D. Colo. Denies Summary Judgment in School Restraint Case

On Monday, Judge William Martinez of the United States District Court for the District of Colorado issued an opinion in A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 2011 WL 5910191 (D. Colo., Nov. 28, 2011).  The case involves a 5-year-old kid, A.B., who has been diagnosed with a seizure disorder and developmental delays, and who was a kindergartener when the events at issue took place.  A.B. had, in the district court's words, "significant behavioral difficulties" in school, and the school district responded by developing a behavior modification plan:

The staff was first to send A.B. to sit in a regular chair for a time-out. If A.B. would not comply and stay seated, the staff was to utilize a modified “baskethold”, which involved the teacher sitting behind the chair and loosely holding A.B. down to help her try and stay still. If A.B. had not deescalated her behavior in five minutes, the teachers were to place A.B. in a wooden high-backed chair (the “Restraint Chair”) and strap A.B. to the chair. The staff was then to set a timer so that A.B. would be in the Restraint Chair for no longer than five minutes. The purpose of the Plan was to get A.B. to refocus on classroom activities.

This behavior modification plan was not made a part of A.B.'s IEP as signed by her mother.  The IEP spoke only of time-outs, not restraints.  And there was evidence that for a six-week period, A.B.'s classroom teacher placed her in the restraint chair all day, every day, except for the periods when she went to music or gym, and the last five minutes of the day before A.B.'s mother picked her up.  A.B. often yelled and cried while in the restraint chair.  Her teacher responded on a number of occasions by turning the restraint chair so that it faced a corner of the room and placing barriers around the chair so that A.B. could not see out, though classroom staff could see in.  After the P&A began investigating in December, the school discontinued use of the restraint chair.

A.B. and her mother sued both the school district and a number of the individuals involved in the restraint, on both state and federal law grounds.  Defendants moved for summary judgment on all claims.  The district court granted that motion in part and denied it in part.  In particular, the court held that A.B. had presented sufficient evidence to warrant a trial on the questions whether A.B.'s classroom teacher violated clearly established Fourth Amendment law in restraining her and whether the school principal and the behavioral consultant who devised the restraint plan were deliberately indifferent to that constitutional violation.  The court also held that the plaintiffs had established a triable issue of fact regarding whether the classroom teacher violated clearly established law by depriving A.B. of education without due process.

The court also held that the plaintiffs' ADA and Rehabilitation Act claims warranted a trial.  The defendants argued that they did not discriminate on the basis of disability, but the court rejected that argument:

[T]he evidence shows that the District devised A.B.'s behavior management plan to deal with her disability and that such plan called for her to be strapped into the Restraint Chair. A.B. was denied the opportunity to participate in classroom activities while strapped into this chair, especially when [the classroom teacher] faced the chair to the wall and erected barriers around her. Thus, Plaintiffs have established a prima facie case of statutory disability discrimination.

The court also found sufficient evidence that the school district was deliberately indifferent to this discrimination to warrant a damages remedy against it.

Disability Groups Urge Feds to Decide on Community Living

See this article by that title in the DisabilityScoop.  It begins:

Months after the end of a public comment period, dozens of disability advocacy groups are pressuring Medicaid to make a final decision on new rules that would define what qualifies as community-based housing. 

In a joint letter sent last week to officials at the Centers for Medicare and Medicaid Services, nearly 100 advocacy groups asked the government agency to “move swiftly” on a proposed regulation that would limit the types of qualifying residences under Medicaid home and community-based services waivers.

Brain Surgery Survivor Sues to Obtain Access to LSAT

Disability law and testing guru Jo Anne Simon passes along this press release, issued yesterday:

Long Island resident Lisa Rousso woke up one morning in January 2005 feeling like her world had suddenly shifted on its axis. She was diagnosed with a brain lesion and underwent major surgery for its removal a month later, leaving her with a permanent disability. After years of rehabilitation to learn compensatory techniques, she was diagnosed with a disorder called Cognitive Disorder-NOS, which causes slow reading and writing and extraordinary fatigue.

Under the Americans with Disabilities Act (ADA), prospective students with disabilities are entitled to testing modifications that best ensure that the test results assess their abilities, not their disabilities. When she applied for accommodations for the December 3, 2011 LSAT -- and satisfied the organization’s requirements for documenting a cognitive disability -- instead of extended time and extra breaks, she got the runaround. “First they told me the file never arrived, so I re-sent it – twice – but I was only told my application was deficient. But they never told me how,” said a frustrated Rousso.

Rousso finally hired attorney Jo Anne Simon to submit her application yet again in hopes that the Law School Admissions Council (LSAC) would respond and confirm receipt of her documents. But after 10 days, and too late to submit new information for the December exam, Simon received a letter saying that Rousso’s neuropsychological evaluation was no good. The LSAC asserted that her condition was likely to improve. However, it never stated why it believed a permanent condition would improve. 

Today, Rousso filed suit in the federal district court in Brooklyn, NY alleging the LSAC violated her rights under ADA. The LSAC is no stranger to lawsuits of this type. “The LSAC can’t continue to send cryptically worded messages to applicants with disabilities expecting that they will be either clairvoyant or cured,” said Simon who regularly represents people with disabilities in similar circumstances. “Nothing in Ms. Rousso’s evaluation suggested her condition would improve so as to take her out of the protections of the law.” Simon noted that while the ADA was recently amended to ensure the law’s original intent to protect a broad class of individuals, she notes that even under the more restrictive Supreme Court rulings rejected by Congress in 2008, Rousso would have been protected.

E.D. Va. Issues Bad Zoning Decision

Last week, Judge John Gibney of the U.S. District Court for the Eastern District of Virginia issued a ruling granting the defendants' motion to dismiss in Calvary Christian Center v. City of Fredericksburg, 2011 WL 5843641 (E.D.Va., Nov. 21, 2011).  The plaintiff, a religious organization that, among other things, operates a day care center, sought, as part of its "social mission," to "operate a day school [called Fairwinds] for children with mental and emotional disabilities on its premises."  The organization applied for a special use permit, and both the city planning department and the city's director of planning and community development recommended granting the application.  Then the city council held three public meetings to consider the application.  The district court's opinion recounts what the plaintiff alleged happened at those meetings:

At the public hearings, members of the Council raised questions and concerns about allowing Calvary to house the day school. The council members' comments reflected numerous concerns: the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. 

At the third meeting, the Council voted three to three, with one member abstaining, on whether to issue the special use permit. Because a motion fails on a tie vote, Calvary's application for a special use permit was rejected.

The organization sued the city under the ADA, the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the First Amendment.  The city filed a motion to dismiss, and the district court granted the motion.

As to the ADA and Rehabilitation Act claims, the court concluded that the plaintiff did not have standing, because it was not itself suffer any alleged discrimination: "Calvary has alleged discrimination that the students suffered in its ADA and RA claims; it has not claimed any unlawful discriminatory effect that Calvary itself suffered as a result of its association with the students." And the organization "failed to demonstrate a hindrance to the students' ability to bringing suit on their own behalf to protect their own interests, as required to establish third-party standing under the ADA or RA."

This seems to me wrong, for two reasons.  First of all, the ADA and Rehabilitation Act prohibit discrimination against "an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association."  28 C.F.R. 35.130(g).  What the plaintiff alleged here is clearly discrimination against the organization itself (the denial of its request for a special use permit) because of the organization's "relationship or association" with the kids with disabilities who would attend the day school program.  Properly considered, this isn't a case of third-party standing at all; it's a case of the organization enforcing its own rights.

Second, even if the case was one of third-party standing, the court's interpretation of the hindrance prong seems unduly crabbed.  The kids who would attend the program at Fairwinds (and whomever is authorized to speak for them by law) would likely have little incentive to sue about a particular siting decision.  In similar circumstances, a number of courts have found the hindrance prong satisfied.

Not disability law related, but I also think the court likely got it wrong on the RLUIPA claim. The court appeared to say that the plaintiff hadn't pled sufficient facts to show that the denial of the permit imposed a substantial burden on its exercise of religion, but the case appears to have been brought under RLUIPA's equal-terms provision, 42 U.S.C. 2000cc(b)(1), rather than its substantial-burden provision, 42 U.S.C. 2000cc(a). The equal-terms provision provides that "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." It does not, by its plain terms, require a substantial burden.

None of which is to say that I'm a fan of separate day programs for kids with disabilities.  But the court here seems to have gotten the law wrong.

NYT Room for Debate on Obesity and Discrimination

See the feature here.  Lots of interesting contributions.

IL Governor, Legislators Reach Deal to Keep MH, DD Facilities Open

See this article from the Chicago Tribune.  It begins:

Tinley Park Mental Health Center and six other state facilities would stay open in the short term and nearly 1,900 layoffs would be avoided under a deal struck Monday night, according to leading Democrats and Republicans. 

The outline of an agreement was worked out in the Capitol office of Democratic Gov. Pat Quinn, who huddled with lawmakers from both parties for more than two hours. 

Emerging from Quinn’s office, Senate Republican leader Christine Radogno said details are still being crafted, but a measure “will be very clear that the facilities are to stay open pending any kind of orderly transition of those that may need to close in the future.”

Settlement with Montgomery (AL) Public Schools on Services for Kids with Mental Illness

See this press release, hot off the wires from the Bazelon Center.  It begins:

Under a settlement agreement announced today that resolves complaints filed on behalf of Montgomery families by the Alabama Disabilities Advocacy Program (ADAP), the Judge David L. Bazelon Center for Mental Health Law, and the Law Offices of Sears & Sears, PC, the Montgomery Public Schools will take significant steps to provide more effective services to students with emotional disturbance.

Under the agreement, Montgomery Public Schools (MPS) will hire a nationally-known expert in children’s mental health, Narell Joyner of Charlotte, North Carolina, to work with MPS teachers and administrative staff to evaluate how MPS identifies and plans for students with emotional disturbance, and to identify available resources MPS can access to better serve these students. Ms. Joyner will also make recommendations for how MPS might improve and fund its programs serving students with emotional disturbance, and help MPS implement her recommendations.

“There are hundreds of Montgomery students with disabilities who need some additional help to reach their academic potential and lead independent and successful lives in their communities,” stated James Tucker, legal director for ADAP, lead counsel for the parents who filed complaints against MPS. “We think Montgomery Public Schools can do an excellent job of educating these students, and Narell Joyner is just the person to help get the schools to where they need to be.”

After Closing Psychiatric Hospital, Michigan Incarcerates Mentally Ill

See this column by that title from the Detroit Free Press.  Excerpts:

Wayne County Sheriff Benny Napoleon spoke for most sheriffs when he said, during a community meeting earlier this year, that his jail had become his county's largest mental health care institution. 

Over the last two decades, changes in state policy and big cuts in funding for community mental health care have pushed hundreds of thousands of mentally ill people into county jails and state prisons.

* * * 

The annual budget for the nonprofit Detroit Central City Community Mental Health one of Detroit's largest community mental health agencies, plunged from $11.2 million in 2008 to $8million. President and CEO Irva Faber-Bermudez said the cuts have forced her agency to close an urgent care clinic and end an effective transitional housing program. Gov. Rick Snyder and the Legislature should reconsider these cuts if they really want to improve mental health care and remove mentally ill people from prisons and jails. 

Treating one client in a community program costs about $10,000 a year, compared with $35,000 a year to house one prisoner. Detroit Central City's jail diversion and prisoner re-entry programs report recidivism rates of less than 10% -- at least four times lower than the overall state average.

For New Jersey Disabled Adults, Smaller May Be Better

See this article by that title.  It begins:

The commissioner tried to explain why New Jersey needs to close one of its seven institutions for the developmentally disabled if it is to care for more of the 40,000 adults in the state who can’t take care of themselves.

But she was nearly drowned out by boos and catcalls from those in favor of the status quo: public employees with jobs at stake and families of residents at the Vineland Developmental Center who don’t want their loved ones relocated.

Nearly lost amid the throng at the raucous hearing earlier this year was the mother of Derek Legutko, a 26-year-old with autism who’s living at home while waiting for a community placement. It’s already been four years, and likely to be a lot longer.

Mental Health Services: It's the State's Choice

Vicki Smith of Disability Rights North Carolina has this op-ed by that title in the News and Observer.

Adams County Sued Over Deaf Man Held 25 Days

See this story by that title.  It begins:

A lawsuit claims Adams County authorities detained a deaf man for 25 days in jail without providing a sign-language interpreter before domestic assault charges were eventually dropped. 

Timothy Siaki's lawsuit filed Wednesday in U.S. District Court seeks unspecified damages and a finding that Adams County officials violated the Americans With Disabilities Act over his May 14, 2010, arrest and detention.

Waterstone on Genetic Discrimination in the US and Europe

Digging out from my Thanksgiving email, I find that FOB (Friend of the Blog) Michael Waterstone passes along this interesting blog post about his recent presentation at a conference in Ireland regarding genetic discrimination.  Read it!

Firefighter, City of St. Paul Settle Discrimination Suit for $528K

See this article by that title from the St. Paul Pioneer Press.  It begins:

The city of St. Paul has settled firefighter William Eldredge's discrimination claim for $528,432 - the second-largest employment lawsuit payout in the city's history.

"The city of St. Paul really stepped up to the plate here," said Eldredge's attorney, Adrianna Shannon, noting the city also agreed to retrain staff and supervisors about state and federal disability laws and inform employees of their rights under those laws. "This is a victory for the law itself."

Shannon read a statement from her client, in which Eldredge wrote, "The good that has come out of this protracted struggle has been not only vindication for me personally but it is also a victory for human rights, the rights of disabled people, of veterans and of workers."

WNYC Reports on the New York Taxi Court Hearing

Here.

DOJ Sues University of Nebraska-Kearney for Disability Discrimination

See the press release, which begins:

The Justice Department today filed a lawsuit against the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities.

The lawsuit, filed in the U.S. District Court for Nebraska, charges that UNK and its employees engaged in a pattern or practice of violating the Fair Housing Act or denied rights protected by the act by denying reasonable accommodation requests by students with psychological or emotional disabilities seeking to live with emotional assistance animals in university housing. The suit also charges that UNK requires students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests. This lawsuit arose as a result of a complaint filed with the Department of Housing and Urban Development (HUD) by a student enrolled at UNK who sought to live with an emotional assistance dog that had been prescribed.

Justice Department Reaches Project Civic Access Agreement with Upshur County, Texas

The press release is here.  The key provisions:

Under the agreement announced today, Upshur County will take important steps to improve access to county programs for individuals with disabilities, such as:

Making physical modifications to its facilities so that parking, routes into the buildings, entrances, public telephones, restrooms, service counters and drinking fountains are accessible to persons with disabilities.
Posting, publishing and distributing a notice to inform members of the public about Title II of the ADA and how it applies to the county’s programs, services and activities.

Implementing and reporting to the Department of Justice the county’s written procedures for providing information about the county’s accessible programs, services and activities and their locations.

Appointing an ADA Coordinator and adopting a grievance procedure to handle grievances submitted under the ADA.

Implementing effective communication policies approved by the Department of Justice to ensure people with disabilities have access to county programs and services, including county law enforcement agencies.

Developing policies and procedures and planning to ensure that people with disabilities are afforded equal, integrated access to emergency management programs, including emergency preparedness, notification, evacuation, sheltering, response, clean up and recovery.

Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.

Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Posting, publishing and distributing a notice to inform members of the public about Title II of the ADA and how it applies to the county’s programs, services and activities.
Implementing and reporting to the Department of Justice the county’s written procedures for providing information about the county’s accessible programs, services and activities and their locations.
Appointing an ADA Coordinator and adopting a grievance procedure to handle grievances submitted under the ADA.

Implementing effective communication policies approved by the Department of Justice to ensure people with disabilities have access to county programs and services, including county law enforcement agencies.

Developing policies and procedures and planning to ensure that people with disabilities are afforded equal, integrated access to emergency management programs, including emergency preparedness, notification, evacuation, sheltering, response, clean up and recovery.

Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.

Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Appointing an ADA Coordinator and adopting a grievance procedure to handle grievances submitted under the ADA.
Implementing effective communication policies approved by the Department of Justice to ensure people with disabilities have access to county programs and services, including county law enforcement agencies.

Developing policies and procedures and planning to ensure that people with disabilities are afforded equal, integrated access to emergency management programs, including emergency preparedness, notification, evacuation, sheltering, response, clean up and recovery.

Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.

Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Implementing effective communication policies approved by the Department of Justice to ensure people with disabilities have access to county programs and services, including county law enforcement agencies.
Developing policies and procedures and planning to ensure that people with disabilities are afforded equal, integrated access to emergency management programs, including emergency preparedness, notification, evacuation, sheltering, response, clean up and recovery.

Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.

Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Developing policies and procedures and planning to ensure that people with disabilities are afforded equal, integrated access to emergency management programs, including emergency preparedness, notification, evacuation, sheltering, response, clean up and recovery.
Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.

Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Implementing a plan to ensure the accessibility of sidewalks, transportation stops and pedestrian crossings by installing accessible curb ramps throughout the county.
Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.
Establishing and implementing a policy to ensure that county web pages are accessible to people with disabilities.

Napa Valley Register on California ADHC Medicaid Cut Settlement

The article is here.

Cox on Pregnancy as Disability

New on SSRN:  Jeannette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act (Boston College Law Review, forthcoming).  The abstract:

The recent expansion of the ADA’s protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. 

Drawing on the social model of disability, this article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not as an impairment located within an individual’s body but as the interaction between the individual’s body and her social environment. Within this framework, workers may experience pregnancy, a healthy biological state, as a workplace “disability.” Accordingly, now that workers with temporary physical limitations comparable to pregnancy may receive ADA accommodations, courts should conclude that the ADA’s goal to reshape the workplace to accommodate previously excluded persons extends to pregnancy.

AAPD and UCP Defend Medicaid

See this opinion piece in Roll Call from Mark Perriello and Stephen Bennett.

MPAS Recommends Tougher Sanctions on Negligent Nursing Home Staffers

See this article in the Detroit Free Press, which begins:

An advocacy group for the disabled is calling for tougher state laws following documented errors at Michigan nursing homes that led to injury or death among residents. 

Michigan Protection and Advocacy Service, a private non-profit, found numerous examples of neglect or abuse in state inspection reports on nursing homes in the state. 

"Why is it that we allow nursing homes to continue this way? It's unacceptable," Tom Masseau, spokesman at MPAS, said today.

Case Against Netflix Over Closed Captioning Survives Dismissal Motion But is Stayed

See this article by that title from the National Law Journal.  It begins:

A Massachusetts federal judge has rejected Netflix Inc.'s bid to dismiss a case against it brought by the National Association of the Deaf for failing to provide closed captioned text with its Web streaming service. But the judge stayed the case pending rulemaking by the Federal Communications Commission.

On Nov. 10, Senior Judge Michael Ponsor of the District of Massachusetts' Springfield division issued the order in National Association of the Deaf v. Netflix Inc.

S.D. Tex.: Under ADAAA, Plaintiff With Relapsing Remitting Multiple Sclerosis Overcomes Summary Judgment on Disability Question

Last week, in Carbaugh v. Unisoft International, Inc., 2011 WL 5553724 (S.D. Tex., Nov. 15, 2011), Judge Sim Lake concluded that a plaintiff with "relapsing remitting multiple sclerosis," which flared up approximately four times per year, requiring the plaintiff to receive treatment at home for a week each time, presented sufficient evidence to overcome summary judgment on the question whether he had a disability under the ADA. In this case involving post-ADA-Amendments-Act conduct, Judge Lake relied on the ADAAA's provision that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).  This issue would likely have gone the other way under pre-ADAAA law, as a number of cases cited by the defendant in this case demonstrate.  Nonetheless, Judge Lake granted summary judgment for the defendant; Judge Law concluded that the plaintiff had failed to present sufficient evidence to create a triable issue that he was discriminated against or denied accommodation.

DOJ Files Amicus Brief in Second Circuit Supporting "Best Ensure" Standard for Testing Cases

Yesterday, the Civil Rights Division of the US Department of Justice filed an amicus brief in Jones v. National Conference of Bar Examiners, No. 11-3355 (2d Cir., pending).  The case involves the proper standard for assessing a request for an accommodation on a professional examination.  The DOJ brief argues:

Plaintiff seeks to take the bar examination on a computer using assistive software to accommodate her vision and learning disabilities. Defendant asserts that it is required only to provide accommodations that are, in a general sense, reasonable. Section 309, however, specifically addresses professional examinations, and provides that they must be offered in a manner that is “accessible to persons with disabilities.” The implementing regulation provides that the examination must be administered so as to “best ensure” that the examination results accurately reflect the applicant’s aptitude or achievement level, rather than reflect the individual’s disability. The district court correctly concluded that the regulation is a reasonable construction of the statute and is entitled to deference under Chevron. Therefore, the “best ensure” standard in the regulation is an authoritative interpretation of the statute and applies in this case. The more generalized reasonableness standard, used in other provisions of the ADA, does not override the more specific regulation directed at disability-based discrimination in testing.

Lex Frieden is Blogging

Check it out.

DisabilityScoop on Accessible Transportation Hearing

The story is here.  It begins:

More than two decades after the passage of the Americans with Disabilities Act, one of the chief architects of the legislation is looking to eliminate transportation hurdles that people with disabilities continue to face. 

At a U.S. Senate hearing Thursday, Sen. Tom Harkin, D-Iowa, lamented the lack of accessible taxis even in the nation’s biggest cities and sympathized with Americans with disabilities who struggle daily to get from point A to point B. 

“Unfortunately,… more than 21 years since the passage of the ADA, we have not yet achieved equality in access to transportation,” Harkin said.

Settlement in California ADHC Medicaid Cut Case

See this article from the Los Angeles Times.  It begins:

Just weeks before the planned closure of adult day healthcare centers throughout California, state officials and disability rights attorneys reached a legal settlement Thursday that preserves services for those low-income seniors and disabled residents most at risk of being institutionalized. 

The state, which faces a $3.7-billion revenue shortfall, had targeted the centers as part of a plan to reduce spending on Medi-Cal, the government health program for the poor and disabled. Adult day healthcare centers provide nursing care, occupational therapy, physical therapy, meals and exercise to people with serious disabilities, brain injuries and chronic illnesses. 

Center care is an optional Medi-Cal benefit, and its elimination would have resulted in the closure of many of the roughly 275 centers.

Health Affairs Blog on What to Do After CLASS

See this interesting blog post, which proposes an alternative to the CLASS Act.

Mental Health Managed Care Pilot in Georgia

See this article, which begins:

First came the closing of a state psychiatric hospital in Rome and the creation of community mental health services in the area. 

Now mental health services may be revamped further in the North Georgia region, this time with a version of managed care. 

The state is designing a pilot program for the 31-county region that would combine the functions of a crisis telephone line and the authorizing and paying for mental health services under one roof. Currently those functions are split among different organizations.

Ninth Circuit Grants En Banc in Veterans Mental Health Case

Yesterday's order is here.  News coverage from the SF Chronicle is here, from the LA Times is here.

Good Public Accommodations Discovery Opinion From M.D. Pa.

On Monday, U.S. Magistrate Judge Martin Carlson of the Middle District of Pennsylvania issued a well-crafted opinion regarding discovery in ADA Title III cases. The case is McConnell v. Canadian Pacific Realty Co., 2011 WL 5520322 (M.D.Pa., Nov. 14, 2011).  The plaintiff, who uses a wheelchair, sued to challenge access barriers at a shopping mall owned by the defendant.  In discovery, the plaintiff sought to physically inspect the defendant's premises, including both the common areas of the mall and the premises leased to the mall's 15 retail tenants, pursuant to Rule 34 of the Federal Rules of Civil Procedure.  The defendant moved for a protective order.  The defendant argued, among other things, that the plaintiff's inspection should be limited to the specific access barriers alleged in the complaint, and that because the plaintiff's complaint had not identified any specific barriers at any of the retail outlets in the mall, the inspection should extend only to the common areas.

Although he recognized that courts have reached different conclusions on the issue, Magistrate Judge Carlson concluded that the plaintiff should be permitted to inspect all areas of the mall, not just the specific barriers identified in the complaint.  He explained:

First, we believe that adopting this broader scope of discovery is more consistent with the animating principles that generally govern discovery in federal court, principles which recognize that civil discovery is not narrowly cabined solely to a search for admissible evidence directly relating to known, and specific, allegations set forth in the plaintiff's complaint. Rather, Rule 26 permits discovery of all “relevant information,” a concept which is defined in the following terms: “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). 

Second, we find that considerations of judicial economy favor an approach to discovery in ADA litigation which permits an inspection of all related ADA compliance issues at one time. Otherwise, we literally invite plaintiffs in these cases to run a physical and metaphysical gauntlet when litigating disability claims. A narrowly focused discovery rule, like that proposed by the defendant, would compel disabled plaintiffs to confront and overcome a series of physical and legal barriers in a serial fashion, rather than identifying and addressing all ADA access barriers at this facility at one time. 

Finally, we conclude that the narrowly tailored discovery standard proposed by the defendants-which requires disabled persons to first, overcome threshold barriers to access; second, discover further access barriers; and third, assert ADA claims as to those newly discovered barriers-before permitting discovery relating to these additional access barriers would undermine the broadly remedial goals of the statute. That statute provides that: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Indeed, this narrow approach to discovery in ADA disability cases yields a cruel irony. As one court has observed: “[I]t would be ironic if not perverse to charge that the natural consequence of this deterrence, the inability to personally discover additional facts about the defendant's violations, would defeat that plaintiff's standing to challenge other violations at the same location that subsequently come to light.” Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1042 (9th Cir.2008).

DDC Enjoins District of Columbia for IDEA Violations

Yesterday, Judge Lamberth of the U.S. District Court for the District of Columbia issued an opinion and order finding D.C. in violation of the Individuals with Disabilities Education Act.  In DL v. District of Columbia, --- F.Supp.2d ----, 2011 WL 5555877 (D.D.C., Nov. 16, 2001), Judge Lamberth concluded that the District failed to provide a free appropriate public education "to a substantial number of District of Columbia children with disabilities, ages three to five years old"; that it "failed to identify and provide timely initial evaluations to all preschool-age children with disabilities in the District of Columbia"; and that it failed to comply with its legal obligation to ensure a smooth transition from early intervention services under IDEA Part C to preschool programs under IDEA Part B.  The court issued an injunction that imposed a number of procedural requirements on D.C.'s preschool special-education programs, and that also imposed the following numerical requirements:

147. Defendants shall ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive (hereafter, “preschool children”), who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of the IDEA. Until the target of 8.5 percent is reached, defendants shall: 

(a) Increase the number of referrals of preschool children that defendants obtain by 25 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 20 percent each subsequent year; and 

(b) Increase the percentage of preschool children in the District of Columbia enrolled in Part B by 1 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 0.5 percent each subsequent year.

148. Defendants shall ensure that at least 95 percent of all preschool children referred for Part B services receive a timely initial evaluation. 

(a) Until the target of 95 percent is reached, defendants shall increase the percentage of preschool children referred for Part B services who receive a timely initial evaluation by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year. 

(b) An initial evaluation shall be considered timely if it is completed within the period then-prescribed by federal and local statute. According to local statute, defendants currently have 120 days from the date of referral to provide a timely initial evaluation. “Date of referral” is defined as the date on which defendants receive a written or oral request for assessment of a preschool child including the child's name and age, the parent's or guardian's name, mailing address or telephone number, and the basis for referral.

149. Defendants shall ensure that at least 95 percent of all preschool children referred for Part B services receive a timely eligibility determination. 

(a) Until the target of 95 percent is reached, defendants shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year.

(b) An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law. According to District of Columbia law, defendants have 120 days from the date of referral to make an eligibility determination. “Date of referral” is defined as the date on which defendants receive a written or oral request for assessment of a preschool child including the child's name and age, the parent's or guardian's name, mailing address or telephone number, and the basis for referral.

150. Defendants shall ensure that at least 95 percent of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays.

(a) Until the target of 95 percent is reached, defendants shall increase the percentage of timely transitions by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year.

(b) A child's transition will be considered timely if the child receives an IEP listing both the type of placement and a specific location for services ( i.e., where the IEP will be implemented) by his or her third birthday.

In a separate order issued yesterday, Judge Lamberth distinguished the Supreme Court's recent Wal-Mart decision and denied a motion to decertify the plaintiff class in this case. That order can be found at 2011 WL 5559927.

The Washington Post has this coverage.

Taxi Boss David Yassky's Wheelchair Cab Plan Comes Too Late

See this editorial by that title in the New York Daily News.

Oregon Tests iPads as Aid to Disabled Voters

See this story by that title in the New York Times.

Senate HELP Hearing Tomorrow on Accessible Transportation

Announcement is here.  Nice witness list.

Former NBA Guard Cuttino Mobley Sues Knicks for Disability Discrimination

See this article from the New York Post and this one from Bloomberg.

You know, if there are any professional athletes who'd like to engage my services . . . .

Salzman on Guardianship

New on SSRN:  Leslie Salzman, Guardianship for Persons with Mental Illness -- A Legal and Appropriate Alternative?, 4 St.L. U. J. Health L. & Pol'y 279 (2011).  The abstract:

By limiting an individual’s right to make decisions, guardianship removes the individual from a range of human, social, and civic interactions thereby imposing a form of unjust and impermissible segregation. After discussing some of the problems with existing guardianship laws, and why guardianship is particularly ill-suited for individuals with psychosocial disabilities, the Article analyzes guardianship through the lens of the ADA’s integration mandate, referring to provisions of the U.N. Convention on the Rights of Persons with Disabilities for normative support, to argue that states should, and possibly must, modify guardianship systems to provide decision-making support as a less restrictive form of assistance. In the case of individuals with psychosocial conditions, where there tends to be a conscious or unconscious presumption of incapacity that is not empirically justified, and where the provision of support rather than the removal of decision-making rights has significant therapeutic benefits, the shift from surrogate to supported decision making is critical.

Psychiatric Drug Use Spreads

See this article by that title in the Wall Street Journal.  Big increase in adults taking ADHD drugs and in use of antipsychotics among all ages; a hopeful decrease in use of antidepressants by children.

Interesting Article on Managed Care and Mental Health/DD Services in North Carolina

Here.

More New Scholarship

Just out:

T. Daris Isbell, Note, Distinguishing Between Compensatory Education and Additional Services as Remedies Under the IDEA, 76 Brook. L. Rev. 1717 (2011);

Jude T. Pannell, Unaccommodated: Parents with Mental Disabilities in Iowa's Child Welfare System and the Americans with Disabilities Act, 59 Drake L. Rev. 1165 (2011); and

Elizabeth Pendo, Shifting the Conversation: Disability, Disparities, and Health Care Reform, 6 FIU L. Rev. 87 (2010).

Sixth Circuit Holds That "Verbally Controlling" Resistant Students is Essential Function of Teaching Job

In Johnson v. Cleveland City School District, issued yesterday, the Sixth Circuit upheld a grant of summary judgment to the defendant school district in this ADA Title I failure-to-accommodate case.  Long story short, the plaintiff was a teacher who was seriously injured in a car accident. Among the restrictions her doctors placed on her was that she "not be required to verbally control resistant behavior in students that persists after initial warning."  She said she could nonetheless teach with an aide to assist her in this task, but the district court held that the provision of an aide would not be a reasonable accommodation.  The Sixth Circuit affirmed.  That court held (in an unpublished opinion) that controlling resistant students is an essential function of the job of school teacher, and that it cannot be a reasonable accommodation to assign an essential function to another employee.  This decision seems to be in some tension with Judge Calabresi's 1995 opinion for the Second Circuit in Borkowski v. Valley Central School District, which reversed a grant of summary judgment to the employer on very similar facts.

Student Note on Web Access and the Deaf Community

Just out:  Hayley M. Koteen, Note, Ending the Disconnect for the Deaf Community: How Amendments to the Federal Regulations Can Realign the ADA with its Purpose, 29 Cardozo Arts & Entertainment L.J. 425 (2011).

San Bernardino Court-Access Suit Settled

See this story, which begins:

A proposed settlement has been reached in a 2006 federal class-action lawsuit filed against San Bernardino County and its courts over accessibility for disabled persons at more than a dozen courthouses. 

The lawsuit, filed in U.S. District Court in Riverside, claimed that parking, paths of travel, courtrooms, bathrooms and other areas were inaccessible to people with mobility or manual dexterity disabilities. 

Lawyers for the Disability Rights Legal Center in Los Angeles, which represented plaintiffs in the case, said Tuesday that both sides worked hard to reach what they described as a model settlement that could be a blueprint for any court system in any county.

Congratulations to my friends at the DRLC!

Good, if Short, Story on New ADA Swimming Pool Requirements

Is here.

Small-Business Owners Targets of ADA Lawsuits

See this column by that title in the SF Chronicle.

Federal Legislators Push to Pay Disabled Workers Minimum Wage

See this article by that title.

More News on Possible Settlement in California Medicaid Cuts Suit

See this article from California Healthline, which begins:

Disability Rights California is close to settling its adult day health care lawsuit against the California Department of Health Care Services, according to a joint release from the two parties. 

Today's scheduled federal court date has been moved to Thursday, by mutual agreement. But according to the joint statement, the court date may not be necessary. 

"This brief court date postponement is necessary to enable the parties to finalize a settlement, the details of which will be available on Thursday," the release said.

Barriers Keep Many Disabled New Yorkers Trapped in Poverty

See this article by that title in the Gotham Gazette.

Two From California on Serial Litigation

See this story from Channel 7 in LA, and this article from the Orange County Register.

Two California Mental Hospitals Released From Federal Oversight

See this article by that title in the LA Times.  It begins:

Two California mental hospitals have been released from federal oversight, ending a five-year court-ordered reform effort that implemented major changes in patient treatment. 

Atascadero State Hospital and Patton State Hospital in San Bernardino will no longer be subject to a consent judgment on patient care that state and federal officials reached in 2006, according to an order issued Monday by a federal judge in Los Angeles. 

But Chief U.S District Court Judge Audrey B. Collins extended the consent judgment until Dec. 2 for two other hospitals — Napa State Hospital and Metropolitan State Hospital in Norwalk. State and federal officials are negotiating an agreement related to care at those facilities.

Schiltz on Yours Truly

Just up on SSRN:  Elizabeth Rose Schiltz, Exposing the Cracks in the Foundations of Disability Law, 75 Law & Contemp. Problems ___ (forthcoming 2012).  The abstract:

The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.

Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. But the pretensions of the humanism on which Hauerwas focuses his critique are two different corollaries – namely, that autonomy and the ability to freely create one’s own identity constitute equally fundamental markers of humanity.

In his book LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT, disability law scholar Samuel Bagenstos identifies and tries to explain a series of contemporary contradictions in disability law, including recent case law restricting the scope of the ADA and the debate about abortion after a prenatal diagnosis of a disability. A careful analysis of these arguments reveals that Bagenstos’ explanations for the contradictions he notes are compatible with many significant aspects of Hauerwas’ critique of modern humanism, although Bagenstos does not characterize his critiques that broadly. Bagenstos’ arguments could be strengthened by incorporating more completely Hauerwas’ full critique. Appreciating how Bagenstos’ arguments are underpinned by these Haeurwasian insights does more, however, than simply clarify and strengthen Bagenstos’ arguments. More significantly, it is evidence of a growing and potentially powerful convergence of theological and secular reflection on the thorny conundrum posed by contemporary society’s treatment of the significantly disabled. By joining forces, proponents of these arguments might be able to work together for the development of a less contradictory – and more inclusive – set of laws and practices for people with disabilities.

LaborRelated on the ADA and the New DSM

Via Workplace Prof comes a pointer to this interesting post on implications the in-the-works changes to the American Psychiatric Association's Diagnostic and Statistical Manual might have for the ADA.

California Healthline on Settlement Talks in the California Budget Cut Case

See this article, which begins:

Tomorrow, a federal judge is scheduled to hear the long-delayed court case challenging the state's adult day health care transition plan. 

Both sides are trying to hash out a compromise settlement. Representatives from Disability Rights California, which filed the suit, and the state Department of Health Care Services met four days last week and may talk again today in an attempt to avoid the all-or-nothing judicial decision. 

The state is due to eliminate ADHC as a Medi-Cal benefit on Dec. 1. The lawsuit challenges the efficacy of the transition plan proposed by DHCS to provide necessary care for 35,000 ADHC beneficiaries.

LAT on Dual Eligibles

Good article here.

First Circuit Holds TSA Screeners Can't Sue Under Rehabilitation Act

In Field v. Napolitano, released this past Thursday, the First Circuit held that the Aviation and Transportation Security Act of 2001 forecloses any Rehabilitation Act claim by an airport security screener who works for the Transportation Security Administration.  The First Circuit thus agreed with decisions issued by the Seventh, Eleventh, and Federal Circuits.

Good Story on Virginia I/DD Waiting Lists

From the Richmond CBS affiliate, here.  The piece focuses on the ongoing DOJ investigation/negotiations in Virginia.

V.I. Daily News on New Visitability Incentive Law

See this story, which begins:

People with disabilities, advocates and supporters gathered at Government House in Christiansted on Thursday for a special bill-signing ceremony. 

The bill that Gov. John deJongh Jr. signed into law creates the Visitable Housing Design and Incentive Program, which will provide property tax breaks to homeowners who build their homes in certain ways to make them user-friendly to people with disabilities.

An interesting idea, which addresses an important problem.

Air Force Vet Denied Test Because of Service Dog

See this story by that title from WUSA.

Lawmakers Hear About Mental Health Post-Irene

This AP article by that title has the latest from Vermont.

Press on NAMI Mental Health Cuts Report

See this AP story on a NAMI report that is getting a lot of play.  The story begins:

Modest increases in some states' mental health budgets have done little to erase massive cuts nationwide over the past three years and a reduction in Medicaid funds, according to a report to be released Thursday by the nation's largest mental health advocacy group. 

All told, the Washington-based National Alliance on Mental Illness found, 28 states and the District of Columbia have cut nearly $1.7 billion from their mental health budgets since the 2009 fiscal year. 

Among the other 22 states, mental health budgets increased about $487 million, though NAMI cautioned that spending was offset by legislatures' funding cuts to Medicaid, the largest public payer of mental health care.

City of LA to Review Emergency Plan for Disabled

See this AP dispatch, which begins:

Los Angeles will have to hire an independent expert to review and revise the city's emergency plan to make sure it accounts for the safety of disabled people, a judge said in an order issued Wednesday.

Long-Term Care Training Approved

See this article by that title from the Seattle Times.  It begins:

For the second time in four years, voters have approved an SEIU-backed initiative to increase training for long-term-care workers. 

Initiative 1163 would more than double required training — from 34 to 75 hours — for most new long-term-care workers. The measure also would require certification and more rigorous background checks.

SDNY Sues Lawyer for Refusing to Meet with Client with Service Dog

See this story, which begins:

Federal prosecutors on Tuesday accused an Orange County law firm of refusing to meet with a disabled client because she was accompanied by a service dog trained to assist her with day-to-day tasks. 

The suit, brought by the Civil Rights Unit of the U.S. Attorney's office for the Southern District of New York, alleges that Larkin Axelrod Ingrassia and Tetenbaum and one of its partners, John Ingrassia, discriminated against Lauren Klejmont on the basis of her disability, a violation of Title III of the Americans with Disabilities Act of 1990.

Last year, the Department of Justice settled a Title III service-animal claim against a lawyer, though that case didn't involve a lawyer who discriminated against his own client.

Safety Nets for Mentally Ill Children are Full of Holes

See this opinion piece by that title from the Washington Post.

Media Roundup on GA Assisted Suicide Arguments

Not Dead Yet's blog has a series of links.

Maverik Store Chain Pays to Settle HIV Case

See this AP dispatch by that title.  Between this and the Comfort Suites case, a nice day for the EEOC.

Comfort Suites Settles Autism Discrimination Suit

See this AP dispatch by that title.

Michigan AG Files Amicus Brief in Support of Claim that LSAT Discriminates Against Blind Test-Takers

See this report, which includes a copy of the brief.

Settlement Prompts Fear About Cuts to Medicaid

See the article by that title published by the Times this weekend.  It begins:

When New York City agreed to pay $70 million this week to settle accusations of fraud in a program intended to take care of disabled people at home, it seemed like a victory for the disabled.

But now, in a letter sent late Thursday to federal law enforcement and Medicaid officials, dozens of organizations representing disabled people are saying there is a dark side to the settlement. They say that as a result of the deal, the city is telling elderly clients that it intends to reduce or discontinue 24-hour services like bathing and toileting that have kept them at home and out of a nursing home.

Their complaint, like the litigation, raises thorny public policy questions about how much money should be spent on services to those who are disabled. The federal government had accused the city of approving expensive Medicaid coverage for in-home attendants when patients would have been appropriately served by cheaper care in a nursing home. The city settled the case this week for $70 million.

Disability Activists Urge Georgia Supreme Court to Uphold Prosecution of Final Exit Network

See this press release by that title from Not Dead Yet.  As the press release indicates, the case involves an interesting First Amendment question.

Gleckman on How to Fix the CLASS Act

See this piece from Howard Gleckman in Bloomberg Businessweek.

Two from the Times

This weekend, the NY Times has two significant pieces that may be of interest to both of my readers.  One, published today, is the newest installment in the important "Abused and Used" series of investigative reports about the treatment of people with developmental disabilities in New York's group homes, many of which are state run.  The other piece, published yesterday, involves how Vermont is handling the sudden closure of its troubled state psychiatric hospital after Irene.

Disability Employment Shows Signs of Improvement

See this article by that title on DisabilityScoop.  It begins:

The job situation for Americans with disabilities improved dramatically in October with unemployment dropping to its lowest level in more than two years, the Labor Department said Friday. 

The unemployment rate fell to 13.2 percent for those with disabilities in October. That’s down significantly from 16.1 percent the month prior and marks the lowest jobless rate on record since April 2009. 

The improvement in the employment situation is significant because it comes even as the number of Americans with disabilities who were in the labor force — those working or seeking work — increased. In contrast, the unemployment rate has eased at other times largely due to a decline in the number of people looking for employment rather than an actual improvement in the job market.

Puerto Rico Ends Legal Battle Over Disability

See this AP article by that title.  It begins:

Puerto Rico has reached an agreement with the U.S. government ending a 12-year legal battle to improve the island's health system for the mentally disabled, local justice officials said Thursday. 

Federal officials had accused the U.S. territory of abusing and neglecting hundreds of mentally disabled people by not providing food, medication, adequate housing, therapy or mental health care. 

Puerto Rico has since agreed to make dozens of changes, including opening new treatment centers and hiring more employees, as a result of the more than 1,300 court orders issued during the lengthy litigation, Justice Secretary Guillermo Somoza said.

Wisconsin Education Department Responds to DOJ Voucher Probe

See this article by that title.  It begins:

The Department of Justice has begun an investigation into Wisconsin's Department of Public Instruction, probing whether Milwaukee's state-administered voucher system is discriminating against students with disabilities. In response, the state is arguing that federal obligations don't apply to Wisconsin's voucher schools, according to a letter obtained by The Huffington Post Thursday.

ACLU Settles with TSA for HIV Discrimination

See this article by that title.

Dick and Ginny Thornburgh Receive Edna Silberman Humanitarian Award

See the press release here.  A well-deserved award for two of the classiest people I've ever met.

Advocates for Disabled Hail State's Decision to Close 2 Institutions

See this report by that title.  It begins:

Gov. Quinn says budget problems leave him no choice and he’ll have to close two living centers that care for people with disabilities. 

But many living with disabilities say they want them closed, CBS 2’s Dana Kozlov reports. 

Many disabled people — and advocates in that community — call developmental centers institutions that needlessly segregate the disabled from the rest of society. They say shutting them down would change that and save the struggling state a lot of money, too.

Sen. Jay Rockefeller's Speech Last Night on the CLASS Act

ThinkProgress Health has it.

CLASS Act Tackles Problems of Aging

See this opinion piece by Rep. Ted Deutch in Politico.  Key quote:

Critics of CLASS cannot have it both ways. You cannot fault it for lacking the means to ensure a diverse, financially-stable, healthy risk pool while you challenge the Affordable Care Act for doing just that. CLASS provided Americans with an affordable but voluntary long-term insurance option.

Kids' Mental Health Programs Still Lag in GA

See this article by that title in the Georgia Health News.  It begins:

It has been acclaimed as a national model for other states. 

Last year’s settlement agreement between Georgia and federal officials over improving the care of people with mental illnesses and developmental disabilities has won widespread praise from consumer advocacy groups, both here and nationally. 

But the pact with the U.S. Justice Department has one major gap: It doesn’t address children’s services.

State Hospital Faces Major Patient Influx

See this article by that title from the Kansas Health Institute.  It begins:

Wichita's leading mental health center has informed state officials that it expects to refer an additional 1,250 people to Osawatomie State Hospital next year, which would mean a large influx of patients at a facility that already is frequently overcrowded. 

COMCARE officials said they must begin diverting more patients to Osawatomie because recurring state budget cuts have left the center no longer able to afford the costs of providing inpatient care in Wichita.

Good IDEA Exhaustion Case

On Monday, the District Court for the Eastern District of Pennsylvania issued an opinion in P.V. ex rel. Valentin v. School District of Philadelphia, 2011 WL 5127850 (E.D. Pa., Oct. 31, 2011).  The case was brought, on behalf of a class, by four students with autism in the Philadelphia public schools.  They seek to challenge, under the IDEA, ADA, and Rehabilitation Act, and under state law, what they allege is a policy of forcing kids with autism to change schools once they complete a particular grade, even if other kids who complete that grade don't have to change schools.  The school district moved to strike the class allegations and moved to dismiss for failure to exhaust, mootness, and lack of standing.

The district court denied the school district's motion in full.  What is especially interesting from a disability law perspective is the court's analysis of the IDEA exhaustion argument.  The court concluded that exhaustion of IDEA administrative remedies was not required because the plaintiffs alleged a systemic violation and sought system-wide relief.  It explained that if a plaintiff alleges such a violation and seeks such relief, resort to administrative remedies would be futile, because the IDEA administrative process can resolve individual claims only.  The court took note of cases holding that exhaustion is nonetheless required if the administrative process can provide some form of relief to the plaintiff.  But it determined that those cases made sense only as a response to efforts by plaintiffs to gerrymander their relief requests to avoid the administrative process:

However, taken too far, the “some form of relief” doctrine would eviscerate the futility exception to exhaustion. Administrative hearing officers can almost always fashion some kind of relief for an IDEA claimant. Therefore, if we made IDEA claimants exhaust their administrative remedies every time the administrative process could provide the claimants some relief, the futility exception would become a nullity. Additionally, the Supreme Court has made it clear that IDEA claimants “may bypass the administrative process where exhaustion would be futile or inadequate.” [citing Honig v. Doe] (emphasis added). If read broadly, as suggested by Defendants, the “some form of relief” line of cases would improperly run afoul of the Honig decision.

The standard for excusing exhaustion in IDEA cases has caused significant divisions within the courts.  This is an issue the Supreme Court will deal with before too much longer, I predict.

IHT on Pat Wright's House

This isn't strictly disability law related, but without Pat Wright there would have been no ADA.  The International Herald-Tribune today has a nice piece on her universally designed (and universally acclaimed as fabulous) house in Mexico.

Auburn Businesses Struggle with ADA Lawsuit Costs

See this article by that title.  It begins:

Steve Rowett will be paying Carmichael-based attorney Scott Johnson $200 a month for the next five years. 

Rowett, who owns Sierra Smog on the corner of Highway 49 and Elm Avenue, in Auburn, is one of several local business-owners who were sued by Johnson for their buildings being out of compliance with the Americans with Disabilities Act. 

If he would have had a plan in place with a Certified Access Specialist before being sued by Johnson, he would have been protected from legal action, according to Michelle Davis, Auburn architect and Certified Access Specialist.

The Nation on Santorum and Disability Rights

See this from Ben Adler.

Was Autistic Man Really a Marine? Military Court to Decide.

See this article by that title.  You can see the disability rights angles here, even if the story doesn't play them up.  (H/t: Disability Scoop.)

Maggots Found in Pubic Region of Two Nursing Home Residents

In other news from my home state, see this article by that title.  It begins:

A watchdog group is investigating a survey by a state agency that has found maggots in the throat and pubic area of two elderly women in nursing homes in Washtenaw and Oakland counties. 

The Department of Licensing and Regulatory Affairs, the agency responsible for licensing nursing homes in Michigan, and the Michigan Protection and Advocacy Service, Inc., said the two women were subject to severe neglect and abuse. 

The survey was conducted in Michigan nursing homes in August, said Tom Masseau, media and government relations for MPAS, based in Lansing.

Michigan Radio has more.

Interesting Day-Care Fee Case

From down the road from me comes this story:

After a 3-year-old child with Down syndrome walked away from Little Rainbows of Leslie in March, the day-care center decided to charge her parents an additional $10.68 an hour so it could provide one-on-one staffing for the child, according to a lawsuit. 

The lawsuit, filed last week by Tracy and Julie Powers of Stockbridge, says the day-care center’s response to the incident discriminates against the family and violates the federal Americans with Disabilities Act. 

The day-care center imposed one-on-one staffing even though the parents didn’t believe it was necessary, the lawsuit says. The child no longer attends Little Rainbows.

The article includes a response from the day care center.

New NCD Disability Policy Progress Report

See this press release from the National Council on Disability:

WASHINGTON, Nov. 1, 2011 /PRNewswire-USNewswire/ -- On Tuesday, November 1, the National Council on Disability (NCD) will release National Disability Policy: A Progress Report detailing Federal disability policy. NCD is a small, independent federal agency comprised of 15 Presidentially-appointed, Senate-confirmed Council Members and a small staff, who advise the President, Congress and other Federal agencies on disability issues, programs and services. 

In the report, NCD assesses Federal disability policy in the United States and examines how emerging trends and government policies influence the quality of life of Americans with disabilities. NCD also offers recommendations to maximize independence and self-sufficiency of people with disabilities. The report notes progress where it has occurred and makes recommendations to both the Executive and Legislative branches where necessary. 

"People with disabilities have lower rates of employment, lower annual earnings, lower educational attainment and achievement; lack adequate access to housing, transportation, technology, and health care," revealed Jonathan Young, NCD Chairman.  "The current economic downturn is having a disproportionate negative effect on the quality of life for people with disabilities and their families. A strong Federal commitment to the implementation and enforcement of the standard set forth by the Americans with Disabilities Act will be central in determining both success and savings in these difficult economic times. This report provides a necessary snapshot of where we're at – and clear, workable suggestions for moving forward."   

"People don't live in silos.  Living, learning and earning in America requires the integration of various complimentary supports and approaches. Policy decisions, if we want them to work, must reflect that reality," continued Aaron Bishop, NCD's Executive Director. "Over the past year, NCD brought people together in a multitude of ways to exchange information, build collaborations, and inform solutions to both long-standing and emerging challenges.  By connecting community with the most recent national data available we've helped identify unique solutions to correct the vast disparities that still exist between people with and without disabilities in the United States." 

For more information or to obtain a hard copy of the report, please contact Lawrence Carter-Long at 202-272-2112 or 202-272-2074 TTY. 

Full report is available on NCD's website at: http://www.ncd.gov/progress_reports/Oct312011