Monday, February 28, 2005
Totenberg on Spector
Nationwide Medicaid Watch
Public Transit (In)accessibility in Boston
Despite a lawsuit and repeated complaints from disabled passengers, the MBTA is failing to maintain escalators and elevators that continually break down, denying access to thousands of people throughout the subway system, a Herald review found.
During the past week, elevators were found to be out of service at such critical hubs as North Station and Downtown Crossing, while escalators were closed down at stations along nearly every subway line in the city. Some of those facilities have been shut down for weeks, advocates for the disbaled say.
``They are essentially thumbing their nose at the Americans with Disabilities Act,'' said Rob Park, a disabled passenger who says he broke his leg Feb. 11 when a broken elevator at an Orange Line station forced him into the street to get to another station.
``The ADA was filed in 1990. That's 15 years ago,'' Park said. ``Why are we still having these issues?''
Racial Disparities in Special Education
One out of every five black students in Columbia Public Schools qualified for some type of special education service last year, compared to one in seven white students.The article goes on to give a useful overview of the general issue.
The biggest disparities showed up in the number of diagnoses for mental retardation, emotional disturbances and learning disabilities.
Nashville Tennessean on IDEA Reauthorization
Changes to the nation's special-education law will require schools to do more to find and educate kids with a disability. It also relaxes some of the rules so educators can spend more time in class and less time on meetings and paperwork.
But some parents are worried that their rights — and the rights of children with disabilities — are quietly being eroded after years of struggle to beef them up.
''It's been an uphill battle her whole life,'' said Brenda Tate, a Cheatham County parent who has found herself at odds with public schools over how to best educate her daughter, Alison, 18, who has Down syndrome. ''It's just been a struggle.''
Parents may have reason to be concerned. The updated version of the federal Individuals with Disabilities Education Act, which kicks in July 1, makes it tougher for them to file complaints if they don't like the way their child is being educated, gives kids with disabilities less of a break when it comes to discipline infractions, and relaxes a rule that makes it mandatory for every person involved in their child's education to meet face-to-face at least once a year.
The latest version of the law, which has been revised multiple times since it was created 30 years ago, also is garnering much praise from parents, teachers and school administrators because it reduces the amount of paperwork for teachers, strengthens the push for students with special needs to be included in regular classes whenever possible, and forces schools to step up the search for homeless and foster children who may need services.
Lots of Spector Coverage
Saturday, February 26, 2005
State Penitentiary Tries to Accommodate Disabled Prisoners
When Kim Casey begins serving a six-year manslaughter sentence on Monday, he will be one of four prisoners at the state Penitentiary in wheelchairs.
His lawyer has raised questions about whether the penitentiary is equipped for a disabled inmate. The warden and other wheelchair inmates acknowledge the Bismarck prison is old, but they say prisoners' disabilities have not caused major problems.
* * *
Flanagan, who is serving a three-year term for fraud, said he worries more about abuse from other inmates than about navigating the building.
"The problem in this penitentiary is that a lot of young kids think they're the toughest thing since gangsters and they like to reach out and grab us," he said. "That's the problem going right now that needs to be straightened out."
Inmates who fear for their safety can fill out separation forms or check themselves into protective custody, Schuetzle said.
"That's always a concern," Schuetzle said. "You're putting in very vulnerable people with the most aggressive predatory type guys in the whole state.
Friday, February 25, 2005
Big Verdict Against Wal-Mart in Disability Discrimination Suit
A Centereach who sued Wal-Mart for disability discrimination was awarded $7.5 million Tuesday night, after a week-long trial.The New York Post weighs in here; Newsday here; and the Grey Lady, deciding that this obviously isn't important enough to assign one of its own reporters to it, runs this AP dispatch.
"I felt very good," said Patrick Brady, 21, who suffers from cerebral palsy. "I felt it was very fair."
Brady had worked for two years at another Centereach pharmacy, The Village Chemist, before getting a job as a pharmacy assistant at the Centereach Mall Wal-Mart in 2002.
Brady's attorney, Douglas Wigdor, said department manager Yem Hung Chin asked Brady if he could do his job despite his disability.
"After one day, the defendant decided that Patrick - just because he's disabled - was unable to hand out prescription medication," Wigdor said. Brady worked in the Wal-Mart pharmacy for three days. Chin transferred him to the parking lot, where he was told to collect shopping carts and pick up garbage.
"I felt like she thought I was worthless," Brady said. "It was degrading that she thought I couldn't do the job when I had done it for two years."
British DDA Update
The Disability Discrimination Bill is awaiting its third reading in the House of Lords, on the 28th February, following major gains for the DRC and the Disability Lobby at report stage.
The Bill fulfils a key Government manifesto commitment to create comprehensive rights for disabled people. It will give new rights of access to public transport and private clubs, give disabled tenants rights to reasonable adjustments from their landlords and extend the definition of disability to cover more mental health service users and people with HIV, cancer and MS.
Disabled councillors will have protection against discrimination for the first time. And the centrepiece of the Bill is a new disability equality duty for the public sector, which will help break down institutional discrimination across public services.
Disability organisations have successfully pursued amendments on housing adaptations, action against harassment and bullying and better scrutiny of exemptions from the rail vehicle accessibility regulations.
All three equality commissions have welcomed a landmark Court of Appeal decision strengthening the Burden of Proof regulations. The judgement has made it clear that if an individual has established that there could be a valid case of discrimination, employers are expected to provide detailed evidence to prove that they did not discriminate. Evidence needs to show that an employer's actions were in no way related to an employee's sex, race, disability, sexual orientation or religion/belief in order to defeat these claims.
Wednesday, February 23, 2005
Legal Times on "Death With Dignity" Grant
News on IDEA Burden-of-Proof Cert. Grant
News on Cert. Grant in "Death With Dignity" Case
Bush Budget Proposes Cut in Housing Aid for Disabled
With little fanfare, the Bush administration is proposing to stop financing the construction of new housing for the mentally ill and physically handicapped as part of a 50 percent cut in its housing budget for people with disabilities.
Tuesday, February 22, 2005
Supreme Court Grants Cert. in Oregon Death with Dignity Case
Supreme Court Grants Cert. in IDEA Case
Monday, February 21, 2005
Inclusive Education in Indonesia
The Ministry of National Education is pushing that disabled children be permitted to join public schools as part of its efforts to include them in the nine-year mandatory education program.
"This program is focused on elementary and junior high schools because they are the level that the government focuses on in the mandatory education program," Joko Sutopo, who heads the student affairs sub-directorate at the Ministry of National Education.
He said the schools must not discriminate. "Children with mental and physical disabilities are not second-class citizens. It's in line with our nation's soul, Bhineka Tunggal Ika (Unity in Diversity)."
The ministry has developed the inclusive education program for disabled children since 2003, aimed at ensuring their right to basic education.
"Special Schools (SLB) cannot fulfill the demands of children with mental disabilities as they only serve those with physical disabilities," Joko said.
Under the inclusive program, children with disabilities such as autism and Down's syndrome are enrolled in regular schools, in which teachers have received trained on how to deal with them.
Disability Rights in India
And, Justice Shah set the ball rolling for a brain storming discussion when he too stressed the need to amend the said Act. "The definition of disability as given in 1995 Act needs to be widen to protect the rights of people suffering from HIV, leprosy and internal organ failure," he said.
Currently the Act gives protection to those suffering from, blindness, low vision, leprosy cured, hearing impaired, mental retardation, mental illness and locomotor disability.
Justice Shah pointed out that there are 600 million people in the world, nearly ten percent of the world's population, who suffer from one disability or the other. Of these, 90 million are from India. However, even then, the total percentage of the disabled people in India is just six per cent of its population while in the developed nation like USA the disabled population's percentage is nine per cent.
" This is not because there are more disabled persons in USA but because the definition of disability is more wider in USA," Justice Shah said.
Besides limited scope, there are some other lacunas in the act too, Justice Shah observed adding "There are no guidelines and no deadlines set for non adherence,".
Elaborating, Justice Shah pointed out that most government and semi-government organisations do not strictly follow the guidelines to reserve three per cent jobs for disabled and yet they go unpunished.
Also, as per the Act the compensation is to be awarded to a disabled as per the financial capacity of the employer. The employers often take advantage of this clause. Also, a provision to award some temporary relieves, till the case is decided, to the affected (disabled) employee needs to be incorporated.
Des Moines Register on Social Security Privatization and People with Disabilities
Nationwide Medicaid Watch
State Medicaid Watch: Maryland
HIV Found to be No Disability
A federal district judge dismissed a workplace discrimination claim brought by an HIV-positive man on the ground that the man’s HIV infection did not meet the statutory definition for disability because he had no interest in having children. This is the latest of several recent rulings suggesting that the federal American With Disabilities Act (ADA) is unlikely to provide much protection against workplace bias to HIV-positive gay men who are staying healthy through medical treatment.
Sunday, February 20, 2005
Lund on Civil Rights in the Rehnquist Court
Saturday, February 19, 2005
Sixth Circuit Decides Dillery Case
Employment Effects of the UK's Disability Discrimination Act
The enactment of the Americans with Disabilities Act (ADA) in 1990 triggered a substantial academic debate about its consequences on employment rates of disabled people. In contrast, the employment provision of the 1996 Disability
Discrimination Act (DDA) in Britain has received little attention. This paper provides robust evidence that, similar to the ADA in the US, the DDA has had no impact on the employment rate of disabled people or possibly worsened it. Possible reasons for this are low take-up of financial support, low levels of general awareness about the Act among disabled people and employers, and limited knowledge about the true costs of required adjustments.
The Effects of Disability on Labor Force Status in Australia
Using the Australian Bureau of Statistics 1998 Survey of
Disability, Ageing and Carers, this study examines the effects
of disability on four labour market outcomes: not in the labour
force, unemployed, part-time employed and full-time employed.
The detailed information on health available in the dataset also
facilitates investigation of the dependence of effects on the
characteristics of the disability, including severity,
impairment type and age of onset. Disability is found to have
substantial effects on labour force status, on average acting to
decrease the probability of labour force participation by
one-quarter for males and one-fifth for females. For males, the
decrease in fulltime employment accounts for almost all of the
decrease in labour force participation associated with
disability; for females, disability has negative effects on both
full-time and part-time employment. Analysis of disability
characteristics shows that adverse effects on labour force
status are increasing in the severity of the disability and are
also worse for those with more than one type of impairment and
for those who experience disability onset at older ages. There
is evidence that the adverse effects of disability are lower for
males who completed their education after the onset of the
Thursday, February 17, 2005
Brief Blog Hiatus
New Article on Testing Accommodations
Legal wrangling precipitated by the Americans With Disabilities Act (ADA) has resulted in courts adopting a narrow view of disability. This narrow categorical disability definition is in conflict with current mental health and educational practice that presumes an inclusive view of disability. Test accommodations for licensing exams based on learning impairments provide an example of the conflict generated by legal versus mental health views of disability. Mental health practitioners often support test accommodation requests for students who do not meet the ADA's strict threshold for disability determination. Mental health practitioners must understand the ADA definition of disability, and test organizations need to examine goals and alter standard practice in a manner that is fair and equitable independent of learning impairments.
Wednesday, February 16, 2005
More on Harkin on Disability and Social Security Privatization
State Medicaid Watch: Missouri
Diagnosed with multiple sclerosis and a rare form of muscular dystrophy, Bobbette Figler relies on Medicaid to help pay for costly prescriptions and medical treatment. She also depends on state-supported personal assistants that help her with everyday chores, allowing the St. Louis resident to live independently and work part time.
But Figler said Wednesday her days of independence may be over if Medicaid cuts proposed by Gov. Matt Blunt are approved. She said she would lose her Medicaid funding and access to in-home help, leaving her with no choice but to quit her job and enter a nursing home to receive the care she needs.
"I realized my dream (of working) four years ago, and taking that away would be a total waste," she said.
Figler joined dozens of disabled Medicaid recipients and disability rights advocates Wednesday in the Missouri Capitol Rotunda to rally against the governor's proposed cuts.
Blunt's budget would lower the income eligibility criteria for disabled Medicaid recipients to about $580 per month from the current $775. It also would eliminate a program that allows many disabled Missourians to continue their Medicaid coverage while working part time. Medicaid coverage would no longer be available for medical equipment, such as wheelchairs and prosthetics.
Settlement in Connecticut Community Services Case
After a 15-year lobbying effort and a federal lawsuit, an advocacy group for the mentally retarded appeared on the verge of getting the legislature to substantially reduce a list of hundreds of people waiting for housing and services.
The legislature's Public Health Committee on Wednesday unanimously approved a bill that that would ratify a legal settlement reached last summer between Arc/Connecticut and the state departments of Mental Retardation and Social Services.
* * *
Under the settlement, relief will be provided to at least 1,250 families over five years who are determined by DMR to be most in need. At least 150 individuals each year will be able to move out of their families' homes and an additional 100 families per year will receive some form of assistance, such as in-home help.
Arc/Connecticut estimates that there are nearly 2,000 people on the DMR waiting list. Last September, DMR said there were 1,064 individuals.
Tuesday, February 15, 2005
Legal Times on Accommodations for Deaf Patients in Emergency Rooms
Harkin Wants to Know
Tennessee v. Lane Hits Israel?
The courthouse in Hadera is a three-story building with zero elevators. Its courtrooms are on the second floor. So if you're in a wheelchair, be you a lawyer or the defendant, or a mere witness, you can't attend the hearing. That's how it goes.
Judge Mohamad Massarwi found a simple solution to the problem. He ordered attorney Victor Mizrahi, who was disabled during his army service, to empower another lawyer to appear in his stead.
Wheelchair-bound Mizrahi was to appear in Hadera Magistrates Court, and asked to move the venue of the hearing to the ground floor. But Judge Massarwi refused, pointing out that the ground floor had no courtrooms nor facilities for typing the minutes of the hearings. He therefore ordered Mizrahi to empower another lawyer to represent the defendant.
Proposed Minnesotans with Disabilities Act of 2005
And see these details from an article in the Minneapolis Star-Tribune:
A coalition of disability activists, flanked by a bipartisan group of legislators, on Monday announced an ambitious plan to move thousands of working-age, disabled Minnesotans out of nursing homes and into more independent living settings.
The relocation plan is a major component of the large-scale Minnesotans with Disabilities Act of 2005, which would address some of the health care, housing, transportation and employment needs of disabled Minnesotans. The Minnesota Consortium for Citizens with Disabilities, a coalition of more than 40 organizations that provides and advocates for people with disabilities, developed the legislation being sponsored by Sen. Becky Lourey, DFLKerrick, and Rep. Tim Wilkin, R-Eagan.
Funny, I know someone who was just calling proposals like this "the future of disability law."
The bill's scope is expansive, including these proposals:
• Lower medical service fees paid by parents of severely disabled children.
• Increase eligibility for Medical Assistance to 100 percent of the federal poverty guideline, which would allow individual income of $775 per month instead of the current $582.
• Raise the assets limit for those eligible for Medical Assistance to $10,000 for singles, up from $3,000.
• Allow those in adult foster care $150 a month for personal needs, up from $75.
• Eliminate the $500 annual cap on dental services for patients in Medical Assistance, General Assistance Medical Care and MinnesotaCare.
• Increase wages for direct care workers by approving rate increases for home- and community-based service providers.
• Increase by 5 percent a year the funding for Metro Mobility and expand transit service for the disabled in outstate Minnesota.
• Offer a $2,500 one-time grant to help pay transition costs for non-elderly disabled Minnesotans attempting to move out of nursing homes.
Airlines Wary Over Disability Law
New EU legislation which will put the onus on airports to help disabled passengers could lead to increased costs, airlines say.
The proposals, to be set out on Wednesday, are the first European laws on disability rights.
Assistance for disabled passengers will be provided by airports centrally rather than by individual airlines.
But the Association of European Airlines (AEA) said this will put 30p on the price of every ticket.
Interesting Boston Globe Piece on SSDI
Columbia U. Program on Disability and the Law
The Columbia University Seminar on Disability Studies
DISABILITY AND THE LAW
Wednesday March 2, 2005
4:00 – 6:00 pm
Faculty House 400 West 117th Street
Dinner to follow. See below for details and directions.
Why is there a rollback against disability rights legislation in the United States? What new legislation is being proposed to counteract adverse decisions by the U. S. Supreme Court? How can we help ensure that the rights of people with disabilities will be protected in a too-often hostile environment? What is happening in other nations that impact on people with disabilities? These and other related questions will be addressed by three speakers actively dealing with these issues.
The Globalization of Disability Rights Law
Arlene Kanter, Professor of Law and Co-Director, Center on Disability Studies, Law and Human Policy, Director of Clinical Legal Education, Syracuse University College of Law
US Disability Law
John Gresham, Senior Litigation Counsel, New York Lawyers for the Public Interest
Respondent: Sagit Mor, JSD (Doctoral Program) candidate at NYU School of Law. Formerly an attorney for Bizchut (By Right), an Israeli disability rights organization.
Moderators: Doris Zames Fleischer and Frieda Zames, both affiliated with New Jersey Institute of Technology and co-authors of "The Disability Rights Movement: From Charity to Confrontation."
Lecture is free and open to the public. ASL interpreters will be present.For information, you can contact firstname.lastname@example.org.
NCD Background Paper on Spector
GAO on Autism and Special Education
The number of children diagnosed with autism served under IDEA has increased by more than 500 percent in the last decade. In 2002, data collected for the Department of Education indicated that nearly 120,000 children diagnosed with autism were being served under IDEA. This substantial increase may be due to a number of factors, including better diagnoses and a broader definition of autism.
The services provided to children with autism depend on the needs of the child. These services may include speech therapy, occupational therapy, and the services of special education teachers. As with other children with disabilities, children with autism are eligible for special education services under IDEA in accordance with their individualized education programs (programs established by a team familiar with the needs of the child).
The average per pupil expenditure for educating a child with autism was estimated by SEEP to be over $18,000 in the 1999-2000 school year, the most recent year for which data were available. This estimate was nearly three times the expenditure for a typical regular education student who did not receive special education services and was among the highest per pupil expenditures for school-age children receiving special education services in public schools.
Monday, February 14, 2005
Post-Dispatch on People with Disabilities and Social Security Privatization
Saturday, February 12, 2005
Good Sixth Circuit "Regarded As" Opinion
Friday, February 11, 2005
Community Placements in Tennessee
State Disabilities Program May Be Expanded
California Supreme Court Implements Atkins
The California Supreme Court cleared the way Thursday for dozens of condemned prisoners to escape their death sentences on the grounds they are mentally retarded, defining the disability more flexibly than prosecutors had wanted.The California Supreme Court's opinion can be found here.
Prosecutors, who fear a flood of petitions from death-row inmates, wanted the court to define retardation using a specific IQ level. They suggested 70 on a scale on which the average is 100. The court declined.
"IQ tests are insufficiently precise to utilize a fixed cutoff in this context," Justice Janice Rogers Brown wrote for the court.
Instead, the justices said, inmates could get hearings to challenge their death sentences as long as a qualified expert says they are retarded.
Casey Martin Update
Thursday, February 10, 2005
Comparative Disability Law
American disability employment law underwent a series of profound transformations during the twentieth century. A scheme of social welfare at the century's beginning, by the century's end disability law had shifted significantly toward a civil rights orientation. Similar transformations - frequently inspired by the example of the ADA, but at the same time deriving from indigenous movements of people with disabilities - have occurred throughout the world. None of these transformations has been identical to the transformation in American disability employment policy. Notwithstanding the differences, however, the overall trend is clear: across the industrialized world, disability policy is increasingly being reoriented from caretaking to work-promoting, from segregationist to integrationist, and from welfare to civil rights. Yet American scholars have made no sustained effort to assess what lessons other countries' experiences may hold for disability policy in the United States. This brief essay, which responds to papers submitted for a symposium on comparative disability law, seeks to highlight some of the dimensions along which a comparative approach would shed light on important issues in the design and interpretation of American disability law. In particular, the essay focuses on two key areas of inquiry. First, what policy tools best advance the increasingly important goals of integration and empowerment for people with disabilities? Second, what is the conception of "disability" that should underlie a disability employment law regime, and how can that conception advance or undermine integrationist goals?I previously posted on the symposium issue in which this piece was published here.
Parents Oppose Missouri Early Intervention Cuts
''Rafeedie's mean-spiritedness, cruelty and contempt for civil rights makes Hitler look like a humanitarian,'' Yagman said. ''This judge is trying to bar the door to the federal courthouse.''
State Medicaid Watch: Kentucky
Kentucky will drop a proposal to shift Medicaid money from nursing homes and institutions to serve more people at home or in the community, the state's top health official said yesterday.
Instead, Kentucky will ask the federal government for more flexibility in offering an array of mental-health and mental-retardation services through Medicaid, said Health and Family Services Secretary James Holsinger.
Speaking after a rally that drew about 600 Medicaid users to the Capitol, Holsinger said the latest plan would give the state more freedom to offer less costly services by moving people into the community or their homes if they choose.
Criticism of Irish Disability Discrimination Bill
The Taoiseach, Bertie Ahern, has accepted that the controversial Disability Bill is not enough to meet the wishes of groups working with the disabled.Comparative disability law is a major interest of mine, but I especially love the word "Taoiseach."
These groups have been highly critical of the new legislation, particularly its failure to include enforceable rights for people with disabilities.
Remand Opinion in Garrett
The court's opinion begins with some rather derisive words about Section 504, and about counsel for not highlighting the Section 504 claim before the case wound its way up to the Supreme Court and back down again:
On her way back down to this court, Garrett finally got around to pointing out to the Eleventh Circuit that neither it nor this court had addressed the alternative jurisdictional basis found only in the Rehab Act. The Eleventh Circuit thereupon asked UAB to respond to Garrett's newly found argument. UAB responded with a classic example of lame, insipid non-advocacy, in which UAB, in effect, confessed that a horrible waste of time had taken place. UAB virtually conceded that the Rehab Act provides a basis for jurisdiction over Garrett's disability claim brought against her State employer. UAB never argued the effect of the law-of-the-case doctrine or the possibility that Garrett had waived her new argument. Instead UAB admitted that it had waived its Eleventh Amendment immunity as to possible Rehab Act liability.(Gotta love a court in a disability discrimination case referring to the lawyering as "lame.")
The Eleventh Circuit reacted appropriately to UAB's strange response and sent the case back to this court. When this court thereupon scheduled a hearing to explore the waiver evidence, UAB quickly admitted the obvious, namely, that it has received a superabundance of federal dollars. There is no State institution in America that is not fatally addicted to federal largess, even when it thereby risks submitting to federal court jurisdiction for any challenge of its conduct. Thus, because the ADA and the Rehab Act have essentially the same elements for constituting a cause of action, and because both afford similar, if not identical, relief, all of the effort that had gone into litigating this case all the way to the Supreme Court suddenly became an academic exercise. The various court opinions on Eleventh Amendment immunity did provide some excitement, and did clarify a serious jurisdictional issue for the litigating public. But, the judicial output became meaningless for this case. The irony is that the alternative Rehab Act jurisdictional issue escaped the attention of everybody, the parties and the courts, year after year after year. If Garrett had filed a Rule 59 motion seeking to alter or amend this court's original judgment entered on January 13, 1998, and had pointed out to this court that it failed to address the alternative jurisdictional basis provided in the Rehab Act, the outcome might or might not have been different, but the story would certainly have been shorter.
On the merits, the court concluded that Garrett's state employer did not discriminate against her, and that she was not an individual with a disability in any event. The court's discussion of the latter point contains very troubling language suggesting that cancer can only rarely be a "disability" for ADA/504 purposes:
Of course, one might argue that it is precisely the fact that people have such unfounded stereotypes about cancer (the "pervasive" perception "that someone with cancer is 'on the way out'") that makes it particularly important to protect people with that condition against discrimination.
Everybody knows someone who either has cancer or has had cancer. The judge who is writing this opinion has had cancer. He underwent the trauma of the surgery necessary to remove a cancerous prostate gland. Another member of this court had breast cancer and a mastectomy before she was appointed to the bench. She is presently presiding over a trial of national interest that is predicted to take four months.
Fortunately, for this judge, for his fellow judge and for Garrett, they are now cancer free. It could have gone the other way for any of them. While under treatment, they were all limited in their abilities to work and were rightfully considered to be sick. They could fairly be described as temporarily disabled. However, people do live with, and recover from, cancer, and do again function in the workplace where they worked before being diagnosed and treated for cancer. Either this judge should recuse himself because of a life experience similar to Garrett's, or he cannot avoid bringing his life experience into the decision making process. Both this judge and Garrett have recovered their abilities to perform their jobs, whether or not at the precise level of proficiency at which they performed them before their successful treatment. This judge is sure that there are lawyers who thought, or even hoped, that this judge would not come back to the bench. The perception that someone with cancer is "on the way out" may be pervasive, but in today's world it is fallacious. This judge can testify that when a person is told that he has cancer, it is psychologically, if not physically, debilitating, but not every person who has cancer is "disabled", much less "permanently disabled" and not automatically perceived to be. During treatment, a cancer patient may or may not be able to function at full capacity, but neither does a person with a bad cold function at full capacity. Instead, that person, and those with whom he works, look forward to his recovery and to his restoration to the workplace.
Wednesday, February 09, 2005
Perlin on Counsel in Right to Refuse Treatment Cases
For the past three decades, scholars have carefully considered
the scope of the right of involuntarily committed psychiatric
patients to refuse the administration of medication from a rich
array of perspectives, including, but not limited to, clinical
perspectives, civil libertarian perspectives, philosophical
perspectives, and political perspectives. Yet, virtually all of
this - remarkably - passes over what I believe is the single
most important issue in real life. This issue is the most
relevant to the actual (as opposed to paper) existence of the
right and the actual (as opposed to paper) implementation of
that right: the availability and adequacy of counsel to
represent patients seeking to assert this right to refuse. In
spite of the extensive literature and case law that has
developed in this area of the law, the topic remains egregiously
under-discussed and under-litigated.
Simply put, if active, trained counsel is not provided for
patients seeking to interpose this right, then the right becomes
nothing more than a paper document: useless and meaningless (and
perhaps, counterproductive) in the real world, and yet another
in a series of shameful pretexts that dominate this area of the
In this paper, I discuss: (1) the generally mediocre job done
by lawyers in the involuntary civil commitment process; (2) the
equally mediocre job done in the right to refuse treatment
process, especially where both courts and legislatures have
failed to articulate a universal right to counsel in right to
refuse cases;(3) the reasons why counsel is so critical in such
cases; (4) the significance of what I call sanism and what I
call pretextuality, and the application of a therapeutic
jurisprudence mode of analysis to the topic in trying to
understand all of this, and (5) these recommendations for the
-Each state should adopt procedures that guarantee the
appointment of effective, trained counsel to represent patients
at both involuntary civil commitment hearings and at right to
refuse treatment hearings.
-State attorneys general and county counsels should insist that
lawyers representing hospitals in such cases be equally
effective and trained.
-Judicial educational agencies such as the National Judicial
College should offer regular courses in all aspects of the right
to refuse treatment for state court judges.
-All participants in the system should acknowledge the ways that
sanism and pretextuality corrupt the judicial process
(especially this aspect of the judicial process), confront that
corruption, and take seriously the significance of that
-A therapeutic jurisprudence lens should regularly be applied to
this entire area of the law, and courts should begin to consider
the issues discussed here through a therapeutic jurisprudence
-Scholars should seriously consider adding this issue to their
More on Gov. Blunt's Disability Cuts in Missouri
State Medicaid Watch: Georgia
Surgeon Files ADA Suit Against Hospital
Dr. Paul A. Wojewski, a talented but troubled Rapid City heart surgeon, has sued Rapid City Regional Hospital under the Americans with Disabilities Act.
The doctor, who has been diagnosed with bipolar disorder, alleges that the hospital failed to provide reasonable accommodations for his mental illness. It also alleges that the hospital did not follow its own policy on dealing with impaired physicians.
Specifically, the suit claims that in the summer of 2003, top hospital officials ignored obvious signs of Wojewski's worsening mental condition and allowed him to continue performing surgery. Then, after a manic episode occurred during a surgical procedure on Aug. 19, Wojewski was removed by hospital security, and his privileges were suspended indefinitely.
This looks like an uphill battle.
Medicare and Motorized Wheelchairs
New Australian Law on Disability Discrimination in Education
Laws which establish new education standards for students with disabilities have been passed by federal parliament.
The Disability Discrimination Amendment (Education Standards) Bill 2004 aims to provide more clarification about the obligations of schools and other education providers under the Disability Discrimination Act.
It also provides greater certainty for education institutions by allowing them a defence of so-called unjustifiable hardship after a student with a disability is enrolled.
In the Senate, Kim Carr (ALP, Vic) said the ALP supported the bill but called on the government to provide better funding for the new standards.
Senator Carr was worried about the unjustifiable hardship defence for schools once a student with a disability had been enrolled.
The measure "may well be taken advantage of by some educational authorities where they've failed to meet their commitments in the past", he said.
Definition of Disability in the UK
The Government was defeated in the Lords today when peers backed a Tory move extending anti-disability discrimination measures to people who had suffered depression and relapsed.
Voting on the Tory amendment during report stage of the Disability Discrimination Bill, was 138 votes to 131, a majority of seven.
The amendment covers people who have suffered serious depression that has interfered with their ability to function normally, have then recovered, but have suffered a relapse within five years.
Department Stores Settle Disability Lawsuit
Hecht's and Lord & Taylor agreed to widen pathways between clothing racks, lower some cash registers and remove barriers to fitting rooms to make their stores more accessible to people who use wheelchairs and other mobility devices, settling a four-year-old lawsuit filed on behalf of disabled Washington area shoppers.
Eight shoppers sued the chains' parent company, May Department Stores Co., in 2001 under the Americans with Disabilities Act, accusing the chains of creating "an inescapably dismal and frustrating shopping experience."
Wheelchair User Sues "The Apprentice" for Disability Bias
Monday, February 07, 2005
New Donkey on Bush's Plans for Medicaid
Canadian Case on Disability and Immigration
Gavin Hilewitz was the sort of immigrant Canada loves to attract -- an enthusiastic 22-year-old, possessed of a sunny temperament, a keen interest in computers and parents worth at least $5-million.
Just one detail stood in the way of the South African man's bid to become a Canadian: Gavin was mildly retarded. He was barred from immigrating lest he become an "excessive" drain on Canada's social services network, and the Hilewitz family's appeal of that decision reaches the Supreme Court of Canada tomorrow.
The case raises several questions that are as prickly as they are legally compelling. Are disabled people akin to damaged goods, capable of being rejected because they were not born in perfect condition? Should the wealthy be allowed to buy their way into Canada, when those of moderate means would be turned away?
More on SSDI and Bush's Social Security Proposals
An analysis by economists Peter Orszag and Peter Diamond of the principal proposal put forward by the President's Commission to Strengthen Social Security found that the reduction in disability benefits would range from 19 percent to 47.5 percent by the year 2030. Private accounts wouldn't help to offset that impact because beneficiaries would not be allowed access to their individual accounts until they reached retirement age.The Orszag/Diamond analysis to which the author is referring can be found, I think, here.
Bush Mum on Future of Disability Benefits
Key Articles in Draft Disability Treaty Approved At UN Meeting
State Medicaid Watch: Missouri
Memo to Gov. Blunt: You can't claim to support deinstitutionalization and independent living while you're cutting community-based programs.
A habilitation center in St. Louis, one of five in the state, is slated to close. Two others — in Nevada and Marshall — would downsize. That would force 400 mentally retarded adults to find care in community-based programs.
Blunt said they would be better served outside of institutions. But community mental health programs also would be cut by $13.4 million under Blunt's plan. And three of the state's 39 independent living centers also would be shut. It has not been determined which ones would close.
Sunday, February 06, 2005
NYT on Daryl Atkins
Saturday, February 05, 2005
Blind Couple Denied License for Day Care
When Tom and Christine Hutchinson decided to open a day-care facility in their home, they did everything the state of Colorado requires to obtain a license.
They took CPR and first-aid courses. They submitted to background and medical checks. They collected references. They had their home inspected. They went through interviews, detailing their experience volunteering in a day-care center and citing their degrees in child and family studies.
At the end of that six-month process, the Colorado Department of Human Services' Division of Child Care considered all that information and turned them down for one reason: The Hutchinsons are blind.
* * *
The state is holding firm to the position that it has a mandate to ensure day-care operations are safe for children. The Division of Child Care maintains that this cannot be done in the Hutchinsons' case.
"The state's view is one of child safety. We don't believe they can have proper supervision in that setting," said Liz McDonough, spokeswoman for the Department of Human Services.
Similar battles have been fought and won in other states, according to Scott LaBarre, a Denver attorney who is representing the Hutchinsons and who handles cases across the country for the National Federation of the Blind.
LaBarre said the Hutchinsons' case differs in an important way: In the other cases, reasons other than blindness were given for not allowing a blind person to pursue a particular job.
* * *
During home-inspection visits and licensing interviews, the state raised many concerns about that lack of sight. The interviewer questioned everything from how the Hutchinsons could administer medicine to the possibility their guide dogs might attack the children.
The Hutchinsons responded with point-by-point answers. They also agreed they would not take children under the age of 3 and would not have more than four children in their care.
"We recognize our limitations. It's not like we're asking to be taxi drivers or policemen," Tom Hutchinson said.
Friday, February 04, 2005
Bush Says No Change in SSDI
He tried to clarify his approach. Responding to questions from the audience here, he told the mother of a mentally retarded adult daughter that there would be no change to the disability portion of the system.Do you believe him? In the long run, it's going to be hard to maintain SSDI as is when retirement benefits are phased out.
Disabled Man Sues Wal-Mart
A 20-year-old Centereach man who claimed Wal-Mart bounced him as a pharmacy assistant because he's disabled, will soon get his day in court.Shunting people with disabilities into out-of-sight jobs -- if that's really what happened here -- is one of the core forms of discrimination targeted by the ADA.
Patrick S. Brady alleges that, just one day after starting his job in the pharmacy, Wal-Mart reassigned him to collect carts and garbage in the parking lot of its Centereach Mall store, despite his experience as a pharmacy assistant.
Jury selection is scheduled to begin Feb. 14 in U.S. District Court in Central Islip before Judge Leonard Wexler.
Brady has cerebral palsy, which means that he limps and has nervous hand movements, according to his lawyer, Douglas Wigdor of Thompson Wigdor & Gilly in Manhattan.
Missouri Governor in Trouble on Early Intervention Cuts?
UN Treaty Writers Weigh Abortion Ban for Disabled
U.N. diplomats drafting an international treaty on the rights of the disabled debated a possible ban on the abortion of fetuses with disabilities in an emotional negotiating session that ended on Friday.
A working text of the convention would prohibit the termination of a pregnancy in the case of a fetus with a disability in countries where abortion was otherwise legal.
"It was a very emotional argument, and if you are a person with disability and you are thinking that you might have been aborted because of your disability, it becomes a very personal issue," said New Zealand Ambassador Don MacKay.
Diplomats ended up deferring action on the ban because it was too hot a topic, said MacKay, coordinator of the two-week session.
Hmm. Maybe this'll get the Bush Administration to get on board . . . . When pigs fly, I suppose.
Rosenthal on Associational Discrimination and the ADA
This article discusses the association provision of the ADA, which gives plaintiffs a cause of action when they are discriminated against because of an association or relationship with a disabled individual. Typical plaintiffs in this situation include the spouses, caregivers and advocates for disabled patients. Although President Bush praised the ADA as a "landmark" piece of legislation, it has accomplished practically nothing to help association plaintiffs seeking relief from their employers.
In almost all association cases, plaintiffs' claims have fallen well before trial on the merits. The article discusses how various association claims under the ADA have failed, but similar claims under the FMLA and ERISA have proven at least somewhat successful. The author suggests these statutes - as well as state anti-discrimination laws - as avenues for bringing future association claims.
Hasday on Mitigation and the ADA
It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He applies for a job that has been structured for people who can see clearly and asks the employer to purchase work equipment (like a new computer) that will enable him to perform the job with limited eyesight. Purchasing this equipment will be costly, and the employer asks why it should have to bear those costs when the applicant could have surgery to enable him to see better.
The question raises a core issue of rights and responsibilities under a civil rights law. But Title I of the ADA, which protects "a qualified individual with a disability" from employment discrimination based on his disability, never indicates whether there is a duty to mitigate, either by undergoing medical procedures, using medication, pursuing physical therapy, losing weight, abstaining from alcohol and cigarettes, or taking other measures to improve health and eliminate obstacles to employment. The Supreme Court has not yet considered the question, and legal commentators have all but ignored it. The few lower courts to address a duty to mitigate under Title I are divided on whether mitigation should be required, and those in favor of the duty have not developed a clear standard for when that duty should apply. To the extent that the decisions supporting a duty to mitigate imply any principle for implementing the duty, most appear to suggest that Title I plaintiffs are obligated to mitigate whenever mitigation is possible. I reject both extremes of the existing debate. This Article argues that plaintiffs seeking Title I protection should be under a duty to mitigate, but that this duty should require plaintiffs to pursue only those mitigating measures that could reduce their need for workplace accommodation and that a reasonable person in the same situation would pursue.
Thursday, February 03, 2005
Nelson v. Thornburgh Lives
What many folks may not know (I certainly didn't) is that the case is still going on. This past Monday, the Third Circuit issued this decision in the latest round of the Nelson litigation. Nelson apparently settled his original case in 1993, and entered into a further settlement in 1995. Under these agreements, the state employer agreed to provide him with a reader and certain computer equipment. But in 1999, Nelson filed suit again; he alleged that the state continued to fail to accommodate him, in violation of the Rehabilitation Act, the ADA, and the settlement agreements. The district court dismissed that new suit. The apparent grounds were that the suit was in essence one to enforce the prior settlements. Because those settlements were not incorporated into court orders, they did not supply federal jurisdiction.
In its decision Monday, the Third Circuit reversed that dismissal. It agreed that the settlements did not create federal court jurisdiction. But it read Nelson's suit as asserting fresh claims under the Rehabilitation Act and ADA, which claims did support federal jurisdiction.
Wednesday, February 02, 2005
Salt Lake Tribune For Private-School Tuition Vouchers For Kids With Disabilities
Missouri Governor Proposes Eliminating Early Intervention, But May Not Succeed
Tuesday, February 01, 2005
State Medicaid Watch: Louisiana
A 25 percent cut in pay for nurses, physical therapists and others who care for disabled infants and toddlers started Tuesday under emergency cost-saving measures imposed by the Department of Health and Hospitals.
The cuts are expected to save the state about $2.5 million in the fiscal year that ends June 30 in the Early Steps program, which provides therapy for children younger than 3 who have a disability or delayed development.
A health department spokesman said the cuts are necessary because the $28 million program is growing far more quickly than expected.
District's Special-Ed Problems Detailed
The court-appointed administrator in charge of transportation of special education students in the D.C. school system said yesterday he is poised to seek a judge's order requiring the school board to allocate an additional $14 million for the program.
David Gilmore, appointed by the federal court in 2003 to oversee the transit of about 12,000 special education students, released his semiannual report to a federal judge yesterday outlining what progress he had made in getting the students to school on time and correcting other long-standing problems in the program. Gilmore was appointed as part of a settlement reached in a class-action lawsuit that parents of special needs students filed in 1995 against the school system and D.C. government.
In his 75-page report to U.S. District Judge Paul L. Friedman, Gilmore said the school system has blocked his efforts to improve special education services, and the school board has not approved his full budget after six months.
State Medicaid Watch: Missouri
"People with disabilities seem to be targeted in virtually every area, from birth to death," said Terry Mackey, a parent of three developmentally disabled children and president of the Arthur Center, of Mexico, Mo., which provides mental health services for the state.* * *
[Governor] Blunt's budget includes a roughly 25 percent reduction in the income eligibility criteria for disabled Medicaid recipients - down to about $580 a month from the current $775. It also would eliminate a program that allows many disabled to continue their Medicaid coverage while working part-time. And it would end Medicaid coverage for such things as wheelchairs, ambulance rides and prosthetics.
The Division of Mental Retardation and Developmental Disabilities would take a $27.4 million cut, leaving it with a budget of about $405 million. Those cuts include closing the Bellefontaine Habilitation Center in north St. Louis County, plus an estimated $14 million to community-based services as a result of the Medicaid eligibility changes, said department spokeswoman Jeanne Henry.
Public Hearings on (Proposed) Accessibility for Ontarians with Disabilities Act
More on Tony Blair's Disability Benefit Reforms
Tony Blair today heralded changes to the rules on incapacity benefit which he said could take one million people off the government's books.
The Prime Minister said the reforms were only needed because the benefits in question were used to mask mass unemployment under Margaret Thatcher in the 1980s.
Mr Blair said in a speech in Manchester that wide-ranging reforms due to be announced by Alan Johnson, the Work and Pensions Secretary, would deliver a system that rewards work and encourages people to "play by the rules".
Mr Johnson has already described the measures as the biggest change in benefits for sick and disabled people since the 1945 Beveridge Report created the modern welfare state. The Government says one million of the 2.7 million people claiming Incapacity Benefit - at a total cost of £7 billion a year - would prefer to be back at work but are financially penalised for doing so.
Wheelchair Users File 26 Title III Lawsuits Against Oklahoma City Businesses
Note that the plaintiffs' attorney in these cases is Gene Zweben, the same attorney who represents Miss Wheelchair Wisconsin in her lawsuits.
"I finally got tired of people discriminating against me and others like me, so I finally did something about it," Lawson said.
That something was filing 26 federal lawsuits in Oklahoma City against businesses and other organizations Lawson claims refuse to comply with the federal Americans with Disabilities Act, which requires that facilities are accessible to people with disabilities.
Lawson's latest target is Oklahoma City, where he has sued officials for not meeting the needs of people with disabilities at state Fair Park.
Lawson isn't the only Oklahoman to file such lawsuits.
Cinda Hughes, last year's Ms. Wheelchair America, says her three lawsuits against Oklahoma City restaurants are not a personal vendetta. She too got fed up at businesses' inability to comply with a federal law passed nearly 15 years ago.
"It's not for monetary gain," Hughes said. "I like to go to these places to eat. The intent is for them to spend $200 to $400 to open the bathroom door far enough to get in a wheelchair."