Monday, January 31, 2005

Befort on Accommodation and the Worker Time Crunch

Steve Befort has just posted on SSRN his new paper Accommodation at Work: Lessons from the Americans with Disabilities Act and Possibilities for Alleviating the American Worker Time Crunch. The abstract:

This article addresses issues of accommodation and time with respect to the American worker time crunch problem. On the former issue, I concur in Professor Arnow-Richman's observation that an accommodation approach to addressing the competing pressures of work and family is prone to resistance from the courts. Experience under the ADA illustrates a judicial reluctance to go beyond a traditional equal treatment view of discrimination to embrace a more affirmative different treatment model of discrimination. But this does not mean that the ADA's reasonable accommodation framework has been a failure. To the contrary, while the reasonable accommodation requirement may have fallen somewhat short of expectations on the substantive law front, it has launched a procedural revolution in fostering an interactive process by which employers and employees cooperatively work to identify suitable workplace accommodations. The impact of this procedural device is not as readily noticeable as the courts' substantive law limitations, but it may serve as the ADA's most significant contribution to this point.

Turning to the second issue, American workers, quite simply, do not have enough time to tend to caregiving and other non-work needs. While this is a particularly acute problem for caregivers, the American worker time crunch is a problem of pandemic proportions. American workers of all stripes are required or pressured to spend ever-increasing amounts of time at work. The ADA model represents one possible format for accommodating non-work time demands. The first decade of experience under the ADA suggests that judicial and employer resistance would temper the substantive law advances of such an approach without necessarily conferring the procedural advantages of the ADA's interactive process. A more specific legislative approach is preferable. Given the pervasive nature of the American worker time crunch problem, a broad legislative solution is in order. This article suggests one possible approach in the form of a proposed amendment to the FMLA that would enable employees to take paid leave for two of FMLA's twelve-week leave period financed in a manner similar to that used for unemployment compensation purposes. The proposal also would permit employers to opt out of the new mandate by providing a minimum of four weeks of leave per year that may be taken by employees for care, sickness, or personal leave/vacation purposes.

UN Convention Update

See this report, which begins:

After agreeing on various draft articles of a convention on the rights of people with disabilities, the United Nations panel negotiating the treaty turned their attention this week to freedom of expression and opinion, access to information, safeguarding privacy and living independently without being excluded from community affairs.

Op-Ed on Social Security Privatization and, Inter Alia, People with Disabilities

See this op-ed from the Philadelphia Daily News. Key content:

WILL THOSE taking a big hit from the administration's undoing of Social Security be the disabled, widows and orphans? Yes, most very likely.

Will you be seeing this in the administration's ads linking President Bush to President Roosevelt?

No, and not surprisingly.

The pitch to end Social Security as we know it - a program with a 90 percent public approval rating - views this as a debate about 33 million retired workers and their families.

But forgotten are close to another 15 million beneficiaries of the Social Security survivors and disability insurance program - disabled workers, widows and their children - whose security will be lost in the proposed overhaul. With 4 million child beneficiaries, Social Security is the largest children's benefits program in nation, even bigger than welfare.

* * *

And proposals to undo Social Security with private accounts have not considered the impact on disability and survivors-insurance beneficiaries and children. To pay for diverting dollars to private accounts, benefit cuts are inevitable for this group, pushing the disabled, widows and orphans below the poverty line.

Disabled workers or survivors where the worker has become disabled or dies before the retirement age, even assuming they all have the investment skills of a Warren Buffet, will not be able to accumulate enough investment gains over their shortened work lives to make up for the reductions in disability and survivors benefits.

Since the privatization plan will be politically marketed to younger workers, what younger people should note is that a 20-year-old today has a three in 10 chance of becoming disabled and a one in 6 chance of dying before reaching retirement age.

State Medicaid Watch: Missouri

See this article. Key disability-related content:

Administration officials estimated that nearly 90,000 Missourians would be removed from Medicaid coverage from the budget plan Gov. Matt Blunt proposed Wednesday night. Eligibility cuts would be extended to adults, older residents and those with disabilities. Under the plan, adults would have to earn an income that is 30 percent of the federal poverty level to be eligible, compared to the current 75 percent mark. A family of three, for example, could earn no more than $4,701 annually — instead of the current $11,752 — for the parent to qualify for health care.

At least 60,000 adults are expected to be affected, with more than 20,000 being eliminated from Medicaid pay. Likewise, 15,000 elderly individuals across the state who are currently receiving Social Security would lose Medicaid.

Blunt also plans to do away with Medical Assistance for Workers with Disabilities. The program provides coverage for employed persons with disabilities between the ages of 16 and 64. Eliminating the program will mean that a majority of people participating in the program will lose their coverage, despite being employed. Others will either be moved into another Medicaid category or to a spend-down program.

Eliminating Medicaid coverage for workers with disabilities is very bad news; that coverage is often what makes it possible for people with disabilities, who need medical insurance the market won't provide, to go to work.

Sunday, January 30, 2005

Commentary on Miss Wheelchair Wisconsin's Title III Suits

See this op-ed from the Milwaukee Journal-Sentinel.

Saturday, January 29, 2005

Eleventh Circuit: No "Tort-Like Damages" for IDEA Violation

The Eleventh Circuit held, in a sad, sad case, that the IDEA does not provide a cause of action for "tort-like damages." The case involved a four-year-old boy with a tracheostomy who died because his tracheotomy tube fell out on the school playground and nobody at the school knew how to reinsert it. The parents argued that the IDEA required the school to have someone on staff who knew how to reinsert the tube and sought damages for the violation. Without reaching the merits question, the court of appeals ruled that the statute does not provide a cause of action for such tort-like damages, and accordingly reversed the district court's denial of defendant's motion for summary judgment. Although the court of appeals's opinion seems to conflate issues of standing, cause of action, and remedy, the bottom-line result in in accord with that reached by a number of other courts.

In Other News Tangentially Related to Casey Martin

It seems the boss of professional golf's Champions Tour (formerly the Senior Tour) is on a mission to get rid of carts in that tour. See this article. Some folks appear to be rumbling about filing a lawsuit under the ADA.

Mass. SJC on "Two-Bounce" Rule for Racquetball

Yesterday, in an opinion that can be found here, the Massachusetts Supreme Judicial Court ruled that a racquet club was not required (under ADA Title III and a parallel state law) to waive the so-called "one-bounce rule" for a talented wheelchair racquetball player who wished to compete against players who participated on foot. The plaintiff wanted to receive the benefit of the "two-bounce rule," which governs most wheelchair competitions, and which permits a player to return a ball at any point before the third bounce. Under his proposed accommodation, the nondisabled player would still have to comply with the "one-bounce rule," which generally governs racquetball competitions, and which permits a player to return a ball at any point before the second bounce. The court held that modification of the "one-bounce rule" would effect a fundamental alteration of the game of racquetball. The Casey Martin case was different, the court said, because the "walking rule" Martin sought to waive was not an essential part of the game of golf, but the "one-bounce rule" is an essential part of the game of racquetball. To alter the latter rule, the court said, would be effectively to create a new game.

An interesting case. My former students may find it familiar, as the fact pattern formed the basis for a final exam question I gave a number of years ago.

Friday, January 28, 2005

Araiza on Lane

New on Westlaw: William D. Araiza, The Section 5 Power After Tennessee v. Lane, 32 Pepp. L. Rev. 39 (2004).

Thursday, January 27, 2005

Schools in FDR's Home Town May Become ADA-Compliant

See this article from the Hyde Park Townsman. The first few grafs:

A $10.7 million proposal by the Hyde Park Board of Education is intended to finally bring the schools into compliance with the Americans with Disabilities Act of 1990, and to improve health and safety conditions.

A vote on the proposal is scheduled for March 15, and will bring with it a projected tax increase of $15 for every $100,000 of assessed property value, according to acting Superintendent Loreili Case. The average home in Hyde Park is assessed at $200,000.

The ADA went into effect officially at the end of 1991 and schools were given until 1995 to bring the schools up to code. But in 2005 not one school in the district is ADA-compliant.

"We're going to have to make the buildings accessible one way or another," said Case. "This is the easiest way to do it."

Bill Would Remove Outdated Disability Terms From State Law

See this article by that title. The first couple of grafs:

Disabled people are sick of being called names like "retard" and worse. State government is even part of the name-calling - as several hundred Minnesota laws are riddled with the words "mental retardation," "handicapped" and even "idiot."

Archaic language like that would disappear from state statutes under legislation announced Thursday and welcomed by people with disabilities.

In a state that operated the Minnesota Institute for Defectives and the School for the Feeble-Minded a century ago, a few leftovers have remained on the books. Two real estate laws from 1901 and 1902 include references to "idiots," which was used as a medical term for developmentally disabled people in the late 1800s and early 1900s.

Wall Street Journal on Deaf Culture

Today's Wall Street Journal contains this review (subscription required) of Carol Padden and Tom Humphries's book "Inside Deaf Culture." The review is quite negative; the reviewer very much recoils at Padden and Humphries's embrace of deaf culture.

For what it's worth, I haven't yet read this Padden and Humphries book, though I learned a lot from their 1988 work "Deaf in America."

Social Security Privatization and SSDI

See this article from today's New York Times. A few excerpts:

If individual investment accounts become an integral part of Social Security, as President Bush is proposing, what will happen to workers who become disabled before they retire?

Will they be allowed to draw on the savings in their retirement accounts? Will their standard Social Security benefits be increased to make up for the fact that because they have worked fewer years, their personal accounts are likely to be smaller than those of retirees? If they do receive higher benefits, will they have to forfeit their investment savings?

These are among the dozens of questions posed in a report issued on Wednesday by the National Academy of Social Insurance, a private, nonpartisan organization of academics and government officials who specialize in issues like Social Security, Medicare and unemployment compensation.

* * *

The issues involving disability are especially thorny.

Currently, 16 percent of those receiving monthly Social Security checks are people under retirement age who cannot work because they are disabled. They receive the same benefits, based on their earnings in their working years, that they would receive if they were retired. This is a central element in the safety net provided by Social Security.

Social Security provides more than half the total income for about half of these disabled people and more than 90 percent of the income for about one-fifth of them.

The premise behind almost all proposals to divert tax money into private accounts is that ordinary Social Security benefits would be reduced to save the government money, but theoretically retirees would be at least as well off because income from their private accounts would make up for the lower benefits.

But this would not work well for people who become disabled. Their accounts would not provide as much income as those of retirees, since they would have had fewer working years to put money into accounts.

The panel offered several options for dealing with the problem. One would be to give people access to their accounts when they become disabled. Another would be to give disabled workers higher Social Security benefits than retirees but require them to turn over their investment accounts to the government. Another would be to give them higher benefits when they become disabled and then lower the benefits and allow them to tap into their investment accounts when they reach retirement age.

Note that none of these options seems perfect. Giving me access to my private account when I become disabled means Social Security no longer serves an insurance function for me. The argument for private accounts is that over the long haul they'll get a better return than the current Social Security system for individual beneficiaries, but they're subject to much greater short-term fluctuations. It would really stink under this proposal to become disabled when the market is down. Letting me have disability insurance but only if I turn over my private account to the government means that it's not really my money any more. And I could really end up with the short end of the stick if I become disabled when the market's up -- I lose my whole investment (an investment I would have been able to keep had I made it to retirement) and exchange it for relatively modest insurance payments. And the third option, letting me get SSDI plus keep my private account, just drives up the cost of the privatization plan further.

The NASI report referenced in the Times article is discussed at this press release.

Deaf Patients Sue Laurel Regional Hospital

See this article by that title in today's Washington Post. The first couple of grafs:

A federal lawsuit filed this month contends that Laurel Regional Hospital violated the rights of its deaf patients by not having sign language interpreters available during medical consultations and claims that several deaf patients were harmed by faulty communication with hospital emergency room staff members.

"Patients were forced to communicate through cryptic notes or lip reading," according to the suit, filed in U.S. District Court in Greenbelt. "Even the best lip readers, in an ideal one-to-one situation, have been found to understand only 26 percent of what is said."

Wednesday, January 26, 2005

State Medicaid Watch: Ohio

See this article from the Toledo Blade. Note this passage:

"The question is going to end up being where do you cut and who is it going to hurt the most," he said. "The assumption right now is that since the blind, disabled, and aged generate most of the costs, that's where we're going to go in and slice it. Whether it's done surgically or with a meat ax is ultimately going to be the question."

The aged, the blind, and the disabled represent just 34 percent of Ohio's Medicaid population, but represent 75 percent of the program's costs, in large part because of the state's heavy reliance on nursing home care.

Miss Wheelchair Wisconsin Files Title III Suits

See this article. The first few grafs:

Twenty-five area businesses are the target of lawsuits filed on behalf of the 2004 Ms. Wheelchair Wisconsin, Gina Hackel of Freedom, claiming they violate the Americans With Disabilities Act.

A law firm that has a working relationship with the Ms. Wheelchair pageant, which has a state and a national competition, filed the lawsuits.

The suits were filed with the U.S. District Court in Green Bay and have been filed in batches since Dec. 21. Three more were filed Tuesday and, according to the attorneys involved, more are in the pipeline.

The suits are part of a pattern of similar cases around the country and the firm involved in this case, Schwartz, Zweben and Associates, of Hollywood, Fla., claims to have several hundred ADA lawsuits filed in other states besides Wisconsin.

Maybe it's Time for Some "Vexatious Litigation" in Dublin

See this story. A few excerpts:

Disabled campaigners hit out at a Dublin pub tonight over a bogus disabled toilet which has deceived wheelchair users.

The Mezz bar in Temple Bar features a red door with a gold wheelchair sign, indicating disabled facilities.

But the locked door is simply built into the wall and there is no toilet behind it.

* * *

Customers who have tried to open the disabled toilet door find it locked and have been told by staff that it is closed for ‘renovations’.

Disability Benefit Cuts as Welfare Reform in the UK?

See this article from the Financial Times about Tony Blair's plans in that regard, and the disagreement from some Labour backbenchers.

Tuesday, January 25, 2005

Law and Economics and Assisted Suicide

Just posted on SSRN: Daniel J. Gilman, Thou Shalt Not Kill as Defeasible Heuristic: Law and Economics and the Debate Over Physician-Assisted Suicide. The abstract:

Although the literature addressing medical decisions at the end of life is vast, surprisingly little of it has come from the perspective of law and economics. This article begins with a critical account of one of the very few law and economics-based discussions of physician-assisted suicide (PAS), that developed by Judge Richard Posner in his book, Aging and Old Age. Central to Judge Posner's account is a model of PAS as a sort of technological innovation. What this particular innovation is supposed to bring is a radical reduction in certain critical information costs attending end-of-life decision making. It is argued that Judge Posner's model - although innovative and instructive - is incomplete and, consequently, inadequate to the normative task of justifying a change in legal regime with regard to PAS. Certain cognitive issues are held to confound the already difficult task of securing bona fide patient consent. That prompts interesting questions about how to value inevitable errors in consent, questions examined in light of the risk management literature regarding valuation of life methodologies. It is argued that the PAS debate makes telling certain difficulties in such methodologies. It is also argued that we ought to adopt conservative standards with regard to attempts to legislate revisions in certain fundamental moral norms. Finding that Judge Posner and others have failed to meet such standards is an argument on behalf of what is, under the laws of most states, the status quo.

Disability Rights Protests in Indonesia

See this article in the Jakarta Post. The lede:

Dozens of disabled people in Yogyakarta staged a protest on Monday to demand equal treatment and an end to discrimination by the authorities, and the enactment of special legislation to ensure their rights were protected.

More Schiavo Coverage

See this Washington Post article.

Monday, January 24, 2005

Coverage of "Terri's Law" Cert. Denial

See this LA Times article, this New York Times article, and this report on

Supreme Court Denies Cert. in "Terri's Law" Case

See this AP article.

Sunday, January 23, 2005

Appeals Court Halts One-Armed Driver

See this article by that title. The first few grafs:

The Oregon Court of Appeals has ruled against a one-armed man who wanted to drive his logging truck without a prosthesis.

The state Department of Transportation pulled Scott Cook's driver's license almost five years ago when it discovered he was driving without a prosthetic arm, as required by federal law.

Cook, 46, of Bandon lost most of his left arm at age 5 when it was caught in a meat grinder. He said he doesn't need a prosthesis and that it would hinder his driving. He sued the state and several of its employees, claiming they violated his right to due process and his rights under the Americans with Disabilities Act.

The Oregon Court of Appeals on Wednesday affirmed an earlier decision in Coos County Circuit Court that the department has the right to make its own rules and exceptions as they apply to Oregon drivers.

The opinion to which the story refers can be found here. Apparently, Cook has driven the truck for 20 years without having an accident.

NHS 'Bias' Against Mentally Ill Linked to High Death Rate

See this article by that title in the Independent. The first few grafs:

An inquiry into the high death rate among people with mental health problems treated on the NHS is to investigate claims that they are subject to institutionalised discrimination.

Research by the Disability Rights Commission suggests that they are four times more likely to die from a treatable illness than other patients and 58 times more likely to die before the age of 50.

The inquiry will look at why people with learning disabilities and mental health problems such as schizophrenia and manic depression as well as conditions such as Down syndrome and autism receive worse care from the NHS.

Preliminary studies show people with schizophrenia die on average nine years before the rest of the population. Fewer than one in five women with a learning disability has cervical screening.

Second Circuit and D.C. District on Medical Exams

A couple of opinions on relatively straightforward medical examination issues came out late Friday.

The Second Circuit held (in an ADA Title I case) that requiring an incumbent employee to disclose the results of HIV-related lab tests was "job-related and consistent with business necessity" because the plaintiff had told his employer, in an application for leave under the FMLA, that his medical condition rendered him unable to perform his job functions. The plaintiff couldn't have it both ways by asking his employer to give him leave on the basis of his medical condition but refusing to disclose relevant information about that condition. The case is Gajda v. Manhattan and Bronx Surface Transit Operating Authority, and the opinion can be found here.

The District Court for the District of Columbia addressed a claim that the plaintiff's employer (the FBI) violated the Rehabilitation Act by requiring her to submit to a psychological examination. Arguing that the examination was job-related and consistent with business necessity, the defendant sought summary judgment. But the court denied the motion for summary judgment. Noting evidence "that the plaintiff's psychological examination was ordered in violation of FBI regulation," the court concluded that a jury could find that the decision "to require the plaintiff to submit to the evaluation was not solely for the purpose of determining whether she was capable of performing her job." The opinion, Davis v. Ashcroft, 2005 WL 120094 (D.D.C. Jan. 21, 2005), is not yet available for free on the web.

NYT on State Medicaid Proposals

See this article. The focus is on the Florida plan about which I've previously posted, but the article discusses developments in a number of other states as well.

Saturday, January 22, 2005

Bill Richardson on Medicaid Block Grant Proposals

See his op-ed in today's Washington Post. He opposes a federal block grant to states; instead, he proposes a kind of inside-out block grant, in which the federal government limits what states can spend and guarantees to pay the rest of the cost of covering the people and services the state has chosen to cover. This doesn't strike me as the best policy idea (leaves the federal government at the mercy of the coverage decisions of states who aren't paying the bills, which creates all sorts of bad incentives), but it is a useful exercise to try to think of alternative Medicaid structures.

Cleveland Plain Dealer on Voting Accessibility

See this article.

Molski Hiatus Ends

No, not any hiatus in litigation brought by Jarek Molski. But the hiatus in articles about Jarek Molski appears to have ended. See this piece in the Sacramento Bee, which piece has a decidedly anti-Molski spin.

Settlement of Mississippi Olmstead Lawsuit

See this article. The first few grafs:

Thousands of disabled people in Mississippi could soon have more opportunities to live on their own instead of in nursing homes and other institutions.

Settlement of a federal Olmstead lawsuit against the state Department of Rehabilitation Services and Medicaid, brought in 2002 by people with disabilities, could be finalized as early as next week. The suit is one of dozens nationwide claiming states discriminated against disabled people by isolating them in institutions instead of trying to help them live on their own. The lawsuits are based on the 1999 U.S. Supreme Court decision from a Georgia case, which ruled that isolation of people with disabilities is discrimination under the Americans with Disabilities Act.

Mississippi, which has about 18,000 people in nursing homes, is continually ranked one of the worst for putting people in institutions instead of helping them live independently.

Thursday, January 20, 2005

N.D. Ill. on Carpal Tunnel Syndrome as a Disability

New on Westlaw: In Ulatowski v. John Sterling Corp., 2005 WL 88971 (N.D. Ill. Jan. 10, 2005), the court ruled that the plaintiff had satisfied her burden, at the summary judgment stage, of showing that her carpal tunnel syndrome was an ADA "disability." The court noted that the plaintiff had presented evidence that her condition rendered her unable to perform assembly line or production work, and she also introduced "evidence that carpal tunnel syndrome affects her ability to perform manual tasks in activities of central importance to daily life outside the work environment, including activities relating to caring for herself." A good reminder not to read Toyota v. Williams too broadly.

Also a good reminder of the Catch-22 disability rights advocates also talk about. Despite its definition-of-disability ruling, the court granted summary judgment to the employer on the ground that the plaintiff was not a "qualified" individual. In the court's view, the plaintiff admitted she couldn't perform the functions of her old assembly line job, and the employer had no alternative positions available that she could perform. Nor, the court concluded, was the employer required to create a new light duty position for the plaintiff to perform.

Wednesday, January 19, 2005

Disability Policy in the UK

See this article on the BBC website. The first few grafs:

A plan aimed to substantially cut the inequalities faced by disabled people has been launched by the government.

Measures in four key areas are set out in a report published on Wednesday by the prime minister's Strategy Unit.

It says action is needed to help people to live independently, and families with disabled children need extra help. The transition to adulthood should be smoother, and disabled people should have a better chance in the job market, the report adds.

The report, called Improving the Life Chances of Disabled People, is backed by four government departments.

The hope is that, by 2025, disabled people will be accepted as equal members of society.

Prime Minister Tony Blair said the strategy would mean "increased choice and control... and ultimately a better quality of life for disabled people".

As Tony Blair's use of the terms "choice and control" suggests, part of the proposal includes an expansion of the Direct Payments program that gives individuals with disabilities a pot of money to pay for the services they choose. On that point, see this article from the Guardian.

D. Del. on Volunteer Fire Companies and the ADA

New on Westlaw: The District Court for the District of Delaware recently issued an opinion in Tawes v. Frankford Volunteer Fire Co., 2005 WL 83784 (D. Del. Jan. 13, 2005). The plaintiff was a volunteer firefighter who claimed that his dismissal from the volunteer fire company was disability discrimination in violation of ADA Titles I and II. The court held that neither title applied. Title I did not apply because the plaintiff was a volunteer, not an employee (and the fire company did not have enough employees -- as opposed to volunteers -- to be a covered entity under Title I). Assuming arguendo that the fire company was a "public entity," the court held that Title II nonetheless did not apply. On that point, the court held that the plaintiff did not seek to "participate" in the fire company's "services" because he wanted to help the company put out fires, not to receive fire protection himself:

The Defendant is correct in arguing that the public entity output here is the service of protecting the community against fires. Title II must be read to guard against discrimination in providing that service. But that is the logical limit. As Plaintiff has not demonstrated a denial of the benefit of fire protection, Title II is not a valid basis for Plaintiff's claim against the Defendant.
This latter holding seems in some tension with the Supreme Court's (Title III) holding in the Casey Martin case.

The ADA and the Retail Industry

Just posted on SSRN: "The Impact of the Americans with Disabilities Act on the Entry and Exit of Retail Firms," by James E. Prieger (UC Davis -- Economics). From the abstract:

Congress enacted The Americans with Disabilities Act of 1990 over the protests of small business advocates who claimed that the ADA would trigger a wave of bankruptcies. Although the profitability of firms may suffer from the costs of ADA compliance, no systematic review of the evidence has been done. This paper seeks to determine if the ADA had a measurable impact on both the entry of new firms and the failure rate (exit) of existing firms.

The empirical results are consistent with the hypothesis that the ADA negatively impacted the retail industry. There were fewer retail firms after the ADA was passed, and the drop was larger in states in which the ADA was more of a legal innovation, and in states that had more disabled people, more ADA-related lawsuits, and more ADA-related labor complaints. There is also evidence that employment and access discrimination suits imposed real costs on retail stores, encouraging exit. However, the exit of incumbents was partially offset by new entry. Overall, the number of food stores decreased 2-13% after the ADA came into effect, and at least a 1.4-2.3% decrease in the number of smaller stores may be attributed directly to the ADA, net of trends affecting larger firms.
I haven't read the paper yet, but when I do I'll post any reactions I have.

Tuesday, January 18, 2005

The "Woodwork Effect" In Louisiana?

See this article on Louisiana's personal assistance program. The first couple of grafs:

A new state program that provides home care services as an alternative to nursing homes for the elderly and disabled has proven far more popular than state officials expected, increasing costs.

When a court settlement required the Department of Health and Hospitals to provide personal care attendants as a new entitlement under Medicaid in January 2004, the agency was expecting about 2,300 applications.

But by Dec. 31, the agency had received nearly 7,200 requests for services. More than half the applicants were deemed eligible, and 2,943 people were receiving services by the end of last month.

Monday, January 17, 2005

Social Security Privatization and People with Disabilities

Don't think that the debate about President Bush's forthcoming proposal to eliminate our current Social Security system is just about retirement. As this article makes clear, people with disabilities have a great deal at stake here, too. Some key bits from the article:

Social Security disability benefits may not be safe from the across-the-board cuts that are likely in President Bush's proposal to allow personal investment accounts.

Retirement and disability benefits are calculated using the same formula, so if future promised retirement benefits are cut, then disability benefits also would be reduced - unless the program is somehow separated.

That also raises big questions about how investment accounts would be structured for disabled people, especially if they get injured at a young age or are dependent on a parent. Disabled beneficiaries typically work less and need benefits sooner, so the accounts would not provide enough income to these people.

* * *

Supporters of Bush's overhaul say that disability should be treated as a separate program.

"The proper way to deal with this is to essentially make it clear that these are two different programs and to separate the benefit formulas," said David John, Social Security senior analyst at the conservative Heritage Foundation.

* * *

But disability advocates argue that the two programs can't be easily separated. Bush wants to let younger workers invest much of their 6.2 percent in payroll taxes into personal investment accounts, similar to a 401(k). Of the tax, 0.9 percentage point funds disability benefits, while the remainder is for retirement benefits.

* * *

"Anything they do to the retiree formula will affect people with disabilities," Ford said.

That's what occurs in the main plan offered by Bush's 2001 Social Security Commission charged with crafting a proposal for investment accounts. Promised disability benefits get reduced along with retiree benefits, in some cases up to 46 percent. The cuts were used to make the plan's finances add up in the report.

The commission plan is serving as a blueprint for legislation the Bush administration would like Congress to consider. Bush's commission did not recommend changes for the disability program and cautioned that the benefit reductions shouldn't be viewed as a suggestion.

But, "in the absence of fully developed proposals, the calculations carried out for the commission and included in this report assume that defined benefits will be changed in similar ways for the two programs," the commission said.

The commission noted that disabled beneficiaries may not have their full adult lives to accumulate enough funds in their accounts, a rationale for maintaining their traditional benefits.

But if future retirement benefits are cut and disability benefits were maintained at levels being promised under current law, that would encourage an increase in disability applicants, and potentially, fraud, the commission said.

Note also that this undermines a key part of the President's argument that his privatization plan will help African Americans. Since African Americans disproportionately benefit from SSDI, cuts in SSDI will disproportionately harm them.

Phila. Inquirer Article on New Jersey's "Real Life Choices" Program

The article is here. Some key grafs:

New Jersey rolled out a new approach in September 2003 called Real Life Choices, which allows families to create their own cluster of services to keep adult children with family or in another living arrangement.

Real Life Choices is one of the latest efforts to provide services that allow clients to maintain their independence and remain integrated in the community. The state hopes to expand Real Life Choices and similar self-directed programs for the developmentally disabled to give families more services.

Through Real Life Choices, families who qualify for state disability services are given a budget to create their services, determined by the adults' level of care. The money, ranging from $14,000 to $63,000 a year, can be used for services such as aides to help bathe the client, transportation to jobs and activities, or home renovations such as a wheelchair ramp.

The take-it-or-leave-it system of group homes and institutions costs $90,000 to $146,000 a year a person and left many families dissatisfied.

"While many people are living in group homes, they are saying, 'I want to live a more independent lifestyle and I want to be able to tailor to what I need,' " said Carol Grant, acting director the Division of Developmental Disabilities. "The system is now able to say 'yes' where before we had to say 'no.' We want people to be independent and empowered."

New Jersey is just one of many states moving away from a cookie-cutter approach of programs and housing toward a system where clients choose their own services.

This kind of program is in many ways the wave of the future in disability policy, though it raises complex issues.

Lawyer's Polio Prompted Him to Aid Disabled

See this article by that title in the Wichita Eagle. Some interesting snippets:

* * *

With the types of cases Calvert handles, the groups he sues face no penalty for their apparent wrongdoing and do not pay damages, Lowry said.

"So who in their right mind would bring them? Nobody except people who really care about people with disabilities and their civil rights."

* * *

Calvert said he sees ADA violations everywhere.

About 80 percent of parking in Wichita is not compliant, he said.

He doesn't eat at some local restaurants because his wheelchair won't fit through bathroom doors, Calvert said.

* * *

Lawsuits come as a last resort, he said. He's filed about 15 related to accessibility issues for people with disabilities.

Lengthy negotiations often follow.

For example, Calvert and his client -- the Independent Living Resource Center, which filed the suit -- worked with the city for nearly a year before the settlement.

The drawn-out process can get frustrating, Calvert said.

But he's changing attitudes little by little, he said.

Disabled Struggle in Strike Zone

See this article by that title in the New York Daily News. The first few grafs:

The strike by two private bus lines in Queens and Brooklyn has spotlighted the plight of wheelchair users.

They were hit especially hard by the walkout, but unlike other stranded passengers of the Green and Command buses, their troubles will not disappear entirely even when the strike is over.

They still will be the "invisible men and women in New York," according to Councilwoman Margarita Lopez (D-Manhattan). Even before the strike, Lopez and other activists for the disabled complained that many of the creaking buses used by the two city-subsidized companies are not equipped with wheelchair lifts.

And those buses that are wheelchair-accessible frequently come by with their lifts out of commission, said Michael Harris, 20, a disabled college student who lives in Sheepshead Bay and frequently uses a BM3 Command express bus to travel into Manhattan.

Sheltered Workshops Develop New Strategies

See this article by that title in the Daytona Beach News-Journal. The first couple of grafs:

Sheltered workshops, which provide employment for people with disabilities, are under a new state mandate to annually place 5 percent of workers with jobs in the community.

Mainstreaming is a worthy goal, but some advocates worry it will come at the expense of the workshops.

The danger is that "you eliminate a choice," said Ron Giampietro, business development manager for Act Corp., which employs 400 workers with disabilities in Flagler and Volusia counties. Act primarily serves people with mental illnesses.

Saturday, January 15, 2005

Criminalization of Mental Illness, Offender Reentry, Disability Benefits, and Medicaid

The NYT has a great editorial on these topics today.

Lawsuit Filed Over Cab Access Dismissed

See this article by that title in the Salt Lake Tribune. The key passages:

In a ruling made public Wednesday, a federal judge threw out a lawsuit by Toomer and the Disabled Rights Action Committee that claimed three Salt Lake City cab companies were violating the Americans with Disabilities Act (ADA).

U.S. District Judge Dale Kimball rejected Toomer's argument that the companies -- City Cab, Ute Cab and Yellow Cab -- were discriminating by failing to provide vans that are accessible to people with disabilities. The judge said regulations implementing the ADA require only new vehicles to accommodate people in wheelchairs.

And Kimball agreed with the companies that new is defined as "a vehicle that is offered for sale or lease after manufacture without any prior use," rejecting Toomer's contention that "new" should mean any van, regardless of mileage, that was purchased after the ADA was implemented in 1992.
The opinion in Toomer v. City Cab Co., issued Monday, can be found here.

Mass. SJC Says Indefinite Eviction Delay is Not Reasonable Accommodation

In an opinion issued yesterday, the Massachusetts Supreme Judicial Court upheld, against challenges under the Fair Housing Act and state disability discrimination law, the Andover Housing Authority's eviction of an elderly couple who had been disturbing their neighbors and making excessive noise. The couple asked for a delay in the eviction to accommodate the serious medical condition of the wife (who had neuralgia, lymphoma, dementia, and depression -- all of which might have contributed to the loud arguments the couple continuously carried on). But the court held that such an accommodation was not reasonable because there was no reason to believe that there would ever be a time when the couple would stop disturbing their neighbors. The court also noted that the couple had never told the housing authority that a medical condition might be at the root of their noise problem, but that the housing authority had engaged in a careful interactive process to explore alternatives before finally settling on eviction as the only remedy. The case is Andover Housing Authority v. Shkolnik, 2005 WL 75476 (Mass., Jan. 14, 2005).

Friday, January 14, 2005

Shopping Mall Settles Title III Evacuation Suit

I posted about an earlier ruling in this Maryland state-court case a couple of days ago. Tomorrow's Post reports that the shopping mall has settled, though another defendant (Marshall's department store) has not.

Maybe Some ADA "Vexatious Litigants" Should Move to the UK

See this article. Some key text:

Disability groups are preparing to take UK companies to court over breaches of access rules that came into force at the end of 2004.

The rules, part of the Disability Discrimination Act, require businesses to make reasonable adjustments to their premises to ensure disabled people can access goods and services.

However, the Disability Rights Commission (DRC) estimates that of the two million businesses affected by the law only half have complied.

State Medicaid Watch: Florida

Yesterday's New Dem Daily had this article on Florida Governor Jeb Bush's proposed private-block-grant approach to Medicaid. The key graf:

But though Governor Bush's plan, dubbed "Empowered Care," is packaged to reflect these reform principles, its main thrust is actually retrograde: abandoning any strong public role in designing benefits other than writing checks to private health plans for whatever they decide to offer within three broad categories of coverage, and for whomever they decide to cover. As Bush himself admits in referring to the plan as replacing a "defined benefits" with a "defined contributions" philosophy, "Empowered Care" would in effect turn Medicaid into a block grant from the federal and state governments to private plans, not only abandoning the program's basic safety net function, but also potentially encouraging insurers to "cherry-pick" the healthiest and least expensive beneficiaries.

Thursday, January 13, 2005

Oregon Court of Appeals Rejects Mitigating Measures Rule Under State Law

Yesterday, the Oregon Court of Appeals issued this opinion in which it ruled that the mitigating-measures rule of the Sutton case does not apply to Oregon's disability discrimination law (which otherwise generally follows the ADA's definition of disability). As a result, a court may not consider the effects of any mitigating measures such as medicines, prosthetics, etc., in determining whether a plaintiff has a substantial limitation on a major life activity. Aside from the legal holding, the case is interesting because of the mitigating measure at issue -- marijuana, which had been prescribed by a doctor pursuant to the Oregon medical marijuana law. The plaintiff had been fired from his job for testing positive for marijuana on urine tests. The appellate court, in its decision yesterday, reversed the trial court's dismissal of the plaintiff's disability discrimination claim.

Stein on Antidiscrimination and Accommodation

Just out on Westlaw is Michael Stein's take on the antidiscrimination/accommodation debate, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579 (2004). For my own take on that debate, see "Rational Discrimination," Accommodation, and the Politics of (Disability) Civil Rights, 89 Va. L. Rev. 825 (2003).

Loudoun Teacher Update

Following up on this post from a couple of days ago, it looks like the bad publicity has led the school district to a good resolution. See this piece in Thursday's Post, which begins:

Loudoun County School Superintendent Edgar B. Hatrick III has made a written offer to rehire a seventh-grade English teacher who was forced from her job after a cancer relapse and has promised to recommend changes in medical leave policies that would allow "greater latitude" in future cases.

UC Berkeley Settles Accessibility Case

See this press release. A few excerpts:

Physical barriers that may have hampered access to the University of California, Berkeley, campus for students with mobility or vision disabilities will be removed and improvements will made to campus grounds and buildings when a proposed settlement of a class action lawsuit is finalized later this spring.

The multi-year undertaking by the campus will include wide ranging physical changes, improved on-campus transportation options and a new procedure for students to get quick resolution to access problems, among other actions. Some of the improvements are already underway.

* * *

The agreement settles a class action lawsuit, Gustafson vs. Regents of the University of California. The named plaintiff in the case, Kaaryn Gustafson, was a doctoral and law student at UC Berkeley when the case was originally filed in federal court in 1997.

Instead of adversarial litigation, the parties agreed to a voluntary cooperative process. To settle the case, a jointly agreed upon panel of experts undertook an extensive survey of the campus and issued a detailed set of recommendations. The comprehensive settlement agreement was then negotiated by the parties. The proposed settlement was announced this week.

"The cooperative nature of the process has been a great success in many ways," said Jeffrey A. Blair, the UC Office of the General Counsel attorney who handled the matter. "The university was able to incorporate ideas and recommendations from students and disability advocates from the community in a non-adversarial, cooperative manner. The university conservatively saved several million dollars in attorneys' fees and more in litigations expenses, and has forged a more collegial relationship with the disability community that will benefit both sides for years to come."

The group of people addressed in the class action suit are UC Berkeley students with mobility and visual disabilities. Currently, there are about 100 such students enrolled on campus. A final approval hearing is set for March 23 in federal district court in San Francisco.

The settlement addresses two aspects to campus access: mobility involving the physical premises, such as paths of travel between buildings and barriers that may limit access inside buildings, and program and activities access, such as the ability to participate in class trips and attend cultural and athletic events.

Wednesday, January 12, 2005

Medicaid Coverage of Wheelchairs, etc., in New York

See this article from today's Newsday. The first couple of grafs:

Medicaid claims for such items as wheelchairs and walkers by some disabled poor in the New York City area are being returned because of a lack of necessary medical documentation, the state Health Department said Wednesday.

The agency disputed a published report that thousands of durable medical equipment orders for the downstate area have been rejected or delayed since Nov. 1, when the Health Department stopped processing them in Manhattan and started handling all state claims at its Albany office.

Absurd Decision from the M.D. Pa.

Just out on Westlaw, though decided on December 27, is an opinion in Custer v. Penn State Geisinger Health System, 2004 WL 3088616 (M.D. Pa. Dec. 27, 2004). The decision involved a plaintiff who experienced "several lingering effects" of a severe form of meningitis, "including altered sensation from the waist down, an abnormal gait, decreased muscle strength, altered affect and presentation, and limitations in bladder and bowel function." He apparently also often had to use a wheelchair for mobility. The district court nonetheless held that the plaintiff was judicially estopped from claiming that he had an actual disability for purposes of the ADA (i.e., a physical or mental impairment that substantially limits major life activities), because the plaintiff, "a physician, stated repeatedly in his deposition that he is not disabled, as he can perform the duties of an OB-GYN."

I don't mean to be overly sophisticated here, but well, duh. The plaintiff has to testify that he can do the job -- he has to show that he's a "qualified individual." The fact that he said that his ability to do the job makes him not "disabled" shows that he wasn't using the word in the ADA's technical sense. To take such a generic statement as estopping him from contending that his condition, with all its serious effects, substantially limited major life activities is absurd.

Tuesday, January 11, 2005

State Medicaid Watch: California

This LA Times article on the Governor's proposed social services cuts contains some disability-related content:

Schwarzenegger also proposed abolishing the annual cost-of-living increases built into many healthcare and social services programs — something he has blamed for California's troubled financial state.

In addition to eliminating the cost-of-living increase for welfare benefits, he proposed scrapping a 4.5% increase in Supplemental Security Income for the elderly and disabled.

His budget would siphon away the $84.7 million Washington is providing to cover increases in the disabled program, and use the money to plug California's budget gap.

The budget unveiled a number of ideas to curtail the cost of the state's Medicaid program, Medi-Cal, which accounts for nearly a third of state spending, with $33.8 billion allotted for the fiscal year beginning in July. About 6.6 million people participate in the program.

The governor's proposal would impose a $1,000 annual cap on dental services for adults, excluding some federally mandated emergency services.

Under the plan, the elderly and poor receiving healthcare through Medi-Cal — except those in the most dire financial circumstances — would have to pay premiums up to $27 a month, depending on the number of children in the family.

The premiums would apply to elderly couples with incomes over $1,437 a month; single elderly with incomes above $812, and families above the poverty level.

The bulk of savings to Medi-Cal, however, would come by expanding the use of managed care — which now is used for half of the state's participants — to include 13 additional counties as well as all of California's aged, blind and disabled Medi-Cal patients. The administration projected that switching to managed care would save $136.6 million after the change took full effect, in 2007.

Robert Hertzka, president of the California Medical Assn., said managed care for the disabled, "we believe, would be disruptive of preexisting doctor-patient relationship," but that "on the whole, we're pleased that the governor has largely spared the state's health programs, with some exceptions."

As he did last year, the governor proposed that the state help pay only the $6.75 an hour minimum wage for in-home healthcare workers, instead of the $10.10 an hour the state now shares in paying.

Court Holds that ADA Applies to Emergency Evacuations

John Stanton has this post on the American Constitution Society blog discussing and linking to a Maryland state court case that held, under Title III of the ADA, that businesses have an obligation to take people with disabilities into account in their emergency evacuation procedures.

Assisted Suicide in the UK

See this article in the Independent. The first couple of grafs:

A bill which critics claim would legalise euthanasia through the back door was dealt a blow last night after a disabled peer warned its introduction could have led to her being denied life-saving treatment.

Baroness Chapman, who suffers from brittle bone disease, said that the Government's proposals could become a "licence to kill" and would "not keep people safe". Speaking for her first time in the Lords since being made a peer last year, Lady Chapman said: "My Lords, I feel I should declare an interest. If this bill had been passed 43 years ago, I would not be here."

Monday, January 10, 2005

Loudoun Teacher with Cancer Forced Out

At a time when events are making a lot of folks think about Patricia Garrett's case again, articles like this one show that what happened to Patricia Garrett is all too common.

The Silent Kennedy

The New York Times has this editorial by that title today discussing the death of Rosemary Kennedy -- and her importance in increasing the visibility of people with mental retardation.

Bank Changes Insurance Terms after Disability Bias Case

No, not here, in Northern Ireland. See this article by that title:

Abbey National is altering the terms of its insurance policies after a Belfast man took action against it under disability discrimination legislation, it was announced today.

The bank agreed to alter the terms of its policies throughout the UK and review its procedures as part of an out-of-court settlement of a case involving the provision of critical illness cover.

The Equality Commission of Northern Ireland, which supported the case, said the company had also paid the man involved £1,000 plus costs.

The case was brought under the Disability Discrimination Act 1995 by Thomas Hughes, who suffers from albinism and is registered blind, after he applied for a critical illness insurance policy.

The Equality Commission said the policy offered was limited to exclude all forms of cancer and any disease, disorder or injury to the eyes.

However, the company could not give any reason, either on an actuarial or medical basis, for the limitations on the policy.

Sunday, January 09, 2005

Group Goes to Court to Block Closing of Center for Disabled

See this article by that title in today's Nashville Tennesseean. The first few grafs:

Opponents of a plan to close Arlington Developmental Center will argue in court tomorrow for a restraining order to stop the effort.

Little Rock, Ark., attorney Bill Sherman will ask U.S. District Judge Bernice Donald to block the plan, which would shut down the center within three years.

An agreement to close the facility was reached last month among the state, the U.S. Department of Justice and the advocacy group People First.

It calls for ''moving all Arlington residents into appropriate community programs over the next three years,'' said Jack Derryberry, attorney for People First in Nashville. It also would set up smaller, state-run homes for residents who need the most intensive care.

Many years ago, in an earlier life, I worked on some earlier proceedings in this case.

Social Welfare Cuts on the Way

See this article in today's Times. Disability-related content:

A legislative proposal drafted by the White House would make it more difficult for Congress to pass legislation increasing the "long-term unfunded obligations" of benefit programs like Social Security, Medicare, Civil Service retirement and disability, veterans disability compensation, and health benefits for retired federal employees.

A White House document describing the proposal says that Medicaid, the health program for low-income people, can be added to the list as soon as federal officials devise a reliable way to estimate its long-term costs. Medicaid spending has shot up 63 percent in the last five years, so that federal and state outlays together now total more than $300 billion a year.

State Medicaid Update: New York

See this article in today's Times. The lede:

As Gov. George E. Pataki struggles to confront New York's skyrocketing Medicaid costs, his advisers are arguing that he should embrace the Bush administration's efforts to establish new limits on the federal Medicaid programas a means of revamping the state's program.

Friday, January 07, 2005

Comparative Labor Law and Policy Journal Symposium on the Concept of Disability

Just out (though it's dated 2003, and I know that at least one of the participants wasn't even asked to participate until mid-2004) is a symposium in the Comparative Labor Law and Policy Journal on "The Concept of Disability." The symposium contains five papers:

Glenn Patmore, The Disability Discrimination Act (Australia): Time for Change, 24 Comp. Lab. L. & Pol'y J. 533 (2003);
Fiona Geist et al., Disability Law in Germany, 24 Comp. Lab. L. & Pol'y J. 563 (2003);
Edoardo Ales, Disability in Italy: The Legal Concept, 24 Comp. Lab. L. & Pol'y J. 609 (2003);
Gavin Mansfield & John Bowers, Disabled Persons Under the Disability Discrimination Act 1995, 24 Comp. Lab. L. & Pol'y J. 631 (2003);
and an essay by yours truly, Comparative Disability Employment Law From an American Perspective, 24 Comp. Lab. L. & Pol'y J. 649 (2003).

Thursday, January 06, 2005

AALS Break

I'm off to San Francisco for the AALS conference, so posting will be light until Sunday or Monday.

Inability To Get Along With Others As An ADA Disability? That´s Ridiculous!

For a management lawyer's take on the Second Circuit's recent ruling that ability to get along with others is a major life activity under the ADA, see this article by that title.

N.D. Cal. on Insurance Safe Harbor

New on westlaw (but not for free on the web): In Neily v. California Public Employees' Retirement System, 2004 WL 3030069 (N.D. Cal. Dec. 21, 2004), the District Court for the Northern District of California ruled that the ADA's insurance safe harbor warranted summary judgment for the defendant who refused to provide long-term care insurance to two plaintiffs, one with post-polio syndrome and the other with diabetes. The court, per Judge Whyte, ruled that the defendant had made its decision based on the risks attendant to the *extent* of the plaintiffs' disabilities, not on the mere *fact* of those disabilities. Such risk-based decisions, the court ruled, are exactly what the safe harbor allows insurers to make (even though the defendants relied on no actuarial data, and seemed not to account for other, non-disability-related risk factors in their underwriting decisions).

Wednesday, January 05, 2005

Group Home Provider Sues Holladay Over Ban

See this article by that title in the Salt Lake Tribune. The first few grafs:

A group home provider has opted to fight - and sue - Holladay over a facility for juvenile sex offenders that the city refused to allow.
The Bountiful-based company Futures Through Choices filed a lawsuit Tuesday in U.S. District Court alleging the city violated anti-discrimination statutes and due process rights of disabled youths.
The proposed five-bed group home, at 2180 E. Sunnybrook Way (4020 South), is for
youths between 16 and 21 years old in the custody of the state's Division of Juvenile Justice for sex offenses and who are disabled with low IQs.
The company argued in the lawsuit that the city based its decision on hysteria.
"[Futures Through Choices] provided voluminous data demonstrating that the group home residents posed no significant risk or direct threat to the public health or safety of the Holladay community,
but instead the city relied on stereotypes, fear and hatred of such proposed group home residents by the Holladay community," the lawsuit states.

South Korean Disability Employment Quota Data

See this article in the Korea Times. It looks like companies that failed to meet the nation's 2 percent disability employment quota paid more in fines last year (indicating that companies that failed to meet the quota fell farther below the quota than the year before) but that the government paid more in grants to companies that met the quota (indicating that more companies were satisfying their quota obligations than the year before).

More on ADA Compliance, 14+ Years On

Framingham, Mass., seems to have (almost) decided that now, 14 and a half years after the ADA's enactment, is finally the time to comply with the law. See this article:

A new push is under way to take up a comprehensive review of the town's buildings and determine how to get them in compliance with the Americans with Disabilities Act.
* * *
Polselli said he hopes the review, which will examine 50 town buildings, services and intersections across town, gets under way shortly after Town Meeting, if the funding is secured. July, he pointed out, will mark the 15th anniversary of the sweeping federal legislation.
The report, called a self-evaluation and transition plan, will identify problems and outline ways to fix them. Without it, Polselli warned, Town Meeting could be hit with a lawsuit.
"They need to realize this. We're all in this together so to speak," he said.
Framingham could also wind up getting targeted by the Department of Justice, which does spot checks of cities and towns, Polselli said. In fact, the department has reached settlements with at least two Massachusetts communities, Brookline and Springfield, to fix a host of service and access problems, according to its Web site. The agreements were reached following complaints filed against them.
It was not clear how extensive compliance problems are in Framingham. Building Commission Joseph Mikielian said most town buildings do not comply with the federal law except schools built within the last 10 years.

More Molski

See this article from today's San Luis Obispo Tribune. A few grafs:

Jarek Molski will seek unspecified monetary damages from a Templeton winery even though a federal judge dismissed an Americans with Disabilities Act suit last week without awarding money, his attorney said Tuesday.

San Francisco attorney Thomas Frankovich said his client -- who is a paraplegic and uses a wheelchair -- will refile a lawsuit against Peachy Canyon Winery within two weeks in state Superior Court, asking for money because the tasting room didn't comply with the ADA when he visited in 2003.

"We've got to get compensated for the work we did to fix it," Frankovich said. "We went out and had an expert inspect it, told them what was wrong and tried to get a settlement.

"The fact remains that Peachy Canyon violated the law for (almost) 15 years," since the 1990 ADA was passed.

Peachy Canyon's attorney, Jere Sullivan, said he can't understand why Molski would refile given that the winery has made the necessary improvements to become ADA compliant, such as adding wheelchair ramps and a lower tasting bar.

Here's a bit of an article from yesterday's tribune that explains Judge Hatter's ruling:

A federal judge has dismissed a lawsuit without granting monetary damages after ruling that Peachy Canyon Winery made sufficient improvements to its Templeton tasting room to comply with the Americans with Disabilities Act.

The ruling comes in light of several other local businesses paying Jarek Molski, a paraplegic, around $15,000 to $25,000 to settle cases he brought -- thereby avoiding costly civil trials in federal court in Los Angeles.

U.S. District Judge Terry J. Hatter Jr.'s decision is significant because it could lead the way for similar rulings for the more than 50 San Luis Obispo County businesses that were sued by Molski over alleged ADA violations, said Peachy Canyon's attorney, Jere Sullivan.

"I'd suggest that any other defendant file the same motion for summary judgment that we did," Sullivan said. "We proved to the satisfaction of the court that we fixed everything. My clients think what (Molski) does is extortion and he shouldn't be collecting money off this."

As I've said before, this is a complicated issue. On the one hand, Judge Hatter's ruling seems right. ADA Title III provides only for injunctive relief, and if it's clear that the restaurant has made architectural changes necessary to come into compliance, there's no longer any basis for an injunction (and the state-law damages claim can properly be handled in state court). On the other hand, it seems clear that Molski's suit was the only reason the restaurant came into compliance. His motives may not be the best in the world, but those motives seem to have resulted -- here, at least -- in a business finally complying with the law after 14 and a half years. The problem, of course, is that without the state-law money damages remedy that encourages plaintiffs like Molski to bring cases like this and lawyers like Frankovich to take them, this suit would never have been brought, and the restaurant would, it seems, never have complied with the law. As we all should have learned from Adam Smith, sometimes actions taken with self-interested motives can conduce to the public interest.

Tuesday, January 04, 2005

Netanyahu Objects to Bill Giving Equal Access to Disabled

See this article in Haaretz. Looks like the bill would go a lot farther than the ADA in requiring retrofitting:

Netanyahu estimated the amendment's cost at NIS 4.5 billion, in contrast to the NIS 0.7 billion that the cabinet agreed to cover. He explained that the difference derives from several issues including access to all education institutions within six years, access to all pedestrian steps, passes and junctions within two years, and applying the law to structures whose building permits were issued before 1972.

Disabled Bostonians Seek Ban on Brick Sidewalks

Today's Boston Herald has an article by that title. The lede:

Disabled residents crowded a hearing on Beacon Hill to call for an end to brick sidewalks in Boston, saying they are hazardous to people using wheelchairs and canes to navigate the city.

Monday, January 03, 2005

State Medicaid Watch: Missouri

The St. Louis Post-Dispatch had an article this weekend about the priorities of my home state's newly elected Republican governor, Matt Blunt. The following passage suggests that here, as in other states, budget politics will pit Medicaid and education against one another:

"It's about priorities with existing state revenue, and I believe education ought to be our number one public policy priority and our budget ought to reflect that," Blunt said.

To provide more money for education, lawmakers may be tempted to tighten eligibility limits for Medicaid.

State Medicaid Watch: New York

Today's New York times has an article on New York's prospects under the Congress that convenes tomorrow. The article contains this bit on Medicaid:

Another major fight is likely to occur over Medicaid, the nation's largest health insurance program, covering the poor and the disabled at a cost of more than $300 billion a year to both the states and federal government.

The Bush administration is considering a wide range of initiatives to curb the growth of Medicaid spending, at the same time that Mr. Bush has pledged to cut the federal budget deficit by half in five years.

Republican leaders on Capitol Hill say the president's deficit goal is almost impossible to achieve without addressing Medicaid. But any changes to the program will have a huge impact in New York, where Medicaid provides health care to more than three million people at a cost of about $42 billion a year.

The Bush administration has not said how it intends to deal with the issue. But officials in many states, including New York, say they believe the administration will try the same approach it did in 2003, when it proposed giving each state a fixed amount of money, known as block grants, each year for 10 years, instead of basing federal payments on actual health costs and enrollment.

Both Republicans and Democrats in New York are concerned that the block grants will translate into huge cuts that, in turn, will affect poor and wealthy communities across the state. New York hospitals, nursing homes and other health care institutions have long used Medicaid dollars to help cover their overall costs.

Many New York politicians agree that the person best suited to argue the state's Medicaid case in Washington is Gov. George E. Pataki, a Republican with ties to the White House who has not publicly stated where he stands on the issue.

Republicans close to the Pataki administration say, however, that the governor may be willing to embrace an overhaul of the federal program, like the block-granting approach, if it gives him the leverage to force the State Legislature in Albany to curb the rapid growth of the state's own Medicaid program.

State Medicaid Watch: Nevada

The disability law issue of the year could be the pressures put on Medicaid by tight state and federal budgets. Because "optional" services for people with disabilities often are among the costliest items in a state's Medicaid budget, those services are likely to be major targets for proposals to cut program costs. Here's an article about the incipient Medicaid cut debate in New Mexico. A few grafs, which illustrate the problem for people with disabilities:

But the bad news is the rising cost of providing medical care under Medicaid, a state and federally shared program for the elderly, disabled and poor.

"The cost of providing care is the primary driver of the Medicaid budget," said Charles Duarte, administrator of the Division of Health Care Financing and Policy, which oversees the Medicaid program.

Though some welfare recipients qualify for Medicaid coverage, care for the aged and disabled populations is pushing program costs higher, he said. Welfare recipients make up 54 percent of Medicaid's caseload but consume only 20 percent of the cost of care, Duarte said.

* * *

Sen. Bob Beers, R-Las Vegas, said that as a member of the Finance Committee, he will scrutinize the Medicaid budget closely to determine if there are ways to save money. Beers was critical of the size of the Medicaid budget and its projected caseloads in the 2003 session when he was in the Assembly.

"The statistics show we have a far richer Medicaid system per beneficiary than surrounding states," he said. "We have added optional Medicaid programs that other states have not. I have asked (legislative staff) to put a number on that. We'll just have to see what the mood of the Legislature is."

Sunday, January 02, 2005

Bringing "The Welfare Reform Revolution" To People With Disabilities?

Noted conservative columnist Rich Lowry argues for such a development in this article.

One of the themes of my recent writing has been the intersection between welfare law and disability rights law. In particular, I've been taken by the way in which disability rights activists have made common cause with welfare-reform conservatives in pursuing policies that, instead of maintaining people with disabilities on the public dole, seek to promote work and community participation. The ADA, I've somewhat controversially argued, is a product of just such an alliance. As issues like personal assistance come to the forefront of disability rights advocacy, there is a clear potential for an across-the-aisles coalition to support voucher-type programs to enable people with disabilities to pay for the services they believe they need, from providers they choose and trust. As I've also argued, however, there is a possible dark side to all this: To the extent that policy too fully incorporates the privatization agenda of voucher advocates, people with disabilities may end up with insufficient benefits, and ineffective services, to achieve the independence disability rights activists advocate.

President Bush's rhetoric about an "ownership society" thus creates real opportunities and threats for disability rights activists. Lowry's article possibly gives us a taste of what's in store.

More on Judge Van Sickle

Tomorrow's New York Times has an article on this poignant case about which I posted a couple of weeks ago. A few excerpts:

A retired federal judge who has dementia and lives in a nursing home is at the center of a legal debate that could have a far-reaching effect on the care of patients with Alzheimer's disease.

More than 20 years ago, Judge Bruce M. Van Sickle of United States District Court in North Dakota issued a sweeping ruling that the state's institutions for the mentally disabled were systematically violating the rights of their patients. He ordered that the disabled be moved to places where they could be given the "least restrictive" appropriate care.

One of Judge Van Sickle's sons is now asking the North Dakota Supreme Court to release him from his Bismarck nursing home so he can be given the same individual care that he once ordered for other disabled people.

* * *

The case has focused renewed attention on the landmark decision Judge Van Sickle issued in 1982 in the case of Association of Retarded Citizens v. Olson. He ruled that North Dakota was violating the constitutional rights of mentally disabled people by housing them in dirty, noisy, crowded institutions where they received little or no care. In a later ruling, he ordered changes that cost the state hundreds of millions of dollars.

State officials denounced the decisions, saying the judge had far overstepped the limits of his authority. They grudgingly complied, however, and today many agree that the decision was wise and has produced positive results. Newspapers have published extensive reports documenting the fulfilling lives that mentally disabled people are now enjoying in small group homes and other community-based settings.

The AARP has rallied to Judge Van Sickle's side with a supporting brief urging that he be released from his nursing home. The brief says that "everything known about Judge Van Sickle's life and career indicates his desire to avoid the situation in which he now finds himself."

"The limitation of visitors, use of chemical restraints in the form of psychotropic drugs, and a temporary admission to the psychiatric ward of local hospital demonstrated he was restricted by more than a security net," the brief says. "Each is a restraint on the liberty Judge Van Sickle fought so hard to protect for others."

See also this AP article on the case.

Saturday, January 01, 2005

NYT Mystery Solved

Is it just me, or has the Times recently published an awful lot of articles about kids with autism? I had begun to suspect that some NYT editor had a kid with autism, and my suspicion was confirmed here.

Officials See Too Many Disabled in Senior Housing

See this article by that title in the East Hartford Gazette. A key passage:

State Sen. Gary LeBeau, D-3rd District, recently announced his support for measures that would limit the number of young, disabled men and women who live in state housing for the elderly. State officials have been studying several proposals, including one that limits young disabled tenants to 14 percent of Massachusetts state housing.
LeBeau supports the Massachusetts model.
"Such a model would help ensure that in the future, disabled people do not proportionately occupy state-funded housing for the elderly," the senator said. "This would help the financial stability of housing authorities."
Seems like a false choice to me. If the system of funding public housing gives states an incentive to push people with disabilities out, that model should be changed. This pitting of seniors against people with disabilities (obviously overlapping groups) is the kind of thing we should get used to. Think, for example, about the recent stories in which Governors complain that Medicaid is taking money away from education. Welcome to the negative-sum budget politics of Bush II.