See You Next Year

I'm off to rest and recuperate. Disabiliblogging will return in ought-six.

Very Interesting NYT Piece on Accommodation

It's not billed as a disability story, but it's here.

NCLB Rules for Students with Disabilities

See this article from Thursday's Washington Post, which begins:

Education Secretary Margaret Spellings outlined new testing rules for disabled students yesterday, formalizing an initiative that has already helped more than 100 public schools in Maryland and Virginia meet the standards of the No Child Left Behind law.

In a speech at Guilford Elementary in Columbia, which she cited as a model for special education, Spellings fleshed out a plan she first proposed last spring. The plan builds on existing rules that allow alternative testing for the most severely disabled students, a change that raised the scores of up to 1 percent of all students tested in a public school system or state.

Now, the Bush administration will allow modified tests for another group of special-ed students who have significant learning disabilities, emotional disorders or other impairments. That's likely to drive up scores for an additional 2 percent of students tested, state and federal officials said.

As a result, up to 3 percent of all students tested in reading and mathematics under the federal law soon may be scored as proficient through alternative or modified assessments, even though they are academically below grade level.

The Post article doesn't have any quotes from disability rights folks, but this Boston Globe article does:

Advocates for the disabled opposed the new regulation, saying it may increase schools' incentives to shortchange children with physical and academic problems.

''It doesn't take a brain surgeon to figure out that if you've got two kids in the room, and one's got to pass the test and one doesn't, where are you going to put your energies," said Curtis Decker, executive director of the National Disability Rights Network in Washington.

The guidelines also fail to prevent states from maximizing the number of children eligible for reduced assessments, said Candace Cortiella, director of The Advocacy Institute, a non-profit group to help the disabled.

''This is definitely one of those times when, if you build it, they will come," Cortiella said.

Molski's Back

A couple of Jarek Molski-related items (you remember Molski from my earlier postings for example here and here):

1. On Thursday, Judge Rafeedie of the U.S. District Court for the Central District of California dismissed another of Molski's suits for lack of standing. The case was Molski v. Kahn Winery, 2005 WL 3436792 (C.D. Cal., Dec. 15, 2005), and the court held that there was no real prospect that Molski would return to the winery he sued, which was 104 miles from his house. I've talked about my ambivalence about Molski before -- there seem to be real credibility problems with some of his allegations, but he wouldn't be able to do what he does if so many businesses weren't still violating the ADA 15 years after it came on the books.

Still, without commenting on the bottom line of Judge Rafeedie's decision this week, I was quite troubled by this passage from the opinion: "The ADA is intended to achieve the prompt remediation of architectural and other barriers that impede access to places of public accommodation by the disabled community. By tacking on state law claims for Unruh damages to his federal ADA complaints, Molski reveals his true motive: to extort a cash settlement. Rather than further the prompt remedial purposes of the ADA, these Unruh state law claims for money damages lengthen the time it takes to settle disputes, add additional issues to a case, and increase the litigation costs of both parties to a dispute. As a result, access--Moslki's alleged purpose in bringing these claims--is greatly delayed and rarely achieved."

That passage misunderstands a couple of important realities of ADA public accommodations litigation. Money damages are often the only way ADA plaintiffs -- even those who want nothing but access -- can get skilled lawyers to take their cases. A prevailing plaintiff can recover attorney's fees in a purely injunctive case, but under the Supreme Court's case law the fee award cannot take account of the contingency of losing. So the plaintiff's lawyer, if he wins, gets paid the same hourly rate as the defendant's lawyer gets paid win or lose. If the plaintiff loses, the plaintiff's lawyer gets nothing. Without the availability of money damages from which the plaintiff's lawyer can take a contingent fee, it's pretty easy to see that the better lawyers, on average, will be defending rather than prosecuting these cases.

Moreover, without the availability of money damages, it's often very hard to have standing to bring a case seeking access. Under the Supreme Court's doctrine, a person who seeks purely injunctive relief lacks standing and therefore cannot bring a suit unless s/he can show that s/he will be subject to the same harm at the hands of the same defendant in the future. So even if I go to a restaurant and can't get in because they are flagrantly violating the ADA, I can't bring a successful ADA suit unless I can show that I'm going to go to that restaurant in the future.

Money damages are therefore often the only way that unlawful denials of access can be challenged. Whatever we might say about the ethics of particular lawyers who seek them (and this one seemed to warn defendants not to fix the problem while the litigation was pending!), we shouldn't say that damages themselves are the problem.

2. Looks like Molski himself just got sued. See this article, which begins:

The owners of a Morro Bay restaurant have countersued disability access litigant Jarek Molski, accusing him of charges similar to those he's leveled at hundreds of businesses around the state.

Molski sued the owners of The Galley in June 2004, claiming he suffered "emotional distress, mental anguish ... humiliation, embarrassment, anger, chagrin, disappointment, and worry" after allegedly hurting himself at the restaurant in 2003.

In his suit, Molski demanded a little more than $1.6 million in damages, or $4,000 a day from the date the alleged injury occurred.

In this week's countersuit, owners Rodger Anderson, his brothers Jefferson and Harold, and their sister Amalia Mason allege that Molski's lawsuit caused them "mental distress, mental anguish, embarrassment, humiliation, and loss of reputation."

They are asking for at least $3,000 in specific damages and an unspecified amount of general damages.

The Anderson family's suit hinges on why Molski chose to pursue the restaurant.

His original suit against The Galley was filed in federal court. In March, that suit was dismissed. In August, Molski refiled his suit in San Luis Obispo Superior Court.

At the time of both suits, The Galley was undergoing retrofit work that would make it compliant with disability access laws.

In the countersuit, The Galley owners say Molski knew about the remodel, and because he filed a new suit in county court, his only purpose was to extort money, not fix access problems.

Labor, Disabled Oppose Alito

See this article by that title. It begins:

The nation's largest labor federation along with a coalition of groups that represent disabled Americans on Wednesday said they opposed U.S. Supreme Court nominee Samuel Alito, describing the 55-year-old conservative as a threat to worker and civil rights.

The AFL-CIO and National Coalition for Disability Rights criticized Alito's work as a federal appeals judge the past 15 years, charging he has often sided with employers over labor with an excessively restrictive view of federal law.

Psycho-Legal Perspective on Genetic Discrimination

New on Westlaw: Meera Adya & Brian H. Bornstein, Genetic Information and Discrimination in Employment: A Psycho-Legal Perspective, 32 Wm. Mitchell L. Rev. 265 (2005). The introduction:

The fruits of the Human Genome Project (HGP) will soon enable people to have simple tests that provide information about their genetic propensities for various disorders, both mental and physical. This new information could thus give people the ability to make important decisions related to their health; however, it could also result in misinterpretation and misuse by others, such as employers. Ongoing legal and ethical debates suggest that information about people's genetic propensities could result in discrimination, with commentators disagreeing over how effective current jurisprudence is for preventing and/or remediating such violations. This debate begs fundamental questions that psychological research could address, such as "Would employers even utilize genetic information, should they gain access to it?" This article reviews relevant literature on genetics and disability discrimination and outlines some psycho-legal issues and avenues for research.

Theater Chains Agree to Provide Disability Services

See this article by that title. An excerpt:

Thanks to an agreement between the state and eight national theater chains, moviegoers like Farfaglia - with visual and/or hearing disabilities- will have more theaters to go to for such services.

The agreement, announced Monday by New York Attorney General Eliot Spitzer, calls for 140 such theaters statewide.

About 10first-run theaters statewide offer captions or narration, according to Spitzer's office, which did not specify a time frame for the changes.

Regal Entertainment Group has operated a theater with captions for about a year at Carousel Center, says Farfaglia, a legislative assistant to state Assemblyman Joseph D. Morelle, a Rochester-area Democrat.

Among other equipment, theaters will install listening devices that are compatible with hearing aids and systems that deliver narrative and dialogue for headsets.

Many people will benefit from this agreement, says Anne Costa of Aurora of Central New York, an organization that supports people with hearing and visual impairments.

Edge-Centric on ADA News Coverage in California

Check out Mary Johnson's latest.

Jacobi on Medicaid

New on SSRN: John Jacobi, Dangerous Times for Medicaid. The abstract:

Medicaid has become a cornerstone of our health finance system. It covers over 50 million Americans. Many are otherwise uninsurable because of their poverty and/or their disabilities. Others rely on Medicaid because the deteriorating employment-based insurance system increasingly fails to cover low income workers and their families. Medicaid's costs are rising in large part due increased enrollment, and not increasing per-person costs. This paper examines proposed short and long term cost-cutting "reforms" to Medicaid, including those that would shift programmatic power from the federal to the state level, and "ownership society" measures that would reduce or abolish Medicaid's assurance of coverage of a defined array of medically necessary services. This paper argues that some (although not all) of the proposed reforms would lessen our commitment to care for the poor and disabled, in some cases pushing vulnerable people out of public coverage. It argues that the state of private coverage is such that these ejected beneficiaries would become uninsured. Ironically, the Medicaid reforms would, in addition to weakening Medicaid, also weaken the safety net for the uninsured. Some of the long term structural reforms threaten to push Medicaid beneficiaries out of the program to a reduced safety net.

Garda on Racial Equality in Special Education

New on Westlaw: Robert A. Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005). From the introduction:

In short, the IDEA is suffering an eligibility crisis on two intersecting fronts: African-American overrepresentation and an overall eligibility increase resulting from special education sweeping up students from a broken general education system. Congress's new IDEA, the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), embodies a dramatic educational paradigm shift to resolve these problems. For the first time, Congress has recognized that special education eligibility is directly linked to the general education system. Through the IDEIA, Congress reaches into the general education system to remedy the overidentification crises by legislating a certain level of individualized instruction. This model of individualized instruction in general education departs significantly from the one-size-fits-all educational model embodied in the old IDEA, wherein specialized instruction is exclusively the domain of special education that is provided only to disabled children. The IDEIA favors the individualization model almost out of necessity, as today's increasingly diverse students require a certain level of individualized instruction in the general classroom. It is better to address diverse needs in the general education classroom than to classify children as disabled and rely on special education to address their unique learning styles, cultural backgrounds, and different abilities. Special education's swelling rolls and the disproportionate representation of African-Americans reveal particular shortcomings of the general education system that the IDEIA seeks to reform.

The IDEIA will inevitably fall short of solving the dual eligibility crisis, however, primarily because its incremental reforms merely adopt--but do not embrace--its new pedagogy. It will not ensure a low level of individualized instruction to all students, as opposed to merely IDEIA-eligible students, and it will not insure that students will receive appropriate services in regular education before placement into special education. The IDEIA simply cannot redefine regular education without first redefining "special education" and who "needs" it in the stagnant thirty-year-old eligibility criteria that the IDEIA employs.

Eligibility under the IDEIA and all of its predecessor statutes hinges on finding that the child has an enumerated disability and "needs special education." The broad definition of "special education"--the adaptation of instructional content, methodology, or delivery--permits some decisionmakers to find that children requiring any adaptation to the general education environment need special education and are eligible, while other decisionmakers limit special education to significant and unique adaptations. The nonexistent definition of "need" leads to diverging views as to what level of services a child must be provided in general education before a need for special education is found. With little statutory guidance, decisionmakers apply their own pedagogical beliefs about what constitutes special education and who needs it--resulting in subjective eligibility determinations influenced by bias rather than uniform application of eligibility criteria.

This Article proposes that without fundamental changes to, and a proper understanding of, the "needs special education" eligibility criteria, the educational paradigm adopted in the IDEIA cannot take root, and the eligibility problems will persist. Reclaiming special education from overrepresented African-Americans and instructional casualties and placing it back in the hands of the genuinely disabled cannot occur until special education relinquishes its exclusive grip on individualized instruction, thus allowing certain unique student needs to be served in regular education without IDEIA eligibility attaching. To do so, the definition of "special education" must be limited to only significant instructional adaptations that are not provided to all students, regardless of disability. A child should also not be found to be in need of special education until all available accommodations and regular education interventions have proven ineffective. These circumscribed definitions prohibit the placement of students into special education if their individual needs can properly be served through general education. The result will be consistent eligibility decisions. It is only by limiting the definition of "special education" and when it is "needed" that general education can be redefined to embrace the paradigm of individualized instruction, and uniformity can be brought to eligibility determinations.

Conflict in Federal Rules for Testing Kids With Disabilities

See this article, which begins:

Talk about a Catch-22.

The U.S. Education Department has just issued a new rule saying disabled students who must use a calculator or other device when taking a test will be marked absent and their exam won't count under the nation's sweeping school reform law dubbed No Child Left Behind.

At the same time, schools are required by the federal Individuals with Disabilities Education Act to let students use such tools if they have a disability that impairs their ability to read or do math.

"This is crazy," said Bill Padia, testing director at the California Department of Education, which is required to enforce the new federal rules. "We just shook our heads incredulously."

Federal officials counter that there is logic behind the new rule barring modifications during tests.

Darla Marburger, deputy assistant secretary with the U.S. Department of Education, said a test that's supposed to measure math skills can't measure those skills if a student uses a calculator. Similarly, a test can't measure reading skills if a student is listening to the test being read from an audio player.

"It's perfectly acceptable to change the environment of the test, or the seating, to accommodate certain needs," Marburger said. "But it's not OK to use modifications that fundamentally change how the student is being assessed."

She said the decision to prohibit modifications was made earlier this year during a wide-ranging discussion within the Department of Education about testing students with disabilities.

Alaska Tightens Personal-Care Rules

See this article, which begins:

The state is tightening rules for a program that provides personal care in the home for thousands of Alaskans who are elderly or have disabilities.

Changes adopted last week require caregivers to have prior approval from the state before delivering services. A doctor must certify the care is needed. Clients must undergo regular assessments by a state contractor to create a plan of care. Some services may be limited.

Regulators say they hope to save money and improve accountability in the state-funded program, which has gotten attention for soaring costs.

The changes are controversial and some who provide personal care say they worry frail and ill Alaskans will wait too long to get essential in-home help with basic needs such as eating, dressing and getting to the bathroom.

State officials say that's not the intent.

Mental-Health Privatization Not Working in North Carolina?

See this article, which begins:

Four years into a massive overhaul of the state's $2.3 billion mental-health system, there is little proof that treatment has improved and there is growing evidence that the state's complex system of care is worse than ever.

"To be blunt, we're not seeing mental-health reform working," said Allison Breedlove, the interim executive director of the Gov.'s Advocacy Council for Persons with Disabilities, told the Winston-Salem Journal, which published a two-part series this past weekend about the state's mental-health system.

"Unfortunately what we're seeing is people are ending up on the streets. They are ending up in emergency rooms in hospitals. Unfortunately, some people are ending up in jails because they are not being monitored and they are not maintaining their medications."

That's not what state officials envisioned when they developed what they believed was a plan to get North Carolina out of the mental-health business.

Legislation approved in 2001 called for the dismantling of the state's system of locally-run public mental-health agencies and turned the care of people with severe mental illness, substance abuse and developmental disabilities over to private agencies.

Money saved by shrinking state hospitals was expected to cover much of the costs of privatization. And care for the more than 358,000 North Carolina residents with mental illness was expected to improve.

But since 2001, total admissions to the state hospitals have not dropped as expected, and adult admissions have grown rapidly.

Ninth Circuit Denies En Banc in Tchoukhrova

Technical difficulties have kept me from posting earlier today, but there's at least some semi-big news: The Ninth Circuit today denied rehearing en banc in Tchoukhrova v. Gonzales, in which the panel held that a Russian child with cerebral palsy and his parents were entitled to asylum because of the terrible way in which children with disabilities are treated in Russia. Judge Kozinski, joined by five of his colleagues, dissented from the denial of en banc rehearing.

Charles Fox on Schaffer: "The Sky Isn't Falling"

Over at the Special Education Law Blog, Charles Fox agrees with my take on Schaffer:

The biggest danger to parents of special needs children post-Shaffer is the belief that the sky is falling, and as one commentator stated, “it is all over.” I say hogwash to that sentiment! If parents buy into the unfair and unfounded rhetoric, then there is a real problem. On the other hand, armed with the realization that the relative negotiation positions have remained unchanged after Shaffer, parents will have the same power they had before this decision, and in some ways, they may have marginally more power (as discussed below). In the story, Chicken Little was wrong. So are the commentators that state Shaffer has changed everything.

Blogiversary

I don't do lots of navel-gazing, but yesterday was the one year anniversary of this blog. I started the blog while hopped up on painkillers from wisdom-tooth removal, and I've always thought that maybe it was just a lapse in judgment. But I've really enjoyed it, and I hope folks have found it useful. I look forward to keeping this up for yet another year.

NCD on Social Security and Employment for People with Disabilities

The National Council on Disability just issued this report, entitled "The Social Security Administration's Efforts to Promote Employment for People with Disabilities: New Solutions for Old Problems." From the transmittal letter:

Our nation's current disability benefit programs are based on a policy principle that assumes that the presence of a significant disability and lack of substantial earnings equate with a complete inability to work. Americans with disabilities remain underemployed, despite the fact that many are willing and able to work. Although the Social Security Administration (SSA) has instituted a number of incentives to reduce the numerous obstacles to employment faced by its Supplemental Security Income (SSI) and Social Security Disability Insurance (DI) beneficiaries, such efforts have had little impact because few beneficiaries are aware of these incentives and how they affect benefits and access to health care.

In recent times there has not been a comprehensive, research-based examination of the practices that are most likely to support the employment of SSI and DI beneficiaries. NCD undertook this study to address that absence and found that the complex obstacles to employment faced by SSA beneficiaries require a comprehensive set of solutions. New approaches must be identified that emphasize beneficiary control of career planning and the ability to access self-selected services and supports. Public and private health care providers must develop new collaborations and new approaches to combining coverage from multiple sources to improve program efficiencies. SSA must continue to work with the Rehabilitation Services Administration and the Department of Labor to improve implementation of the Ticket to Work program and identify new approaches that will overcome the traditional inability of SSA beneficiaries to benefit from services provided by the nation's employment and training programs. Secondary and postsecondary educational institutions must emphasize benefits counseling and financial management training as the foundation for beneficiary self-direction and economic self-sufficiency. Federal agencies and the business community must realize that collaborative approaches to incorporating beneficiaries into the workforce are needed as a way to reduce dependence on federal benefits while simultaneously enhancing the productivity and competitiveness of large and small business.

The recommendations discussed in this report need to be addressed in policy and procedural modifications by both Congress and the Social Security Administration to significantly address the continuing number of SSA beneficiaries who never leave the SSI and DI rolls, and to increase the number of beneficiaries who enter, or reenter, the United States workforce.

EU on "Active Inclusion" of People with Disabilities

See this press release, which begins:

The European Commission will today put forward concrete measures designed to improve the lives of disabled people in the European Union during the 2006-2007 period. The Communication's overall aim is to improve the 'active inclusion' of disabled people through a range of initiatives and measures, including raising disability awareness among small and medium sized companies, reviewing how the European Social Fund can help support employment, training and equal opportunities for disabled people and promoting the concept of independent living for disabled people. These measures will be outlined at European Day of People with Disabilities conference in Brussels.

The annual conference is being held under the theme of 'living together in society'. EU Commissioner for Employment, Social Affairs and Equal Opportunities, Vladimír Špidla said: 'Employers and society at large need to start looking at people with disabilities as people who generally wish to be active – also in the labour market. People with disabilities carry great potential, are usually very flexible and bring added value to the labour market. We need to inform employers what people with disabilities can and cannot do, and help them in very practical ways to over come barriers when employing people with disabilities.

The Commissioner also drew attention to the fact that in 2006, all Member States will be obliged to prohibit discrimination in employment on the grounds of disability – in line with the provisions of Directive 2000/78/EC (establishing a general framework for equal treatment in employment and occupation).

The new Communication places a strong emphasis on 'active inclusion' of people with disabilities into society and the economy through independent living. One of the main priorities is raising disabled people's employment and activity rates.

Britain Creates Disability Ombudsperson

See this dispatch from the BBC. An excerpt:

The ODI [Office for Disability Issues] will have a cross-departmental brief and will support the work of a ministerial steering group from Work and Pensions, Health, Transport, Trade and Industry and the Office of the Deputy Prime Minister.

It will publish an annual report on progress made.

For many years disabled people have complained that support comes from a number of sources and is fragmented.

The ODI is an attempt to co-ordinate policy and ensure that disabled people themselves have a say in the decision-making process.

To this end, the National Forum for Organisations of Disabled People will be developed by the ODI and will support its work.

Minister for Disabled People Anne McGuire said the government had acted quickly to put one of the key recommendations from the Strategy Unit's report into action.