Tuesday, May 31, 2005

Cash Grant Proposal in Ohio

See this article, which begins:

Up to 200 disabled people would leave nursing homes and use the state and federal money that would have gone to the institutions to hire home health aides in an experimental project the Senate proposed in the state budget.

Several states have pilot projects in which Medicaid money goes directly to the person to spend on health care instead of nursing homes.

States must ask federal permission to start such programs, and President Bush favors the concept, said Mary Kahn, spokeswoman for the federal Centers for Medicare and Medicaid Services.

Ohio's application would be made only if the proposal stays in the budget through a full Senate vote this week and then a joint committee to work out differences with the House version of the $51 billion, two-year spending plan. Gov. Bob Taft must sign a balanced budget by July 1.

UK: Parents' Fight to Have Son Sterilized

See this article by that title. It begins:

The parents of a disabled man have said today that they will fight to have their son sterilised.

Gavin Smalldon is 22 but a genetic condition means that he has the mental age of a six-year-old and requires constant care from his parents, 48-year-old Paul and 47-year-old Jo.

The couple, who live in Tonna near Neath, south Wales that their son is incapable of looking after himself and would not be able to care for a child.

Medical experts say that any child of Gavin’s would have more than a 50% chance of being born with the same condition.

Gavin, who is soon to complete a catering course at Neath and Port Talbot college, leads a very active life but always requires supervision.

Mr Smalldon said: “We have been fighting this for many years. It has not been an easy to make a decision on. But if you ask Gavin he wouldn’t be able to give you an answer.

“He has the mind of a six-year-old and finds certain words very funny, you can’t ask him what he thinks about sterilisation and what that means."

Wow. I'll limit myself to this comment: I don't know many six-year-olds who are completing catering courses.

Huge Verdict in Employment Discrimination Case Brought By Boston Schoolteachers with Disabilities

See this article, which begins:

Boston public schools have been ordered to pay more than $450,000 to two disabled teachers who accused school officials of discriminating against them and making it so difficult to teach that they had to leave their jobs.

The award to teachers Diana Sabella and Mary McTernan, who are unable to stand or walk for long periods, is one of the highest made by the Massachusetts Commission Against Discrimination, said Steven Locke, general counsel for the commission, which handed down the rulings this month. The average award is $40,000 to $50,000, he said.

The teachers filed separate complaints in 1997 after reporting to the school system's Office of Equity that they lacked the help they needed to do their jobs, such as the ability to work a flexible schedule and rest during the day. The commission blasted the office for failing to address the complaints and ordered the school department to train administrators each year in the law. State law entitles disabled staff members to reasonable assistance to do their jobs.

''It was apparent from the decisions that the schools essentially neglected their duties and pretty much ignored the requests by the teachers," Locke said yesterday.

Inaccessible Transit in P.E.I.

See this article, which begins:

An advocate for persons with disabilities says Charlottetown's new buses should be accessible to everyone, but four buses purchased for the city's new transit system can't be used by people in wheelchairs. Deputy Mayor Stu MacFadyen said people can use Pat and the Elephant, a not-for-profit organization that provides transportation for people with disabilities.

"In talking with Pat and the Elephant and talking to people, that's working well. And the city will still subsidize Pat and the Elephant and we'll go from there." The executive director of the Canadian Paraplegic Association of P.E.I. said using Pat and the Elephant costs $6 per ride, while the new transit system will cost $2.
Um, does the public transit that nondisabled people use have a cutesy name like "Pat and the Elephant," too, or is that just a special bennie that goes with getting charitable paratransit services? Just wondering.

Interesting Interview with Judy Heumann

is here. She has interesting thoughts about her work at the World Bank and at the Department of Education.

Disability Rights Activists and Assisted Suicide Legislation

A pretty good local news article on the topic is here.

Friday, May 27, 2005

Eighth Circuit: Lane is Limited to Access-to-Courts

In Bill M. v. Nebraska Dep't of Health and Human Services, the Eighth Circuit today held that Title II does not validly abrogate state sovereign immunity in an Olmstead-type case. The court did not engage in any analysis of the congruence and proportionality of the statute to actual or threatened constitutional violations in the Olmstead context. Instead, it pointed to its pre-Lane en banc ruling in Alsbrook v. City of Maumelle, which held that Title II was not valid Section 5 legislation in any circumstances. The court recognized that Tennessee v. Lane abrogated Alsbrook insofar as the statute applies to demands for access to judicial services, but it held that outside of that narrow context Alsbrook controls and Title II is not valid Section 5 legislation. That analysis seems to me inconsistent with Lane's as-applied approach, and it conflicts with the Eleventh Circuit's recent Florida International University opinion. This begs for rehearing en banc.

Disability Law Spurs Elections by Mail

See this article by that title in the Pensacola News-Journal. It begins:

When Escambia County residents decide this fall whether they want to extend the local option sales tax, they'll be able to vote from home for the first time in county history. The mail-ballot election was prompted in part by a federal law that requires each precinct before fall elections to be equipped with voting machines adapted for the disabled and every polling place to comply with access standards of the Americans with Disabilities Act.

Thursday, May 26, 2005

Sometimes I Wish I Still Lived in Washington

See this press release:

ADA Watch and the National Coalition for Disability Rights (NCDR) are pleased to announce that three-time Grammy Award- winner, Bruce Hornsby will headline the Disability Rights Concert at the Music Center at Strathmore outside Washington, DC on Tuesday, June 21, 2005. Very special guests, Sweet Honey in the Rock will also perform. Reserved seating tickets go on sale Thursday, May 26th at 10 a.m. at the Music Center at Strathmore box office at http://www.strathmore.org or by phone at 301-581- 5100. Special ticketing packages including reception with the artists are available at 202-661-4722 or online at http://www.ADAWatch.org.

The event will recognize 15 years of the Americans with Disabilities Act (ADA) and feature a photographic history, Images of the Disability Rights Struggle, as captured by photojournalist Tom Olin.

Montgomery County Executive Douglas M. Duncan and other dignitaries will make remarks. The Honorary Co-Chairs of the Disability Rights Concert include: Senator Tom Harkin, Senator Edward Kennedy, Senator Patrick Leahy, Congressman Michael Castle, Congressman Steny Hoyer, and Congressman Chris Van Hollen.

Proceeds from these special performances will benefit ADA Watch/NCDR, a 501(c)(3) nonprofit coalition of hundreds of organizations united to promote and strengthen the human rights of people with physical, mental, cognitive and developmental disabilities.

Bruce Hornsby won the Best New Artist Grammy Award in 1986 and went on to sell more than 10 million albums worldwide with a string of hits including "Mandolin Rain," "The Valley Road," "Every Little Kiss," "A Night on the Town," and the socially conscious No. 1 single "(That's Just) The Way It Is."

Sweet Honey in The Rock is a Grammy Award-winning African American female a cappella ensemble that joins powerful voices and hand percussion instruments to create a blend of lyrics, movement and narrative that variously relate history, point the finger at injustice, encourage activism, and sing the praises of love. The music speaks out against oppression and exploitation of every kind. The septet, whose words are simultaneously interpreted in uniquely expressive American Sign Language, demands a just and humane world for all.

Britain: Turning Welfare "On its Head"

See this article from the Guardian. A taste:

Disabled people should be given the money and support to buy and manage the care and support they need to lead independent lives, a centre-left thinktank said today.

The government's overhaul of the welfare system should be based on the principle that disabled people are best placed to identify how to meet their own needs, according to the thinktank Demos.

Its report, produced in partnership with the disability charity Scope, called for the welfare system to be "turned on its head" by placing disabled people in control of support services rather than leaving them as passive recipients of state benefits.

More Irish Disability Law Smackdown

See this article. A taste:

Disability groups today vowed to continue their fight against the new Disability Bill as it entered the Seanad.

A noisy protest was held outside Leinster House as the legislation finally passed through all stages in the Dáil after eight months of debate.

The Bill, which will now be considered by the Seanad on Tuesday, is expected to be made law before the summer recess on July 1.

Disability Federation of Ireland chief executive John Dolan said people with disabilities remained “extremely unhappy” with the legislation.

He told several hundred protestors: “Society must change to suit us, not us change to suit society. We need basic rights and services to take our place in mainstream society.”

* * *

The Bill, which promises to deliver high-quality support services for people with disabilities, has been slammed over its failure to include rights-based access to services.

Friday, May 20, 2005

Waterstone on the Rest of the ADA

New on SSRN: Michael Waterstone has posted The Untold Story of the Rest of the Americans with Disabilities Act, forthcoming in the Vanderbilt Law Review in 2006. (Nice Paul Harvey allusion!) The abstract:

Nearing the fifteenth birthday of the Americans with Disabilities Act ("ADA"), most commentators believe that its overall effects have been disappointing. By this point, there is a standard set of explanations for the ADA's failures: the Supreme Court's limiting decisions relating to the definition of disability, the limits of antidiscrimination law, and the economic failures of the accommodation mandate. These explanations come with corresponding recommendations for disability law reform. This Article challenges the assumption, nearly universal until now, that these explanations and recommendations apply equally to the entire ADA. This Article argues that these explanations are based on an employment law-dominated (Title I) narrative, and are incomplete and/or incorrect when applied to the ADA's two other major parts (Title II, relating to public services, and Title III, relating to places of public accommodation). Through a first-ever descriptive quantitative analysis of Title II and III cases, this Article shows that these cases - unlike Title I cases - fare relatively well in the courts compared with other civil rights statutes. This Article suggests that the major issue confronting Titles II and III is underenforcement at the private and public levels, and concludes with a discussion of how to strengthen those enforcement mechanisms.

Fifth Circuit on the ADA, Parking Placards, and State Sovereign Immunity

The Fifth Circuit yesterday issued an odd opinion in Meyers v. Texas, an ADA Title II case challenging the imposition of a fee for handicapped parking placards. The plaintiffs had brought suit in state court, and the state removed to federal court. The Fifth Circuit held, following (but also arguably extending) the Supreme Court's decision in Lapides v. Bd. of Regents, 535 U.S. 613 (2002), that the state waived its sovereign immunity from suit by removing the case to federal court. The state had argued that this case was different from Lapides, because in this case the state claimed sovereign immunity from suit in both state and federal court. As a result, removal here could not be a strategic effort to move into a forum that, unlike the original forum, lacked jurisdiction. The Fifth Circuit rejected that argument and held that Lapides controlled. But the court also stated that the state might retain sovereign immunity against liability -- even though it had waived its sovereign immunity against suit -- and that the sovereign immunity against liability was a matter of state law to be determined on remand (even though the claim was a federal claim).

This case is at least in some tension with out-of-circuit precedent, so if the interlocutory posture of the case doesn't stand in the way, the issue might get further review.

Thursday, May 19, 2005

Gone Fishin'

I'll be out of the country (hopefully learning lots about Swedish disability policy) until Wednesday night, so don't expect much if any posting until then.

New Disability Books

A couple of more disability books have crossed my desk. I haven't read any of them yet, so no vouching here, but they look at least prima facie interesting:

Ruth O'Brien, author of Voices from the Edge and Crippled Justice, two well-received books about disability discrimination law, has a new, more theoretical offering, entitled Bodies in Revolt: Gender, Disability, and a Workplace Ethic of Care.

Pomo types may enjoy the edited volume by Shelley Lynn Tremain, Foucault and the Government of Disability.

And for those who just like a disability-law good read, Harriet McBryde Johnson's Too Late to Die Young: Nearly True Tales From a Life may be just the ticket.

ADA Parking Placards Case in Nebraska Supreme Court

See this article on the forthcoming argument.

Serial ADA Litigation: The Good Side

See this article. Some excerpts:

To settle a lawsuit filed by a disabled resident, the city of Pacific Grove has agreed to spend $250,000 to remove architectural barriers and make other improvements over the next decade.

Mary Marques-Caramico sued the city and eight local businesses in 2003, saying they violated the federal Americans with Disabilities Act by not providing adequate access for the disabled. Marques-Caramico has muscular dystrophy and gets around town in a motorized wheelchair.

Six of the eight businesses have reached out-of-court settlements with Marques-Caramico and another settlement is near, Marques-Caramico said.

* * *

The city agreed to spend $250,000 to:

Evaluate all city-owned lots and curbside parking on Lighthouse Avenue and develop a draft handicapped parking plan within six months.

Upgrade curbs and sidewalks in commercial areas and some mixed-use areas.

Provide paths in Washington Park except for the undeveloped areas.

Provide parking spaces for disabled and upgrade restaurants in the park.

Upgrade offices, meeting rooms and restrooms at the municipal golf course and provide parking spaces for the disabled at the golf course and cemetery.

Upgrade the exterior women's restroom at City Hall.

Improve access to the Old Bath House restaurant, which is owned by the city and leased to a private business.

Provide a suitable counter for the disabled at the Fire Department.

Train city employees and volunteers on accessibility issues.

Many of the proposed changes were presented to the City Council in October by a city advisory committee.

Marques-Caramico said the settlement is a good start.

"The city needs a lot of work, but with budget problems, I know they can't do everything," she said.

When the suits were filed in 2003, local media and some business owners criticized Marques-Caramico, comparing her to full-time litigants such as Jared Molski and George Louie.

Molski has filed so many ADA lawsuits across California that a federal judge declared him a "vexatious litigant" -- a person who files malicious or abusive lawsuits. One attorney countersued Molski, saying it was suspicious that he visited three restaurants in one day, allegedly suffering identical accidents at each.

Last year, Molski sued more than a dozen Monterey County businesses, including at least eight in Carmel and several in Monterey.

But Marques-Caramico's attorney, Keith Cable, says his client does not fall into that category, and her lawsuits arose from obstacles she encountered while trying to get around her own town. She has not filed other ADA lawsuits and says all payments she received in the local settlements were less than $5,000.

"She was made out to be a pariah," Cable said.

Marques-Caramico said she attended meetings and tried to get the city's ADA committee to respond to issues she raised, and filed suit only after she was ignored.

Mostly, she said, she sued because others can't.

"I think the way Molski and Louie are going about it is all wrong." she said. "But it is very difficult for people with a disability to fight for their civil rights. Many of them are ill or weak, so it's up to a few people who can handle it to change things. If a person has difficulty getting into a restroom, most disabled people will turn around and don't fight it."

Travis on the Transformative Potential of Employment Discrimination Law

Just out on Westlaw: Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3 (2005). From the intro:

When Congress enacted the Americans with Disabilities Act of 1990 (the ADA), lawmakers envisioned a tool that would redesign the conventional workplace. The ADA not only prohibits most private employers from acting on invidious animus, but also requires employers to actively modify the workplace to accommodate individuals with disabilities. According to the ADA's primary sponsor, the statute represents the "twentieth century Emancipation Proclamation for all persons with disabilities." The United States Supreme Court provided a similarly reconstructionist vision of Title VII of the Civil Rights Act of 1964 (Title VII) when the Court endorsed the disparate impact theory, which requires employers to replace facially neutral practices that disproportionately affect protected groups. The Court recognized that eliminating employment discrimination on the basis of race, color, religion, sex, and national origin would require more than just preventing employers from prejudiced decisionmaking. Achieving workplace equality also would require employers to remove all "artificial, arbitrary, and unnecessary barriers," and to eliminate the "built-in headwinds" of the conventional work environment. Because both Title VII's disparate impact theory and the ADA's accommodation mandate were intended to displace established social norms, both statutes properly are characterized as "transformative law."

Initially, advocates were very optimistic that the ADA and Title VII would help restructure the workplace to provide meaningful access and new employment opportunities. As many scholars have explained, however, this hope has gone significantly unrealized. The inability of these laws to fundamentally restructure the workplace is particularly evident with respect to traditional methods of organizing the when, where, and how of work performance, including the default preferences for full-time positions, unlimited hours, rigid work schedules, an uninterrupted worklife, and performance of work at a central location. This bundle of related default organizational structures--referred to collectively as the "full-time face-time norm"--frequently excludes individuals from the workplace, particularly individuals with disabilities and women with significant caregiving responsibilities. Unfortunately, neither the ADA nor Title VII has done much to transform this exclusionary norm.

One of the reasons for this disappointing result is that judges have interpreted the ADA and Title VII through the lens of "workplace essentialism." For either the ADA or Title VII to restructure the workplace successfully, judges first must envision an alternative. To do so, judges must be able--and willing--to parse out the malleable ways that job tasks are organized from the actual tasks that comprise the essence of the job itself. Judges repeatedly have demonstrated an inability--or simply an unwillingness--to take this step. Instead, judges have assumed that jobs are defined at least in part by the default organizational structures that make up the full-time face-time norm, thereby placing those structures beyond the reach of antidiscrimination law and undermining the law's transformative potential. Although this type of workplace essentialism plays a different doctrinal role in ADA accommodation cases and Title VII disparate impact cases, the analytic error is similar in both contexts. Just as the teacher in Harry Chapin's song refused to acknowledge the little boy's suggestion that flowers are still flowers even if painted in many different colors, so judges have refused to acknowledge that a job is still a job even with many different designs for when, where, and how the tasks are performed.

Judicial interpretation of the ADA and Title VII through the lens of workplace essentialism is an example of what Professor Linda Hamilton Krieger has described as "capture through construal." Capture occurs when entrenched norms affect judges' statutory construction in ways that constrain the law's full implementation. These entrenched norms operate as "taken-for-granted background rules," which "systematically skew the interpretations of transformative legal rules so that those rules increasingly come to resemble the normative and institutional systems they were intended to displace." In other words, the danger is not only that the entrenched norm of the essentialized workplace is undermining judges' ability to interpret the ADA and Title VII to realize these laws' full transformative potential. The further risk is that these judicial interpretations are, in turn, relegitimating and reifying the very same default workplace structures that the laws were designed to subvert.

Because the ADA and Title VII have fallen short of initial expectations, some scholars have moved away from antidiscrimination law as a primary tool for achieving workplace equality. Others have continued to suggest future roles for employment discrimination law, while recognizing that no tool can be the single answer to such a multifaceted problem. This Article joins the latter group by identifying a common analytic error in both ADA and Title VII case law and articulating an interpretation that would allow individuals with disabilities and women with caregiving responsibilities to recapture some of the untapped transformative potential of employment discrimination law.

Wednesday, May 18, 2005

EdWeek on Private Schools and IDEA Reauthorization

See this article.

Tuesday, May 17, 2005

More News on Goodman Cert. Grant

See this Linda Greenhouse piece in the NY Times.

Monday, May 16, 2005

SCOTUSBlog on Goodman Grant

Kevin Russell, who worked on a number of Title II abrogation cases while at DOJ, has this interesting extended analysis of Goodman here.

News on Goodman Cert. Grant

See this AP dispatch.

Supreme Court Grants Cert in ADA Title II Case

In today's orders list, the Supreme Court granted cert. in United States v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236, consolidated petitions that challenge the Eleventh Circuit's ruling that Title II of the ADA, as applied to the state prison context, is not proper Section 5 legislation. The Court took no action on Columbia River Corr. Inst. v. Phiffer, No. 04-947, a petition out of the Ninth Circuit raising similar issues. The Court is likely holding Phiffer for its resolution of Goodman. (Disclosure: I'm one of the counsel in these cases.)

Using California Law to Get Accommodations on the MCAT

See this article in the San Francisco Chronicle. A taste:

An Oakland judge has cleared the way for California students with learning disorders to use the state's powerful disability law to seek more time on the nationwide entrance exam for medical schools.

Alameda County Superior Court Judge Ronald Sabraw ruled Thursday that California law, which provides broader protections for the disabled than the comparable federal law, governs a suit filed last July against the Association of American Medical Colleges.

He said the ruling could give some California students an advantage over test-takers in other states, but the testing board could make a notation on their scores to alert medical school admissions officers. A lawyer for the disabled students did not object to that procedure, which is already used for students who qualify for accommodations under federal law.

* * *

The suit was filed on behalf of students with conditions such as dyslexia who submitted their medical and educational records to the association and asked for accommodations on the test but were turned down on the grounds that they weren't severely disabled. The most common accommodation is additional time, typically 50 percent more than the time allowed to other students, Tollafield said.

Test administrators "take the fact that learning-disabled students have been successful (in school) and say it proves they don't need accommodations, '' the lawyer said.

The federal Americans with Disabilities Act requires reasonable accommodations for anyone who is "substantially limited'' in a major life activity, such as learning. California law covers those who are "limited'' in a major life activity. The difference between the two laws has increased because of a series of U.S. Supreme Court rulings in recent years narrowly defining the scope of the ADA.

An example of why state law can be particularly important in this area.

Right to Life/Right to Die in the UK

See this article from the Guardian. A taste:

Who has the right to decide whether a patient's quality of life is too poor to warrant life-prolonging treatment?

That question will be put to three appeal court judges today in one of the most important right-to-life appeals to come before the English courts in recent years.

The judges, headed by the master of the rolls, Lord Phillips, will have to decide where the line is drawn between patients' autonomy and doctors' duty to act in what they believe is their patients' best interests.

The General Medical Council is appealing against a high court ruling last July that its guidance to doctors on the withholding and withdrawing of life-prolonging treatment is unlawful in some respects and breaches human rights.

That ruling was won by Leslie Burke, who has a progressive degenerative disease which, while leaving him fully sentient, will eventually deprive him of the power to feed himself.

Mr Burke, 45, from Lancaster, who has cerebellar ataxia, took the case to court because he feared that when the time came doctors would decide his quality of life was insufficient to warrant prolonging it.

He feared reaching the point where, unable to communicate, he would be denied food and water and would take two to three weeks to die of starvation or thirst.

The case is seen as so important that the health secretary, Patricia Hewitt, the Disability Rights Commission, the official solicitor, the Catholic Bishops Conference for England and Wales, Patient Concern, Medical Ethics Alliance, Alert - Defending Vulnerable People's Right to Live, and the British section of the World Federation of Doctors Who Respect Human Life have all been granted permission to make submissions to the court.

Saturday, May 14, 2005

More Unraveling of Irish Disability Bill

See this article, which begins:

THREE disability groups have pulled out of a consultation forum because of the Government’s failure to take any account of their wishes in the controversial new Disability Bill.

The Forum for People With Disabilities, the National Association for People with an Intellectual Disability (NAMHI) and the National Parents and Siblings Alliance (NPSA), have agreed their core needs are not being addressed in the bill which has gone through committee and is due for report stage in the Dáil.

This is the second Disability Bill in four years to provoke outrage among disability groups.

All three are leading members of the Disability Legislation Consultation Group (DLCG), which represents 550 organisations and was set up by the Government to ensure consultation and make proposals on the bill which was announced by the Government last September.

Education for Children With Disabilities in Australia

See this article, which begins:

Victoria's integration program for students with disabilities and impairments is unravelling in the face of political and bureaucratic inertia.

An investigation by The Sunday Age reveals the once- innovative program is struggling after years of inadequate resourcing and professional training, departmental and specialist staff cuts, poor accountability and budget-driven tightening of eligibility criteria.

Psychologists, speech pathologists, integration teachers, specialist teachers, principals and parents report worsening discrepancies and inequities in individual funding allocations. They warn some schools are starting to wash their hands of integration because it is too hard.

Pelosi on SSDI Cuts Under Social Security Privatization

See this press release. From Rep. Pelosi's statement:

Just two weeks ago, President Bush assured Americans that disability benefits would not be cut under his privatization plan. Yesterday, a White House spokesman said disability cuts are still on the table. Either disability benefits will be cut or they won't be. Which is it, Mr. President?

Thursday, May 12, 2005

Very Sad News

Disability law scholar Adam Milani died yesterday due to complications from surgery. He was just a very good person and will be missed very much by very many. Mercer law school's press release can be found here.

Judge Says Blind Couple Can Open Day-Care Center

See this article by that title in the Rocky Mountain News. The article begins:

Christine and Thomas Hutchinson can open their day-care center after all, if the state doesn't appeal a judge's ruling that their blindness can't prevent them from obtaining a state license.

They would be the first blind people licensed to operate a day-care center in Colorado, their attorney said, adding that other states have permitted similar operations without fighting in the courts.

Good Article on New British Disability Discrimination Act

The article is written from a lawyer's perspective.

Irish Disability Law Smackdown

See this article, which begins:

The Sinn Féin leader in the Dáil, Caoimghín Ó Caoláin, was ordered to leave the House after angry exchanges with the Taoiseach, Bertie Ahern, on the Disability Bill earlier today.

Mr Ó Caoláin said the umbrella group for the disability sector, the DLCG, was meeting today to consider the possibility of withdrawing from engagement with the Government on the bill.

Mr Ahern said that the Government had discussed the group's five demands yesterday and said he would be writing to the group soon.

However, he said there was one amendment they were seeking, to give people a right to resources, which had never been brought in anywhere and could not be introduced in this country.

Mr Ó Caoláin asked why Ireland could not give a lead in this matter by introducing such legislation.

Mr Ahern accused him of being 'entirely dishonest' on the issue, and after further heated exchanges the Ceann Comhairle warned Mr Ó Caoláin that if he opened his mouth one more time he would be asked to leave the House.

Wednesday, May 11, 2005

Blanck on Colker's Disability Pendulum

Peter Blanck has this review of Ruth Colker's new book on the Law and Politics Book Review.

Latest News on NCLB and Kids with Disabilities

See this article in the Times, which begins:

Secretary of Education Margaret Spellings announced guidelines yesterday for states that plan to take advantage of new, short-term flexibility in the way special-education students are tested under the federal education law, No Child Left Behind.

To gain the extra flexibility, Ms. Spellings said, states must show that they are in compliance with other facets of the law and that their efforts to raise the achievement of students with disabilities are working.

Some state education officials and advocates for special-education students quickly criticized the requirements as too stringent.

Until now, the Bush administration has allowed only 1 percent of all students, those most severely handicapped, to be given special tests to assess whether they are comprehending material at grade level. All other disabled students have been required to take the same tests as the general student body.

Last month, Ms. Spellings said the Department of Education would give some states increased flexibility, allowing them to administer alternative tests to an additional 2 percent of students, those who have extreme difficulties with standard instruction and assessment.

Officials confirmed the offer yesterday, but only on a short-term basis, which was left unspecified. They also set a deadline of June 1 for states to apply for the concessions and said they would take effect next school year. In addition, Ms. Spellings restated the department's commitment to allocate $14 million in technical assistance and other help to eligible states.

Tuesday, May 10, 2005

Accessibility for Ontarians with Disabilities Act Adopted

See this news release, which begins:

The Ontario legislature today passed a historic law that will make Ontario a world leader in breaking down barriers for people with disabilities.

“This landmark legislation marks the start of a new era of accessibility in Ontario,” said Minister of Citizenship and Immigration Dr. Marie Bountrogianni. “The Accessibility for Ontarians with Disabilities Act will create an accessible, inclusive society where every Ontarian has the opportunity to work, play, learn and otherwise participate to their full potential.”

The act will take effect on royal assent and will require government to work with partners to jointly develop standards to be achieved in stages of five years or less, leading to a fully accessible Ontario in 20 years. Standards will be set in both the public and private sectors to address the full range of disabilities – including physical, sensory, hearing, mental health, developmental and learning. New standards could include:

  • Accessible pedestrian routes and entrances into buildings
  • Lower counter heights at cash registers to accommodate wheelchairs
  • Large print menus in restaurants for the visually-impaired
  • Staff training in serving customers with learning disabilities.

“We are firmly on the path towards an accessible Ontario, where our quality of life is enriched by the inclusion of all, and our economy benefits from the contribution of all,” Bountrogianni said. “People with disabilities have been pushing for strong accessibility legislation for 10 years and we are delivering.”

Thanks to my former student Ravi Malhotra for passing this along.

Monday, May 09, 2005

More Recent Disability Books

In addition to the Kohrman book discussed in the last post, two other recent books of relevance have crossed my desk: Ruth Colker's The Disability Pendulum: The First Decade of the Americans with Disabilities Act; and the reissued edition (with a new epilogue) of David and Sheila Rothman's The Willowbrook Wars: Bringing the Mentally Disabled into the Community. I haven't had a time to read these yet, though I read the earlier edition of the Rothman book, and I am familiar with the content of the Colker book (much of which has been previously published in law reviews). The Rothman book is an exceptionally interesting treatment of one of the most important deinstitutionalization cases of the 1970s. Colker literally wrote the book on disability law (she's now written several), and her treatment of the ADA's first decade does a great job of presenting the point of view that the statute's effectiveness has been limited by a harsh reception in the judiciary.

New Book on Disability in Modern China

I just finished reading Matthew Kohrman's new book Bodies of Difference: Experiences of Disability and Institutional Advocacy in Modern China. Kohrman, a Stanford Anthropology professor, has written a book that is way too jargon-heavy, but if you dig through the verbiage you will learn lots of interesting facts and analysis about the response to disability by mainland China's government and society in the post-Cultural Revolution era. It's certainly not an easy read, but I'd recommend it to those who are interested in understanding more about disability policy in non-western nations.

Work Incentives for People with Disabilities in Israel

See this piece in Haaretz.

United Arab Emirates Foregoes Job Quota for People with Disabilities

See this article, which begins:

The Ministry of Labour and Social Affairs has withdrawn an earlier proposal to impose a two per cent job quota on employment of people with special needs in private companies which have more than 50 employees and three per cent in the government and public sector, a senior official confirmed yesterday.

Dr Ali bin Abdullah Al Kaabi, Minister of Labour and Social Affairs, said that the government will not impose any quota on employment of the disabled either in the private or the public sector.

“The ministry has drafted a new law on the rights of the disabled people and has not included any provision compelling private establishment to fulfil a quota on recruiting individuals with disabilities,” he said.

This proposal, however, was included in the initial draft law, the first in the UAE that secures the rights of the people with special needs in equal treatment, health services, education, employment, public and cultural and sports life, suitable and disabled friendly environment, transport, driving and parkings, housing as well as rehabilitation and training.

“The law will outline the rights of the disabled and stipulate the regulations that need to be observed by establishments,” the minister said, noting that one of his priorities is the welfare of the disabled.

Not Dead Yet Brief in Gonzales v. Oregon

You can find the brief of Not Dead Yet and a number of other disability organizations supporting the petitioner (the federal government) in the Oregon "Death with Dignity" case here.

Discontent Over Proposed Irish Disability Law

See this report, which begins:

Organisations working with the disabled have accused the Government of letting them down in relation to the new Disability Bill.

The legislation is expected to be rushed through the Dáil before the end of current term despite a number of concerns being raised by various organisations.

Disability groups are particularly concerned that the bill does not set out legally enforceable rights for people with disabilities.

The Government is resisting a rights-based approach as it believed this could lead to a raft of court cases from disabled people demanding access to services.

Ragged Edge on Disability Blogs

See this piece. Some of these look pretty familiar . . . .

Ragged Edge on California "ADA Notification" Developments

See this long piece, which I can't do justice to here. It's an important issue, one on which we're going to see lots of action and agitation for the foreseeable future. For the National Federation of Independent Business's (quite different) view, see this piece.

New Manhattan Charter School for Kids with Autism

See this article from a few days ago:

Two Manhattan women have won approval to open a charter school for autistic children in New York, the first public school in the city dedicated to providing the expensive therapy that can transform the lives of autistic children and their families.

* * *

A two-inch-thick folder details the school's curriculum, based on studies showing Applied Behavioral Analysis (A.B.A.) to be the most effective way to teach autistic children.

In this approach, teachers work one on one with a child to build social and language abilities in very small steps, by giving the child a reward for learning words, for example, or for sitting still or greeting someone.

Ms. Lainer and Carolyn Ryan, director of education at the new charter school, visited the Institute for Educational Achievement in New Milford, N.J., which also uses A.B.A. techniques. At the school, decorated in neutral colors that do not overstimulate pupils, children work one on one with instructors and are rewarded for achievements like saying the "m" sound correctly, identifying a number, or, for an older child, writing a short story titled "If I Were Rich."

Nationwide Medicaid Watch

See this article in today's New York Times. Some highlights:

Governors and state legislators have devised proposals for sweeping changes in Medicaid to curb its rapid growth and save billions of dollars.

Under the proposals, some beneficiaries would have to pay more for care, and states would have more latitude to limit the scope of services.

The proposals, drafted by separate working groups of governors and state legislators, provide guidance to Congress, which 10 days ago endorsed a budget blueprint that would cut projected Medicaid spending by $10 billion over the next five years.

Many of the proposals resemble ideas advanced by President Bush as part of his 2006 budget. In some cases, the governors embrace Mr. Bush's proposals but go further. At the same time, they also reject some of the president's recommendations that they believe would shift costs to the states.

* * *

State officials generally support Mr. Bush's proposal to limit the ability of elderly people to qualify for Medicaid coverage of nursing home care by transferring assets to their children. The governors say such restrictions "should be encouraged," because "Medicaid can no longer be the financing mechanism for the nation's long-term-care costs." Medicaid now pays for about two-thirds of nursing home residents.

Mr. Hurson, the president of the conference of state legislatures, who is also chairman of the health committee in the Maryland House, said, "Medicaid was never intended to be a middle-class entitlement program for nursing home care."

State legislators have discussed a proposal to give states a fixed amount of federal money for long-term care, a sort of block grant that would automatically be increased each year to keep pace with medical costs and demographic changes. State officials would have broad discretion to use the money for nursing homes and home health care, but individuals would not have an entitlement to such services.

* * *

Governors seek "broad discretion" to set premiums, co-payments and deductibles, subject to certain limits. Congress, they say, could establish "financial protections to ensure that beneficiaries would not be required to pay more than 5 percent of total family income."

* * *

State officials also want to change what they see as one of the most onerous requirements of the Medicaid law. Under this provision, states must treat any health problems discovered in periodic examinations of children under the age of 21. About half of the states have been successfully sued under this provision.

The National Conference of State Legislatures says Congress should "provide more flexibility for states" to limit this benefit.

* * *

Governors also want Congress to make it easier for them to persuade federal courts to set aside orders relating to their Medicaid programs.

Note especially that last one. I assume this refers to legislation, like that currently pending in Congress, that would essentially overturn Frew v. Hawkins.

Sunday, May 08, 2005

Timmons on Accommodating Misconduct Under the ADA

New on Westlaw: Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with Disabilities Act, 57 Fla. L. Rev. 187 (2005). The introduction:

An employer discharges an anesthesiologist with sleep apnea for falling asleep during surgical procedures. Another employer discharges a manager with post-traumatic stress disorder for an angry confrontation with a female co-worker during which he slapped her hand. A third employer discharges a grocery store clerk with Tourette's Syndrome for outbursts of profanity and racial slurs in the workplace. A fourth employer discharges a long-standing administrative employee with major depression, who left work in an emotional crisis and was admitted to a psychiatric hospital, for leaving the workplace without notifying her direct supervisor.

The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities because of their disabilities. Assuming that the conditions of these employees constitute disabilities within the meaning of the Act, do any of their discharges implicate the protections of the ADA? A few courts have held that discharge due to conduct causally connected to a disability constitutes discrimination because of disability and violates the ADA unless the plaintiff is not qualified for his or her job. Some other courts have held that employers can discharge employees for conduct causally connected to their disabilities only if the violated conduct rules are job-related and consistent with business necessity. Most courts, however, have held that disabled employees who engage in misconduct are unprotected by the ADA, asserting that "if a disabled employee engages in misconduct, an employer may terminate or discipline that employee without incurring liability." Under the majority view, a finding that an employee engaged in misconduct, even misconduct related to his or her disability, is generally fatal to the employee's ADA claim. Moreover, although the ADA requires employers to make reasonable accommodation to the limitations of disabled individuals, courts have held that the duty of reasonable accommodation never compels an employer to excuse past misconduct.

The proper analysis of disability-related misconduct is an important issue under the ADA because many disabilities, particularly mental ones, manifest themselves in the form of conduct. If employers are able to avoid ADA scrutiny when discharging a disabled employee simply by pointing to the employee's conduct, the ADA's promise of equal employment opportunity to individuals with disabilities will be thwarted. On the other hand, providing too much protection to disability-related misconduct would interfere greatly with the ability of employers to operate their businesses safely and efficiently. The specter of a physician falling asleep during surgery with impunity, provided that he could later claim that his behavior was caused by a disability, is a frightening one. But is the majority view the only interpretation of the ADA that would avoid this consequence? In order for the anesthesiologist to lose his claim, is it necessary for the manager, the grocery store clerk, and the administrative employee to have no recourse under the ADA as well?

In the recent case of Raytheon Co. v. Hernandez, the Supreme Court indicated that the proper analysis of disability-related misconduct turns on the distinct forms of disability discrimination prohibited by the ADA: disparate treatment, failure to provide reasonable accommodations, and disparate impact. This Article analyzes the existing jurisprudence on disability-related misconduct through the lens of these forms of discrimination, demonstrating that courts have failed to apply them properly in cases involving misconduct.

Part II outlines the forms of discrimination prohibited by the ADA, as well as the ADA's limited protected class. Part III describes the existing jurisprudence of the ADA and misconduct, discussing disabilities that may manifest themselves in the form of conduct and exploring current approaches to cases involving disability-related misconduct. Part IV critiques the current approaches first by exploring the meaning of "misconduct" and then by examining the lessons of Raytheon-and its emphasis on the distinct forms of discrimination-for disability-related misconduct cases. Part V applies the lessons of Raytheon to the cases of the anesthesiologist, the manager, the grocery store clerk, and the administrative employee, exploring the ability of these workers to challenge their discharges as disparate treatment, disparate impact, and failure to provide reasonable accommodation. As part of this analysis, this Article contends that a second chance should be a possible reasonable accommodation in cases (1) where there is little evidence of employee fault with respect to both the misconduct and the failure to request an accommodation prospectively, (2) where the misconduct is of low severity, and (3) where the employee is unlikely to repeat the misconduct. In Part VI, the Article concludes that, despite potential problems with accommodating misconduct, a finding that a discharged employee engaged in disability-related misconduct should not be fatal to the employee's ADA claim. Rather, courts should scrutinize carefully whether such employees have experienced discrimination because of their disabilities, examining all of the forms of discrimination prohibited by the ADA.

Thursday, May 05, 2005

EDNY on Switching Apartments as Accommodation Under FHAA

In Bentley v. Peace and Quiet Realty 2 LLC, 2005 WL 1023279 (E.D.N.Y., May 3, 2005) (sorry, I can't find a free version), Judge Garaufis of the Eastern District rejected the defendant's motion to dismiss in an interesting Fair Housing Act accommodations case. The plaintiff lives on the top floor of a walk-up rent-stabilized apartment building in New York. Because of her disability, she finds it extremely difficult to climb stairs. Accordingly, she requested that the landlord accommodate her disability by permitting her to move to a vacant first-floor apartment while paying the same rent she was currently paying ($820.64 per month) rather than the maximum rent the landlord could charge for the vacant apartment under the rent stabilization law ($1,000.30 per month). The landlord moved to dismiss on two basic grounds: (1) that the requirement that tenants pay the maximum rent permitted by law is a disability-neutral policy; and (2) that the requested accommodation was geared at the plaintiff's poverty rather than her disability. The district court rejected the first argument as inconsistent with the Supreme Court's decision in US Airways v. Barnett, which held that reasonable accommodations could trump "disability-neutral" policies. And it rejected the second argument on the ground that moving to a lower floor was directly targeted to accommodate the plaintiff's disability.

Tuesday, May 03, 2005

Colorado Learner's Permit Suit

See this article, which begins:

Julie Barber is 15, with a learner's permit and a burning desire to get behind the wheel of a car.

But due to a combination of a recent change in state law and her mother's severe vision problems, she won't be driving anytime soon.

In a lawsuit filed Monday in U.S. District Court in Denver, Barber and her mother contend they are victims of discrimination.

That's because the state requires a parent or guardian with a Colorado driver's license to be in the car with Julie. But her mother doesn't have a license, and state authorities are refusing to allow the Barbers to substitute another adult.

Marcia Barber, 50, contends Colorado Attorney General John Suthers suggested she assign legal guardianship of her daughter to someone else so the girl could drive, according to the lawsuit.

State Medicaid Watch: Missouri

See this article, which begins:

Occasional eye exams are in, but not the glasses. Motorized wheelchairs will be covered, but not the batteries to run them.

That's the real-life effect for thousands of Missourians under a budget plan agreed to Monday by legislative negotiators that cuts the services available through the state's Medicaid health care program.

All told, the budget would eliminate Medicaid coverage for a projected 90,604 low-income parents, seniors and disabled over the next year. Numerous others would be forced to pay more out of their pockets through premiums, co-payments and personal medical expenses.

And hundreds of thousands of adults remaining on Medicaid would have their benefits cut. Besides eye glasses and wheelchair equipment, the state also would stop paying for such things as dental care, hearing aids, canes, crutches and rehabilitation therapies.

Interesting Article From My Backyard

There's a troubled state institution for people with mental retardation and developmental disabilities in St. Louis, which state officials have been making noises about closing (less because of an ideological desire for deinstitutionalization than because of budgetary imperatives). Parents of the institution's residents have been up in arms about the possibility that the institution will close. This article gives a good taste of the way in which some parents tenaciously resist deinstitutionalization. It would have been nice to see some disability rights advocate quoted, though.

State Medicaid Watch: Florida

See this article, which begins:

Spending caps on the health care coverage they'll receive each year. Limits on the number and types of medications prescribed. No assurance of getting to see a physician of their choice.

Poor and disabled Floridians -- beginning with 227,000 of them who live in Broward County -- would face harsh changes under a restructuring of the state's Medicaid program that the Florida House of Representatives overwhelmingly approved Monday.

Nat Hentoff on Disability Rights and the Schiavo Case

See this column.

Deliberations Over Irish Disability Law

See this article on Ireland Online. A taste:

Labour Party TD Kathleen Lynch has attacked the Government over its failure to introduce legally enforceable rights for the disabled.

Speaking as the Dáil debated the Disabilities Bill today, Ms Lynch said it was disingenuous to claim that such a move would lead to a raft of court cases against the Government.

The legislation was drawn up following years of negotiations with groups working with the disabled, but many of these groups had expressed disappointment that the bill is not rights-based.

The Future of Mental Health Care Depends on Medicaid Reform

See this interesting dispatch by that title from the Progressive Policy Institute.

Monday, May 02, 2005

Transportation Subsidies for People with Disabilities in Australia

See this article, which begins:

Thousands of disabled welfare recipients will get $100 each fortnight to help pay for taxis to job interviews and work.

Under budget plans to revamp the welfare system, to be unveiled on Tuesday, the Government has agreed to boost transport subsidies to lure more people into work.

Fortune Small Business on Entrepreneurs and the ADA

See this article. A taste:

The ADA, which turns 15 this year, has literally broken down barriers for Americans with disabilities. Most small-business owners say they want to comply. But many also believe that the law's requirements are growing vaguer and more onerous. The two primary federal agencies that oversee the law—the U.S. Department of Justice and the Equal Employment Opportunity Commission—don't do any policing. This might seem like good news to those who hate government regulation, but there's a downside. With no inspectors making the rounds of small businesses to issue warnings to those that aren't complying, it's up to entrepreneurs to stay abreast of how the broadly written statute is interpreted in courts around the country.

Those who don't keep up risk getting sued—and even if they win in court, they often lose time and legal fees and suffer damage to their reputation. While the ADA is quite specific on some requirements, there are a lot of gray areas. The law contains many detailed rules related to access to public spaces such as stores and restaurants. For instance, doorways must have openings at least 32 inches wide. Such guidelines apply even to businesses operated by one person. But the rules about access are less stringent for older buildings than for those built after 1992. How much less stringent is a matter of interpretation.

The ADA also covers discrimination against employees with disabilities, an equally fraught issue for employers. If a small business fails to hire a qualified job applicant who is deaf or copes with diabetes, it faces a potential lawsuit. The same goes for a company that fires or downgrades the job duties of a disabled person. But this part of the law differs from the one governing access because it applies to any company with 15 or more workers.

Small businesses are supposedly held to lower standards than large corporations and are required only to comply with the ADA in ways that are "readily achievable." But that term is defined on a case-by-case basis. "It's really difficult for a small business to keep up with all the rules and regulations" and court decisions, says William Anthony, a Florida State University management professor and expert on the ADA.

The law even extends to psychiatric conditions. Fire a poor performer who happens to be depressed, and that employee may be able to sue, arguing that his condition is a disability. For such a case to hold up, the plaintiff needs to have a diagnosed condition and an employer must know about it. But ADA lawsuits stemming from psychiatric conditions are notoriously murky.

The article gives you a good sense of how the organized business community feels about the ADA, though I think it pretty substantially overstates the burden the law places on businesses.

Sunday, May 01, 2005

Atlanta Journal-Constitution on Medicaid and Long-Term Care

See this editorial. A taste:

Elderly, blind and disabled people represent roughly a quarter of the nation's 50 million Medicaid patients, yet they account for 71 percent of the program's costs. The National Governors Association reports that people with disabilities are the fastest-growing Medicaid eligibility group. Over the next 30 years, the number of Americans aged 65 and older — and the proportion of those individuals 85 and older — is expected to double.

Medicaid, not Medicare, will pick up most of the long-term care services of many of these patients. In order to keep Medicaid sustainable for the basic services it provides for pregnant women and children and other poor and uninsured Americans, the nation will need to come to grips with what role government and private individuals should play in ensuring long-term care.

Among other things, some of the nation's governors want Medicaid to take aim at the common practice of allowing elderly nursing home patients to give away their assets so that Medicaid will pick up their bills. That's why Congress needs to seriously consider incentives for making the purchase of long-term care insurance more affordable.

Similarly, the private sector should step up promotion of innovative long-term care plans, such as those that allow life insurance benefits to be converted for nursing home care. Then Medicaid might have a chance to survive.

I'm not sure these are exactly the right proposals, but the issue is super-important.

New Accessibility Law in Idaho

See this report, which begins:

Disabled Idahoans are hoping to benefit from a new state law that goes into effect in July. It allows residents to file complaints with the Idaho Human Rights Commission over disabled access to businesses.

Before, the only way to file such a complaint was to go through the U.S. justice department.

Leslie Goddard, the director of the commission, says that agency often wasn't responsive.

She's hoping the new law will push more businesses into complying with the 15-year-old Americans with Disabilities Act.