Friday, April 29, 2005

D. Mass on the ADA and Mental/Physical Distinctions in Long-Term Disability Insurance

In Fletcher v. Tufts Univ. (D. Mass, Apr. 15, 2005), the court denied the defendants' motion to dismiss in an ADA challenge to a long-term disability (LTD) insurance plan that capped benefits for mental disabilities at two years. (As is typical in these policies, benefits for physical disabilities continue to age 65.) The court (per Judge Lindsay) made a number of significant rulings: (1) that former employees who are entitled to disability benefits are "qualified individuals" for purposes of Title I of the ADA, which prohibits disability-based employment discrimination; (2) that the disparate treatment of mental and physical disabilities under the LTD plan constitutes discrimination on the basis of disability that violates Title I unless it comes within the statute's insurance safe harbor; and (3) that the plaintiff may also challenge the disparity under Title III of the ADA, which prohibits disability-based discrimination by places of public accommodation. There is substantial authority that rejects each of these three points -- though Judge Lindsay's ruling is most closely in accord with prior case law in the First Circuit -- so it wouldn't be surprising if the defendants sought to take the issues up on appeal.

Yglesias on SSDI and the President's New Direction on Social Security Privatization

Over at TAPPED, Matthew Yglesias has this analysis of what the President's remarks last night imply for Social Security disability benefits:

And, of course, disability benefits will also have to be cut. The president has consistently maintained that he doesn't want to do this, but there's a reason why every formal plan you see (i.e., the commission report that was the basis for the first White House pseudo-plan, the Pozen plan that's the basis of the new one, etc.) cuts disability benefits: It's not clear that it's possible to avoid these cuts. The current program structure links the benefit formulae so you can't change one without changing the other in any sort of straightforward way. Obviously, there's nothing stopping a clever person from disentangling the formulae and working this out, but somebody would need to actually do the work. And irrespective of what you did, the disability benefits would wind up being somewhat different, though perhaps pretty similar. If the White House is serious about protecting disability benefits, they'll have to start speaking honestly about the budgetary impact of this, and start doing the hard work of figuring out how to do it. Until then, I think it's safe to say that the plan is to cut disability benefits and just lie about it.

Thursday, April 28, 2005

Protest Against Medicaid Cuts in MO

See this article from the Post-Dispatch, which begins:

Eight people chained their wheelchairs Wednesday to a door leading into the
Missouri House and demanded to see Gov. Matt Blunt during a protest against
Medicaid cuts he signed into law this week.
Hundreds of disabled people, along with some of their attendants, marched
around the Capitol peacefully. The situation turned tense when eight protesters
threaded chains through their wheelchairs and locked themselves to a House
chamber door.
"The disability community will not rest until every Missourian with a
disability is able to live in the most integrated setting as an equal part of
the community," said protest leader John Loyd of Rochester, N.Y., and formerly
of Warrensburg, Mo.
Capitol police cut the chain within 15 minutes. But the protesters blocked
the door for two and a half hours before leaving. Blunt did not meet with the
"We're always glad to see people come to Jefferson City to share
their views," said Spence Jackson, a spokesman for Blunt.

Fox News on NCLB and Kids with Disabilities

See this report, which begins:

Advocates say they are worried that changes to the No Child Left Behind (search) law that will relax standards for children with disabilities will wind up dooming those children to "low expectations."

The changes, announced earlier this month, were hailed by state and federal school officials, who said they will give school systems the flexibility they need to meet the strict testing standards of the federal law.

Educators insist that they will be on guard against the possibility that the new rules isolate special-needs students, but parents and advocates have their doubts.

Interesting Article on IDEA Changes

It's in today's Arizona Republic. The article is here, and here is a taste:

Revisions to a federal law will bring sweeping changes to special-education programs across the country beginning in July.

Some parents and teachers are concerned that the change will allow special-education students to be expelled for disciplinary problems, fail classes because their educational needs won't be met, and leave them unprepared for life after graduation.

The law, a reauthorization of the Individuals with Disabilities Education Improvement Act, specifically will affect the way parents monitor the progress of their child, how schools handle discipline, how students are instructed, how special-needs children in private schools receive services and how state education officials oversee it all.

Wednesday, April 27, 2005

More on Canadian Parents Relinquishing Custody of Kids with Disabilities

See this story from today's Globe and Mail, which begins:

The Ontario minister in charge of children's programs blames her predecessors at Queen's Park for a lack of funding that has forced parents to give up custody of children with severe disabilities in order to gain access to support services.

Minister of Children and Youth Services Marie Bountrogianni said yesterday that there was virtually no new investment in children's services for almost a decade under the previous Progressive Conservative government.

Ms. Bountrogianni told reporters that the Liberal government provided funding of $200-million for children's services in its first budget last May.

"That's because we do know there is a crisis out there, and there still is a lot of work to be done," Ms. Bountrogianni said. "I've been working with children all my life and I'm not going to turn my back on them now."

Hamilton County School District to Seek Cert. in Deal Case

See this story, and my earlier post about the case.

Monday, April 25, 2005

Voting Inaccessibility in Lebanon

See this article. A taste:

The logistics of the electoral process pose undue hardships on the country's disabled citizens and are reflective of the official disregard for their plight, according to the head of the Lebanese Physically Handicapped Union.

Union president Silvana Lakkis made her comments during a meeting with the media Monday, organized to discuss the organization's new campaign aimed at raising awareness regarding disabled persons' rights concerning the elections.

Lakkis said "special procedures" are required in order for disabled people to vote in any election, giving the example of one disabled citizen who was unable to climb up three flights of stairs to vote.

It is common practice in Lebanon for voting stations to be held at public schools in each district, and voters are required to cast ballots on any of a building's floors according to a predetermined list of candidates.

Leadership Conference on Civil Rights on Social Security Privatization

Here's their anti-privatization press release. Disability-related content:

Privatization would lead to deep benefit cuts that would hurt workers with disabilities and their families. John Lancaster, the executive director of the National Council on Independent Living (NCIL) explained, "More than seven million Social Security checks go to people with disabilities and their families to help them live and work independently. NCIL believes that the proposed private accounts could result in major benefit cuts, massive new government borrowing, and could destroy the social insurance system designed to reduce risk from certain life events."

Victoria (Australia): Number of Disabled Students Soars

See this article by that title. Some excerpts:

The number of state school students with disabilities and language disorders has soared by almost 10,000 in five years.

Education Department figures show there are 23,083 Victorian students in school disability and language disorder programs this year, a rise of 74 per cent compared with the 13,257 in 2000.

But a Royal Children's Hospital expert said the figures were "a significant underestimate", and most academics believed at least 10 per cent of school children had extra learning needs.

* * *

Educators attribute the increased student numbers to improvements in recognising disabilities.

Peter Steele, vice-president of the Australian Education Union's primary sector in Victoria, said the funding model could also be a factor. Schools that apply for funding for students with disabilities may receive from $4677 to $35,000, based on the extent of a student's needs. "The tendency is for people to paint a picture, if you like, of a child with a more severe disability to get more funds," Mr Steele said.

Canadian Parents Forced to Relinquish Custody of Kids with Disabilities?

See this article in the Toronto Globe and Mail, which begins:

The Ontario Ombudsman's office is launching an investigation into whether parents of children with severe disabilities are being forced to give up custody of them in order to get access to support services.

André Marin, who was appointed Ombudsman on April 1, announced Monday that his office is creating its first formal investigation team, with the first task probing whether children with severe challenges are being put into the custody of Children's Aid Societies in order to obtain the care they need.

”This issue is urgent and pressing and demands our immediate attention,” Mr. Marin said at a news conference at Queen's Park. ”Parents are complaining that they are still being forced to give up their children to the CAS, under the false pretence or artifice that the child is in need of protection or has been abandoned by the parents. If that is the case, it is simply unacceptable.”

This has been a problem in the US as well.

Sunday, April 24, 2005

Harkin on Disability and Social Security Privatization, Redux

See this article in today's Des Moines Register. Disability content:

Harkin, a longtime advocate for disability rights, said Social Security does not just benefit retirees, but the program also serves as a safety net for the disabled. The average 20-year-old has a 30 percent chance of becoming disabled, according to the Social Security Administration, Harkin said, and disabled citizens unable to work would accrue no benefits from private accounts.

Waylon Stepp, 37, of Marion had a stroke five years ago and now is battling a brain tumor while collecting disability benefits of about $1,600 per month.

"My benefit is enough to keep me from applying for welfare and food stamps," said Stepp, a father of three, who spoke during the forum. "I would be bringing in less per month if the system was privatized. As young people, we don't believe (a disability) is going to happen to us."

Tsunami Victims with Amputations

The NYT has this interesting and sad article on that topic today. A taste:

Of the survivors of the tsunami in Indonesia, amputees face singular hardships. Unlike many developing countries, Indonesia has few facilities that produce artificial limbs. Those it has make old-fashioned expensive prostheses that do not meet international standards, foreign specialists who have tried to help the tsunami amputees said.

"Everything related to disability in the country is behind," said Thierry Agagliate, the director of Handicap International, a group that has worked in Aceh since the tsunami. "This must be the only major country without these facilities."

Only one person in Aceh Province knew how to make and fit artificial limbs, and he was killed in the tsunami, Mr. Agagliate said. The main factory for prostheses in Indonesia, in Solo, also known as Surakarta, on the island of Java, made limbs from wood and other heavy materials.

Handicap International shelved a plan to open a workshop in Aceh to produce limbs because Indonesia's government did not give its approval, Mr. Agagliate said. "They want to handle this themselves," he said.

For similar reasons, the International Committee of the Red Cross, the leading maker of artificial limbs in more than a dozen developing countries, will not pursue its plans for making limbs in Aceh, a spokesman said.

NYT on Fights Over Services for Schoolkids with Disabilities

See this article in today's Times. A taste:

"The sign outside Westport should say: 'Don't Move Here. We Don't Take Care of Special Ed,' " said Stanley Alintoff, a parent who said he has spent more than $100,000 challenging Westport's decision to revoke special accommodations his daughter was receiving because of a digestive disorder.

With an estimated 5.7 million children in the United States qualifying for special education, similar struggles are playing out around the country. Federal laws aimed at protecting the disabled entitle those who qualify to a free and "appropriate" education tailored to their needs. But the definition of "appropriate" differs from town to town, leaving much to quarrel about.

The battle is particularly intense in the suburbs, where wealthy, educated parents no longer see special education as a stigma or trap. They are pressing hard for services and accommodations to address their children's learning needs, from extra time on tests to tuition for private schools. But many suburban school districts are aggressively challenging some of the requests as indulgent interpretations of the law.

In Hamilton County, Tenn., for instance, school officials spent $2.2 million on lawyers and expert witnesses to avoid having to reimburse Maureen and Philip Deal the $60,000 annual cost of providing their autistic son, Zachary, with one-on-one behavioral training. Administrators warned that giving in could have made the district responsible for $10 million a year in services for other children. In December, the United States Court of Appeals for the Sixth Circuit sided largely with the parents. The district is reviewing its options.

In Calaveras County, Calif., the Bret Harte Union High School District fought so hard to block the claims of a student that Judge Oliver W. Wanger of United States District Court took 83 pages to berate the district's "hard-line position" and its law firm for "willfully and vexatiously" dragging out the case so long that the former student is now 24.

Similar battles are under way in Westport, a town of gracious homes and six- and seven-figure incomes, where both Mandarin Chinese and Latin will be taught next fall at the high school, remodeled recently at a cost of $76 million. Westport's school district has spent more than $2 million on legal fees and settlement costs in the last six years to fight parents' complaints that special education students get short shrift.

NYT on Reinventing Nursing Homes

Yesterday's Times had this interesting article on "of a broadening movement to humanize care for elderly people with smaller, more domestic settings and a closer sense of community among residents and staff members."

Friday, April 22, 2005

Disability as a Basis for Asylum

See this article in today's LA Times, which begins:

In a case spotlighting horrific conditions for disabled children in Russia, a federal appeals court in San Francisco ruled Thursday that the family of a disabled Russian child who was persecuted there for his condition is eligible for political asylum in the U.S.

Immigration law experts said that the ruling was especially significant because it held out the promise of sanctuary not just for Evgueni Tchoukhrova, who was born with cerebral palsy, but for his parents.

The opinion, by Judge Stephen Reinhardt, is here.

Wednesday, April 20, 2005

Crossley Named Dean at Pitt

According to this post on the HealthLawProf Blog, disability law expert Mary Crossley has been named the next Dean at the University of Pittsburgh Law School. Here's the school's press release.

Always good to see disability law scholars get recognized . . . .

Disability Story with Hollywood (Scientologist) Zing

See this AP dispatch, which begins:

Actresses Kirstie Alley and Kelly Preston pleaded with lawmakers Tuesday to prohibit schools from denying services to students who won't take mood-altering drugs to treat mental disorders.

Alley sobbed as she told members of the House Education Council the stories of children who committed suicide or died after taking psychotropic drugs.

Shifting Around Costs of Educating Kids with Disabilities

From my home state comes this dispatch, which begins:

The Senate gave initial approval Tuesday to legislation that attempts to put some of the burden of educating severely disabled children on local school districts, rather than the state.

Court Enjoins Disability Tax Credit Scheme

See this AP dispatch. Some excerpts:

A federal judge has granted a permanent injunction against two Nevada men linked to a defunct telemarketing firm authorities say was behind a $324 million tax scheme, the Justice Department announced Tuesday.

* * *

Authorities have said NADN marketed a tax scheme in which victims were told they could claim a credit under the Americans with Disabilities Act by purchasing Web sites and then modifying them to comply with the law. Authorities have estimated NADN's tax schemes, including the one involving the Web sites, cost the federal government an estimated $324 million over a three-year period.

Jim Ward on the Terrence Boyle Nomination

See this op-ed in the Baltimore Sun. It begins:

When President George H. W. Bush signed the Americans with Disabilities Act (ADA) in 1990, he said this landmark law would enable everyone with a disability to "pass through once-closed doors into a bright new era of equality, independence and freedom."

Yet by nominating Judge Terrence W. Boyle to serve on the 4th U.S. Circuit Court of Appeals, the current President Bush threatens to shatter the legacy his father established 15 years ago.

Tuesday, April 19, 2005

"Competitive Sourcing" and People with Disabilities

See this interesting article from the Washington Post. A taste:

Last month, his family learned that Goodman is among tens of thousands of federal employees, the vast majority of them not disabled, whose agencies are evaluating whether their jobs could be performed better and more cheaply by a private contractor. It is all part of President Bush's "competitive sourcing" initiative, which requires civil servants across the government to prove they can do their work more efficiently than private contractors, or risk seeing the work outsourced.

The initiative has thrown a scare into many federal workers, who are anxious about whether they will be forced to go to work for a private contractor or find themselves with no job at all. But the policy is especially vexing for employees with disabilities and their advocates. They fear that a strict economic comparison puts such workers at a decided disadvantage because they often require more supervision and extra help, and therefore cost more to employ.

Advocates say Bush's focus on the bottom line ignores the fact that for decades, through various policies and laws, federal agencies have gone out of their way to hire members of certain populations, from veterans to disabled people to welfare mothers and students. The Rehabilitation Act of 1973, for instance, banned discrimination against disabled people in federal hiring and required agencies to develop plans to hire and promote more people with disabilities.

The competitive sourcing policy also flies in the face of more recent efforts under the Bush administration's New Freedom Initiative to promote opportunities for disabled people and better integrate them into the general workforce, the advocates say.

Sunday, April 17, 2005

George Will on "Eugenics By Abortion"

See this column from last week. A taste:

In Britain, more babies with Down syndrome are aborted than are allowed to be born. In America, more than 80 percent of the babies diagnosed prenatally with Down syndrome are aborted. This is dismaying to, among others, the American Association of People with Disabilities, whose premise is that "disability is a natural part of the human experience."

The AAPD worries that increasingly sophisticated prenatal genetic testing technologies will mean that parents who are told their expected babies are less than perfect "will experience pressures to terminate their pregnancies from medical professionals and insurers." The worry is not groundless.

One mother who participated in a study of 3,000 members of five state associations of parents of Down syndrome children reported that when, in 1999, she was told that the baby she was expecting had Down syndrome, a geneticist showed her "a really pitiful video first of people with Down syndrome who were very low tone and lethargic-looking and then proceeded to tell us that our child would never be able to read, write or count change." Try telling that to Jon Will as he navigates Washington's subway system to use his season tickets to the Wizards basketball games and (soon) Nationals baseball games.

When he was born in 1972 -- a time when an episode on a network television hospital drama asserted that people with Down syndrome could not be toilet-trained -- the hospital geneticist asked Jon's parents if they intended to take him home. That question is, surely, no longer asked when Down syndrome babies are born. But there are modern pressures to prevent such babies from being born, pressures that include the perfection-is-an-entitlement attitude of some expecting parents.

The mother's 1999 experience indicates the need for Sen. Sam Brownback's bill, the Prenatally Diagnosed Condition Awareness Act. Its purpose is "to increase the provision of scientifically sound information and support services to patients" who receive positive test diagnoses for Down syndrome, spina bifida and other conditions. Under this bill, parents could learn, for example, that there is a waiting list of families eager to adopt children with Down syndrome.

FWIW, Ted Kennedy is the principal cosponsor of the Brownback bill.

Olmstead/Institutionalization in Montana

See this interesting article.

British Kids as Access Cops?

See this interesting report from what seems to be the children's wing of the BBC.

Wednesday, April 13, 2005

Cincinnati Post on Ohio Wrongful Birth Case

See this article. The case is apparently being argued before the Ohio Supreme Court today.

Wendy McElroy on Defining Disability

See this piece on the FoxNews website.

Urban Institute's Loprest on Disability and Employment

Via the LaborProf blog, I see that the Urban Institute's Pamela Loprest has posted this Q&A on employment rates for people with disabilities. My own take on these questions appears in my pieces last fall in the Berkeley Journal of Employment and Labor Law and the Yale Law Journal. (The Yale piece is here. The BJELL piece isn't available for free online.)

Tuesday, April 12, 2005

Shepherd on Schiavo

Just posted on SSRN: Lois Shepherd, In Respect of People Living in a Permanent Vegetative State -- and Allowing Them to Die. The abstract:

This article considers the controversy surrounding the removal of Terri Schiavo's feeding tube and argues for a new approach in determining treatment decisions for people in a permanent vegetative state. Examination of the duty to respect living people as persons rather than as objects reveals that people in a permanent vegetative state are particularly vulnerable under our current statutory and case law to being kept alive only in service to the interests of others. The article proposes that we replace the current legal presumption in favor of continued life support with a presumption to discontinue it for those in a permanent vegetative state and that judicial or quasi-judicial review be brought to bear on decisions in favor of continued life support, particularly tube feeding.

Tenth Circuit on ADA as a (Non)Remedy for Medical Negligence

Yesterday, the Tenth Circuit issued its opinion in Fitzgerald v. Corrections Corp. of America. The case involved a jail inmate with diabetes who fell and injured himself; he contended that jail officials failed to provide appropriate treatment for his injuries. The court of appeals held that the plaintiff's allegations failed to state an ADA or Rehabilitation Act claim, because "neither the ADA nor the Rehabilitation Act provide remedies for alleged medical negligence."

NY Sun Publishes Broadside Against the ADA

See the article here. The author begins with a story about how she was riding a bus to the ferry when, 20 minutes before the ferry was supposed to leave, a wheelchair user tried to get on the bus. But the lift jammed, and everyone had to get off and wait for another bus. The author missed her ferry and had to wait half an hour for the next one. From this, she asks why the wheelchair user couldn't have taken paratransit and saved nice nondisabled folks like her the trouble. One could, of course, ask why buses can't have lifts that are kept in good repair, or why paratransit is so unreliable, or any number of other questions.

But the author really isn't interested in those questions, as she makes clear in her closing couple of paragraphs:

Waiting in the ferry terminal for the 12:30 boat, it occurred to me that maybe our laws are written so poorly for a reason. Among members of state legislatures and Congress, there are more lawyers than practitioners of any other profession. The American Bar Association and the Association of Trial Lawyers spend tens of millions of dollars to influence elections. The Americans with Disabilities Act has been more of a boon to lawyers than to the disabled.

Tort reform, anyone?

Monday, April 11, 2005

Billing Practices By Defense Lawyers in IDEA Suits

With all the talk about selfish plaintiffs' lawyers in "drive-by" ADA litigation, this article (via ACSBlog) about billing practices by defense lawyers in some IDEA suits is very interesting. An excerpt:

An Atlanta law firm that specializes nationwide in special education cases has charged the Hamilton County Schools over $1.7 million on a single case that is still ongoing.

The bill thus far from the Charles Weatherly law firm in the Deal autism case is at $1,742,636. Total taxpayer cost of the lawsuit is over $2.3 million counting pay for expert witnesses.

County Commissioner Larry Henry said he was advised the case could have been settled initially for $150,000, though county school officials deny that.

The same Atlanta law firm billed the Ravenswood School District in San Jose, Calif., $2.1 million at a time when the district was going bankrupt, according to the San Jose Mercury News.

The newspaper said Ravenswood paid for first-class travel and food for the Atlanta firm.

The Mercury News wrote, "Even as the Ravenswood school district tumbled toward bankruptcy, its former leaders allowed an Atlanta law firm to rack up $2.1 million in bills in less than a year, including first-class plane tickets and meals at some of the Bay Area's priciest restaurants.

"A Mercury News review found that the Weatherly Law Firm, hired last year to defend Ravenswood in a special education lawsuit, charged the district serving the Peninsula's poorest children what amounts to $420 per student -- 5.5 percent of its annual budget. A new school board replaced the firm in December with county counsel charging $30,000 a year."

Sunday, April 10, 2005

Deinstitutionalization Controversy in Illinois

See this article, which begins:

A statewide advocacy group instrumental in shuttering the former Lincoln Developmental Center is now calling on the state to close Choate Developmental Center in Anna.

Members of the Chicago-based Equip for Equality in a recent report call the 200-bed facility for the developmentally disabled in southern Illinois "an archaic system."

"It's an example of what is driving public policy - politics instead of the wants and needs of the developmentally disabled," said Zena Naiditch, president of Equip for Equality.

Barney Frank on the Legislative Response to Schiavo

See this op-ed he wrote for today's Boston Globe. He begins:

THE FACT that Congress adopted a bad law in the Terri Schiavo case -- unwise, unprincipled, and unconstitutional -- does not mean Congress must never again return to the subject. It is too early to adopt any legislation, but it is appropriate for Congress to begin discussing what public policy ought to be with regard to the anguishing issues in this case.

He concludes:

While I find myself far more willing than some of the organized disability groups to give legal force to individual choices to remove life support in some circumstances, I acknowledge the validity of their argument that economic pressures may sometimes influence that decision unduly. Individuals facing this terrible decision ought not to have to worry that they might incur economic ruin for their families or find themselves bereft of the support to help them cope.

Here, our negative example is not what was in the March 27 legislation, but rather what was not in it -- any resistance to President Bush's budget, which proposes cuts in virtually every program at the federal level that eases the burden on the severely disabled: reductions in what Medicaid will need in coming years to meet its caseload; a proposal to cut by 50 percent in the next fiscal year the number of housing units built for disabled people; a Social Security proposal that seems to have been formulated without concern for or understanding of its impact on disability payments. There does not appear to be much comfort for the severely disabled in the president's ''ownership society."

Article on Costs of ADA-Inspired Architectural Modifications

This article, in the North County Times, focuses on the Oceanside, CA, school district.

Disability Bill Gets Royal Assent

See this BBC article. I tried to post on this Friday, but blogger was having its problems. Here's some key bits from the story:

A new law to promote the rights of disabled people has been enacted - honouring a 2001 manifesto pledge.

The 2005 Disability Discrimination Act strengthens existing legislation by widening the definition of disability and setting a deadline for rail access.

Campaigners have welcomed the new measures, but say the act fails in a number of key areas.

Disability Rights Commission (DRC) chairman Bert Massie described it as "a major advance in civil rights".

The 2005 act contains a number of measures which disability campaigners said were missing from its predecessor, the 1995 Disability Discrimination Act.

These include:

  • Widening the definition of disability to include people with progressive conditions like MS, HIV and some cancers from the time they are diagnosed.
  • Improving access to transport by including transport operators in the requirement to make their services accessible, and by setting an end date of 2020 by which all "rail vehicles" will have to be disabled friendly.
  • Placing a duty on all public bodies to promote positive attitudes to disability.
  • Extending the protection given to people with mental health problems by removing the requirement that conditions should be "clinically well recognised".
  • Giving tenants the right to make reasonable, disability-related alterations to their homes.
  • Making disability rights legislation apply to private clubs with more than 25 members, including political parties.
  • Placing a duty on local authorities not to discriminate against disabled councillors.

Newsday Review of Harriet Johnson's Book

See it here. The review is quite negative.

You can buy the book here:

Will Missouri Medicaid Cuts Prompt an Olmstead Suit?

See this article from today's St. Louis Post-Dispatch. The gist:

The Missouri House gave final approval Thursday to a sweeping measure that would eliminate government-paid health benefits for thousands of people living below the poverty line. The bill is on Gov. Matt Blunt's desk. He has said he will sign it.

When the changes take effect in August, elderly and disabled people with incomes that exceed the new cutoff - $579 a month - could lose their Medicaid coverage and be forced to move to nursing homes.

That could violate the Americans with Disabilities Act, which requires states to make reasonable efforts to place disabled people in a community setting rather than an institution.

The Springfield News-Leader has a good article about the Missouri Medicaid cuts here.

Saturday, April 09, 2005

Robertson on Schiavo

John Robertson has just posted on SSRN an essay entitled Schiavo and its (In)significance. The abstract:

Florida, like most states, adopted the substituted judgment paradigm for decision making for incompetent patients first outlined in In re Quinlan. Under that approach the case appears to have been correctly decided, and should have been resolved after final review by the Florida courts. By reframing the case as one of starvation of a conscious person with a brain injury, Terri Schiavo's parents were able to generate massive public support from right-to-life and disability rights groups. This led to additional litigation and both state and national legislative attempts to overturn the results of an on-going judicial proceeding. These events demonstrate both the strengths and weaknesses of the substituted judgment paradigm, and the power of the right-to-life movement in judicial and policy decisions at the end of life.

Friday, April 08, 2005

LA Weekly on Disability Politics and the Schiavo Case

A very interesting article.

Another Good Article on the Miss Wheelchair America Controversy


Colker on IDEA's Integration Presumption

Just posted on SSRN: Ruth Colker, The Disability Integration Presumption: Thirty Years Later (forthcoming 2005 in the U. Pa. L. Rev.). The abstract:

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of "integration." This article brings that debate to a new context - the integration presumption under the Individuals with Disabilities Education Act ("IDEA"). The IDEA has contained an "integration presumption" for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In addition, the article demonstrates that Congress created this presumption to mandate the closing of inhumane, disability-only educational institutions but not to require fully inclusive education for all children with disabilities. This article examines the available empirical data and concludes that such evidence cannot justify a presumption for a fully inclusive educational environment for children with mental retardation, emotional or mental health impairments, or learning disabilities. While this article recognizes that structural remedies, such as an integration presumption, can play an important role in achieving substantive equality, such remedies also need periodic re-examination. Modification of the integration presumption can help it better serve the substantive goal of according an adequate and appropriate education to the full range of children who have disabilities while still protecting disabled children from inhumane, disability-only educational warehouses.

Thursday, April 07, 2005

SDNY on Substantial Limitation in Walking

In what's probably an all too typical ruling, Judge McMahon of the Southern District of New York dismissed the plaintiff's ADA claim in Kelly v. Rice, 2005 WL 756811 (SDNY Mar. 4, 2005) (just out on Westlaw). The plaintiff had fibromyalgia and other impairments that required her to walk with a cane, and that caused her pain if she walked even short distances. Granting defendants' 12(b)(6) motion, the court held that those facts could not establish a substantial limitation in the major life activity of walking: "The allegations in the Complaint indicate that plaintiff was able to walk short distances, including, on the date at issue, from a handicapped parking spot to the Wal-Mart store and back. The plaintiff was not 'substantially limited' in her major life activity--walking--so long as she used a cane."

Wednesday, April 06, 2005

Eleventh Circuit Holds ADA Title II is Proper Section 5 Legislation in Education Case

The court's opinion in Association for Disabled Americans v. Florida International Univ. appears here. The court holds that Title II is valid Section 5 legislation "as applied to access to public education" (in a higher-education case). Wow.

Good Article on the Miss Wheelchair America Controversy . . .

is here.

Disability Discrimination Amendments Proceed in UK Parliament

See this article about the pending legislation, which would expand the DDA's very narrow definition of disability. Interesting that it's the House of Lords that wants to make the definition even broader than the Government's bill would:

MPs rejected moves tonight to extend disability rights to people who suffer bouts of depression – setting up a last-ditch battle to save discrimination laws from collapse.

Ministers are fast running out of time to get the measures onto the statute book before the end of the present Parliament – expected tomorrow.

But today they refused to bow to pressure from peers to amend the Disability Discrimination Bill – setting up a showdown between the two Houses.

The Bill makes it unlawful to discriminate against a disabled person in relation to employment, the provision of goods, facilities and services, and the disposal and management of premises.

It also extends the definition of disability to people with HIV infection, multiple sclerosis or cancer.

The House of Lords changed the legislation to make it apply to people who had suffered debilitating depression, recovered but then relapsed into further bouts.

Minister for Disabled People Maria Eagle said the Government had “thought long and hard” about the change but could not accept it.

“Fundamentally, it undermines the most basic principle of the Disability Discrimination Act that a disability has to be a long-term or permanent condition.

D. Conn. Holds Injury to Right Index Finger Isn't an ADA "Disability"

The case is Balonze v. Town Fair Tire Centers, Inc., 2005 WL 752198 (D. Conn., Mar. 31, 2005). Here's the key analysis:

In her deposition, plaintiff described the limitations to her daily life caused by her finger condition. She testified that she had difficulty braiding her hair and her daughter's hair, although she was able to fix her own hair after she recovered from her surgery in 1999 (Pl.'s Dep. at 43); that although she had trouble opening jars, she was usually able to open them with her left hand (Pl.'s Dep. at 44); that she had trouble folding clothes a few times (Pl.'s Dep. at 44); that she still has trouble lifting laundry and groceries (Pl.'s Dep. at 44-45); and that she limits her grocery shopping because of this (Pl .'s Dep. at 45-46). She testified that there are no other ways in which her finger condition has affected her life. (Pl.'s Dep. at 46 & 146-48.) These limitations are not so substantial as to severely restrict plaintiff from doing the activities that are of central importance to most people's daily lives.
You sort of wonder why lawyers bring cases like this.

NYT on Accessible Apartments

See this interesting article.

Tuesday, April 05, 2005

Yale Law Journal Note on Lane

The newest edition of the Yale Law Journal contains a student note by Kevin S. Schwartz, entitled Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power.

Access on Native American Reservations

See this interesting, if feature-y, article from Voice of America, of all places.

Broward County Transportation Access Suit

See this article, which begins:

A disability rights advocate has asked for an emergency order telling Broward County's mass transit agency to stop violating federal law by discriminating against handicapped riders.

Carlisle Wilson, a quadriplegic wheelchair user, said Broward County Transit has received $142 million in federal funds since 1994 but hasn't complied with the Americans with Disabilities Act.

The suit, filed Monday in federal court in Fort Lauderdale, seeks to force the county to increase the money it spends on making the bus system more accessible for individuals with disabilities. Also it seeks "to end the blatantly discriminatory practices" of the water taxis in Broward.

County transit officials declined to comment on the allegations.

The suit says more than 60 percent of the county's bus stops are not accessible to those with disabilities. It accuses the county of failing to provide riders with accurate information about which stops are accessible.

Update on Disability Access in England

See this article, which begins:

HUNDREDS of employers and scores of schools and colleges could face tribunals for failing to provide equal access for disabled people.

A total of 622 organisations are being investigated after complaints about lack of access to work and education in Merseyside and Cheshire under the six-month-old Disability Discrimination Act.

It says all shops, service providers, employers and educators should provide "reason-able access" to people with disabilities.

New figures released by the Disability Rights Commission (DRC) show there have been 550 complaints about employers across the region and 72 about educational establishments.

None of the potential offenders have been named, but complaints are understood to range from discrimination in the workplace to lack of wheelchair access and computer facilities.

Last month, the Daily Post revealed hundreds of shops, businesses and public bodies are also facing legal action for failing to provide reasonable access to goods and services for disabled people.

The DRC has earmarked 226 of 417 complaints as possible cases, which could see offenders hit with fines of up to £50,000 if they reach court.

Amusement Park Access Settlement

See this article from the Greeley (Col.) Tribune. The article begins:

A 16-year-old Gilcrest girl and her family have reached an agreement with the Greeley Independence Stampede and a carnival ride company, following an anti-discrimination lawsuit.

Chelsea Warne, her mother Menda Warne and the Colorado Cross-Disability Coalition sued the Stampede and Bill Hames Shows in August 2004, alleging discrimination because Chelsea uses a wheelchair.

The suit was filed in U.S. District Court in Denver because Chelsea sued under the Americans with Disabilities Act and the Colorado Anti-Discrimination Act.

The Warnes sued after Chelsea was required, for the third time in four years, to get out of line for a ride at the Stampede midway and have a parent or guardian sign a release of liability.

Under the settlement, Hames Shows has changed its policies so people with disabilities will no longer have to sign a release before riding the attractions. Safety signs will also be changed so disabled people will not be singled out -- before, signs required disabled people to be accompanied by someone responsible for their safety.

Monday, April 04, 2005

Washington Post on Disability Activism and the Schiavo Case

See this article. A taste:

The battle over the severely brain-damaged Florida woman sparked a wave of congressional and legal wrangling and a renewed interest in end-of-life directives. But for many who are disabled -- whether from a recent accident or a lifelong illness -- the case triggered a much more immediate, personal reaction.

Watching the Florida drama from the opposite coast, it looked as though Schiavo was "put to death for the crime of being disabled," said William G. Stothers, deputy director of the Center for an Accessible Society. "Among the disability rights community, it is a generally held belief that in society at large the view is 'better dead than disabled.' "

Distrustful of the medical establishment and worried they may be considered a "burden," disabled people such as Stothers fear they may be one ER visit away from becoming the next Terri Schiavo.

Cathy Young on Disability Rights Activism and the Schiavo Case

See this column from today. A taste:

It is also worth noting that some disability rights advocates have their
own brand of extremism: They don't simply seek dignity and access but define themselves as an oppressed minority, turning disability into a cultural and political identity. Such radicals blasted the late Christopher Reeve because, after the accident that left him paralyzed, he focused on promoting the search for a cure for spinal cord injuries. Some in the disabled community berated the actor for being unable to ''accept disability" and sending a ''disability is bad" message.

The disability rights activists are particularly incensed by the notion
that life with severe disabilities can sometimes be a fate worse than death: To them, it's a way of saying that their lives are not worth living. Their anger is understandable, though it can also be harshly judgmental toward those who do prefer death to prolonged incapacitation and suffering. But in championing Schiavo's survival, the activists have taken the extra step of radically expanding the definition of disability to include a permanent vegetative state. Schiavo had no consciousness; she was not a woman with ''cognitive disabilities," as some asserted, not a patient in need of therapy and rehabilitation (therapy had been aggressively pursued, and eventually abandoned as clearly futile). Her life was not ''unworthy"; it simply wasn't, in any meaningful sense, a life.

Seattle P-I on Budgetary Impact of Olmstead

See this interesting article.

Orlando Sentinel on Serial ADA Suits

Yesterday's Orlando Sentinel had this piece on that increasingly contentious issue. Some excerpts:

Bob Patterson, owner of the full-service gas station on Edgewater Drive in Orlando, says he has many disabled customers and prides himself on giving them prompt, friendly attention at a fair price.

Still, he's upset over recently having to spend $9,000 to remodel a
bathroom, install a wheelchair ramp and add a handicapped parking

Patterson paid for the work after getting a letter from a Sarasota lawyer who specializes in representing plaintiffs against businesses for alleged violations of the Americans with Disabilities Act, commonly referred to as the ADA.

"If somebody was denied access, I'd have no problem" making the changes, Patterson said. "But how can someone sue you for denying access to a building they've never been in, with a lawyer who's 120 miles away?"

* * *

U.S. District Judge Gregory Presnell of Orlando complained in a ruling last year about an "ADA lawsuit binge" against employers. And while many business owners are reluctant to talk about the suits, lawyers who represent them say the situation has gotten out of hand.

"I did research on one plaintiff, and he had in the range of 50 cases
pending at one time," said Terri Herrmann, a lawyer with Akerman Senterfitt in Orlando who has defended many employers against ADA lawsuits."

There have been a rash of [ADA] cases in the past couple of years," said Herrmann, who has an undergraduate degree in architecture. "I think it's attorneys realizing what an opportunity the ADA is for scamming attorneys' fees."

* * *

But it's not just business owners and company lawyers complaining about the large number of ADA lawsuits. Steve Howells, a director with the Advocacy Center for Persons with Disabilities in Tallahassee, complains that "ADA extortionists" care a lot more about collecting attorneys' fees than removing barriers for the disabled.

Their modus operandi, he added, is to file dozens of complaints
simultaneously in what are often called "drive-by lawsuits.""Drive-bys are flooding the courts," Howells said, and many of the violations they cite are minor ones. Even serious violations may not be fixed, he said, because the lawyers who file the suits "don't care if they're resolved. They just want their fees."

But Howells, unlike Herrmann, thinks that most ADA lawsuits are legitimate, as are the lawyers who file them. "There are probably a few ADA extortionists. In any profession, there are people who exploit opportunities."

That's how Agnes sees it. The lawyer who sparked Bob Patterson's ire said it's crucial that legal settlements spelling out corrective action are followed up to ensure they are accomplished.

Agnes said a client, whom he would not identify, had visited College Park Texaco and reported the ADA violations to him.

* * *

Ronald Muschong, director of the Center for Independent Living for
Southwest Florida, said he appreciates what Agnes does. He, too, complains about drive-by lawsuits, not because of their nuisance to businesses but because they often do not accomplish their stated purpose: to make businesses more accessible to persons with disabilities.

But unscrupulous lawyers aren't the only problem, Muschong said. He cites judges who don't make sure settlement agreements are followed; building inspectors who allow construction or renovation that doesn't comply with the ADA; chambers of commerce that don't educate their members about the ADA; and business owners who claim ignorance about a law, which was passed in 1990 and has been in effect since January 1992.

D'Lil on Machan on ADA

Disability rights activist HollLynn D'Lil (she's the single person most responsible for making sure that Tennessee v. Lane, and not Medical Board v. Hason, would be the vehicle by which the Supreme Court would consider the constitutionality of ADA Title II) has this response to a piece Tibor Machan published a while back about the ADA. A taste:

Chapman College Professor Tibor Machan's opinion piece (March 8) on the Americans with Disabilities Act (ADA) claims that the problem with the ADA is that "businesses are to be made the involuntary servants of people whose disabilities they do not consider profitable or otherwise worthy to accommodate."

Actually, what's wrong with the ADA is what is wrong with all civil rights protections in this country: enforcement depends upon the degree of enlightenment of the public. Unfortunately, Machan's piece does nothing to provide enlightenment.