S.D. Fla. Holds that Fair Housing Act Requires Allowing Emotional Support Animals as a Reasonable Accommodation

Earlier this week, Judge James I. Cohn of the United States District Court for the Southern District of Florida denied the defendants' motion for summary judgment in Falin v. Condominium Association of La Mer Estates, Inc., 2012 WL 1910021 (S.D. Fla., May 28, 2012).  The plaintiff claimed that the condo association violated the Fair Housing Act when it refused to waive its no-pet policy for his mother, who has a disability and uses an emotional support dog.  The association moved for summary judgment.  Among other things, it argued that the FHA does not require the accommodation of emotional support animals.  The court rejected that argument:

Defendants first point out that Ms. Falin's dog is not a “service animal” that is trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures. Indeed, the record shows conclusively that the dog has no such training but instead serves as an “emotional-support animal” for Ms. Falin. This fact, however, is not dispositive of Plaintiff's claim. Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation under the FHA. See, e.g., Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1256–57 (D.Haw.2003), aff'd on other grounds sub nom.,Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006). But more recent decisions, recognizing that the FHA and its implementing regulations include no such training requirement, have concluded that an emotional-support animal may be a reasonable accommodation under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights. See, e.g., Fair Housing of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc.,778 F.Supp.2d 1028, 1035–36 (D.N.D.2011); Overlook Mut. Homes, Inc. v. Spencer, 666 F.Supp.2d 850, 858–61 (S.D.Ohio 2009); cf. Majors v. Hous. Auth. of DeKalb Cnty., 652 F.2d 454, 457–58 (5th Cir. Unit B Aug.1981) (reversing grant of summary judgment to housing authority on Rehabilitation Act claim concerning disabled person's emotional-support animal, and remanding for trial on factual issues). This Court finds the latter decisions more persuasive and adopts their reasoning here. Accordingly, the fact that Ms. Falin's dog is an emotional-support animal, rather than a trained service animal, does not entitle Defendants to summary judgment.

Swansea, Mass., Rescinds Vote That Excluded Kids with Autism from Summer Camp

Thank the Town Attorney for recognizing the town's duties under the ADA.

Chicago Tribune Op-Ed Gives Institutional Family Perspective on Deinstitutionalization Litigation

See William Choslovsky's op-ed, Who Speaks for the Disabled?  These three grafs give a sense of the argument:

Although the advocates are wrong, even if they were right, shouldn't my family's choice be honored? After all, if this is about respect and honoring choice — in all its forms — why is Rita's choice wrong? I respect and applaud any disabled person's choice to live in the "community," so why won't the advocates in turn respect our choice? 

The advocates also prey on labels like "community" versus "institutions." But community is an artificial term, too often used as a limiting condition that divides more than it describes. 

My "institutionalized" college dormitory was more of a community than many of the (supposed) "integrated" places I lived subsequently. One man's institution is another man's home. The labels mean little and are simply code to support pre-existing positions.

Federal Bankruptcy Court Discharges Student Loan Debt Because of Supposedly Debilitating Nature of Asperger's Syndrome

Via the terrific Weirdlaw blog comes word of this case in which Judge Robert A. Gordon of the United States Bankruptcy Court for the District of Maryland issued a ruling discharging the student loan debt of a woman with Asperger's Syndrome.  As Weirdlaw comments:

I can’t quarrel with the overall outcome. This woman had amassed over $300,000 in student loan debt that she couldn’t possibly repay. She had started amassing the debt pursuant to her Rehabilitation Plan at 39, having never held a long-term job in her entire life. While education is often helpful, it’s unclear why Rehab Sevices would encourage a woman who’d never held a job in her life to go to law school, a profession that has a remarkably poor employment rate and high debt load, then drop out of law school and get a masters degree from some random place and then a PhD from an unaccredited online university, is just beyond me. All of these seemed practically calculated to saddle this woman with high student loan debt in return for utterly worthless degrees and no prospect for post-graduation employment. And, indeed, the debtor had not gotten a single job despite getting a Masters and a “PhD.” This is student loan abuse and ANYONE in a similar situation should have their student debt forgiven. 

In addition, it appears that Ms. Todd lost many of the supports that had made her few past employment experiences possible. Despite having a significant disability that made it difficult to live independently, she received no housing support, no vocational supports beyond funneling her into overpriced educational programs, and no independent living supports. She was basically set up to fail.

That said, the opinion itself focused less on the inequitable actions of the lenders and rehab people, and more on how her “eerie disconnectedness from a comprehensive life experience” as a result of her “incurable ailment,” i.e. autism.

Click on the links above to see just how ignorant and offensive were the comments of the bankruptcy judge -- and even the debtor's own doctor and expert witness! -- regarding the effects of Asperger's.

Bill Limiting Public Accommodations Suits Unanimously Passes California Senate

See the latest from the Sacramento Bee.

Is the South Dakota Medical Licensing Board Violating the ADA?

That's the provocative question this op-ed asks.  The key grafs:

In March, the South Dakota Medical Board filed a public reprimand against a young physician within our state because of his previous diagnosis of multiple sclerosis. The reprimand came about after the applicant answered these personal questions on his application to the state board. The board’s inquires about illness and addiction do not elicit meaningful knowledge regarding competence and go against the ADA. These questions fail to achieve ostensible goals of protecting the public. Instead of violating the applicant’s privacy with questions that do not satisfy the state’s interest of protecting the public, why not ask questions about their conduct? 

This example of a state-written public reprimand for this doctor’s diagnosis of multiple sclerosis flaunts a misuse of power by the board.

Bipartisan Support for CRPD

See this article from Politico.  Excerpts:

A bipartisan group of senators said the United States must fully endorse a United Nations convention on rights for the disabled, noting the challenges many wounded veterans face while traveling abroad.

* * * 

Senators taking part in Friday's announcement were: McCain, Dick Durbin (D-Ill.), Jerry Moran (R-Kan.), Tom Harkin (D-Iowa), John Barrasso (R-Wyo.), Chris Coons (D-Del.) and Tom Udall (D-N.M.)

Sixth Circuit Rejects Sole Cause Test for ADA Claims

See this article: 6th Circuit shifts test for disability discrimination.  Analysis will follow after the long weekend.

Salon on Seclusion, Restraint, and Arrests of Students with Disabilities

See this article.

Washington Post on Institutional Parents' Opposition to DOJ-Virginia Olmstead Settlement

See this article.

Mitt Romney Wants to Voucherize IDEA

IDEA as camel's nose for school vouchers goes national.  See this position paper released today by the Romney campaign.

Might Virginia Be Risking Another Olmstead Suit?

This time on mental health?  The state's inspector general suggests so:

Virginia, already mired in a $2 billion settlement agreement with the U.S. Department of Justice, is again at risk of violating the Americans with Disabilities Act — this time for failing to release discharge-ready patients from state-run behavioral-health hospitals. 

During a six-month period of review by the state’s inspector general for behavioral health, an average of 165 people per month were clinically ready to be released from Virginia’s eight adult mental-health hospitals, but could not be discharged — most often because of a lack of community-based housing. 

During the review, about 13 percent of the system’s beds were occupied for more than 30 days by patients who had been cleared to leave. The operating capacity of the state’s eight facilities was 1,514 as of July 1.

NY AG Announces Big Public Accommodations Access Settlements

See this article, which begins:

New York Attorney General Eric Schneiderman says three retail chains have agreed to ensure that people with disabilities have equal access to the merchandise, services, and amenities in all their stores statewide.

The chains are JC Penney, Century 21, and Petland, with over 100 locations total covered by the settlement.

New NDRN Report on Medical Procedures That Violate the Rights of People with Disabilities

Just out from the National Disability Rights Network: a very important report entitled Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights.  From the Executive Summary:

Five years ago, news broke worldwide that a six-year-old child with developmental and physical disabilities, Ashley, was given growth attenuation treatment via estrogen and had her uterus and breast buds removed. The intent of the treatment was to keep her permanently small. The child’s parents and doctors claimed that this set of procedures was in her best interest for numerous reasons, including that it would make it easier to care for her at home. Supporters of the treatment claim that this is the most personal of family decisions and there is no need for external judicial review of the decisions made by the family.

People with disabilities and advocates in the disability rights movement, however, assert that all individuals, regardless of their disability status, have individual rights that cannot be ignored. Decisions like those made in this case are the most personal of “personal rights,” not “family rights.” Every individual person has the right to bodily integrity, clearly recognized in our legal tradition, through the constitutional rights of liberty and privacy and the common law right to be left alone unless the individual chooses to have their body disturbed in some way. Individuals with disabilities, no matter the nature or severity of their disability, are no different. The Constitution and antidiscrimination laws make it clear, all people, including people with disabilities, are entitled to equal treatment under the law. 

* * * 

Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights provides a crucial, but missing, link in the discussion about how society can and should make medical decisions that uphold the rights and inherent dignity of people with disabilities.

The report puts individuals with disabilities at the center of this discourse. It reviews the facts of Ashley X, as a case study for a larger discussion and presents a continuum of common experiences and treatment of individuals with disabilities within a context of medical decision making. The report explores the potential and actual conflict of interest that medical decision making may present between a parent and his or her child. It describes the vital role that the legal system has in ensuring that the civil and human rights of individuals with disabilities are protected. The report discusses how the deprivation of these rights is harm within and of itself and that all individuals have substantive rights regardless of the severity of their disability. It goes on to outline how discrimination inherently causes harm to both the person who experiences the discriminatory conduct and society as a whole. Finally, the report presents a series of recommendations for how the legal and medical systems at the local, state, and national level, including protection and advocacy agencies, ethics committees, institutional review boards, and the courts can perform critical “watchdog” functions to ensure that the human and civil rights of individuals with disabilities are protected.

Atlanta Journal-Constitution on Deficiencies in Georgia Personal Care Homes

See this article, which begins:

Deficiencies in care, living conditions and record-keeping have piled up in scores of Georgia personal care homes, with the state rarely shutting down violators or levying heavy fines, The Atlanta Journal-Constitution has found. 

An analysis of five years worth of inspections, violations and enforcement actions revealed that many frequent violators have faced nothing more than a fine of a few hundred dollars. 

The Atlanta Journal-Constitution’s investigation found numerous troubling instances — from live cockroaches in the kitchen of one home to another in which eight residents were out of medication.

Ninth Circuit Holds ADA Does Not Bar California Cities from Shutting Down Medical Marijuana Dispensaries

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in James v. City of Costa Mesa.  The case, brought by individuals who lawfully use medical marijuana under California law, sought to challenge efforts by two California cities to shut down medical marijuana dispensaries.  The district court denied the plaintiffs' request for a preliminary injunction, and the Ninth Circuit affirmed.  Judge Fisher, writing for himself and Judge Pregerson, explained the court's ruling:

Concerned about the possible shutdown of the collectives they rely on to obtain medical marijuana, the plaintiffs brought this action in federal district court, alleging that the cities’ actions violate Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination in the provi- sion of public services.  District Judge Guilford sympathized with the plaintiffs, but denied their application for preliminary injunctive relief on the ground that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.

We affirm. We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.

Judge Berzon dissented in part.

The LA Times's coverage of the decision appears here.

Popeyes Apologizes to Man with Service Dog

See this article by that title from the Atlanta Journal-Constitution.  It begins:

The Popeyes restaurant chain said Monday it has apologized to the college student asked to leave a Cobb County location because he had his service dog with him. 

Taylor Gipson, 20, has Type 1 diabetes and relies on a British Lab named Bear to alert him to rises or drops in his blood sugar levels, he told the AJC. But during a recent visit to the Popeyes on Windy Hill Road near Marietta, Gipson was asked to leave by the store manager, who then called police. 

"After reviewing all of the facts, I think we could have handled the situation better," Wendy Harkness, chief legal officer for Popeyes' parent company, told the AJC in a statement Monday.

SLU is Sued by Ex-Med Student with Learning Disability

See this article by that title in the St. Louis Post-Dispatch.  It begins:

St. Louis University's medical school is being sued by a former student with a learning disability who says he wasn't given enough time to complete tests. 

The lawsuit, claiming violations of the Americans with Disabilities Act, was filed last week in federal court in St. Louis on behalf of the student, who was identified as John Doe. The lawsuit says the student was kicked out of the SLU medical school after failing multiple timed tests required to progress through school.

Flint Agrees to Increase Accessibility at Polling Sites

See this article by that title in the Detroit Free Press.  It begins:

The City of Flint has agreed to make polling places more accessible for the mobility impaired in time for the November presidential election, the U.S. Attorney’s Office in Detroit announced today.

Acting on a complaint, the Justice Department’s Civil Rights Division conducted a study which showed a substantial number of Flint polling places were not accessible to people in wheelchairs.

The city recently signed a legal document pledging to make all of its polling places accessible to the mobility impaired head off a federal lawsuit. The agreement is designed to bring Flint into compliance with the Americans with Disabilities Act.