Wednesday, February 28, 2007

Interesting Paper on Disability and Work in the UK

New on SSRN: E.K. Jones et al., Disability, Gender, and the British Labour Market. The abstract:

Using UK LFS data, we examine the impact of disability on labour market outcomes by gender since the Disability Discrimination Act. Substantial differences in employment incidence and earnings continue to exist, especially for those with mental health problems. Distinguishing between work-limiting and non-work-limiting disability, the unobserved productivity effect of disability can be separated from discrimination. Limited evidence of wage discrimination against the disabled exists, but the "penalty" for work-limiting disability, while falling for men, has increased for women. The improvement for disabled males is largely "unexplained," possibly reflecting the impact of the legislation; this is not the case for females.

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Biking for Waiver of Sovereign Immunity

A novel approach:

A man plans to bike from El Paso to Beaumont without the use of his legs.

Mikail Davenport, 58, has post-polio syndrome and he's a cancer survivor. Davenport kicked off a 950-mile, 25-day cycling tour Tuesday to prove that having a disability is not a death sentence. He's calling it the Legless Lizard Tour de Tejas.

City leaders, wheelchair athletes and fans joined Davenport at a local bicycle shop to send him off.

Davenport wants to send a message to state legislators dealing with issues of people who have disabilities.

He especially wants Texas to waive its immunity from the Americans with Disabilities Act.

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New EEOC Q&A on Health Care Workers and the ADA

The EEOC just issued a new Q and A document on issues relating to health care workers and the ADA. You can get it here.

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Accessibility Problems in Washington Capitals' Practice Facility

See this article, which begins:

When Arlington County officials revealed a new ice complex as the Washington Capitals' practice facility, they said it would be a community resource for diverse groups, particularly the disabled.
So Rosemary Ciotti, who lives nearby and uses a wheelchair, was dismayed when she visited the new facility shortly after it opened in November and discovered there was no room in the bleachers for her to watch the action on the ice.

Despite its $42.8 million price tag, the Kettler Capitals Iceplex is not compliant with the Americans with Disabilities Act.

"It makes you want to bang your head against the wall," said Ciotti, a member of the county's planning commission.

Another disabled Arlington resident, Sheri Denkensohn, said she visited the iceplex after hearing about the problems from Ciotti and later filed a complaint with the Justice Department.

Arlington officials say such glitches are common in construction projects. They say they already have addressed most of the ADA problems noted by building inspectors before the facility opened and that they are working to correct the problem with the bleachers.

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Buhai on Support of Adult Children with Disabilities

New on Westlaw (no free link yet): Sande Buhai, Parental Support of Adult Children with Disabilities, 91 Minn. L. Rev. 710 (2007). The introduction:

It is generally agreed that parents should (morally) and must (legally) support their children until they reach the age of majority. But, in what circumstances must parents support their children thereafter? This question becomes further complicated when the children are--or become--disabled. Are parents indefinitely obligated to provide financial support for their disabled children? If so, is this a purely moral duty or should it be legally enforceable as well? This Article examines these questions and posits an answer.

Consider two scenarios. In the first, a nineteen-year-old boy suffers injuries in a plane crash on his way home for Christmas. He is left a quadriplegic and is unable to support himself for the rest of his life. In the second, doctors diagnose a fifty-five-year-old woman as manic depressive, a condition that similarly incapacitates her for an indefinite period. Someone must care for these individuals. The most likely candidates are their parents or the State. Which individuals or institutions, however, must ultimately take responsibility? Should the answer depend on the nature of the disability or on whether the disability developed prior to the age of majority?

A recent California case pointedly raised these issues. David Culp, a fifty-year-old Stanford Law School graduate who practiced family law for nineteen years, filed suit against his parents. Culp claimed to suffer from depression and bipolar disorder, conditions which made him incapable of supporting himself. Section 3910(a) of the California Family Code states that "the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means." Concluding that Culp was in fact disabled and incapable of supporting himself, the California Superior Court ordered Culp's parents, James and Bertha Culp, to pay their son $3,500 a month indefinitely for living expenses.

The decision astounds many parents, who are stunned by the possibility that they might have to support their adult children indefinitely. One family law expert referred to the court's holding as a "landmark decision." Clearly, the Culp decision raises difficult issues. We naturally expect parents to care for their minor children until they are able to care for themselves. However, our reactions may change when the state forces parents to pay cash to apparently estranged adult children who become disabled in middle age.

In Part I, I explore the historical background of legally mandated parental duties to adult disabled children. Part II surveys the positions of the fifty states with regard to whether and in what circumstances parents should be required to support their adult children with disabilities. Parts III and IV then turn to normative questions. Part III explores the moral dimensions of the problem: from a religious or philosophical perspective, should parents support their adult children with disabilities indefinitely? I argue that although a parental moral duty often exists, society shares this duty, and therefore it is not absolute. The many difficult and personal considerations to which this duty is subject complicate the decision whether to support a disabled child. Part IV explores the problem from a normative legal perspective: should courts recognize a legally enforceable requirement that parents support their adult children with disabilities indefinitely regardless of the type of disability, the age of onset, or the family relationship? Section IV considers several theoretical and practical justifications that weigh heavily against the imposition of such a legal duty. For the foregoing reasons, I argue that the law should not impose an unqualified legally enforceable parental duty to support adult disabled children.


NYT on Winkelman

Here's Linda Greenhouse's story on yesterday's Winkelman argument in the Supreme Court. The nose-counting, such as it is:

The justices were attentive to both sides’ arguments. While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an “uphill battle” to persuade him that despite the statute’s numerous references to parents, the phrase “party aggrieved” should be interpreted as applying only to children and not to parents.

And Justice David H. Souter told Mr. Bergeron that the statutory right to a “free appropriate public education” appeared to be “a right of the family group, the parents and the child together, rather than the right of the child alone.”

On the other hand, Justice Antonin Scalia told Mr. André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

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Tuesday, February 27, 2007

NY Sun on Tuition Reimbursement Case

The NY Sun has this very interesting article on the IDEA tuition-reimbursement case the Supreme Court took yesterday.

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Winkelman Argument Coverage

Today, the Supreme Court hears arguments in Winkelman v. Parma School District, which presents the question whether parents can represent themselves and their children in IDEA cases. SCOTUSBlog has this preview. The AP has this article on the case.

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Monday, February 26, 2007

Supreme Court Grants IDEA Case, Denies Cert. in ADA/Parental Rights Case

In today's orders list, the Supreme Court granted cert. in Board of Education v. Tom F., No. 06-637, a case that presents the question whether private-school tuition reimbursement is available under the Individuals with Disabilities Education Act for students with disabilities who never attended public school.

The Court also denied cert. in Irving N. v. Rhode Island Department of Children, Youth, and Families, No. 06-603, which presented the question whether Title II of the ADA applies to state termination of parental rights proceedings. I represented petitioners, so obviously I'm disappointed. Many state courts have held -- in conflict with the plain text of the ADA -- that the statute doesn't apply to termination of parental rights proceedings, even though there's widespread discrimination against parents with disabilities in those proceedings. I hope we can at some point find an appropriate vehicle to get the Court to decide this issue.

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Post-Dispatch Editorial on Missouri Guardianship-Voting Case

My hometown paper today had this lead editorial on the guardianship-voting case I argued in the Eighth Circuit two weeks ago. Key grafs:

That's not good enough. Voting rights are not addressed routinely in probate proceedings, and state law does not require an assessment of an individual's capacity to vote in guardianship cases. Nor does the law allow judges any discretion when it comes to voting rights and full guardianship.

Dr. Paul Appelbaum, a former president of the American Psychiatric Association and a leading expert on decisional competency, evaluated Mr. Scaletty and determined that he is competent to vote. Mr. Scaletty reads at least two newspapers a day. He has voted in local, state and national elections for many years. Both Mr. Scaletty's father and his social worker told Dr. Appelbaum that he holds strong opinions about political issues and has "a very good understanding of how elections work."

With so much at stake in both local and national elections, the state must not deprive anyone of the right to vote without substantial justification. Some of the people who are subject to the voting ban follow politics and have aligned themselves on particular sides of issues and with specific candidates and parties. Some have participated in political rallies and lobbied legislators on issues such as Medicaid cuts, which directly affect them.

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Thursday, February 22, 2007

How Many Ramps Must Be Redone?

See this article by that title. It begins:

Lancaster City is fighting an uphill battle.

A year after facing a lawsuit filed by three residents with disabilities over the city's failure to install wheelchair ramps at intersection sidewalks, city officials now must go back and rebuild the ramps it has already installed.

Over the next eight to 10 weeks, city public works crews will be evaluating each of the nearly 1,700 curb ramps that have been installed in recent years to see if they comply with the current regulations of the federal Americans with Disabilities Act.

Those ramps did comply with federal regulations when they were installed, said Public Works Director Charlotte Katzenmoyer, but the law has been changed and so have the regulations.

Unlike other laws, in which existing situations are accepted or "grandfathered," the revisions to the 1992 ADA law require ramps to be updated to the current regulations, she said.


Florida Court of Appeal Lets Parking Placard Case Proceed

Yesterday, the Florida Third District Court of Appeal issued an opinion in Florida Dep't of Highway Safety v. Rendon. The case involved a challenge under ADA Title II to Florida's fee for handicapped parking placards. In an earlier opinion in the case, the court had dismissed the plaintiffs' damages claims on the ground that Title II did not validly abrogate state sovereign immunity. The U.S. Supreme Court granted, vacated, and remanded for further consideration in light of Tennessee v. Lane. In yesterday's opinion on remand from the Supreme Court, the court ruled that the state waived its sovereign immunity against the suit by providing a judicial procedure for obtaining tax refunds.


Tuesday, February 20, 2007

AMA to Meet with Activists Mad About Growth-Stunting Case

See this article by that title. This controversy bubbled up during my little hiatus, so this is the first I've posted on it. The article begins:

The American Medical Association bowed to pressure from disabled activists and agreed to meet Tuesday to hear their concerns about growth-stunting treatment performed on a severely brain-damaged Washington girl.

The now 9-year-old girl identified only as "Ashley" had surgery at Children's Hospital & Regional Medical Center in Seattle to remove her womb and breast buds, and hormones to keep her permanently child-sized -- treatment some activists say amounted to mutilation.

The treatment was first publicized in a medical journal owned by the AMA, and her parents created a Web site about their "pillow angel" last month to defend their decision. Their daughter was diagnosed with severe brain damage shortly after birth. She can't walk, talk, sit or stand and functions like a young infant.

Her parents say the treatment makes Ashley more portable, more comfortable, and will enable her to remain with her family and receive care at home even as she ages.

"We are still asking that the AMA oppose the Ashley treatment" and to endorse proposals to allow disabled people on Medicaid to get-in home support so they can avoid drastic treatment or being institutionalized, said Chicago activist Amber Smock of the group Feminist Response in Disability Activism.


Investigator Backs Discrimination Claim at YMCA

See this article by that title, from Lewiston, ME, on an all-too-common set of facts:

A state investigator is backing claims that an Auburn-Lewiston YMCA worker was fired because she asked for help to cope with a disability.

Only days after requesting unpaid leave or permission to work from home to deal with a chronic stomach problem, a YMCA supervisor sacked Renee Carrier, according to the investigator's report, filed with the Maine Human Rights Commission.


Disability Advocates Fight to Close Lubbock State School

See this report, which begins:

Disability advocates took their fight to have the Lubbock State School closed to the steps of the Texas capitol. The State School has been under fire recently after the release of a report on a 2005 Department of Justice Investigation.

On Monday, advocates used props like a mock report card to show their disdain for the school. Speakers at the rally spoke out against the reported poor standards of care, and staff shortages.

For more background, see this longer story in the Austin American-Statesman.


Thursday, February 15, 2007

Demos Report on Voting Accessibility

See this new report, entitled Improving Voter Access: A Report on the Technology for Accessible Voting Systems. The abstract:

Improving Voter Access is a new report by technology expert Noel Runyan, published by Demos and Voter Action, that finds that state voting systems are widely noncompliant with federal ADA and HAVA access requirements for voters with disabilities. Twenty percent of U.S. adults with disabilities -- more than 8 million eligible voters -- say they have been unable to vote in presidential or congressional elections due to barriers at or getting to the polls The Help America Vote Act (HAVA) requires that all polling places in elections for federal office anywhere in the United States have at least one voting system that shall be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters But most currently deployed voting systems, including direct-recording electronic (DRE) systems, do not meet current HAVA and ADA disability accommodation requirements, and they are far from compliance with the new Voluntary Voting System Guidelines.They are not accessible for significant numbers of individuals with disabilities for a variety of reasons that can and should be directly addressed.
I'd be interested to hear the reaction of disability rights folks who have supported electronic voting.


Wednesday, February 14, 2007

Interesting Exchange on Retail Accessibility . . .

in this blog associated with the Washington Post. Read the comments as well.

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Eighth Circuit Rules for EEOC in ADA Case

Yesterday, the Eighth Circuit issued its opinion in EEOC v. Wal-Mart Stores. The case involves Wal-Mart's refusal to hire an individual with cerebral palsy for cashier or greeter positions. The district court granted summary judgment to the employer, on the ground that the EEOC had failed to present evidence that would establish that the applicant was "qualified" for the positions he sought. The Eighth Circuit reversed; it found that the EEOC had presented sufficient evidence to overcome summary judgment on the question. Importantly, the court also held that the employer has the burden of establishing "direct threat" as a defense.

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Tuesday, February 13, 2007

Missouri Democrats Push for Mental Health Program

My hometown paper contains an article by that title today. It begins:

House Democrats proposed on Monday to expand funding for a mental health program that provides intensive care for the homeless, people with substance abuse problems and those who are unaware that they are ill.

Supporters say the program is designed for patients who have struggled with the traditional model, which assigns patients a case worker who helps them secure a variety of health services.

Jackie Lukitesch, executive director of the St. Louis office of the National Alliance on Mental Illness, said the biggest difference between the more intense treatment and traditional models is that patients who miss treatments and appointments are not automatically removed from the program.

"They go out and seek out why, if they don't come in, and do not discharge them," she said.

She said between 10 percent and 20 percent of people seeking mental health care would be eligible for the intensive care treatment.

Rep. Margaret Donnelly called for the state to create a pilot program of four mental health teams and study its effectiveness. The pilot program would cost about $5 million.

Donnelly, D-Richmond Heights, said about 100 people already received care from a St. Louis-based team. She said expanding access to mental health treatment would save money and help reduce crime rates because many of the people who are in prison have mental illnesses.

The stepped-up care, called "assertive community treatment," has been used in several states. The Department of Mental Health asked for $5 million to fund the program in its budget requests for the next fiscal year, but Gov. Matt Blunt did not include it in his budget recommendations.
Margaret Donnelly is a really fine state rep., and Missouri's a place where I think there are going to be a lot of interesting things going on in mental health over the next few years.

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The Michaels on Disability and Class Actions

Now out in print: Michael Ashley Stein & Michael Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L.J. 861 (2006). I've blogged on this provocative piece before. I can't help noting here that the piece calls me a "nihilist." I guess I've been called worse . . . .


Monday, February 12, 2007

Coverage of Missouri Guardianship-Voting Argument

See this AP dispatch. Excerpts:

Lawyers arguing a challenge to Missouri election law before a federal appeals court panel here disagreed Monday whether the state denies voting rights to some mentally ill people.

The lawyer for a mentally ill man in Kansas City said the Missouri Constitution and state law deny voting rights to Missourians assigned a guardian because of "mental incapacity."

Anti-discrimination law expert Samuel Bagenstos conceded that some counties have ordered individual assessments of those under guardianship to determine their competence to vote. But, he said, they have no authority, and are under no obligation to do so.

Bagenstos wants the court to declare what he calls the voting ban unconstitutional and in violation of the Americans with Disabilities Act.

Ultimately, he said, it's up to the Legislature to re-shape the law to allow for mentally ill people under guardianship to be assessed individually for voting competency.

* * *

Retired U.S. Supreme Court Justice Sandra Day O'Connor, who's helping the appeals court this week, was one of three judges who heard the case and will decide its outcome. Her presence drew a packed courtroom.

Speaking from the bench, O'Connor referenced the majority opinion in a 2004 case, Tennessee v. Lane, which sided with paraplegics who claimed they were denied physical access to the state's courts, in violation of the ADA.

O'Connor asked Pritchett if he'd read the Lane decision, which addresses broader access to an individual's fundamental rights.

"I happened to join it," she said of the majority opinion. "I thought it covered voting."

And thanks, by the way, to Howard Bashman for the great PR.


Report: Agencies Fail to Track Disabled Reservists' Complaints

See this piece from It's very interesting, and it begins:

Federal agencies are failing to track employment complaints filed by returning military reservists with disabilities, according to a new report by the Government Accountability Office.

Since the Sept. 11 terrorist attacks, the Defense Department has mobilized more than 500,000 reservists. But "as demobilized reservists eventually return to their civilian life, their civilian employment and the difficulties they face in dealing with re-employment matters remain areas of interest," GAO said in a letter to Congress.

Reserve soldiers are entitled under the Uniformed Services Employment and Reemployment Rights Act to get their old jobs back when they return from active duty, as long as they meet certain requirements. But some reservists who have incurred disabilities as a result of military service file complaints with the government over their inability to return to civilian employment.

Inadequate tracking, however, is leading to a failure to address such complaints, GAO found (GAO-07-259).

The four federal agencies responsible for assisting reservists with USERRA complaints -- the Defense, Justice and Labor departments and the Office of Special Counsel -- addressed about 16,000 informal and formal complaints between fiscal 2004 and fiscal 2006. But GAO found that no one agency had complete visibility over all complaints in the system and only a small percentage were reported to Congress.

The GAO report is linked in the excerpt above.

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Missouri Guardianship-Voting Argument

You can listen to my dulcet tones -- er., nasal hissing -- in today's Eighth Circuit argument here. I have no idea what the court will do, but the judges were incredibly well prepared and engaged with the case. We couldn't have asked for more.

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Possible NCLB Changes

See this article, which begins:

When Tori Boyles, of Columbia, Mo., takes a test at school, an adult often reads the questions to her because the 9-year-old has learning disabilities that make reading difficult.

That kind of accommodation generally is not allowed for the reading test that public school students take under the federal No Child Left Behind law. Also, skipping the exam is not permitted for Tori, who has spina bifida, a condition often accompanied by learning problems.

''Why isn't there an option to opt out of that?'' asks her mother, Becky Boyles. ''She just has to stare at this piece of paper. She'll tell you she feels stupid. She feels absolutely stupid.''

Boyles and other parents are not the only ones frustrated when children such as Tori take federally mandated tests and do poorly. School administrators feel trapped by the system as well and lagging children risk being blamed for an entire school's failure.

The dilemma is how to fix the problem without abandoning kids with special needs.


Thursday, February 08, 2007

Missouri Guardianship-Voting Argument Preview

My university's press office has this little advisory about the guardianship-voting case that I'll be arguing in the Eighth Circuit this coming Monday.

And now I return to radio silence . . . .

Motion to Intervene in Zyprexa Litigation

I break radio silence to note the brief, filed yesterday, in which the Bazelon Center and I represent a number of mental health organizations, Consumers Union, and mental health professionals who seek to intervene in the Zyprexa litigation to move to unseal the documents discussed in the New York Times. The intervention motion is here. The Bazelon Center's press release is here. And TortsProf comments here.