I knew I couldn’t reach anyone on the on-duty line. I called the desk and attempted to explain the situation to the worker, but I was quite anxious by this time, and all I could really get out was that my blood sugar was extremely high and that I had to go to the hospital. A moment later both deans came to my door wondering what was going on. As I was telling them what I had told the desk worker and how high my blood sugar was, the dorm nurse Nicole came back. They discussed who could drive me to the hospital, and they decided that Nicole would drive me. We drove to Brian East emergency room, which is where my adventure began.

After waiting a few minutes, Nicole and I went back to the triage area, where I answered the usual questions about myself and my health. Of course, among the topics of interest to the triage staffer was my blindness--what had caused it and how long I had been blind. After I answered these questions, she commented that my blindness made me more likely to be a fall risk and adorned my left wrist with a yellow band reading “FALL RISK.” As the band was being put on, I said that I didn’t believe that blindness made me or anyone else more of a fall risk. I was even more taken aback when my words were met only by the statement that I could hit things in the hall. This statement was only an excuse; she hadn’t really acknowledged my words or point of view. I thought that’s what the cane in my hand is for, but the discussion had ended. Nicole and I were already being led into the room where I would stay until I was either admitted or considered stable enough to return home. I was given a gown and instructed to change into it. I began talking to Nicole, trying to decompress from what had just happened. I was very unhappy and in a heightened state of anxiety, which they said was caused by my elevated blood sugar level. It created a personality that I began referring to as “Crazy Hannah.”

“I don’t know why people can’t just have a little faith!” I said as I tossed one of my snow boots to the floor in disgust. Nicole tried to calm me by saying that they were only trying to do what was best and safest. She assured me that she knew better than to think I was a fall risk, at least under normal circumstances, but these were not normal circumstances. While I understood that the staffer might have been well intentioned, the fact remained that labeling me had not been necessary. Whether or not she had intended it, she had been blatantly condescending to me. She and Nicole, as well as anyone else who passed us, could see that I was alert and could walk just fine, although I did find it helpful to walk with a human guide, not because of disorientation or instability, but for convenience in an unfamiliar area. I was in the emergency room, being treated for a serious condition and being transferred here, there, and everywhere at record speed.

After I got into the bed, I desperately tugged at one of my bands until it fell off. I assumed it was the one that had just been applied and had caused my indignation. I attribute this action to the state I was in. Soon afterward one of the many people that were bustling in and out of my room discovered the fallen band. I was informed that my medicine allergy band had fallen off, and the staff member replaced it. “Drat,” I thought. “Wrong one.” After that nurses were busy drawing blood, trying to start an IV, treating my blood sugar level, and locating the doctor. In short, they decided to admit me for the night.

By this time it was almost 11:00, and Nicole had to leave because she had a big test in the morning. Since I had asked if possible for someone to be with me in that crazy emergency room, she called the deans to see if one of them could come until I got settled in a patient room. Shortly after Nicole left, Mrs. Merth, the head dean of women, came. I told her about being labeled a fall risk, and she also tried to encourage and comfort me. Although I was still exasperated, her presence was calming.

About midnight I was moved into a room on the orthopedic unit because the hospital was busy and there was nowhere else to put me. In the admission process we told the nurse about the fall-risk band, and she said that almost everyone on that unit was declared a fall risk. Then she added, to my great relief, comfort and encouragement, that the nurses use their own judgment about whether a patient is actually at risk of falling. When we finished the admission process, I told Mrs. Merth that she could go get some sleep and that I would try to do the same.

Having received at least a liter and a half of fluid in the emergency room and a much slower but constant drip in my room, I kept having to get myself to the bathroom. Each time I had the nurse help me because the IV was hooked up and I didn’t want to get wound up in the lines and cords. The nurse observed me walk several times. In the early morning, when she was getting ready for the day shift to come in, we were talking about my bands because she had to put another band on me because of one of the medicines I was taking. My fall risk band came up in the conversation, and the nurse said she was going to take it off, saying “I don’t know where they got their numbers on that. You move better than 95 percent of the people on this floor.” I explained that the emergency room staff had applied a stereotype to me as a blind person. When she was ready to remove it, I handed it to her, having slipped it off a moment before after she said I didn’t need it. I asked her to put it with my things, explaining that, when things like this happened to blind people, we often write stories to inform others and that having the band in my possession would serve as a reminder--as if I needed one. When she left that morning, I decided that she had been very pleasant, fair, and open minded toward me and had willingly learned something about blind people and the stereotypes that we face.

That hospital stay lasted three days, but never again was I treated differently because of my blindness. I did have to affirm my capabilities to people on a couple of occasions, but they at least gave me the courtesy of listening to me. I received some education while I was there, including how to administer insulin. They seemed quite willing to teach me this technique. Although for the moment I no longer have to administer insulin because my levels are well controlled on one oral medication, it was helpful to learn how in case I need to use this knowledge in the future. I still have my fall risk band, really just as a keepsake now to remind me. But I will never forget the events of that day and that hospital stay, and I think of it as an experience I can use to help others.

 

Featured Book from the Jacobus tenBroek Library

A Handbook for the Blind and Their Friends by Winifred Holt. New York, Dutton, 1922

by Ed Morman

From the Editor: With some regularity we spotlight books in the tenBroek Library. Here is librarian Ed Morman's description of a recent acquisition:

Winifred Holt (1870-1945, also known by her married name Winifred Holt Mather), has been called the First Lady of the Lighthouse. As the founder of an agency and someone who had little or no contact with the organized blind, she might be expected to have had a patronizing attitude toward blind people. This book demonstrates that such condescension can coexist in a person of good will with an appreciation of the capabilities of blind people and recognition of the diversity of the blind population.

Although calling itself a handbook for the blind as well as their friends, the book’s preface reveals otherwise, when Holt explains why she extracted its contents from her longer work, The Light Which Cannot Fail: True Stories of Heroic Blind Men and Women.

This little handbook, which was originally included with the stories, has been separated from them in the hope that in its more concrete form it would be a more useful and accessible companion to Tiphlophiles, which, I am informed, means lovers of the blind. "As far as the blind themselves, if there is anything that any blind man, woman, or child wants to know about the blind, if they ask questions at Light House No. 1 . . .[in] New York . . . and do not get a satisfactory answer, I wish they would give me a chance . . . to do my best to supplement my sins of omission."

Holt should not be judged harshly. She was the daughter of the publisher, Henry Holt, and a skilled sculptor who could have lived off an inheritance and devoted herself to art. In no way was she a worker with the blind whose job and income depended on the pretense of being more expert than the blind themselves.

In the days before the NFB--when talented blind people like Newel Perry were struggling for recognition but failing to achieve success in their chosen fields--sighted philanthropists like Winifred Holt did accomplish some good for the blind. Whatever her motivation, she encouraged the use of Braille, refused to let blindness be an excuse for unsatisfactory work, urged blind people to engage in sports and athletics, and regarded generalizations about the blind as a sign of ignorance.

Surprisingly, neither the NLS catalog nor the Louis database of the American Printing House has an entry for accessible copies of the Handbook (or the larger work from which it was taken). However, since the copyright on this book has expired, the tenBroek Library will be able to include it in our digitization program. We hope to have a link to it from the library catalog within a year. In the meantime the NLS does have Holt’s biography in Braille. Written by her sister, Edith Holt Bloodgood, and her widower, Rufus Graves Mather, First Lady of the Lighthouse is a good place to learn more about this friend of the blind.

 

Ask Miss Whozit

From Barbara Pierce: In recent months Miss Whozit has answered reader questions about etiquette and good manners, particularly as they involve blindness. If you would like to pose a question to Miss Whozit, you can send it to the attention of Barbara Pierce, 200 East Wells Street at Jernigan Place, Baltimore, Maryland 21230, or email me at <bpierce@nfb.org>. I will pass the questions along. Letters may be edited for space and clarity. Here are the most recent letters Miss Whozit has received:

Dear Miss Whozit,

I am a local chapter president, and several of my members have had difficulty with staff attitudes in doctors' offices. I realize that these are busy places and that the staff doesn't necessarily have much time to help blind patients fill out forms. I have learned to notify offices about my blindness in advance. Some offices send me the forms ahead of time, and one office asked me to pick up the form before my appointment so that I could bring the completed form with me. Luckily I was able to get to the office ahead of time and pick up the form.

But the response most of us get when we describe our inability to complete paperwork independently is that we should bring someone with us to fill out the forms. First of all, we are not children and do not need someone to accompany us to doctors' appointments, etc. Also such information is personal. I can easily imagine that a blind person might find an acquaintance willing to fill in the form but to whom he or she would not feel comfortable disclosing intimate health details. Moreover I think most of us would feel self-conscious providing such answers out loud in a busy waiting room. The other problem I have found in bringing someone with me to a doctor's office is that the staff tend to address the sighted person instead of me, which is infuriating.

My husband experienced a related problem recently when my niece took him to a medical lab for blood work and then left him there to go to work. The people at the blood center told him that, if he didn't have someone with him at all times, he would have to come back another time with a sighted minder. He and I both believe that this treatment was insulting and discriminatory. My husband was able to find someone to stay with him until they finished the blood work, but the experience was demeaning.

Could you write something that people could take to doctors' offices and blood centers that would explain how blind people should be treated? I know that we have the courtesy rules of blindness, but these situations are a little different.

Unwilling to Take it Anymore

Gentle Reader,

The Americans with Disabilities Act became law in part to protect us from such treatment. A doctor’s office and a lab that serves members of the public who require its services are places of public accommodation, and those who run them must be prepared to provide reasonable accommodation to those who need it. Providing forms to a patient by mail ahead of time seems a reasonable way of solving the problem. Assisting the patient to fill out the paperwork is equally effective. These offices are usually busy places, and it is not surprising that they are not eager to make a staff member available to do the paperwork, so that is a very good reason for patients’ being considerate enough to request the forms beforehand in order to complete them at home. If this is not possible because of an emergency or some other circumstance that prevents the blind patient from completing the paperwork early, the law is clear that the office staff must accommodate the patient by assisting in the completion of the forms since they are not available in an accessible format.

If the patient is an adult, it is inappropriate for any office to require the presence of another person unless all patients in the same medical situation are required to be accompanied by a responsible adult who can take notes and drive the patient home after the procedure.

Your city or state ADA compliance office should be able to back you up if necessary. But Miss Whozit suggests that you be as considerate as you can by planning ahead and then courteously stand on your rights when necessary. It will be news to most doctors’ receptionists that the law requires them to provide accommodations to disabled patients. If you are calm and clear while explaining this fact of life, reasonable medical personnel will respond appropriately.

Dear Miss Whozit,

I have flown many times, both within the United States and abroad. I always ask for help from airline personnel or ground employees. If I get help from a skycap, I always tip, which I know is appropriate.

But I have read in the Monitor Federationists’ accounts of their experiences in airports, and they say or at least imply that they get through a large, busy airport with absolutely no assistance. As a seasoned traveler and one whose mobility is fairly good, I find this unbelievable. Also they sometimes imply that it is shameful for a true Federationist to ask for assistance in an airport.

In a couple of months I will make another flight, and I have to transfer in Detroit, an airport I have only visited once, some twenty-five years ago. It seems absurd to me to think that I could find my way around this airport alone. After all, take away all the signs and monitors, and most sighted travelers would also be lost. That is why the signs are posted. Is it more respectable to ask other sighted travelers to help when they may be busy and disinclined to do so than it is to ask for help from those whose job is to assist passengers?

I also see nothing wrong with preboarding, and I do it all the time. I base my decision on this: I have never seen a person turned away when trying to preboard, no matter what the reason, so I figure why not do it and get a head start on the rush? Yet often in the Monitor needing or accepting such help is characterized as somehow shameful. I agree that a person should not be forced to accept unwanted help, but how is it possible for a totally blind person to traverse an unfamiliar airport without help, and from whom is necessary assistance best sought?

Frustrated Traveler

Dear Frustrated Traveler,

Miss Whozit is wondering whether you and she have been reading the same publication. A quick search of airline stories in the Braille Monitor has turned up no instances when readers have been urged to refuse assistance that they believe they need. This is a very personal assessment shaped by individual skill, experience, and confidence. Even the same passenger may make different decisions about soliciting help depending on the circumstances. With time to kill and little to carry, one might well decide to make enquiries along the way to the gate. Another time the same passenger racing to catch a flight or having a long way to go with lots of luggage might be very happy to grab a cart or the help of a skycap.

Miss Whozit suspects that you are feeling threatened by other blind people who portray themselves as preferring to travel independently. She herself prefers independent travel, though sometimes she admits that it is easier to ask for help she may need or to accept assistance than fight off a would-be Galahad.

You ask how a totally blind person can negotiate an airport independently. As usual the answer hinges on one’s definition of the word “independence.” We who get where we are going without paying someone to take us there make enquiries along the way: what gate is this? Is the terminal in that direction? Do you see a sign for ground transportation? Moreover, when the opportunity arises, it is perfectly acceptable to walk along with another passenger who is going your way. In fact Miss Whozit’s experience is that passengers who do not wish to be slowed down by answering questions just walk past, ignoring a blind person looking puzzled.

When the Braille Monitor staff first began discussing flying and dealing with airline and airport personnel, we were eager to convey to our readers that they had as much right to behave like adults as anyone else in the traveling public. We were trying to counteract the general belief that blind passengers were just so much baggage that some sighted person had to be responsible for lugging around. The most effective way of modeling this new form of behavior was to invite blind people who were already insisting on behaving like adults to write about their experiences so that the more timid could understand how to insist courteously on making their own decisions about themselves and how much assistance they wanted or needed. The intent was to empower people, not to shame them.

Preboarding is a good case in point. Anyone who is insecure about boarding in his or her designated place should make arrangements to preboard. Choosing to preboard simply because it gives one a better shot at the overhead storage smacks of using blindness to get perks that might not otherwise be available. In this case one might remember the TANSTAAFL principle—there ain’t no such thing as a free lunch. When a person with a dog or white cane goes to the front of the line, everyone in the gate area presumes that it is because he or she cannot participate in the standard boarding. If this is the case, accepting the nebulous pity for the less fortunate is the price that must be paid for a necessary accommodation. That price will be paid by any blind passenger who does not gently insist on taking his or her assigned turn and not jumping the line.

This point is important. Many blind people choose to preboard aircraft when there is no assigned seating because they find it time-consuming to locate empty seats, and the airlines offer preboarding to those who require a little extra time to find and take their seats. Passengers are asked to load as quickly as possible, and it seems responsible to these blind people to preboard so that they do not inconvenience other passengers. But, when they have assigned seats, they stand up and move with the crowd toward the loading area, trusting that other passengers will direct them to the end of the line. They believe that they are justified in preboarding when that is the most efficient way to find a seat. They insist on taking their assigned places in line when that is equally efficient.

Each of us must make these decisions for ourselves. What is unfortunate is for sighted companions to urge that preboarding be done so that they can take advantage of the convenience of early seating while the blind passenger is identified as the object of pity. By all means make your decisions about preboarding and traveling through airports based on your own level of confidence and competence, but be clear about the cost and do not delude yourself about the price; every decision you make has a cost.

Dear Miss Whozit,

Back in residential school the teachers stressed that we should not use our blindness as an excuse. Though I think this is generally good advice, I have sometimes blatantly used my blindness to get what I wanted. I wonder what you think about the following.

I am extremely unskilled on the Internet. I do not know how to do Websites. I don't like this situation, but I haven't found a way to change it.

Recently I was talking with a customer service person at a phone service to which I subscribe--and which I pay for. I wanted her to make an adjustment in my account, and she told me I had to go to the Website to do it myself. Frankly, I did not believe her when she said she could not do it on the phone. I interpreted her statement as "I don't want to do it for you on the phone." So I told her that I was blind and that I couldn't do things on the Web. (I didn't bother to explain that some blind people can but that I cannot.)

Then she very kindly, if a little condescendingly, did what I had requested. What made me angry was that she could have done it for me all along just because I had asked her and because I was a paying customer. I dragged out the blindness in order to get what I wanted. My alternative would have been to find a friend (not very available to me) to do this for me. Am I being an Uncle Tom or just doing what I have to do to make it through?

Not Ashamed

Gentle Reader,

Your actions were not those of an Uncle Tom, but you certainly did not hesitate to play the pity card, and it did accomplish what you wanted. Miss Whozit suspects that you are pretty quick to use this card, and there may be times when you have no choice, but this was certainly not one of them.

Even though it sometimes seems that everyone in the world has a computer and access to the Internet, this is not in fact the case. Customer service personnel are instructed to insist that callers do what they can for themselves. This is an economic decision on the part of management. But the staff have to be prepared to make changes for those customers who do not have access to the Internet, which in fact is your situation. It would not have been much of a stretch for you to have admitted that you did not have access to the Internet, so how would she suggest that you make the adjustment to your service? You would not have had to explain that your lack of access was connected to blindness and not the complete absence of a computer.

Remember also that many Websites are still not accessible to people who use speech programs. A customer service person is unlikely to have any idea whether the company Website is accessible. Miss Whozit confesses that she sometimes announces to such folks that the site is not accessible to speech programs when it may be only that she is not skilled enough to make the site work properly. Either of these strategies avoids playing the blindness card.

The very fact that you raised this question suggests both that you were afraid of what Miss Whozit’s view would be and that you really were a bit ashamed of your action. Your inability to use the Internet is not at issue here. Plenty of people have trouble with this relatively new aspect of our lives, and we are no less worthy or valuable as human beings because of this deficit in our experience or opportunity. It is simply a fact of life like hair color or visual acuity. Refusing to seize opportunities that come your way to learn to use the Internet would be unfortunate, and unnecessarily using blindness as the explanation for requiring assistance plays on the public’s tendency to presume the helplessness and inferiority of blind people. Doing so is demeaning to you and demeaning to all of us. In future Miss Whozit hopes you will try to avoid playing the blindness card and find a more creative way of solving your problems. After all, we both know that it was not blindness as such that prevented you from making the change yourself.

 

NFB / Cardtronics Settlement

From the Editor:  We have been asked to publish the following material in accordance with a court order in this case. This information should be useful to our readers.  Here it is:

Notice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

 


COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs

v.

E*TRADE ACCESS, INC., et al.,
Defendants

 

 

CIVIL ACTION NO. 03-11206-MEL

 

Notice of Proposed Remediation Plan Concerning
Final Order Relating to Class Action Settlement
Agreement and Hearing to Be Held on September 15, 2010 at 2:30 p.m.

To All Members of the Nationwide Class Certified by This Court to Include Blind Patrons of Automated Teller Machines (“ATMs”) Owned or Operated by Either Cardtronics, Inc. or Cardtronics USA, Inc. (collectively, “Cardtronics”)

On December 4, 2007, this Court granted final approval of a class action settlement agreement entered into between Plaintiffs, the Commonwealth of Massachusetts, the National Federation of the Blind (“NFB”), and several individual blind persons, and Defendants, Cardtronics, Inc. and Cardtronics, LP (now Cardtronics USA, Inc.) (collectively “Cardtronics”) concerning, among other things, the accessibility of ATMs owned or operated by Cardtronics to blind patrons under the Americans with Disabilities Act (“ADA”) and Massachusetts state laws.

Due to Cardtronics’ inability to meet a number of important requirements of this court’s final order of December 4, 2007, the parties have reached agreement on a proposed remediation plan, subject to approval by this court, that requires Cardtronics to meet all of their prior obligations with extensions of time to do so, plus additional obligations intended to ensure that the members of the class enjoy the benefits set forth in the original settlement agreement and final court order.

Cardtronics has agreed to a remediation plan that includes, among other actions, ensuring that, with the exception of Cardtronics-owned ATMs located in 7-Eleven stores, all ATMs owned by Cardtronics will offer voice guidance through a standard headphone jack located on the face of the ATM by no later than December 31, 2010; Cardtronics-owned ATMs located in 7-Eleven stores will offer voice guidance through a standard headphone jack located on the face of the ATM by no later than March 31, 2011, and that by March 31, 2011, at least ninety percent (90%) of all transactions at covered ATMs shall occur on ATMs that are voice guided or otherwise accessible to blind people. Cardtronics has agreed to develop improved voice-guided scripts for all Cardtronics-owned ATMs to ensure that blind customers can easily access all ATM functions.

Cardtronics has also agreed to institute an inspection program intended to ensure that voice-guided ATMs remain operational for blind customers. A full copy of the proposed remediation plan is available on the NFB’s Website: <www.nfb.org> and on the Cardtronics’ Website: <www.cardtronics.net/news/nfb_remediationplan.asp>. The locations of the existing ATMs covered by the final order and by the proposed remediation plan, with designation of voice-guidance status, can be obtained through Cardtronics’ ATM locator feature, available at <www.cardtronics.net/about/atmlocator.asp>.

As part of the proposed remediation plan and subject to Court approval, Cardtronics has agreed to pay the amount of $145,000 in attorneys’ fees to the attorneys representing the class. These amounts will not detract from Cardtronics’s duties to provide accessible ATMs to the class. The Court will conduct a hearing on the motion of class counsel for their attorneys’ fees at the date and time set forth in the following paragraph. Cardtronics has also agreed to pay an additional $60,000 to the NFB for testing that the NFB will conduct to ensure compliance with the remediation plan requirements.

You are hereby notified, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the Court dated May 18, 2010, and as thereafter amended that a final approval hearing will be held on September 15, 2010, at 2:30 p.m., before that Court in the United States Courthouse, One Courthouse Way, Boston, Massachusetts 02210. The purpose of this final approval hearing is to determine whether the proposed remediation plan should be approved by the Court as fair, reasonable, and adequate and whether the application for award of attorneys’ fees and reimbursement for expenses should be approved.

Class members who wish to object to the proposed settlement must provide notice of and explanation of their objection in writing to the Court at the address above, with copies to counsel at the addresses provided below, no later than Monday, August 30, 2010. Only class members filing timely objections may request to present their objections at the final approval hearing.

Office of the Massachusetts Attorney General
Attn: Maura Healey, Esq.
100 Cambridge Street
11th floor
Boston, MA 02108

Brown, Goldstein & Levy, LLP
Attn: Sharon Krevor-Weisbaum, Esq.
120 E. Baltimore Street
Suite 1700
Baltimore, MD 21202

Joseph Kociubes, Esq.
Bingham McCutchen, LLP
150 Federal Street
Boston, MA 02110-1726

For further information, visit <www.cardtronics.net/news/> or contact counsel for the plaintiffs:

Commonwealth of Massachusetts
Office of Attorney General
Disability Rights Project
(617) 727-2200
<www.mass.gov/ago>

or

Brown, Goldstein & Levy, LLP
(410) 962-1030
<www.browngold.com >

Except as instructed in the notice, please do not contact the court.

Dated: May 18, 2010                          By Order of the
                                                            United States District Court
                                                            For the District of Massachusetts

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS


Proposed Remediation Plan

Final Order and Judgment

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS



COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs

v.

E*TRADE ACCESS, INC., et al.,
Defendants

 

 

CIVIL ACTION NO. 03-11206-MEL


FINAL ORDER AND JUDGMENT

Plaintiffs, Commonwealth of Massachusetts, National Federation of the Blind, Inc. (“NFB”), Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen, and Bryan Bashin, seek final approval of the class action settlement that was approved preliminarily by this court on July 26, 2007. See Memorandum and Order Granting Unopposed Motion for Preliminary Approval of Class Action Settlement and for Fairness Hearing (“Preliminary Approval Order”). Specifically, plaintiffs have moved the court for an order: (1) finding that the class action settlement agreement between plaintiffs and defendants, Cardtronics, LP, and Cardtronics, Inc. (collectively “Cardtronics”), is a fair, reasonable, and adequate settlement of all of the claims of the class against defendants, overruling the single objection to the proposed settlement and finding that each class member shall be bound by the settlement agreement, including its release; (2) finding that the notice published to the class satisfies the requirements of due process and Fed. R. Civ. P. 23; (3) approving an award of attorneys’ fees and costs by defendants to plaintiff, NFB, in the amount of $900,000, as agreed to by the parties; (4) dismissing this lawsuit on the merits and with prejudice as to all claims in the lawsuit against all defendants; (5) attaching and incorporating by reference the terms of the settlement agreement; and (6) retaining jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of the Settlement Agreement.

Background

A.        Plaintiffs’ Claims

Cardtronics currently owns and/or operates at least 23,300 ATMs throughout the United States, including approximately 15,000 ATMs formerly owned and/or operated by Defendant E*TRADE Access, Inc. (“Access”).4 Approximately half of these ATMs are owned by independent merchants who are customers of Cardtronics (“Merchant-Owned ATMs”). This litigation concerns plaintiffs’ request that Cardtronics’s fleet of ATMs be made accessible to and independently useable by blind people through the use of voice-guidance technology.

Some of the ATMs in the Cardtronics fleet already have voice guidance. Those ATMs that are not currently voice guided vary in their capacity to be made voice guided. Many newer machines have the capacity to be upgraded to provide voice guidance through a straightforward retrofit process (“Upgradeable ATMs”). Other, older machines are not able to be upgraded and must be replaced completely in order to make voice guidance available.

Plaintiffs’ Fourth Amended and Supplemental Class Action Complaint (“Fourth Amended Complaint”) alleges that Cardtronics has failed to make all of the ATMs it owns and/or operates accessible to blind individuals in violation of Title III of the ADA, 42 U.S.C. §§ 12181 et seq., and Section 4.34.5 of the Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A (“Standards”) (requiring that ATMs be “accessible to and independently useable by persons with vision impairments”). Title III is enforceable through a private right of action for injunctive relief, and prevailing plaintiffs are entitled to attorneys’ fees. See 42 U.S.C. §§ 12188(a)(1), (2) and 12205. Plaintiffs have also alleged violations of the Massachusetts Public Accommodations Act (“MPAA”), Mass. Gen. Laws ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act (“MERA”), Mass. Gen. Laws ch. 93, § 103.

Although numerous procedural and substantive disputes have arisen throughout this litigation, the case turns primarily on the vigorously contested issues of whether defendants’ ATMs are in violation of the standards and, if they are, whether plaintiffs are entitled to an injunction that would require Cardtronics to install voice guidance capabilities on all ATMs it owns and/or operates, including merchant-owned ATMs. The lawsuit also includes claims against defendant E*TRADE Bank, Inc. concerning its banking policies applicable to consumers’ use of the Cardtronics ATMs. These claims are derivative of the claims addressing the accessibility of the Cardtronics ATMs.

B.        Pre-Filing Settlement Negotiations

On June 9, 2003, after lengthy negotiations, the Commonwealth and the NFB entered into a partial settlement agreement (“PSA”) with defendants Access and E*TRADE Bank, Inc. (collectively “E*TRADE”), pursuant to which Access agreed to equip the ATMs it owned with voice guidance over a period of two and one-half years. The parties were not able to reach agreement with respect to merchant-owned ATMs.

C.        Litigation

On June 23, 2003, the Commonwealth and the NFB, along with several individual blind people and the NFB’s Massachusetts affiliate, filed the present suit against E*TRADE. From its inception this litigation has been hard fought. As fully detailed in the preliminary approval order, this complex case involved numerous dispositive motions, voluminous document discovery, and several significant discovery-related motions.                  

Summary of the Settlement 

After an all-day mediation on April 9, 2007, and following further negotiations over the course of more than two months, the parties executed the settlement agreement on June 21, 2007.

In summary the settlement requires:

Because the settlement agreement applies to all Cardtronics ATMs--including former E*TRADE ATMs--it supersedes the earlier PSA among E*TRADE, the Commonwealth, and the NFB. Although E*TRADE is not a party to the settlement agreement, that agreement concludes this litigation and calls for the dismissal with prejudice of all claims in this case against all defendants. (Settlement Agreement, ¶ 2.7(c).) The implementation of voice guidance on the ATMs makes it unnecessary for E*TRADE Bank to change its policies as sought in the lawsuit.

In the settlement agreement, the parties agreed that the Court should retain jurisdiction of this case for purposes of the interpretation, administration, implementation, effectuation, and enforcement of this agreement. (Settlement Agreement, ¶ 2.7(d).) In addition, defendants have withdrawn their opposition to plaintiffs’ motion for leave to file a fourth amended complaint (Settlement Agreement, ¶ 2.1), and the Court has granted the parties’ joint motion for certification of a settlement class, which includes all persons who are blind patrons of ATMs covered by the settlement agreement.

III.       Preliminary Approval

As mentioned, on July 26, 2007, this court granted plaintiffs’ unopposed motion for preliminary approval of class action settlement and scheduled a fairness hearing on the proposed settlement for December 4, 2007. In the preliminary approval order, the court approved the parties’ proposed plan for notifying class members of the settlement, as well as the form of the notice to be utilized for this purpose (“Notice”).

IV.       Notice to the Class

The Court finds that the notice approved in the Court’s preliminary approval order was made available on Cardtronics’s Website from approximately August 23, 2007, to November 1, 2007, and that a copy of the notice was also available on the NFB’s Website during that same period.

The Court also finds that a copy of the notice was mailed to a list of over 900 organizations, including a number composed of, and/or focused on the issues of, blind people. Of those mailings thirty-six were returned due to incorrect addresses. The correct addresses were ascertained for eleven of those returned mailings, and the notice was then sent to those correct addresses. In addition, the notice was emailed to 1,036 email addresses relating to the organizations referenced above, with a cover letter requesting that the recipient post and forward the notice. Of those emails 186 were returned as undeliverable. Fifteen organizations to whom the notice was emailed notified class counsel that they had forwarded the notice to other individuals or lists of individuals thought to be class members. Another ten organizations notified class counsel that they had posted the notice on their Websites. The NFB sent the notice to over fifty email lists of blind individuals, including lists of blind lawyers, students, and travelers. In each of these paper and electronic mailings, counsel for the class offered to provide Braille versions of the notice and/or the settlement agreement. Class counsel ultimately received and honored six requests for Braille documentation.

The Court finds further that the notice was published in the August/September edition of the Braille Monitor, which is the publication of the NFB and is regularly sent to its approximately 50,000 members, among others. The notice was also published in the September, 2007, edition of the Braille Forum, as well as in The New York Times, the Los Angeles Times, and USA Today on August 28, 2007.

In addition, the Court finds that there has been only one objection to the proposed settlement. This objection purports to be on behalf of Mason P. James, of Loveland, Texas, and states only that ??? “[m]e wish to object to the proposed settlement.” See Objection by Mason P. James (Sept. 27, 2007, Paper No. 270).

DISCUSSION

I. The Settlement Agreement is Granted Final Approval.

A court may approve the settlement of a class action only upon finding that it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1)(C); see also City P’ship Co. v. Atlantic Acquisition Ltd. P’ship, 100 F.3d 1041, 1043 (1st Cir. 1996) (same). The First Circuit has recognized a clear policy of encouraging settlements in class action cases and has stated that “[w]hen sufficient discovery has been provided and the parties have bargained at arms-length, there is a presumption in favor of the settlement.” City P’ship, 100 F.3d at 1043. In determining the fairness, reasonableness, and adequacy of a proposed class action settlement, several courts in this district have looked to the following factors set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), overruled on other grounds by Missouri v. Jenkins, 491 U.S. 274 (1989):

For all of the reasons set forth in the Court’s Preliminary Approval Order, an analysis of these factors strongly supports this court’s final approval of the Settlement Agreement as fair, reasonable, and adequate. In addition, this court overrules the single objection to the proposed settlement, as no reasons were provided for that objection as required by the notice approved by the Court. Therefore, this court also finds that all class members are bound by the Settlement Agreement, including its release provisions.

II. Notice to the Class

Rule 23(e) states that “notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” The notice must satisfy Rule 23, as well as due process requirements. Cf. Besinga v. United States, 923 F.2d 133, 136-37 (9th Cir. 1991) (requirements of due process and Fed. R. Civ. P. 23(c)(2)(B) are similar). “‘[I]t is the court’s duty to ensure that the notice ordered is reasonably calculated to reach the absent class members.” Reppert v. Marvin Lumber and Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004) (citations omitted). “When individual notice is infeasible, notice by publication in a newspaper of national circulation … is an acceptable substitute.” Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 786 (7th Cir. 2004).

This court finds that the notice program approved in its preliminary approval order and now implemented by the parties was the best notice practicable under the circumstances and satisfied the requirements of due process and Fed. R. Civ. P. 23. The parties represented that there was no readily accessible list of the potential class members in this case and that such a list likely could not be created without enormous effort and expenditure. Notice here involved a combination of individual mailing—through the Braille Monitor and Braille Forum to tens of thousands of blind people—and publication in three newspapers of national circulation: The New York Times, Los Angeles Times, and USA Today. Under these circumstances, individual notice was not required in order to satisfy the requirements of due process and Fed. R. Civ. P. 23.

III. Attorneys’ Fees and Costs

Class counsel have submitted an unopposed petition for an award of attorneys’ fees and costs, pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2). Specifically, class counsel request that the court approve an award of attorneys’ fees and costs by defendants to the NFB in the amount of $900,000, the amount agreed to by the parties as part of the class action settlement.

The ADA provides that courts may award the prevailing party its “reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. Rules 23(h)(1) and (2) require that notice and an opportunity to object be provided. In this case the notice sent pursuant to the preliminary approval order included the amount of the fees and provided an opportunity to object and no class member has objected to the proposed fee award.

In evaluating a fee petition in a case such as this, the Court is to consider “the reasonableness of the hours spent and the hourly rate sought.” Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 529 (1st Cir. 1991) (quoting In re Spillance, 884 F.2d 642, 647 (1st Cir. 1989)). After due consideration of the filings of class counsel and the relevant case law cited therein, this court finds that a fee award in the amount of $900,000 is well within the bounds of reasonableness under the circumstances of this case. The time spent by class counsel in litigating this complex case clearly was justified. In addition, the lodestar amount—calculated by multiplying these hours by reasonable prevailing rates—is almost twice the amount agreed upon in the settlement. The Court finds that the hourly rates charged by class counsel are commensurate with the rates charged by Boston attorneys of comparable experience in comparable matters and that the rates actually billed to the NFB were below those rates. In addition, the award sought is well below the actual amount of fees and costs paid by the NFB in connection with this litigation. For these reasons the Court approves the fee award agreed to by the parties as part of the settlement agreement.
 
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. This court has jurisdiction over the subject matter of this lawsuit and over all of the parties to the lawsuit, including the named plaintiffs, all members of the class, and defendants.

2. The Court adopts and incorporates the findings of the preliminary approval order and hereby approves the settlement agreement as fair, reasonable, and adequate in all respects. This is especially so in view of the complexity, expense, and probable duration of further litigation, the risks of establishing liability, the intensive arm’s length negotiations of experienced counsel, and the reasonableness of the relief obtained, considering the range of possible outcomes and the attendant risks of litigation.

3. The Court overrules the single objection to the settlement and finds that each class member is bound by the settlement agreement, including its release.

4. The Court finds that the notice published to the class satisfies the requirements of due process and Fed. R. Civ. P. 23.

5. The Court finds that the attorneys’ fees and costs sought by class counsel are reasonable and approves an award of fees and costs, in the amount of $900,000, as agreed to by the parties.

6. The Court dismisses this lawsuit on the merits and with prejudice as to all claims in the lawsuit against all defendants.

7. The Court attaches hereto as Exhibit 1 and incorporates into this final order and judgment the terms of the settlement agreement.

8. The Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of the settlement agreement.

It is so ordered.
           
Dated: [Illegible date]

[Illegible signature]                   
                                   U.S.D.J.

397837

1. Final Order Ex. 1 at 4.

2. See Final Order Ex. 1 at ¶ 4.2.

3. See id. at ¶ 4.4.1.                                                                

4. On or about June 2, 2004, Cardtronics LP acquired Access’s ATM business.

Recipes

This month’s recipes come from the Performing Arts Division.

Donna's Corn Bread
by Donna W. Hill

Donna Hill lives in Meshoppen, Pennsylvania. She is a professional singer and songwriter and is responsible for media relations in the NFB Performing Arts Division.

Ingredients:
2 1/2 cups corn meal
3 cups flour (half whole wheat, half unbleached)
1 1/2 teaspoons salt
2 tablespoons baking powder
1 tablespoon baking soda
3 eggs, beaten
3 cups buttermilk
1 cup brown sugar, packed
Splash of vanilla extract
1 stick butter

Method: Whisk together the liquid ingredients and set aside. In a large bowl combine and blend dry ingredients. Cut the cold stick of butter into the dry ingredients as follows: cut butter into thirds; cut each third in half lengthwise; turn it so that lengthwise cut is horizontal and cut in half lengthwise again. Holding the four sections of each third together, cut as you would to make pats of butter. This will give you many little pieces of butter. Fold them into the dry ingredients and knead with fingers until butter is distributed evenly throughout.

Combine dry ingredients one cup at a time with liquid, whisking 100 times per cup. Switch from whisk to wooden spoon when batter gets too thick. Pour batter into well-greased 11-by-15-inch pan (Pyrex for best results). Bake in preheated 350-degree oven for forty-five minutes. When done, place on cooling rack for half an hour before cutting. Hint: We freeze this corn bread in blocks that will serve two. Use twist-tie bags for each piece, burp out the air, then seal in outer ziplock freezer bag.

Blueberry Swirl Breakfast Buns
by Donna W. Hill

This is a whole-grain yeast dough recipe that makes approximately thirty buns.

Ingredients:
3 cups lukewarm water
2 teaspoons honey, brown sugar, or maple syrup
1 envelope dry yeast
6 cups flour (3 whole wheat and 3 unbleached)
1 teaspoon salt
1 stick butter, softened
1 cup brown sugar or more
1 1/2 cups fresh or thawed frozen blueberries
1/2 cup chopped nuts, optional
1 teaspoon ground cinnamon, optional
Powdered sugar mixed with a little milk as frosting, optional

Method: If you are using commercially frozen blueberries, defrost a twelve-ounce bag ahead of time and pour the frozen blueberries into a large measuring cup. Drain the juice and use it as part of the three cups of water in which you dissolve the yeast. Combine water, yeast, and honey, brown sugar, or syrup. Cover bowl. Rinse a clean dish towel in hot water and wring out before using to cover bowl. Allow mixture to sit for ten minutes or until the yeast has foamed up. Combine flours and salt and add this dry mixture 1 cup at a time to the yeast mixture, stirring with a large wooden spoon about a hundred strokes after each cup. When the dough shows some elasticity and pulls away from the sides of the bowl, dump it onto a floured counter or dough board. Allow to rest for 5 minutes. Then knead the dough into a large, homogenous ball. If the dough is sticky, flour your hands to add small amounts of flour as needed.

Return the kneaded dough to the large mixing bowl, cover with a warm dish towel, and allow to rise in a warm place for an hour. If you have a gas stove with a pilot light, place the bowl in the oven to facilitate rising. If you have an electric oven or gas oven with an electric pilot light, you can achieve the warm rising space by preheating the oven briefly before turning it off and placing the covered bowl in the center of the oven. If the dough is rising on the counter, replace the heated dish towel every fifteen minutes or so with a newly warmed one. When the dough has doubled in bulk, punch it down once with a floured fist, which removes the air trapped inside as it rises. Cover again and allow to rise for forty-five minutes more.

During this stage, soften a stick of butter either by heating lightly on the stove or by placing it in a Pyrex measuring cup and putting it in the microwave for ten-second bursts until butter is soft. You want it to soften only enough to spread easily. With a rolling pin, roll the dough out evenly on a floured surface until you have a thirty-by-fourteen-inch rectangle. As you work, keep checking to be sure you can still lift the dough. Add a little flour to the board when necessary to keep dough from sticking to the surface.

Using a pastry brush, spread the butter evenly over the surface of the rectangle, using only as much as you need to coat it well. Sprinkle the surface with brown sugar mixed with the cinnamon, if desired. The amount of sugar depends on your sweet tooth. One cup works for us. Leaving about an inch at the edge nearest you and two inches at the far edge, distribute the blueberries evenly on the surface. If you like nuts, do likewise with a half cup of them. Roll the dough jellyroll fashion, starting at the edge closest to you and rolling toward the back of the counter. Be sure to work your fingers along the entire length so that you roll the dough evenly. Seal the back edge by pinching the seam closed. Then pat the cylinder into shape, making sure the diameter is uniform. The longer you make the roll, the more buns you will have, and the smaller each one will be. Cut the roll into one-inch wide buns and arrange them cut-side down on two well-greased cookie sheets. Cover with towels and allow the buns to rise for twenty minutes. Preheat oven to 350 degrees. Bake in the center of the oven one sheet at a time for twenty to twenty-five minutes. If desired, you can ice these once they have cooled a bit.

Tomato Barley Soup
by Donna W. Hill

Make this soup in an eight-quart pot, and serve with warm, buttered corn bread.

Ingredients:
2 28-ounce cans tomato puree
2 28-ounce cans crushed tomatoes
1/4 cup of your favorite wine--I use dry red
1 heaping teaspoon horseradish
1 tablespoon dried basil
2 tablespoons brown sugar
Scant tablespoon salt or Tamari sauce
Splash hot sauce
Pepper to taste
1 1/2 quarts milk
1 cup barley, cooked in 3 cups water, a pinch salt, and pat butter
5 ribs celery, chopped
10 cloves garlic, minced
1 large onion, chopped
2 or 3 yellow or red sweet or frying peppers, seeded and chopped
Olive oil

Method: Bring barley to boil, stir, cover, remove from heat, and allow to stand for half an hour. In olive oil in large pot sauté vegetables. Add the cooked barley, including any water not absorbed Then add tomatoes, puree, wine, and spices. Simmer soup covered for a half hour, stirring occasionally to prevent sticking. Add more sugar if soup base tastes too tart. Then add milk and heat through again before serving.

Note: We freeze this soup, so, to save freezer space, we freeze it before adding the milk. We add the milk before serving or reheating.

Peach Cobbler
by Anthony Evans

Anthony Evans is a Performing Arts board member, producer, and musical mentor.

Ingredients:
1 stick butter
1 cup all-purpose flour
1 1/2 teaspoons baking powder
1 1/2 teaspoons salt
1 cup whole milk
1 cup sugar
2 cups peaches, peeled and sliced

Method: Preheat oven to 350. Place the butter in a 13-by-9-inch baking dish and put it into the oven to melt. Combine flour, sugar, baking powder, and salt in a mixing bowl and mix well. Pour milk into the bowl and stir to make a batter. Remove baking dish from oven. Pour batter into dish. Pour peaches and their juice evenly over the batter. Bake for 30 minutes. Top should be golden brown when cobbler is done, or run a spoon over crust to check that it feels hard. Remove to a rack and allow to sit for fifteen minutes before serving with ice cream or whipped cream.

Herb-Marinated Steak
by Turiya Hall

Turiya Hall is a Performing Arts Division member, poetry writer, and stay-at-home mom.

Ingredients:
1 package Montreal Steak Marinade
1 teaspoon lemon pepper
1 teaspoon crushed thyme
½ teaspoon garlic powder
1 tablespoon olive oil
3 pounds boneless sirloin steak

Method: Mix marinade well with other seasonings. Rub olive oil on steak. Place steak in large, resealable plastic bag and add seasoning mixture. Turn steak and coat well with marinade so that entire steak is covered. Place bag in refrigerator for at least one hour or up to overnight. Preheat broiler for five minutes. For medium rare steak, internal temperature of meat should be 145, 160 for medium, and 170 for well done. Serves six.

 

Monitor Miniatures

News from the Federation Family


In Memoriam:
As we went to press, we learned that our dear friend and colleague, Ray McGeorge, died peacefully after a short illness, on Friday morning, June 18. As a young husband and father Ray served as president of the Colorado affiliate. Later he regained much of his vision, and, when his wife Diane began to exert leadership in the Denver chapter and Colorado affiliate, he was always to be found at her side supporting her and in his quiet way working and encouraging everyone around him.

In later life Ray again became blind and was a role model for older students at the Colorado Center for the Blind, where he taught classes and inspired seniors to get back into life and enjoy themselves. NFB events and activities without Ray’s humor and steady good sense are almost inconceivable. In our shared grief we embrace Diane, their grandson Michael, and Ray’s hundreds of friends at this time of sorrow and loss. We will all deeply miss our brother and friend Ray McGeorge.

Elected:
On May 8, 2010, the National Federation of the Blind of South Dakota elected the following officers during its state convention in Mitchell: Ken Rollman, president; Kathleen Nelson, second vice president; Wayne Lyons, treasurer; and board members, George Nelson, Wayne Erickson, and Sue Fioch.

Deaf-Blind Division:
If you didn't have an opportunity to examine and purchase T-shirts from the NFB's Deaf-Blind Division during convention, you are invited to contact Burnell Brown at <brownburnell@aol.com> for additional details about remaining colors and sizes.

Elected:
In January 2010 the National Federation of the Blind River Valley Chapter of Fort Smith, Arkansas, elected the following officers: Gary Hall, president; Dava Kelly, vice president; Darlene Worley, secretary; Della Plum, treasurer; and board members, Neda Denadle and Freddy Wilky.

In Brief

Notices and information in this section may be of interest to Monitor readers. We are not responsible for the accuracy of the information; we have edited only for space and clarity.

Handmade Bath and Body Products:
Are you looking for a way to treat yourself or to give a gift to someone special? Find whatever you're looking for in my extensive line of custom-made soaps, bath salts, shower gel, hand soap, shampoo, bubble bath, lotion, body splash, lip balm, and scented jar candles. In soaps I have shea butter, olive oil, and goat's milk, all of which are good for the skin. I have molds in flower, animal, nautical, fantasy, and basic shapes. My bath products come in four- or eight-ounce bottles. Scents range from floral (rose, lavender, or honeysuckle) to fruit flavors and other edible varieties. I also have a selection of flavored lip balms. Candles are eight-ounce jars and have a burn time of up to fifty hours. Prices are affordable, ranging from $2 to $7 per item. For further information, write to <sirius_black@comcast.net> or call (952) 236-7517.

Materials Needed in Malawi:
Stephanie Pieck collects four- and two-track commercial audio cassettes and Braille and large-print books and magazines. She also collects Braille and large-print children's picture books, slates, folding canes, games, and educational materials. She forwards these materials to a bishop in Malawi, Africa, to distribute to blind adults and children. Stephanie also teaches Braille correspondence music courses, and she has composed music recorded on CDs for sale. For further information about either of these initiatives, contact Stephanie at 1371 Kings Road, Schenectady, New York 12303; (518) 464-0484; <www.themusicsuite.net>

Honorary Degree Awarded:
Salus University honored Mr. Lawrence F. Campbell, president of the International Council for Education of People with Visual Impairments (ICEVI) with the honorary degree of Doctor of Humane Letters at its commencement on May 23 at the Kimmel Center in Philadelphia. Introduced by his friend and colleague Dr. Kathleen M. Huebner, associate dean of the College of Education and Rehabilitation, Mr. Campbell spoke to the graduates about his first experience with a person with a visual impairment. He told the audience about Mrs. Harrison of Jamaica, a blind woman who was a prisoner in her own home, dependent upon the kindness of her neighbors for food and water. At the time Mr. Campbell was a new graduate and an inexperienced Peace Corps volunteer, but, as he worked with Mrs. Harrison on his own time, together they taught each other. Mr. Campbell spoke to the graduates about how his experience in Jamaica changed the direction of his life, convincing him to work with people who had visual impairments, something he had not considered before meeting Mrs. Harrison, who today is the owner of three stores in Jamaica and has enjoyed an independent life for many years.

Since his Peace Corps service Mr. Campbell went on to earn a master of education degree in special education and is regarded as a valuable resource among those who work with blind and multiply impaired people. In addition to being its president, Mr. Campbell is currently chairperson of the ICEVI Global Task Force on Education for All Children with Visual Impairment and a member of the executive committee of the World Blind Union. A founding member of Vision Alliance, a consortium of three global umbrella organizations for prevention, education, and rehabilitation of the blind and visually impaired, Mr. Campbell also has significantly increased collaboration and recognition by intergovernmental organizations (e.g., UNESCO, UNICEF, WHO) and international nongovernment organizations.
*
Best Math Tool:
The following brief reference to our own Dr. Abraham Nemeth appeared in the June-July issue of Reader's Digest on pages 124 and 125. It appeared as part of a series on the best Americans. Here is the story:

Abraham Nemeth loved his high school math classes. But, born blind, he couldn’t read the textbooks—at the time there was no Braille code for numerical equations. His guidance counselor suggested he study psychology instead.

After he graduated from college and grad school, though, his handicap made it difficult for him to find a job in his chosen field. “My wife told me maybe I’d be happier as an unemployed mathematician than as an unemployed psychologist,” he says. So Nemeth returned to school as a doctoral student in mathematics with an emphasis in topology—and improvised a method for capturing equations as he listened to lectures. Today the Nemeth Code is a universal math and science writing system for the blind.

But why stop there? At age ninety-one, retired but still hard at work, he has invented the Nemeth Uniform Braille System. Currently under review, the system could standardize Braille codes across academic disciplines for the first time in the United States. “I’m living proof that it’s better to light a candle than to curse the darkness,” he says.

Pen Pal Wanted:
Kelly Melee, a teacher in a classroom with intellectually disabled students, including some with vision impairment, is eager to find a pen pal to help her develop her skill with the code and to learn more about the lifestyle of the vision impaired. She is currently learning Braille. Interested correspondents should contact her at Kelly Melee, [address removed].

Blind Christian Singles List:
I have recently started a listserv for blind and vision-impaired Christian singles: Christians who are not married because they never have been, are divorced, or are widowed. On this list we will share prayer, fellowship, devotionals, and friendship. If God leads, we might even help one another find the one God meant for us to meet. To subscribe, email <blind-christian-singles-subscribe@yahoogroups.com>.

School for the Blind in Africa Project:
My daughters, Katie and Kristie, and I are interested in providing assistance to the Pacelli School for the Blind and Visually Impaired, located in Surulere, Lagos, Nigeria. The school serves students in grades K-10, and the school's administrator is Sister Grace Ushie. The school has many needs. My daughters have chosen to gather used white canes and used slates and styluses for the students as their way of helping the school.

My role is to get these items to the Pacelli School. As part of my work assignment, I regularly travel to Nigeria. I can have these items delivered to the school. Please send used white canes and slates and styluses to Katie and Kristie at the address below. I will take the items with me when I travel to Nigeria and have them delivered to the school.

For transporting purposes, telescoping or folding canes are preferred. Because the school serves a wide age range of kids, cane lengths of all sizes can be used. My contact information is Rick Colton, 3881 Silver Spur Circle, Park City, Utah 84098. I can be reached by phone at (435) 649-4835, or by email at <rwcolton@ourlink.net>.

NLS Digital Reader Executive Carrying Case Available:
Executive Products has created a new soft form-fitted custom executive NLS/BPH case for the NLS/BPH digital Talking Book player. The case is made of water-resistant, durable Italian faux leather. This case fits snuggly around your unit and has a storage zippered compartment for up to three cartridges and other accessories. It can be secured in the open position by fastening the flap under the unit. In the closed position the pocket/flap protects the keys, covers the cartridge area, covers the power cord area in the rear, and protects the unit. The case enables the user to reach all keys and ports easily. It allows easy access for loading cartridges. The unit can be carried on a comfortable shoulder or hand-carry strap. The unit may be used while walking, sitting, or standing. This case fits both the standard and advanced NLS units.
To order, visit our Website at <www.ExecutiveProductsInc.com>, or email us at <Customer_care@executiveproductsinc.com>, or call us at (818) 833-8822.

New Book Available:
VIEW International Foundation is pleased to announce the availability of a new book. This is the start of a new series which we are calling the Anne and Alex Explorer Series. The title is Anne and Alex 1996; Book One.

Anne, age seven, is sighted, and Alex, age six, is blind. Anne and Alex are to be adopted by the family of Ben and Mary Walker, who live in Forest Grove, Oregon. Anne and Alex have a series of adventures. They visit real places that their readers could also visit. This series is intended for junior high and above.

The good characters in this series adhere to traditional family values. For more information, to read a few chapters, or have an opportunity to purchase a copy, visit
<http://www.viewinternational.org/viewprojects.html>. Look for the word "Anne" for faster navigation. An electronic copy in various formats is $9.95. If you have questions, contact Robert Jaquiss by email at <rjaquiss@earthlink.net> or by phone at (318) 396-1853.

Still Fighting Law Examiners:
In our ongoing advocacy for access, the National Federation of the Blind continues to advocate for blind graduates of law schools who regularly find their ability to take the multi-state portion of the bar examination challenged by the National Conference of Bar Examiners, the entity responsible for this part of the examination. The following article, taken from the Associated Press on June 6, 2010, reports on our most recent efforts. Here it is:

Bar Examiners Don't See Eye to Eye with Blind Law Grads
by Scott Broom

Three blind law students are suing over which software they are allowed to use while taking the bar exam. Attorney Daniel F. Goldstein says the accommodations offered by the National Conference of Bar Examiners are "wildly inferior" to the programs used by plaintiffs Timothy Elder, Anne Blackfield, and Michael Witver, who still has some sight.
The Maryland State Board of Law Examiners allowed them to use their preferred software for the state-law sections but deferred to the Wisconsin-based national governing body for the Multistate Bar Examination. The three, who graduated this spring, plan to take the bar exam in July. The suit was filed Wednesday [June 9] in U.S. District Court under the Americans with Disabilities Act. The three lost sight due to degenerative disease and are not proficient at Braille.

Monitor Mart

The notices in this section have been edited for clarity, but we can pass along only the information we were given. We are not responsible for the accuracy of the statements made or the quality of the products for sale.

For Sale:
I have unopened audiographing calculator software from ViewPlus that has never been registered on any computer. This is fully accessible software for graphic and scientific calculations, and it works on Windows operating systems. The software assists people who are blind or have dyslexia or other learning disabilities. The original price for this product was $295; I am selling it for $250. For further information contact Alfredo Holguin at <diabloxx14@gmail.com>

For Sale:
I have a BookSense XT for sale for $400 or best offer. If the buyer mentions this notice in the Braille Monitor, 5 percent of the purchase price will be donated to NFB's general operating fund. The unit is in excellent physical and working order, but, as usual, all sales are final. The unit does not come with any external storage. At the time of this writing, it is running the latest firmware, and, should an upgrade be released between the time of this writing and sale of the unit, it will be installed. For more information contact Jeremiah Z. Rogers at (704) 996-5334 or <onthenet@jzrogers.com>.

NFB Pledge

I pledge to participate actively in the efforts of the National Federation of the Blind to achieve equality, opportunity, and security for the blind; to support the policies and programs of the Federation; and to abide by its constitution.