New York City to Reduce Use of Solitary Confinement for Inmates with Mental Illness

See this story from the New York Times.  It begins:

New York City will soon change the way mentally ill inmates are disciplined after breaking rules while in jail, creating alternatives to the more traditional approach of solitary confinement used for most inmates. 

Instead, the city Correction Department will transfer severely mentally ill inmates to an internal clinic where psychiatrists will administer treatment and medicine, and the less seriously mentally ill will go to counseling programs designed to help them change their future behavior. Inmates will not be released back into the regular jail setting until they complete treatment. 

The new approach, to begin in July, is intended to address what both city officials and prisoners’ rights advocates say is a growing problem: not only are there a disproportionate number of mentally ill inmates in the city’s jails, but they are also more likely to break rules multiple times and stay in jail longer than others.

Eleventh Circuit Rules on Medical Examinations for Current Employees

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Owusu-Ansah v. Coca-Cola Company.  At the time at issue in the case, Owusu-Ansah worked for Coca-Cola as a quality assurance person for customer service representatives in the company's call center ("your call is being monitored for quality assurance").  In this position, he worked mostly from home.  In December 2007, however, he went to the office for a routine management meeting with his supervisor. At the meeting, according to the record as reviewed by the court, Owusu-Ansah complained about a number of instances of national origin discrimination and harassment he said he had experienced at the hands of his supervisors and coworkers.  His supervisor "observed that Mr. Owusu-Ansah became agitated during the meeting, banged his hand on the table where they sat, and said that someone was 'going to pay for this.'"  

Concerned about that behavior (Owusu-Ansah's, not the behavior of those who allegedly discriminated against Owusu-Ansah), company management asked him to be interviewed by a consulting psychologist.  After the interview, the company placed Owusu-Ansah on paid leave to enable him to be further evaluated as a potential safety threat.  The company directed Owusu-Ansah to undergo a psychiatric evaluation, which included taking the Minnesota Multiphasic Personality Inventory (MMPI).  He first refused to take the MMPI, but eventually took the test in March 2008.  After reviewing the results of the test, Coca-Cola allowed Owusu-Ansah to return to work in April.

Owusu-Ansah sued under the ADA, which prohibits employers from requiring current workers to undergo medical examinations or inquiries "unless such examination or inquiry is shown to be job-related and consistent with business necessity."  42 U.S.C. 12112(d)(4)(A).  The district court granted summary judgment to the company, and the Eleventh Circuit yesterday affirmed.

The court of appeals held that the psychological evaluation, including the requirement that Owusu-Ansah take the MMPI, was "job-related and consistent with business necessity" (I've omitted citations and footnotes):

The evaluation was "job-related" because an "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position." [Quoting an earlier Eleventh Circuit case] Ms. Cabral reported that Mr. Owusu-Ansah – in the course of complaining about discrimination and harassment – banged his fist on the table and said in a raised voice that someone was "going to pay for this." When he was deposed, Mr. Owusu-Ansah denied having behaved that way during his meeting with Ms. Cabral, and he now points out that there were no prior incidents showing that he had a propensity for workplace violence. That, however, is not dispositive. Although Coca-Cola apparently never asked Mr. Owusu-Ansah for his version of what happened at the meeting, it did not rely solely on Ms. Cabral's account in ordering the evaluation. Coca-Cola knew that Mr. Owusu-Ansah had refused to speak to Ms. Welsh and Dr. Riddell about his workplace problems. In addition, Dr. McElhaney – the consulting psychologist – expressed "significant concerns" to Coca-Cola about Mr. Owusu-Ansah's emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation.

On this record, we conclude that Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees. Though Mr. Owusu- Ansah worked from home, he had access to and was required to attend meetings at the Dunwoody call center.

For basically the same reasons, the evaluation was also "consistent with business necessity." Though it may not be one of the traditional canons of statutory construction, common sense is not irrelevant in construing statutes,4 and in our view an employer can lawfully require a psychiatric/psychological fitness- for-duty evaluation under § 12112(d)(4)(A) if it has information suggesting that an employee is unstable and may pose a danger to others.

This case doesn't look to have been the best litigated by plaintiffs' counsel (who apparently failed to object to the factual aspects of the magistrate judge's recommended ruling in the district court), but the opinion is nonetheless troubling in the low bar it sets for a psychological evaluation.  How many folks have raised their voices and banged on the table when complaining about workplace mistreatment without being a safety risk?  I would bet it's a lot.

DOJ Obtains $60K Settlement Against Golden Corral for Denying Service to Family of Kid with Skin Condition

See this article, which begins:

A Westland restaurant has agreed to pay a mother and herchildren $50,000 for asking them to leave because one of the daughters had a blistering skin disorder that was making customers uncomfortable. 

According to the settlement announced Wednesday by U.S. Attorney Barbara McQuade, the Golden Corral buffet-style restaurant also will pay $10,000 in civil penalties to the U.S. The incident happened in 2011, triggering a Justice Department lawsuit. 

According to the suit, a manager at the Golden Corral restaurant demanded that Danielle Duford and her four daughters leave the restaurant during a dinner outing because of the appearance of one of the children’s skin. The child, the suit said, has a genetic skin disorder known as epidermolysis bullosa, which causes blisters to form on the skin in response to minor injuries and temperature changes.

Op-Ed on Disability Discrimination in Milwaukee School Voucher Program

See this piece.  Excerpts:

What do these children have in common? They all have disabilities, they all tried to participate in the Milwaukee Parental Choice Program and they all were denied admission, not served or pushed back into public schools by private voucher schools. These children have become part of a dual education system that segregates the overwhelming majority of children with disabilities in public schools, while providing them with fewer and fewer resources. 

Pro-voucher forces claim that private schools serve many children with disabilities, but they have no serious data to prove it. The schools told the state Department of Public Instruction that only 1.6% of their children were students with disabilities for testing purposes. A study they use to argue that 14% of voucher students have disabilities only says that 14.6% of children who attended both Milwaukee Public Schools and voucher schools were in special education in MPS. 

* * * 

Pro-voucher forces argue that the solution is to create a separate special needs voucher program, which will make things worse because no private school will have to accept those vouchers. Thus, private schools will continue to pick and choose which children with disabilities they want to serve. At the same time, children will lose their federally protected special education rights. And some special needs voucher supporters want to create segregated schools for children with disabilities, further undermining efforts to integrate these children into schools and communities.

Hoffman on Sheltered Workshops

Just out: Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled, 16 U. Pa. J. L. & Soc. Change 151 (2013).  From the introduction:

In January 2011, a U.S. disability rights organization, National Disability Rights Network (NDRN), published a report that criticizes the use of certain employment practices involving people with disabilities. Within the report, NDRN argues that the continued use of these practices amounts to the systemic discrimination of the disabled in employment, rather than to the assured provision of civil rights protections for the disabled. One of these practices is the use of sheltered workshops, which are “facility-based day programs attended by adults with disabilities as an alternative to working in the open labor market.” By providing relatively simple work activities and customized educational programs, these workshops may be designed to assist the disabled with finding long-term employment or transitioning into the open labor market. However, according to the Executive Director of NDRN, “[s]heltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.” This report was only the beginning for NDRN on this issue; the organization released another report in April 2012 containing even more criticism for the use of sheltered workshops as an employment option for people with disabilities, bringing even greater attention to this issue both within the disability community and across the United States.  

The U.S. also has a number of federal laws designed to ensure equal opportunity in employment for people with disabilities. Most notably, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against the disabled in all aspects of employment for covered entities. Despite these protections, many of the employment practices implemented for the benefit of the disabled do not actually result in additional equal employment opportunities. Recent statistics released by the Bureau of Labor Statistics (BLS) at the U.S. Department of Labor paint a dismal picture for the overall employment prospects of people with disabilities. According to the BLS report, “[i]n 2011, 17.8 percent of persons with a disability were employed . . . . [i]n contrast, the employment-population ratio for persons without a disability was 63.6 percent.” Moreover, the disabled population continued to show greater joblessness than the non-disabled population through June 2012, according to statistics compiled on a monthly basis for U.S. employment overall.  

Given these troubling statistics, it is necessary to ask whether sheltered workshops are a relevant and successful means of encouraging the employment for the disabled today. Do sheltered workshops represent an antiquated view of people with disabilities and continue what was thought to be an outdated mentality concerning those with disabilities and their ability to participate in society, especially in terms of employment? Or, do sheltered workshops provide something of value and worth to the disabled, by at least providing the opportunity for employment? This Article reexamines the use of sheltered workshops for the employment of the disabled and what this use means for the current legal protections in employment available to individuals with disabilities.

Poisoning the Treaty for the Blind

See this piece by that title in the Huffington Post.  An excerpt:

For years, international negotiations have been moving forward on what many have come to know as the "Treaty for the Blind." The goal of the treaty is to make it possible for people who are blind, or have other print disabilities, to get access to the books they need for education, employment and inclusion in society--no matter where they live. It's something we already do, with great success, in the United States. Early versions of the treaty embodied this principle, and in addition, would ease the international transfer of accessible books for people with disabilities. 

In the end, a good treaty would mean real progress, and allow accessible books to reach millions of disabled people in other countries. Extending our own principles--that should be the United States' negotiating position. 

Now, the progress made is all in jeopardy. Private interests have been hard at work to insert poison pills in the treaty, such as provisions that make the treaty either unpalatable for many countries to sign on to it or too complex to implement. It's a terrible case of private interest trumping the public good.

LA Times on UC Berkeley Settlement

Nice article here.  It begins:

UC Berkeley is making its vast library collections and course textbooks more readily available to students with visual and other impairments under an agreement reached Tuesday that could set a precedent for universities nationwide.

The settlement with the nonprofit legal group Disability Rights Advocates was reached after more than a year of negotiations and will provide students with physical, developmental, learning and visual disabilities more timely access to printed materials in alternative formats such as Braille, large print and audio. 

The agreement is important because there are few standards required on such accessibility. The Americans with Disabilities Act, for example, doesn’t spell out what accommodations schools must make and includes a clause allowing schools not to make any concessions if costs create an undue burden, said Rebecca Williford, an attorney for the disability rights organization.

California State Senate Leader Proposes to Expand Mental Health Services

See this article from the LA Times.  An excerpt:

“It’s time for action,” he told reporters at the Capitol. Steinberg proposed expanding a program providing mental health services to prison parolees with mental illness from 1,500 to 5,000 people. Those in the program have a recidivism rate of 24%, nearly a third of the rate for those not in the program. 

“While the governor appeals a federal court order to release thousands of state prison inmates, we also need to be smarter about crime by putting more resources into ensuring people who leave incarceration don’t commit new crimes and go back in,’’ Steinberg said. 

His plan also would add 2,000 crisis treatment beds in residential facilities as an alternative to the more costly treatment at emergency rooms. Steinberg also proposed deploying 200 more mental health triage workers to assist the mentally ill with treatment, housing and educational services. He would also create 25 Mobile Crisis Support Teams, funded with $500,000 grants to counties, to help people at homeless shelters, jails and climics get short-term crisis care.

Important Settlement with UC Berkeley on Information Access for People with Print Disabilities

See this press release, which begins:

Disability Rights Advocates (DRA) and the University of California, Berkeley announced a settlement agreement today that will significantly improve information access for students with print related disabilities. The settlement puts in place a range of new policies and procedures to ensure that print disabled students have access to all of the written material students need to read to succeed in a university setting. The University’s Vice Chancellor for Equity and Inclusion Gibor Basri explained: “We live in the age of information. It is critical that students with print disabilities be able to take the same advantage of academic and employment opportunities as all Berkeley students.” 

DRA’s Executive Director Larry Paradis commented that “Disability Rights Advocates commends the University of California, Berkeley for implementing this new system to break down barriers to higher education. UC Berkeley has taken on an important leadership role in addressing the barriers that all too often cause difficulty for students with print disabilities. This settlement is a model plan that colleges and universities should consider adopting nationwide.”

Pleased with the experience of engaging in the one year structured negotiations process, Paul Hippolitus, Director, Disabled Students' Program remarked:“Throughout this process, I was especially proud of the University's leadership, as well as our students and their representatives, for holding the same values and principles of equity and inclusion for students with disabilities. As the birth place of the disability rights movement, UC Berkeley has had a long and illustrious history of supporting disability rights. With this agreement, a new chapter in this history has been written. This process has again reminded me of the value of disability advocacy efforts, such as those of DRA -- which help institutions reassess their position.”

Some key points of the settlement:

• Students who request course materials in alternative media can now expect to receive textbooks in 10 business days and course readers in 17 business days.
• The University has created and implemented a new Library print conversion system, the first of its kind in the nation, to enable students with print disabilities to request that a specific library book or journal be converted into an accessible digital format, with an average turnaround time of five business days.

DOJ Settlement Protects Medical Students with Hepatitis B Against Discrimination

See this article.  An excerpt:

Released last summer, the updated CDC guidelines were cited by the Justice Department in March as the agency announced a settlement with a New Jersey medical school over claims it violated the Americans with Disabilities Act by excluding two applicants with hepatitis B. While the state-run University of Medicine and Dentistry of New Jersey denied liability, it agreed to admit qualified HBV-positive students and provide training to staff. 

It was the first case in which the Justice Department pursued an ADA complaint on behalf of people with hepatitis B. 

"This is a historic decision," Block said. "We can now pull out the DOJ settlement and really guide these people: `What you're facing is discrimination, and here are the tools to help.' That's powerful."

Interesting Article on Lawsuit by Couple with Intellectual Disabilities Whose Group Homes Won't Let Them Live Together

See this article, which begins:

With the beaming smiles of newlyweds, Paul Forziano and Hava Samuels hold hands, exchange adoring glances and complete each other’s sentences. Their first wedding dance, he recalls, was to the song “Unchained ...” ‘’Melody,” she chimes in. 

They spend their days together in the performing arts education center where they met. But every night, they must part ways. Forziano goes to his group home. His wife goes to hers.

The mentally disabled couple is not allowed to share a bedroom by the state-sanctioned nonprofits that run the group homes — a practice the newlyweds and their parents are now challenging in a federal civil rights lawsuit.

Pergament on Choice in Prenatal Testing and Special Education

Just out: Deborah Pergament, What Does Choice Really Mean? Prenatal Testing, Disability, and Special Education Without Illusions, 23 Health Matrix 56 (2013).  From the introduction:

Debates over prenatal testing, disability, and public education are at the very center of my everyday work as an attorney. My legal practice focuses on representing children and families in complex special education and adoption law matters. Many of the children I represent are affected by genetic syndromes, chromosomal abnormalities, spina bifida and other neural tube defects, or disabilities caused by pregnancy, birth, and neonatal complications. I also advise several educational, medical, and social service organizations. This work involves counseling medical geneticists and genetic counselors who provide prenatal genetic testing services and develop new genetic technologies.

Through these experiences, I am uniquely able to observe and participate in the debates over the ethical and legal parameters that govern women’s choices about prenatal testing and the responsibilities of individual families and society in caring for the wellbeing of children with disabilities. This Article considers the experiences of families with children affected by genetic conditions and the issues raised by prenatal genetic testing technologies. It raises questions about the appropriateness of state involvement in the choices women make about prenatal testing, particularly under the Prenatally and Postnatally Diagnosed Conditions Awareness Act of 2008.

Paradoxically, those political and social actors that most often seek to involve the state in reproductive choice also support the privatization of responsibility for the care and education of children with disabilities. As a result, the privacy right relating to intimate relationships, the family, and decisions about whether to have a child is becoming less absolute. I argue that this is not accidental, as the expansion of public surveillance and regulation of women’s reproductive decisions and the related demonizing of the exercise of reproductive choice has diverted attention from efforts to provide for the social welfare by developing the necessary response of a just society. Such a response should involve: (1) the promulgation of rational regulations governing the development, access, and use of existing and emerging prenatal genetic screening and diagnostic technologies; and (2) the development of policies that give all children, including ones affected by genetic disorders, access to meaningful educational opportunities and health care.

DOJ Issues Important Pronouncement on Application of the ADA to School Voucher Programs

A few weeks ago (but just publicized last week), the Civil Rights Division of the U.S. Department of Justice sent a letter to Wisconsin's state Superintendent of Public Instruction regarding the Division's ADA investigation of the Milwaukee school voucher program.  The letter contains a number of important pronouncements regarding the responsibilities of states that operate voucher programs to prevent discrimination by the schools -- public and private -- that receive vouchers under those programs.

The first important pronouncement is that, even when parents use vouchers to attend private schools, the state retains an obligation to prevent discrimination against students with disabilities by the schools participating in the voucher program:

DPI's obligation to eliminate discrimination against students with disabilities in its administration of the school choice program is not obviated by the fact that the schools participating in the program are private secular and religious schools.  Indeed, courts recognize that the agency administering a public program has the authority and obligation under Title II to take appropriate steps in its enforcement of program requirements to prohibit discrimination against individuals with disabilities, regardless of whether services are delivered directly by a public entity or provided through a third party.  [Many case cites omitted.]  In short, the State cannot, by delegating the education function to private voucher schools, place MPCP students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs.

DOJ's letter also goes into some detail regarding the precise obligations of the state regarding students enrolled in the voucher program:

DPI is required under Title II to ensure that its polices, practices and procedures governing the program (1) empower students with disabilities and their parents to make informed decisions during the school selection process; (2) ensure that disability status has no unlawful adverse impact on admissions decisions[;] and (3) ensure that voucher schools do not discriminate against students with disabilities enrolled in the school, either by denying those students opportunities and benefits available to non-disabled students, or by failing to make reasonable modifications to school policies where ADA regulations apply to DPI or participating schools.

The letter goes on to state that "because DPI is charged with operating the school choice program, it is responsible for monitoring and supervising the manner in which participating schools serve students with disabilities."

This is a very big deal.

Jury Awards $240 Million in Henry's Turkey Case

Wow.  See this article, hot off the internets, from the Des Moines Register:

In a decision that legal experts are calling "stunning," an Iowa jury this morning awarded $240 million to the 32 mentally disabled men who faced decades of discrimination and abuse while working for Henry's Turkey Service in Atalissa. 

When jurors announced the judgment, after less than eight hours of deliberation, Sherri Brown, the sister of one of the 32 men, broke down in tears inside the Davenport courtroom. 

"I totally lost it," she said later. "I wanted the jury to make a statement so that my brother Keith and all of those men would know that someone had heard them. And if this isn't a statement, I don't know what is." 

The $240 million judgment reflects $2 million in punitive damages for each of the 32 men, plus $5.5 million in compensatory damages for each of the men.

Ruth Colker's New Book on the IDEA

Ruth Colker just sent along a note that her new book, Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act, is just days from being released.  Here's the publisher's synopsis:

Enacted in 1975, the Individuals with Disabilities Education Act (IDEA) provides all children with the right to a free and appropriate public education. On the face of it, the IDEA is a shining example of law’s democratizing impulse. But is that really the case? In Disabled Education, Ruth Colker digs deep beneath the IDEA’s surface and reveals that the IDEA contains flaws that were evident at the time of its enactment that limit its effectiveness for poor and minority children. 

Through an examination of the evolution of the IDEA, the experiences of children who fought for their education in court, and social science literature on the meaning of “learning disability,” Colker reveals the IDEA’s shortcomings, but also suggests ways in which resources might be allocated more evenly along class lines.

Ruth is one of the most important and interesting scholars writing on the IDEA.  Though I don't always agree with her take on the issues, I often do, and I always benefit from reading her work.  Check her new book out!