Disability Law and the EEOC GC Nominee

Yesterday, the President nominated Ronald Cooper to be the next General Counsel of the Equal Employment Opportunity Commission, the federal agency responsible for enforcing the fair employment laws. Cooper is a longtime management lawyer at Steptoe & Johnson. His firm bio notes some extensive experience he has had on the defense side of ADA issues:

A particular focus of Mr. Cooper's practice has involved the application of employment discrimination laws to employee benefits in various forms. He litigated some of the principal cases involving challenges under Title VII and the ADEA to the design and administration of employee health, disability and retirement plans.

Recently he has defended employers and insurers against claims that limitations on benefits for mental/nervous conditions in long-term disability plans violated Title I (employment) and Title III (public accommodations) of the Americans with Disabilities Act and the Employees Retirement Income Security Act (ERISA). He successfully represented defendants in district court litigation in the Eastern District of Virginia and the District of Columbia. He also represented either a party or an amicus curiae in the DC, Second, Third, Fourth, Sixth, and Eleventh Circuits and in opposition to petitions for certiorari to the United States Supreme Court.

His listed publications include the following:

District of Columbia Bar Task Force, Report on the Effect of the Americans with Disabilities Act on Employer-Sponsored Health Plans (Aug. 1993).

Employee Benefits: A Defense Perspective, Appendix to Chapter 13 Employee Benefits, in Burgdorf, Disability Discrimination in Employment Law (Bureau of National Affairs, 1995).

EEOC Guidelines on Psychiatric Disabilities Under the Americans with Disabilities Act, Matthew Bender Continuing Legal Education Program (June 5, 1998).

Defending Employee Benefit Claims Under the Americans with Disabilities Act, Address at May 6, 2001 - The American Association of Health Plans 12th Annual Managed Care Law Conference (May 6-8, 2001).

Legal Challenges to Limits on Mental/Nervous Benefits in Disability Plans, Address at October 27, 2002 - The Society of Actuaries Annual Meeting, Panel: Managing the Mental/Nervous Risk in Disability Insurance.

Pizza Hut Accessibility Settlement

See this article, which begins:

The nation's largest Pizza Hut franchisee has agreed to renovate hundreds of restaurants to settle claims they are inaccessible to the disabled, the Justice Department announced Tuesday.

NPC International Inc., which has executive offices in Lenexa, Kan., and its restaurant services center in Pittsburg, Kan., reached the settlement to resolve alleged violations of the Americans with Disabilities Act.

The agreement requires restaurants to repair parking lots, seating areas, bathrooms and self-service counters to bring them into compliance.

The company, which operates about 800 restaurants in 25 states, did not admit any violations of federal law and reached the settlement to avoid potential litigation, according to a copy of the settlement agreement.

"Too often, the ease and enjoyment of restaurant dining is not a reality for individuals with disabilities," said Wan J. Kim, assistant attorney general for the department's Civil Rights Division. "I commend NPC for their commitment to take the steps necessary to make its Pizza Hut restaurants accessible."

Under the settlement, NPC must alter or remodel all the Pizza Hut restaurants it owns to make them comply with the ADA and train all its employees and store managers on how to operate under the law.

Thanks to Paul Secunda for the tip.

D. Colo. Preliminarily Approves K-Mart Accessibility Settlement

In Lucas v. Kmart Corp., 2006 WL 722166 (D. Colo., Mar. 22, 2006), the district court granted preliminary approval to a settlement of a nationwide ADA Title III class action challenging the inaccessibility of Kmart stores. According to the district court, the settlement requires the following:

• Kmart will survey and, with few exceptions, bring all of its stores into compliance with the Department of Justice Standards for Accessible Design and all of its stores in California into compliance with Title 24 of the California Code of Regulations within approximately seven and a half years (Agreement ¶ 6);
• Kmart will ensure that all merchandise on “fixed displays”-including gondolas, perimeter walls, and “I” walls-as well as large appliances, drive aisle displays and sidewalk displays will be on an accessible route of at least 36 inches (Agreement ¶¶ 12 .6.1-.3, 12.6.8);
• Kmart will ensure that all accessible restrooms and fitting rooms will be on an accessible route and maintained free and clear of obstructions (Agreement ¶¶ 12.6.5-.6);
• Kmart will ensure that one accessible check-out lane is open at all times the store is open (Agreement ¶ 12.5);
• Kmart will, in all but 10% of its stores, provide a path of at least 32 inches to at least one side of moveable apparel displays in 80% of floor space occupied by moveable displays as well as a distance of 32 inches between certain types of moveable apparel displays when they are placed next to one another (Agreement ¶¶ 12.1-.2);
*3 • Kmart will implement a customer service system for access to moveable apparel displays and furniture displays under which customers with disabilities who use wheelchairs or scooters for mobility will have the option of requesting assistance or requesting that Kmart provide them with a two-way communications device so that they may summon assistance when they need it (Agreement ¶ 12.3);
• Kmart will amend its policy and training materials to implement these new policies (Agreement ¶ 13);
• Compliance will be monitored using “mystery shoppers,” as well as customer feedback through the Internet, a toll-free phone line, and in-store forms (Agreement ¶¶ 14.3-.4);
• The Nationwide Class will release claims for injunctive relief under Title III of the ADA, under state statutes that incorporate or are equivalent to Title III, and under California law through the end of the term of the settlement, which is expected to be approximately 2014 (Agreement ¶ 26.1);
• Kmart will establish a fund (the “Damages Sub-Class Fund”) in the amount of $13,000,000 (consisting of $8,000,000 in cash and $5,000,000 in gift cards redeemable at face value) from which members of a Damages Sub-Class that plaintiffs have requested the Court to preliminarily certify for settlement purposes concurrently with the requested preliminary approval of this settlement are eligible to recover (Agreement ¶ 15.1.1);
• The Damages Sub-Class Fund will be allocated among the Sub-Class States based on a formula, described in detail below, that reflects the number of Kmart Stores in each Sub-Class State, and the Statutory Minimum Damages recoverable in each Sub-Class State (Agreement ¶ 15.5.2);
• For each qualifying visit to a Kmart store, a member of the Sub-Class may recover up to the Statutory Minimum Damages recoverable in the Sub-Class State in which he or she shopped, and the maximum number of qualifying visits for which a Sub-Class member may recover is two (Agreement ¶ 15.5.3.3);
• Kmart will pay damages in the amount of $10,000 each to the three original named plaintiffs, and $1,000 each to the six named plaintiffs of the proposed damages subclass (Agreement ¶ 15.2);
• The majority of any funds remaining in the Damages Sub-Class Fund after the claims period will be given to specified non-profit entities that advocate for the rights of persons with disabilities (Agreement ¶ 15.6);
• Members of the Sub-Class have the right to opt out of the damages provisions of the Settlement Agreement, but members of the Class and Sub-Class cannot opt out of the injunctive provisions (Agreement ¶ 16);
• In addition to releasing claims for injunctive relief under Title III, equivalent state statutes, and California law, Sub-Class members will release claims for Statutory Minimum Damages under the laws of the seven Sub-Class States through the end of the term of the Agreement, but will not release claims for any other damages (Agreement ¶ 26.2);
*4 • No member of the Nationwide Class will release damages claims with respect to the laws of any state other than those of the Sub-Class States (Agreement ¶ 26.2);
• Notice will be provided to the class in the manner set forth below;
• Kmart will pay attorneys' fees up to the date of final approval in the amount of $3,250,000, subject to Court approval, and will pay class counsel additional reasonable fees in the future for work that they do during the term of the Agreement implementing and assuring compliance with the Agreement (Agreement ¶ 20.2); and
• This Court would retain continuing jurisdiction throughout the term of the Agreement to interpret and enforce the Agreement (Agreement ¶ 35).

A fairness hearing will be held on July 27, 2006.

Emens on Mental Illness and the ADA

Elizabeth Emens's piece, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, about which I blogged here, has just come out at 94 Geo. L.J. 399 (2006). From the introduction:

People often discriminate against those with mental illness, I argue, because of how those with mental illness make them feel, in ways that are intimately bound up with how people with mental illness themselves feel. Mental illness tends to produce what I call "hedonic costs"--an increase in negative emotions or a loss of positive emotions--in people with mental illness. And the hedonic costs of an individual's mental illness may create hedonic costs for nearby others. For example, an employee with bipolar disorder may behave erratically or express hostility during a manic phase, causing her coworkers to feel frustrated or scared or hostile. Her coworkers may therefore wish to avoid her, in order to avoid these feelings. Hedonic costs are relevant to various types of discrimination, but particularly capture a core reason for discrimination against people with mental illness.

Hedonic costs based on "emotional contagion" form a peculiarly sympathetic and potent basis for discrimination. Emotional contagion is the process by which we absorb the emotions of nearby others through largely unconscious mechanisms. Research on emotional contagion suggests that people with mental illness are likely to cause others to share their negative emotions. For example, spending time around a person with depression--even having a short conversation--typically causes others to feel greater sadness and hostility. And studies indicate that liking someone makes the liker more susceptible to absorbing the other person's emotions. Thus, someone who bears no animus towards people with mental illness, and perhaps cares about or likes certain individuals with mental illness, may for this reason feel an impulse to avoid coworkers and others with mental illness.

Hedonic costs based on emotional contagion defy our intuitions about the potential benefits of fully integrating people with mental illness into the workplace and thus seem to present a peculiarly difficult case for antidiscrimination law. Under the standard ideal of workplace integration--sometimes called the contact hypothesis--integration helps to overcome discriminatory animus by putting members of the disliked group alongside potential discriminators. The hope is that by working side by side with members of the disliked group, a discriminator will overcome his discomfort with and dislike of that group. Emotional contagion suggests limits, however, to the salutary antidiscrimination effects of contact with people with mental illness. Most mental illnesses are defined in part by the mentally ill person's negative emotions; for example, depression is defined at least in part by negative affect, by hedonic costs to the depressed person herself. And the research on emotional contagion indicates that the depressed person's hedonic costs are more likely to be transmitted to coworkers who like her. Thus, even if contact could eliminate the traditional bases for discrimination against people with mental illness--such as animus and stereotyping--there would likely remain a core basis for discrimination in this context: others' desire to avoid absorbing negative emotions that constitute a person's illness.

An understanding of emotional contagion and the hedonic costs of mental illness has important implications for resolving cases brought by plaintiffs with mental illness under the ADA, which expressly protects mental as well as physical disabilities. First, employers must bear the hedonic costs of a plaintiff's mental illness unless those costs prevent the employee from performing the essential functions of the job. Antidiscrimination efforts are not costless, and the ADA, with its explicit accommodation requirement, expressly envisions employers absorbing some costs. Thus, employers may not generally define the essential functions of jobs to include making others feel positive emotion or not making them feel negative emotion. Courts must therefore apply greater scrutiny to claims by employers that a certain job requires affecting others' emotions to be sure that such emotional effects are indeed among the fundamental, rather than the marginal, job duties. Second, a recognition of the role of hedonic costs in mental illness helps resolve a disagreement between circuits over who should bear the greater burden in employer-employee negotiations over possible accommodations for people with mental illness: Because difficulty in negotiating may commonly accompany mental illness, employers should bear the greater burden for facilitating these negotiations, as a form of meta-accommodation of the mental disability. Third, at this moment when the Equal Employment Opportunity Commission's ("EEOC's") most promising interpretation of what it means for a person to be "regarded as" disabled is on shaky doctrinal ground, a better understanding of the mind of the discriminator helps to show why that interpretation is vital to the correct interpretation of the Act. Finally, recognizing the "rational" fear of certain hedonic costs helps to explain why an apparently easy doctrinal question-- whether interacting with others is a major life activity for purposes of the definition of disability under the ADA--has been hard for courts, and thus helps to supply the answer: Interacting with others should be considered a major life activity for purposes of defining what counts as a disability under the statute.

Third Circuit: Job Rotation Might Not Be Essential Function

In its opinion last week in Turner v. Hershey Chocolate USA, the Third Circuit made two rulings that should be helpful to ADA employment plaintiffs. The plaintiff was an inspector in a Hershey plant that makes peppermint patties. The patties were inspected on three assembly lines, one of which required inspectors to do a lot of bending and twisting, which the plaintiff's medical condition kept her from doing. When Hershey's instituted a rotation system that required inspectors to work on all three lines, the plaintiff objected and ultimately went on long-term disability at the company's suggestion. The district court granted Hershey's motion for summary judgment, but the Third Circuit reversed.

The court of appeals first held that the plaintiff's applications for long-term disability and SSDI were not inconsistent with her claim that she was "qualified" for her job under the ADA: "Because the[] statements [in her disability application] did not state categorically that Turner could not work at all or take into account Turner’s entitlement toreasonable accommodation, we see no inconsistency between these statements and her current claim."

On the merits, the court of appeals held that the district court was incorrect to rule that rotation across lines was an essential function of the inspector job. The court of appeals noted "that (i) the shaker table inspector position does not exist in order that inspectors may rotate; that (ii) implementing or not implementing the rotation scheme would appear to have no effect on the number of employees required to operate the shaker tables; and (iii) rotating is not a highly
specialized function and Turner was not hired for her rotating ability." The court also noted several facts that "weigh against a finding that rotation itself is an essential function of the shaker line position: (ii) the written job description for the shaker table inspector position contains no reference to rotation; (iii) little time– presumably only a few seconds– is actually spent rotating from machine to machine each hour; (v) the collective bargaining agreement makes no reference to the rotating of shaker table inspectors; and (vi) in the past, shaker table inspectors have not rotated." In light of these facts, the court of appeals concluded that a jury must decide whether rotation was an essential function of the plaintiff's job.

Perlin on Comparative Psychiatric Abuse

New on SSRN: Michael Perlin, International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent. The abstract:

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. Within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993 when, in a groundbreaking article, Eric Rosenthal and Leonard Rubenstein first applied international human rights principles to the institutionalization of people with mental disabilities.

For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? In Part I of this article, I discuss the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part II, I discuss developments after these revelations were publicized. In Part III, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part IV, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part V, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

Prawfsblawg on Nussbaum on Disability and Social Contract Theory

Ethan Leib at Prawfsblawg has started a bit of an interesting discussion about Martha Nussbaum's recent book on disabilities and social contract theory. Check it out.

Me on "Abusive" ADA Litigation

New on SSRN: my essay, The Paradox of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation. The abstract:

In the past two decades, business groups and their political allies have often criticized broad civil rights remedies - particularly the availability of money damages - for encouraging abusive and extortionate litigation practices. In its decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court seemed to heed those arguments when it rejected the catalyst theory for recovery of statutory attorneys' fees. As many commentators have pointed out, these limits on remedies are likely to undermine the enforcement of civil rights laws. That criticism is correct as far as it goes, but it ignores an important part of the story. Limitations on civil rights remedies - like the bar to damages recovery in the ADA's public accommodations title and the rejection of the catalyst theory in the Buckhannon decision - do not simply reduce the number of cases that get brought. They also change the character of the cases that get brought. In particular, limitations on remedies may themselves create an incentive for conduct that appears to defendants as abusive. At the end of the day, civil rights advocates may confront a vicious cycle: Concern with abusive litigation motivates the adoption of limitations on remedies; those limitations lead plaintiffs' lawyers to engage in litigation conduct that appears even more abusive; the newly energized perception of abuse motivates adoption of even more limitations; and so on. This Essay illustrates these points by examining an important ongoing issue: the controversy over serial ADA public accommodations litigation. More than fifteen years after the enactment of the ADA, violations of the statute's public accommodations title remain, by all accounts, widespread. For many federal judges, however, widespread violations of a fifteen-year-old law appear to be of less significance than the motives of the relatively few individuals who are seeking to enforce that law. A handful of individual plaintiffs and lawyers have brought dozens, hundreds, or even thousands of cases challenging inaccessible stores and restaurants. There is good reason to believe that in a large majority of the cases brought by serial ADA plaintiffs the defendants were in fact violating the statute. But in a large and growing number of cases brought by those plaintiffs, judges have dismissed suits, or refused to award attorneys' fees, based on what they believe to be the abusive litigation practices of the plaintiffs and their counsel - in particular, the practices of bringing suits against large numbers of businesses, often without providing notice to the defendants before heading for court. Judges have thus picked up on (and given further life to) a set of arguments leveled against abusive ADA litigation in the popular and political discourse. This Essay argues that the controversy over abusive ADA litigation perfectly illustrates the paradoxical effects of limiting civil rights remedies. The ADA's public accommodations title is massively underenforced, and the limitations on remedies for violations of that title are the most likely culprit. But the litigation conduct that courts, Members of Congress, and business groups have labeled abusive also grows out of the statute's remedial limitations.

Senate Medical Insurance Preemption Bill Advances

See this story by Ron Brownstein in the LA Times. Some excerpts:

The battle over healthcare moved to a new front Wednesday as Senate Republicans advanced a bill that would change the way health insurance was sold nationwide.

On a party-line vote, a Senate committee approved a bill that would preempt state laws that require insurance policies to cover specific services, such as maternity care and supplies for diabetics.

California, which mandates that insurers cover 23 specific treatments and procedures — including mammograms and second opinions — would be one of the states most affected by the legislation.

Sponsors of the bill said overriding state coverage rules, as well as state laws regulating insurance pricing, would allow insurers to offer less-expensive plans. They say it would prompt more small businesses to purchase insurance for workers.

"Today's vote is the first major step in 15 years to get affordable health insurance for small businesses and working families," said the bill's sponsor, Sen. Michael B. Enzi (R-Wyo.).

Enzi heads the Health, Education, Labor and Pensions Committee, which approved the bill, 11 to 9.

Critics, including the panel's Democratic members, charged that the legislation would undermine state protections meant to guarantee that insurance policies provide adequate health coverage at affordable prices.

California Insurance Commissioner John Garamendi warned that the bill would lead to "an ever-increasing number of people who are uninsured … and for those with insurance, the benefit package is certain to be dramatically reduced."

* * *

The broader fear is that younger and healthier workers will gravitate to the lower-cost plans. If that happens, plans offering more comprehensive benefits would be left caring for a disproportionate share of older and sicker Americans. That could unravel the concept of collective risk-sharing between the healthy and the sick, and raise premiums for more comprehensive plans to unaffordable levels.

Opponents contend that another provision of the legislation could compound that risk. The section would override laws in California and other states limiting how much insurers could vary the premiums charged to small businesses based on the health of workers.

Under the California law, for instance, the most expensive policies for small businesses can cost only about 22% more than the least expensive, according to figures from Garamendi's office. But his office has calculated that under Enzi's bill, insurers would be permitted to vary their prices by five times as much as that.

This bill is very bad news for people with disabilities and anyone with a serious health condition. But at the end of the day, it will be difficult to solve these problems without some form of universal health care.

E.D. Wis: Sex Offense Conviction is Not a Disability

New on Westlaw: Shaw v. Smith, 2006 WL 587667 (E.D. Wis., Mar. 10, 2006). The pro se plaintiff, a state prisoner, argued that the state violated Title II of the ADA by barring him from participating in a "scared straight"-type program in which inmates tell impressionable kids not to lead a life of crime. The prison excluded the plaintiff from the program because he had been convicted of a sex offense, and the prison's policy is to bar all convicted sex offenders from the program. The district court, in what should be an unremarkable decision, granted summary judgment to the state on the ground that being convicted of a sex offense is not a disability under the ADA.

Washington Post on College Suicide Policies

See this interesting article, which begins:

About 2 a.m. one sleepless night, sophomore Jordan Nott checked himself into George Washington University Hospital.

He was depressed, he said, and thinking about suicide.

Within a day and a half of arriving there, he got a letter from a GWU administrator saying his "endangering behavior" violated the code of student conduct. He faced possible suspension and expulsion from school, the letter said, unless he withdrew and deferred the charges while he got treatment.

In the meantime, he was barred from campus.

"It was like a stab in the back," he said. He felt they were telling him, "We're going to wipe our hands clean of you."

His response has college administrators around the country taking notice: Nott sued the university and individuals involved. The school violated federal law protecting Americans with disabilities, the complaint argues. The law covers mental as well as physical impairments.

In essence, it says the school betrayed him by sharing confidential treatment information and suspending him just when he most needed help.

In some ways, this looks like the issue in Echazabal -- can an entity discriminate on the grounds that the individual with a disability is a threat to himself? -- but doesn't this look a lot more like a college washing its hands of a problem? They don't want the liability if he kills himself while a student, so they kick him out? That might reduce their risk of liability, but does it aid or harm suicide prevention?

NYT Magazine on Wrongful Birth

Read the piece here. Thanks to How Appealing for the pointer.

NYT on New York Nursing Home Deinstitutionalization Suit

See this article, which begins:

New York State regularly sends patients from mental hospitals to nursing homes, where it illegally houses hundreds of them without the care they need and often under conditions that approach imprisonment, according to legal groups designated by the state to represent the disabled.

Those groups said they would file a lawsuit today in Federal District Court in Brooklyn, accusing New York State of violating several federal laws and claiming that many of the mentally ill patients who have been moved from state psychiatric hospitals into the nursing homes should instead be back in their own neighborhoods, living independently but with government help.

The groups say that they have talked with the Pataki administration for years, seeking to end the practice, but that the problem has worsened. They say more than 1,000 former psychiatric patients could now be in nursing homes in New York and New Jersey. They charge that 500 to 600 are in two New Jersey homes alone, nearly twice as many as in 2002 when the practice first came to light.

The groups charge that the nursing homes do little more than medicate the mentally ill residents and do not adequately provide the services that the state is legally required to offer — treatment by psychiatrists and social workers, and training in everyday skills like shopping and cooking. The mentally ill residents, who have not been declared a threat to themselves or others, are generally not allowed to leave the nursing homes and in many cases are even restricted to their floors most of the day, the groups say.

"The state is warehousing people in nursing homes who don't need nursing home care, and not providing the services that they do need," said Cliff Zucker, executive director of Disability Advocates Inc., one of the groups filing the suit. Those who are sent out of state, he said, are isolated from family and other sources of support.

Judge Sweet Applies Georgia and Lane

In an opinion issued last week in Degrafinreid v. Ricks, 2006 WL 489407 (S.D.N.Y., Mar. 1, 2006), Judge Sweet applied the Supreme Court's decisions in United States v. Georgia and Tennessee v. Lane to hold that the prisoner plaintiff could proceed with his ADA claim for money dmages against the State of New York. Although he had ruled in 2004 that the plaintiff's claims were barred by sovereign immunity, Judge Sweet granted reconsideration in light of Georgia and Lane. The plaintiff alleged that the state denied him a working hearing aid and batteries, conduct that, in the courts view, would violate the Cruel and Unusual Punishments Clause as well as the ADA. Because the plaintiff alleged conduct that violated not just the ADA but also the Constitution itself, Judge Sweet held that Georgia was controlling: "Since Degrafinreid has alleged an Eighth Amendment violation, Title II of the ADA, as interpreted by the Supreme Court in Georgia, provides for a private right of action against the State for monetary damages. As such, Defendants do not benefit from the Eleventh Amendment's grant of state sovereign immunity and their motion to dismiss Degrafinreid's ADA claim for monetary damages is denied."


In addition to his ADA and constitutional claims, the plaintiff asserted a claim under Section 504 of the Rehabilitation Act. In his opinion, Judge Sweet held that the state had waived any sovereign immunity against Section 504 suits. The Second Circuit held in Garcia v. SUNY Health Sciences Center (2001) that states could not have knowingly and voluntarily waived sovereign immunity against Section 504 suits by accepting federal funds at a time when they could reasonably have thought that the ADA stripped them of sovereign immunity anyway. No other circuit has followed the Second Circuit in that ruling (except the Fifth Circuit, briefly, before reversing itself en banc). But Judge Sweet held that, even under Garcia, the state knowingly waived its sovereign immunity here. Because the conduct at issue took place in 2002 -- after both the Supreme Court and the Second Circuit had suggested that Congress lacked power to abrogate state sovereign immunity against ADA suits -- Judge Sweet held that, by that time, the state had to know it was giving up something when it accepted federal funds. (The irony, of course, is that Judge Sweet himself says that the ADA does validly abrogate sovereign immunity here.)

Snead on Schiavo

New on SSRN: O. Carter Snead, Dynamic Complementarity: Terri's Law and Separation of Powers Principles in the End-of-Life Context. The abstract:

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly three years of acrimonious litigation between Michael Schiavo (Ms. Schiavo's husband) and the Schindler family (Ms. Schiavo's parents), a Florida court ordered that nutrition and hydration for Ms. Schiavo be discontinued. Six days after implementation of the court's order, the Florida Legislature passed "Terri's Law," authorizing the Governor, under certain prescribed circumstances, to issue a one-time stay of court-ordered withdrawal of life-sustaining measures, and to appoint a guardian ad litem to review the matter and report back to the executive branch and the chief judge of the relevant Florida court. Pursuant to this new authority, the Governor stayed the order issued by the court, and nutrition and hydration were restored to Ms. Schiavo. To date, the public debate on this matter has been framed as a conflict between or a balancing of abstract concepts such as "the right to die," "the sanctity of life," and "the rights of the disabled." Little scholarly attention has been paid, however, to an enormously important question at the heart of this matter, namely, what the proper roles of the various branches of government are in a case such as Schiavo's. The proper question is not whether the government has a role in a dispute such as this - it clearly became involved once the matter moved to the state courts - but rather how the government should be involved. Which branch, if any, should have the last word in such a dispute? In these cases, should the relationship between governmental branches be hierarchical or complementary? Which branch of government is best situated to resolve these disputes? This Article, using the Schiavo case as the relevant point of departure, essays to address these questions. Specifically, the questions presented are twofold: (1) Were the Florida Legislature's (and by extension, the Governor's) actions in the Schiavo case consistent with the constitutional principles of separation of powers? (2) If so, did the actions of the executive and legislative branches in this case promote or undermine the purposes and logic of the Florida laws governing end-of-life decisionmaking, taken as a whole? That is, is Terri's Law wise public policy from a structural, governmental view?

Think Progress on Bush Medicaid Cuts for People with Disabilities

See this post. Thanks to Paul Secunda for the link.

Student Note on Criminalization of Mental Illness

New on Westlaw: Chad Sublet, Has the Cold Mercy of Institutionalization Been Replaced by the Cold Merciless Steel of the Jailhouse?, 15-FALL Kan. J.L. & Pub. Pol'y 159 (2005). The introduction:

In 1963, President Kennedy initiated the closing of inpatient state mental health facilities by signing the Community Mental Health Centers Act. During the signing ceremony, President Kennedy proclaimed the "reliance on the cold mercy of custodial isolation will be supplanted by the open warmth of community concern and capability." Unfortunately, the cold steel of juvenile detention facilities supplanted President Kennedy's dream of a warm and open community instead.

This article will examine the policy of criminalizing disability through the unnecessary and inappropriate incarceration of children with mental health challenges. Generally, this Article will follow the life of Nelson, a sixteen-year-old boy committed to the Valley Youth Correctional facility in May of 1996. In doing so, this Article will focus on four discrete areas. First, this Article will examine the prevalence of incarcerating children with mental health needs. Second, this Article will identify factors influencing the current policy of inappropriate incarceration. Third, this Article will analyze the policy of inappropriate incarceration utilizing the core concepts of disability policy as the framework. Finally, this Article will examine alternatives to inappropriate incarceration and the role of the body politic in the coming years.

Wheelchair Users Take Taxi Fight to Federal Court

See this article by that title, which begins:

Wheelchair users are taking their fight with taxi companies to a federal appeals court.

Cab drivers in Salt Lake City often refuse to pick up people in wheelchairs, who get referred by dispatchers to a private ambulance company, which has agreed to provide the service for no more than regular cab fare.

But advocates for the disabled want to force taxi companies to outfit vans that usually are part of their fleets with lifts or ramps and provide their own service. They say the Americans with Disabilities Act requires it.

It's one of the hearings the Denver-based 10th U.S. Circuit Court of Appeals will hold when it travels to Salt Lake City and Provo for four days this week to hear arguments in 72 criminal and civil cases.

Since the filing of the taxi case, Salt Lake City enacted an ordinance requiring taxis to accommodate people in wheelchairs. That's when the three licensed cab companies arranged for the service to be provided by Gold Cross Services Inc., which takes calls for three specially equipped vans.

``We each donated a meter,'' said Bruce Jackson, an owner with his brother of City Cab Co. and a defendant in the suit brought by Utah disability activist Barbara Toomer.

``I think that's all been settled,'' Jackson said of the lawsuit. When informed of a Wednesday hearing at the University of Utah law school for the appeal, he gave Toomer's group, the Disabled Rights Action Committee, credit for perseverance. But he added, ``I don't know what their point is now, anyway.''

The point is that the Americans with Disabilities Act required cab companies to provide lift or ramp devices with every new van they acquire for their fleet, said Rick Armknecht, an attorney for the Disabled Rights Action Committee.

Thanks to Paul Secunda for the tip.

Washington Post on D.C. Group Home Case

See this article, which begins:

An exasperated federal judge warned the District government yesterday that it is running out of time to demonstrate that it can make meaningful progress in improving care for physically and mentally disabled residents in its long-troubled group homes.

U.S. District Judge Ellen Segal Huvelle expressed frustration on being told that the city had failed to meet a 90-day deadline on a court order to move a designated number of group home residents into better, safer housing; help others find assisted employment opportunities; improve health care for at-risk clients; and recruit new group home operators to provide higher-quality care.

"The fact that you can't do the things that you promised to do is a terrible indictment," Huvelle told a packed courtroom. "It's a pretty devastating admission."

Huvelle's comments came during the latest hearing in a 30-year-old class-action lawsuit that centers on the quality of care for people who are mentally disabled wards of the District, many of whom also have severe physical disabilities. The lawsuit was filed in 1976 on behalf of hundreds of residents of Forest Haven, the city's former institution for people with mental retardation.

The judge listened as various parties in the lawsuit, including those representing the District, recounted their disappointment at the city's inability to complete several initiatives aimed at showing that it could improve services for its most vulnerable citizens.

Attorneys for the plaintiffs said they plan to return to court in the next few weeks to seek additional legal remedies for their clients. Among the options, they said, is filing a request to have the judge place the city's Mental Retardation and Developmental Disabilities Administration in receivership -- a move that could result in an outsider overseeing responsibilities.

"The time has come for a new approach," plaintiffs' counsel Cathy Costanzo of the Center for Public Representation told the judge. "Something more and something different must happen. . . . Our class members suffer daily."

Bishop Bars Autistic Boy From Receiving Communion

See this article by that title, which begins:

A 10-year-old autistic boy has been barred from taking communion by the Bishop of the Phoenix Catholic Diocese because he can't actually swallow.

Matthew Moran of Lake Havasu City has been taking the church's most meaningful sacrament for three years, but in a Feb. 12 letter, Bishop Thomas J. Olmsted said the boy cannot accept communion until he can "actually receive the Eucharist, actually take and eat."

Matthew can't swallow foods with certain textures, so he places the wafer, called the host, in his mouth. Then his father, Nick Moran, removes it and eats it himself.

The bishop's letter has caused anger, anxiety and frustration in his home, Moran said.

"We are out of our minds over this," said Moran. He and his wife, Dr. Jean Weaver, have two other children. He said his son "screamed and cried" when he learned he could not take communion at Mass.

Phoenix Diocese officials said Matthew has not actually been barred from receiving communion, only that the bishop is "not able to approve the present practice." Olmsted's letter offered various alternative hosts for Matthew to try, educational material and other recommendations for the parents.

"Matthew deserves to be able to take the Eucharist fully and completely," said Isabella Rice of the diocese Office on Disabilities and Pastoral Care. "As long as he is unable to do so, we will keep working with him."

That's not enough for Moran, who said his son has moderately severe autism, a neurological disorder that manifests itself in a variety of ways.

Eighth Circuit: IDEA Rights Waivable By Parents

On Thursday, the U.S. Court of Appeals for the Eighth Circuit released its opinion in Fitzgerald v. Camdenton R-III School District. In this IDEA case, the school district determined that the student's "behavior and academic performance indicated he might have a disability." The school district sought to evaluate the student to see if he was eligible for services under the IDEA, bit the student's parents refused to consent to an evaluation. Instead, they decided to home-school him. The court's opinion states that the parents "have had [the student] evaluated privately and provided special education services to him throughprivate sources." The school district, somewhat remarkably, initiated a due-process hearing to require the parents to submit to the evaluation. The state administrative decisionmaker ruled for the district, and the parents sought review in federal district court. The district court ruled for the school district, but the Eighth Circuit reversed.

In an opinion by Judge Benton, the Eighth Circuit held that the IDEA's protections are waivable by the parents: "Congress intends that a district may not force an evaluation under the circumstances in this case. Where a home-schooled child's parents refuse consent, privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose."

Settlement of Illinois HIV Discrimination Lawsuit

See this press release, which begins:

Equip for Equality, the federally-mandated protection and advocacy agency for persons with
disabilities in Illinois, today announced a settlement of the federal lawsuit it brought against Lambs Farm, Inc. on behalf of John Doe, an individual with
HIV.  The suit claimed that Lambs Farm, which serves adults with developmental disabilities, denied vocational and residential services to John Doe based on
his HIV status, in violation of the Americans with Disabilities Act and other federal laws.

Under the settlement, John Doe will soon begin participating in Lambs Farm's vocational program.  Other terms of the settlement remain confidential.

"We are delighted that our client will now be a part of the Lambs Farm community and that Lambs Farm recognizes that his participation does not pose
a danger to other participants," says Karen I. Ward, Senior Counsel at Equip for Equality and lead counsel for Doe.  "It is critical that organizations
serving individuals with one disability do not discriminate based on another disability."  Equip for Equality Senior Attorney Alan Goldstein also served as
counsel in this case.

Some Missouri Medicaid Cuts to be Restored

See this article, which begins:

The House gave first-round approval Wednesday to legislation restoring a slimmed-down version of a state health-care program for workers with disabilities.

The program was eliminated as part of last year’s Medicaid cuts.

The restarted Medical Assistance for Workers with Disabilities program would serve more than 3,100 people at a first-year cost of $16.3 million in state and federal funds. That’s far shy of the $250 million program that served about 17,000 people before being eliminated.

The new program would need to be renewed after three years and would only provide benefits if the legislature appropriated money for it.

11 Bus Firms Accused of Disability Act Violations

See this article by that title. It begins:

In a recent sweep of 14 bus companies that operate in the busy Washington-New York-Boston corridor, investigators found that 11 carriers had violated the federal law that guarantees interstate service to disabled passengers, according to government officials.

The purported violations are being investigated by the Justice Department, which enforces the Americans with Disabilities Act, officials said.

The act requires, for example, that large carriers, those with an annual revenue of $7.2 million or more, must outfit at least some of their buses with wheelchair lifts. Disabled passengers must give smaller bus lines 48 hours' notice, but the carriers must accommodate them.

''There have been some pretty horrendous stories" about disabled passengers being denied bus service, said Annette Sandberg, who heads the Federal Motor Carrier Safety Administration, which regulates the interstate bus and trucking industries.

Utah Waiting List Suit Dismissed

See this article, which begins:

A federal judge has dismissed a lawsuit filed by the Disability Law Center that claimed the state has not acted quickly enough to provide assistance to family members who care for disabled relatives rather than institutionalize them, which has resulted in a lengthy waiting list.

The center filed suit in 2002 on behalf of individuals alleging, among other things, that the state did not have a formal plan to ease the ever-growing waiting list.

This slowness in providing help was, in essence, a form of discrimination because it violated several federal laws including those involving Medicaid and the Americans with Disabilities Act, the center claimed.

Utah has received federal permission to provide home- and community-based service under a waiver program that helps a limited number of people who meet certain criteria and who otherwise would most likely be institutionalized within a month.

But, in a ruling made public Wednesday, U.S. District Judge Dale Kimball ruled that Utah does in fact have a plan to address the waiting list.

He also agreed with the state's argument that the individual plaintiffs do not fit the criteria for the waiver because they cannot show they are in imminent danger of being institutionalized.

"While the court is sympathetic to the hardships and frustrations experienced by plaintiffs and their families, the court concludes the plaintiffs have not demonstrated that they meet the 'essential eligibility requirements,' " for waiver services, the judge wrote.

Even if these individuals were in imminent danger of being put in an institution, they cannot show that state officials handle the waiver system in a way that intentionally discriminates against them personally or against other disabled people as a class, according to Kimball.

The judge also addressed the expense of accommodating those on the waiting list.

"While cost alone is not sufficient to establish a fundamental alteration/undue burden defense, a state can succeed by showing that the budget costs would compel cutbacks to others who receive necessary services and that the state has a comprehensive plan to moving eligible individuals out of institutions and providing home- and community-based services," he wrote.

For more coverage of the decision, see here and here.