Wednesday, February 29, 2012

More Tovino on Mental Health Parity

New on SSRN: Stacey A. Tovino, Reforming State Mental Health Parity Law, 11 Hous. J. Health L. & Pol'y 455 (2011).  The abstract:
This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive than their physical counterparts. The second installment also proposed comprehensive federal reforms, including the extension of federal mental health parity law to individuals who do not currently benefit from mental health parity law. This third and final Article undertakes an important correction of state mental health parity law. The first section of this Article examines in detail the mental health parity laws of four states: Idaho, Maryland, Nevada, and Vermont. I categorize these states’ divergent mental health parity laws by their breadth and depth of application, whether they mandate the option or inclusion of mental health and substance use disorder benefits, and the extent to which parity between physical and mental health benefits is required in all rates, terms, and conditions. The second section of this Article justifies and proposes amendments that would not only conform these and other state laws to minimum federal requirements, but would also expand state mental health parity law to all health plans subject to state insurance regulation, require inclusion of mental health and substance use disorder benefits in such plans, and eliminate artificial “biologically-based” and “severe mental illness” distinctions. The third section of this Article offers a uniform mental health parity law for consideration by state legislatures.

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D.N.J. Issues Ridiculous Title II/504 Standing Decision

Last week, Judge Joel Pisano of the United States District Court for the District of New Jersey issued an opinion granting summary judgment to the defendants in A.E. v. Freehold Regional High School District Board of Education, 2012 WL 603810 (D.N.J., Feb. 22, 2012).  The facts of the case are pretty straightforward.  In 2009, Freehold High School taught a class on child development.  To provide its students experiential learning in conjunction with that class, Freehold High School ran a part-time preschool for 3- and 4-year-olds.  N.E. was a 3-year-old who was accepted into the preschool but who was then told he could not attend once Freehold learned he had a peanut allergy.  N.E.'s mother sued Freehold on his behalf and claimed that the exclusion violated the ADA, the Rehabilitation Act, and the New Jersey Law Against Discrimination.

In its summary judgment opinion last week, the district court held that the claim was moot, because Freehold had eliminated the child development and preschool program before N.E.'s mother brought suit.  Perhaps anticipating this problem, N.E.'s mother's complaint sought damages for her son's exclusion from the preschool program.  As the Supreme Court has held time and again, a suit for damages presents a live controversy, even if a claim for forward-looking injunctive relief is moot.  But the district court held that N.E. and her son had "no cognizable claim for damages."  Here's the court's complete analysis of that question:
During oral argument, Plaintiff identified compensatory damages of $1,200. According to Plaintiff, that cost represents the tuition charged by a daycare center where N.E. enrolled in during a period of the fall of 2009. Yet a full time daycare is not a substitute for the free Child Development Lab that operated only several hours a day and only three days a week. In other words, this is not a case where a child was denied participation or accommodation in mandatory free public education forcing him to seek an alternative. Indeed, Plaintiff conceded during oral argument that the school district was never under a duty to admit or allow N.E to participate in the Child Development Lab. See N.J. Stat Ann. 18A:38–1. Therefore, as a matter of law, Plaintiff did not suffer any compensable money damages when unable to participate.
At most, what this suggests is that the proper measure of out-of-pocket damages was not $1,200 but something less.  But surely there are economic damages when a child is denied access to a free preschool program -- even if it's only a part-time program.  Had N.E. been admitted to Freehold's preschool -- as, the summary judgment record indicates, he would have but for his allergy -- his mother would not have had to find an alternative way to provide him child care during the hours that the preschool was in operation.  It also wouldn't be surprising if there were significant noneconomic damages as well.  That Freehold was not required to provide a preschool program at all or accept any given student into its preschool is irrelevant.  What the law prohibits is discrimination against individuals with disabilities.  Once Freehold decides to set up a preschool program, it can choose students for lots of reasons -- but not for discriminatory ones.  And discrimination, at least so far as the summary judgment record is concerned, is what N.E. established.

I know this is a small-money case, but this kind of slapdash standing ruling is all too common in knocking people with disabilities out of court.  For principle and precedent alone, I would think an appeal would be warranted.


More Coverage of Federal Olmstead Investigation of Kansas

See this local news story, which begins:
Thousands of people with disabilities in Kansas are on waiting lists to hear if they'll get the help they need to live independently. The federal government has intervened to get the ball rolling. Advocates say the long wait violates the Americans With Disabilities Act
“I don't feel like I'm ready to sit around and do nothing,” said Scott Wiechman.

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New European Commissioner for Human Rights Issue Paper on Guardianship

The EU Commissioner on Human Rights recently released this issue paper entitled "Who Gets to Decide?  Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities."  The first two paragraphs give a flavor:
The right of persons with disabilities to make choices about their lives and enjoy legal capacity on an equal basis with others is one of the most significant human rights issues in Europe today. Being recognised as someone who can make decisions is instrumental in taking control over one’s life and participating in society with others. 
Having legal capacity enables us to choose where and with whom we want to live, to vote for the political party we prefer, to have our health care decisions respected, to control our own financial affairs and to have access to cinemas and other leisure activities. Without it we are non-persons in the eyes of the law and our decisions have no legal force. This is still the reality for hundreds of thousands, if not a million, Europeans with intellectual and/or psychosocial disabilities put under guardianship regimes.

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Tuesday, February 28, 2012

ODEP Issues Report on Accessible Information and Communication Technology

You can see the report from the Department of Labor's Office of Disability Employment Policy at this link.  The first paragraph:
As technology continues to transform the workplace, demand is growing for the development, purchase, maintenance and use of information and communication technology (ICT)1 that is accessible to and usable by all applicants and employees, including individuals with disabilities. Leading companies recognize that fostering an accessible workplace is the smart thing to do, both from a business standpoint and a legal perspective. This paper provides a framework that can be used to develop technical assistance tools to help employers (including government contractors) design, purchase, lease, maintain and use ICT that is accessible to and usable by people with disabilities and others.

Thanks to Mary Brougher for the pointer.


Action on Federal Olmstead Investigation of Kansas?

That's what this article suggests is in the offing.  It begins:
Advocates for the disabled say they believe the federal government is close to taking action against the state of Kansas for violating the Americans with Disabilities Act. 
Federal officials for months have been reviewing complaints filed by disabled Kansans and they are scheduled to meet later this week in Kansas City with state officials to discuss the issue and their findings, a step that often precedes federal action. 
The disabled consider the ADA a civil rights landmark and a major highlight of the legislative legacy of former U.S. Sen. Bob Dole, a celebrated Kansas Republican who himself was disabled by grave wounds suffered as an infantryman in World War II.

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Adults with Disabilities More Likely to Be Victims of Violence

See this well done story from ABC News, which begins:
Adults with disabilities are more likely to be victims of violence than adults who are not disabled, according to a new study published online in The Lancet
Mentally ill adults are at four times higher risk for violence, and adults with intellectual impairments are also particularly vulnerable. 
A team of researchers from the United Kingdom's Liverpool John Moores University and the World Health Organization analyzed 26 studies on violence against disabled adults, with more than 21,000 participants from around the world.

Pollack on the Politics of Disability

Today's New York Times has an important op-ed by the always enlightening Harold Pollack.  Read the whole thing, but this paragraph gives you a taste:
But more is at stake here than factual inaccuracies. Mr. Santorum and Ms. Palin are spreading a poisonous meme: that liberals disdain the disabled and look down upon parents who raise children with physical or intellectual limitations. They seek to insert the hateful rhetoric of the culture war into one of the few areas of American life that had remained relatively free of such rancor. Care for people with disabilities has quietly been one of the few causes in this country on which social liberals and conservatives could put aside their differences to get important work done. I fear this may be changing, and at the precise moment when budget crises and the knife fight over health care reform place the future of key disability services into doubt.


Tovino on Mental Health Parity

New on SSRN: Stacey A. Tovino, Further Support for Mental Health Parity Law and Mandatory Mental Health and Substance Use Disorder Benefits, 21 Annals Health L. 147 (2012).  The abstract:
In this Article, I provide additional support for my recent proposal (All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Harvard Journal on Legislation, Vol. 49, forthcoming 2012.) to extend federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members. I begin by examining health-related doctrine outside the context of mental health insurance law, including disability discrimination law, civil rights and human rights law, health information confidentiality law, healthcare reform law, and child and adult health and welfare law, and I find that not one of these laws provides inferior legal protections or benefits for individuals with mental illness. I also analyze international, national, state, and professional definitions of “health” that are used in a range of clinical, legal, and social contexts and find that these definitions uniformly fail to subordinate mental health to physical health and that these definitions identify both physical wellness and mental wellness as equal contributors to overall health. I further contextualize remaining legal distinctions between physical and mental illness in terms of the centuries-old mind-body problem, which continues to animate health law, philosophy of the mind, and other legal and philosophical doctrine. Finally, I suggest that the stigma associated with mental illness may be serving as a final — and perhaps most formidable — obstacle to complete mental health parity.

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Monday, February 27, 2012

HUD Charges Bank of America with Discriminating Against Borrowers with Disabilities

See this article, which begins:
The trouble continues for Bank of America (BAC). According to a press release issued Monday, the U.S. Department of Housing and Urban Development (HUD) alleges the bank is guilty of discriminating against borrowers with disabilities.

This is just one in a string of allegations against B of A, one of the nation's largest banks.

HUD claims Bank of America "imposed unnecessary and burdensome requirements on borrowers who relied on disability income to qualify for their home loans and required some disabled borrowers to provide physician statements to qualify for home mortgage loans."
David Ferleger has more here.


Morse on Desert/Disease Jurisprudence

New on SSRN: Stephen Morse, Protecting Liberty and Autonomy: Desert/Disease Jurisprudence, 48 San Diego L. Rev. 1077 (2011).  The abstract:
This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use of post-insanity acquittal involuntary commitment. This Part also considers whether disease jurisprudence might justifiably be extended to problematic classes of agents such as psychopaths. I argue that sexual predator commitments are blatantly punishment by other means despite the Supreme Court's approval of them as forms of civil commitment and that other attempts to expand disease jurisprudence are artificial or unworkable. Next, I consider frankly consequentialist approaches to preventive detention. I suggest that they are conceptually coherent but politically and practically unacceptable. A brief conclusion suggests that the respect for liberty and autonomy is best guaranteed by genuine desert and disease limitations on detention, although there will be a cost to public safety.

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Perlin on Sadoff

New on SSRN: Michael L. Perlin, "Justice's Beautiful Face": Bob Sadoff and the Redemptive Promise of Therapeutic Jurisprudence, J. Psychiatry & L. (forthcoming 2012).  The abstract:
Dr. Robert Sadoff’s career is a reflection of his commitment - both as a scholar and as an expert witness - to the values of care, the avoidance of harm, and the well-being of those who come in contact with the forensic system. These are commitments that resonate in the therapeutic jurisprudence literature.

One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). Initially employed in cases involving individuals with mental disabilities, but subsequently expanded far beyond that narrow area, therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti‐therapeutic consequences. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. There is an inherent tension in this inquiry, but Professor David Wexler - one of TJ’s “founding fathers” - clearly identifies how it must be resolved: “the law's use of “mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns.” As I have written elsewhere, “An inquiry into therapeutic outcomes does not mean that therapeutic concerns `trump’ civil rights and civil liberties.”

In this article, I first explain the fuller meaning of therapeutic jurisprudence. Next, I will look at Dr. Sadoff’s writing that has been explicitly about TJ, to be followed by (1) a consideration of his other writing that has clearly been inspired by his adherence to TJ principles (although those are not necessarily specified), and (2) a consideration of some of the reported litigated cases in which he has testified in which his testimony reflects TJ values. I conclude with some thoughts about his contributions in this area, coupled with some speculations as to why so few forensic psychiatrists ever write from this perspective.

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Colker on the IDEA

Ruth Colker has uploaded to SSRN a copy of the first chapter of her forthcoming book, Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act.  The abstract:
This manuscript is the first chapter of a forthcoming book to be published by New York University Press entitled Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act. The book argues that Professor Lloyd Dunn was correct to predict in 1974 that the Education for All Handicapped Children Act (now called the Individuals with Disabilities Education Act) would do more harm than good for many of the low-income children it was committed to serve better. The book uses the tools of legislative history, story telling and empirical investigation of hearing officer decisions to tell this compelling story.

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Friday, February 24, 2012

Don't Blame the New ADA Regs for the Green Bay Packers' New Ticket Policy

So, apparently the Green Bay Packers have decided that they are no longer going to sell tickets for accessible seating locations to customers with disabilities on a single-game basis.  Instead, accessible seats will be sold only as season tickets.  As I understand it, Lambeau Field sells basically no single-game tickets, except on the rare occasions when a visiting team returns a piece of its allocation -- in which case, I would hope, customers with disabilities would have an equal opportunity to purchase those returned tickets along with other customers -- so the new policy puts customers with disabilities in the same position as customers without disabilities in terms of their opportunity to purchase single-game tickets.  Still, a number of fans with disabilities, some of whom live on SSDI benefits or other fixed incomes, are understandably upset that the new policy makes it impossible for them as a practical matter to afford to go to Packers' games.  The Packers are claiming that their hands are tied, because the new ADA regulations require them to offer tickets to customers with disabilities on precisely the same terms that they offer tickets to customers without disabilities, no worse and no better.

Let me do my best Marshall McLuhan impersonation here:  There is nothing in the new ADA regulations that requires the Green Bay Packers to stop letting customers with disabilities buy single-game tickets to accessible seating areas, even if the rest of the seats at Lambeau are sold only to season-ticket holders.  The ticketing provisions in the new ADA regulations prohibit teams and stadiums from giving customers with disabilities less opportunity to purchase accessible seats than is afforded to nondisabled customers seeking seating generally.  So the team has to at least make the same sorts of tickets for accessible seats available to customers with disabilities, during the same hours, during the same stages of ticket sales, through the same methods of distribution, in the same types and numbers of sales outlets, and under the same terms and conditions as are available to customers seeking seating generally.  So the Packers are likely not violating those regulations by selling accessible seats on a season-ticket-only basis, if I'm right that nobody without a disability can purchase tickets on a single-game basis.

But to say that the ADA regulations require this result -- which is what the Packers are saying -- is just flat wrong.  The preamble to the new regulations is completely clear on this point (emphasis mine):
The Department interprets the fundamental principle of the ADA as a requirement to give individuals with disabilities equal, not better, access to those opportunities available to the general public. Thus, for example, a public accommodation that sells out its facility on a season-ticket only basis is not required to leave unsold its accessible seating if no persons with disabilities purchase those season-ticket seats. Of course, public accommodations may choose to go beyond what is required by reserving accessible seating for individuals with disabilities (or releasing such seats for sale to the general public) on an individual-game basis.
If the Packers want to keep selling some accessible seats on an individual-game basis, they can.  There it is, in black and white.

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Why Managed Care Can Be Good for People with Disabilities

See this story from the New York Times.  It begins:
Faced with soaring health care costs and shrinking Medicare andMedicaid financing, nursing home operators are closing some facilities and embracing an emerging model of care that allows many elderly patients to remain in their homes and still receive the medical and social services available in institutions. 
The rapid expansion of this new type of care comes at a time when health care experts argue that for many aged patients, the nursing home model is no longer financially viable or medically justified. 
In the newer model, a team of doctors, social workers, physical and occupational therapists and other specialists provides managed care for individual patients at home, at adult day-care centers and in visits to specialists. Studies suggest that it can be less expensive than traditional nursing homeswhile providing better medical outcomes.


Hotels Aren't Happy With New ADA Pool Lift Requirements

One of the requirements of the Department of Justice's 2010 ADA Title III regulations was that newly constructed and altered facilities, beginning on March 15, 2012, comply with the Access Board's 2010 ADA Standards for Accessible Design.  Also beginning on March 15, 2012, barriers in existing facilities that violate new "supplemental" requirements in the 2010 standards -- requirements that had no analogue in the earlier ADA Accessibility Guidelines -- must be removed to the extent readily achievable.  One of the new supplemental requirements in the 2010 standards involves swimming pools at places of public accommodation.  With certain exceptions, the new standards generally require pools to have at least two accessible means of entry, and they impose certain technical requirements for pool lifts.  (I should note that I was the political appointee who supervised the process of promulgating these regulations when I was at DOJ.)

With the March 15 deadline for compliance impending, many hotel owners have expressed concern about the new requirements.  Here is a sampling of stories from various local media markets over the past few days.  Here is a letter the Department of Justice's Disability Rights Section sent on the issue earlier this week to the American Hotel and Lodging Association (which in my experience is generally a good actor on these issues, though certainly a vigorous advocate for its members' interests).

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Thursday, February 23, 2012

Disabled Man Who Won Civil Rights Lawsuit Moves Into New Group Home

See this article by that title from the Chicago Tribune.

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Disability Community Calls for Greater Affirmative Action by Federal Contractors

See this press release from the Bazelon Center for Mental Health Law:
“Under Section 503 of the Rehabilitation Act of 1973, federal contractors are required to take affirmative action in hiring people with disabilities,” stated Jennifer Mathis, deputy legal director for the Judge David L. Bazelon Center for Mental Health Law.

"However, current regulations do not require contractors to have goals concerning the number of people with disabilities in their workforces, do not require contractors to collect data that would allow them to evaluate the effectiveness of affirmative action efforts, and rely almost exclusively on voluntary action on the part of the contractors," explained Mathis.

In December, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed changes to the rules regarding how federal contractors must implement and track nondiscrimination and affirmative action policies for people with disabilities. The proposed regulations would require large contractors to collect anonymous data about how many applicants and employees have disabilities and to ensure that people with disabilities comprise at least 7% of their workforce.

The Bazelon Center has spearheaded a coordinated disability community response to the proposed regulations, writing comments on behalf of 27 organizations and one individual. The Bazelon Center also coordinated efforts to draft and submit similar comments on behalf of the Consortium for Citizens with Disabilities (CCD), with another 25 organizations signing on to that comment letter.

“Many additional organizations noted support for our comments or used them as a model for their own comments,” stated Mathis. “The comments express support for the proposed regulations and urge OFCCP to make them even stronger in three major ways.”

“First, while the 7% utilization goal for employees with disabilities is a start, a goal of 10% would be more appropriate and eminently achievable.

“Second, we urge OFCCP to include a separate goal for the employment of a more targeted group of individuals with disabilities who have historically had significantly lower employment rates than people with disabilities generally. For example, individuals with mental illnesses, individuals with intellectual disabilities, and blind individuals have experienced extremely low employment rates for years. 
“Third, the comments also encourage OFCCP to clarify that contractors may not count toward their utilization goals individuals with disabilities in sheltered workshops with which the contractor has a subcontract; contractors may count only individuals hired into the contractor’s own workforce at regular wages.”
Read the full text of the Bazelon Center comments here. The CCD comments are available here.


Perlin on the Need for an Asian Disability Rights Tribunal

New on SSRN: Michael L. Perlin, Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the UN Convention on the Rights of Persons with Disabilities (G.W. Int'l L. Rev., forthcoming).  The abstract:
There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights. 
In Asia and the Pacific region, however, there is no such body. Many reasons have been offered for the absence of a regional human rights tribunal in Asia; the most serious of these is the perceived conflict between what are often denominated as “Asian values” and universal human rights. What is clear is that the lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia. 
The absence of such a body has become even more problematical since the United Nations’ Convention on the Rights of Persons with Disabilities has been ratified. Finally, there is now “hard law” clearly establishing the international human rights of persons with disabilities, but, without a regional enforcement body, we cannot be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. 
The research is clear. In all regions of the world, persons with mental disabilities – especially those institutionalized because of such disabilities – are uniformly deprived of their civil and human rights.

The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive and important step on the path towards realization of those rights. It would also, not unimportantly, be – ultimately – a likely inspiration for a full regional human rights tribunal in this area of the world. If, however, it were to be created, it is also clear that it would be an empty victory if there were not lawyers available to represent individuals who seek to litigate there. 
In this paper, I first consider the existence and role of regional human rights tribunals in other parts of the world, and then briefly discuss some of the important disability rights cases litigated in those regions so as to demonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I consider why there is a need for the DRTAP, looking at the absence of such bodies in Asia and the Pacific, the need for such a body, focusing specifically on the gap between current domestic law “on the books” and how such law is practiced in “reality”, as well as the importance of what is termed the “Asian values” debate, concluding that this debate leads to a false consciousness (since it presumes a unified and homogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that the universality of human rights must be seen to predominate here. I then explain why the new Convention is paradigm-shattering, and why the creation of the DRTAP is timely, inevitable and essential, if the Convention is to be given true life. I then briefly summarize the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. I conclude by looking at the role of counsel in the representation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training lawyers to provide adequate representation before DRTAP, insuring that this Tribunal has an authentic impact on social change.

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Wednesday, February 22, 2012

Supreme Court Denies Cert in IDEA Exhaustion Case

Mark Walsh at EdWeek's School Law Blog picks up something I missed in yesterday's orders list from the Supreme Court: The Court denied cert in Peninsula School District v. Payne, which presented a question regarding when parents must exhaust administrative remedies on non-IDEA claims that are related to issues the parents could raise under the IDEA.  I doubt this is the last the Court will see of this issue, however.

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Supreme Court Punts in Douglas v. Independent Living Center

A few minutes ago, the Supreme Court issued its opinion in Douglas v. Independent Living Center.  The case presented a question of great significance to Medicaid and other litigation:  Whether the Constitution's Supremacy Clause provides a basis for suing a state for injunctive relief to challenge an action that conflicts with a federal statute that Congress did not otherwise provide a private right to enforce.  The federal statutory provision at issue here was the provision of the Medicaid Act that requires states to set rates at a sufficient level to enlist enough providers to ensure that services are generally available.  A number of plaintiffs relied on this statutory provision, as implemented by the Supremacy Clause, to argue that certain rate cuts implemented by California were preempted by federal law and should be enjoined.  The Ninth Circuit agreed with the plaintiffs, and the Supreme Court granted cert.  Just after oral argument, though, the federal Center for Medicare and Medicaid Services (CMS) determined that California's rate cut complied with the Medicaid Act.  In a 5-4 decision written by Justice Breyer, the Court today concluded that CMS's approval of the rate cut changes the posture of the litigation sufficiently that the case should be sent back to the Ninth Circuit for further proceedings.  Accordingly, the Court did not decide the question on which it had granted certiorari.  Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented.  They would conclude that, where Congress did not otherwise provide a right of action to enforce a federal statute, the Supremacy Clause could not provide an independent cause of action for injunctive relief.

I would put this in the category of:  Bullet dodged.  For now.

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Tuesday, February 21, 2012

Press on Cert Denial in Frame

See this story from the Ft. Worth Star-Telegram.

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New Studies Show Little Benefit to Sheltered Workshops

See this story from DisabilityScoop.  It begins:
Sheltered workshops are significantly more costly, yet no more effective than supported, competitive employment at ensuring job prospects for individuals with disabilities, new research suggests. 
Two new studies — one focusing on adults with autism and the other looking at individuals with cognitive disabilities — compared the outcomes of those who started out in sheltered employment with those who did not.


Porter on Martinizing Title I of the ADA

Just up on SSRN: Nicole B. Porter, Martinizing Title I of the Americans with Disabilities Act.  The abstract:
Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer’s obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for a plaintiff to prove he has a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is reasonable, and making it impossible to discern any unified principle to explain the chaotic results. This Article does just that. It identifies the scope of an employer’s obligation to reasonably accommodate its employees by proposing a unified approach to the reasonable accommodation provision.

I am facilitated in this endeavor by relying on a case under Title III, the public accommodations Title of the ADA. In PGA Tour, Inc. v. Martin, involving professional golfer Casey Martin’s request to use a golf cart during the final rounds of the tournament, the Supreme Court held that the PGA Tour has to provide Casey Martin with a reasonable modification to its no-golf-carts rule because the modification did not “fundamentally alter” the nature of the public accommodation. This inquiry involved two questions: 1) does the modification sought alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; and 2) does it give an unfair advantage to the individual with the disability. Although an employer is not a golf tournament, the standard from Martin can provide clarity to the vague “reasonableness” standard in Title I’s reasonable accommodation provision. First, using the fundamental alteration standard, courts should determine whether the accommodation would “fundamentally alter” the nature of the employer/employee relationship. Second, when an accommodation places burdens on other employees, courts should determine if the accommodation causes an unreasonable burden by asking the analogous question from Martin of whether the accommodation would give an unfair advantage to the employee with a disability. Thus, although not a perfect fit, Martinizing Title I offers a helpful structure for providing a coherent, unified approach to the reasonable accommodation provision under the ADA.

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Supreme Court Denies Cert in Frame v. City of Arlington

Back in September, the en banc Fifth Circuit (in Frame v. City of Arlington, a case I argued when I was at DOJ), ruled 8-7 that newly built or altered public sidewalks are covered by Title II of the ADA, and that the statute of limitations on such a Title II violation does not begin to run until the plaintiff knows or should know that s/he is being denied the benefits of those sidewalks.  Although the Fifth Circuit's ruling on ADA coverage was in accord with the rulings of every other circuit to have decided the question, the City nonetheless filed a petition for certiorari in the Supreme Court.  Today, the Court denied that petition.

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Adult Day Care End to Cut Off Frail Seniors

See this article by that title from the San Francisco Chronicle.


Friday, February 17, 2012

Other Disability-Related Briefs in the ACA Case

Both of my readers may also be interested in a couple of other disability-related briefs filed today in the Affordable Care Act case: this one, filed by and on behalf of the Disability Rights Legal Center; and this one, filed by the National Health Law Program and the Disability Law Center of Alaska, on behalf of NHELP and a bunch of organizations, including a number of disability organizations.  Enjoy!


Amicus Brief in Supreme Court Health Care Suit

Today, along with co-counsel from the Bazelon Center for Mental Health Law, I filed this amicus brief on behalf of former Surgeon General David Satcher and 78 child welfare, disability, education, health care, women’s sports, veterans, and other organizations in the Supreme Court's case considering the constitutionality of the Affordable Care Act. The brief addresses a piece of the case that hasn't gotten a ton of public attention -- the challenge to the constitutionality under the Constitution's Spending Clause of the ACA's expansion of Medicaid to cover everyone with an income up to 133% of the poverty line. Our brief argues that the challenge to the Medicaid expansion, if accepted, could put in constitutional jeopardy a range of statutes enacted pursuant to the Spending Clause, both inside and outside of the medical care context.

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Perdue on GINA

Just out: Abigail Lauren Perdue, Justifying GINA, 78 Tenn. L. Rev. 1051 (2011).  From the introduction:

President George W. Bush provided the following justification for GINA during legislative debate regarding the Act:
Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To deny employment or insurance to a healthy person based only on a predisposition violates our country's belief in equal treatment and individual merit.
Something had to be done, but was Title II of GINA the best solution? 
This Article aims to answer that question by analyzing the new law and exploring the controversy surrounding its enactment. Section II provides a basic understanding of the genetic science at the heart of the GINA controversy and illustrates that, due to the exceptional nature of genetic information, genetic discrimination in employment is best addressed by genetic-specific legislation like GINA. Section III illustrates the existence of genetic discrimination in employment and demonstrates how the similarities between genetic discrimination, racism, and sexism support GINA's enactment. Section IV discusses how GINA strikes a balance between the competing interests regarding the use of genetic information and highlights countervailing employee concerns arising from the use of genetic testing in employment, such as worker autonomy and employees' fears of genetic stigmatization, medicalization, and discrimination. Finally, Section V suggests points to consider in future amendments to GINA and the promulgation or modification of GINA regulations.

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NYT on Alabama Plans to Close Psychiatric Hospitals

See this article, which begins:
Alabama will shut down most of its mental healthhospitals by the spring of 2013 in a sweeping plan to cut costs and change how the state’s psychiatric patients receive treatment, state officials announced on Wednesday. 
The decision to close four hospitals and lay off 948 employees is a bleak reminder of Alabama’s shrinking budget. But it is also the latest example in a longstanding national effort among states to relocate mentally ill patients from government hospitals to small group homes and private hospitals.

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Thursday, February 16, 2012

An Update on the Children's Hospital of Philadelphia Transplant Case

See this article, which begins:
Children's Hospital of Philadelphia has issued an apology to the parents of Amelia Rivera, a disabled three-year-old girl who, according to her parents, was initially denied a chance at a kidney transplant because she is “mentally retarded.” 
In a statement released jointly with Joe and Chrissy Rivera today, a hospital official also promised to review the way the hospital handles such cases. And Amelia's possible transplant is now under consideration, as her parents have previously reported.


Easton on Web Accessibility in the UK

Just out: Catherine Easton, Revisiting the Law on Website Accessibility in the Light of the UK's Equality Act 2010 and the United Nations Convention on the Rights of Persons with Disabilities, 20 Int'l J.L. & Info. Tech. 19 (2011).  The abstract:
Use of the Internet has been proven to provide significant, wide-ranging benefits for disabled people research, however, such as a large scale global study commissioned by the United Nations, has determined a low level of accessibility. These findings have been supported by further multi-disciplinary work. 
While in other jurisdictions there have been definitive rulings on the need for the provision of accessible websites, a UK court has yet to lay down such a duty in relation to a website. It is accepted that there are a number of wide ranging issues interacting in this multi-faceted area, such as standardisation, industry self-regulation and the determination of an international consensus on what constitutes accessible design. However, this paper will focus upon the Equality Act 2010 and the changes it makes which could impact upon the creation of a definitive precedent. 
The Equality Act 2010 amended and combined pre-existing anti-discrimination provisions into one overarching piece of legislation. An analysis can be undertaken of how this legislation through its reasonable adjustment duty, public sector duty and the potential to validate regulations may be able to bring clarification in the area of website accessibility. 
Furthermore, the United Nations Convention on the Rights of Persons with Disabilities in its Article Nine specifically applies to access to the Internet. Given the international nature of website accessibility and the innovative provisions contained in the Convention, its impact on website design and inclusion could potentially be far-reaching. This article analyses the area of website design in the light of these recent legislative developments.

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Wednesday, February 15, 2012

Burkhauser et al. Publish New Empirical Study on the Effects of the ADA

Just out: Richard V. Burkhauser, Maximilian D. Schmeiser & Robert R. Weathers II, The Importance of Anti-Discrimination and Workers' Compensation Laws on the Provision of Workplace Accommodations Following the Onset of a Disability, 65 Indus. & Lab. Rel. Rev. 161 (2012).  The abstract:
The Americans with Disabilities Act of 1990 (ADA) was the first federal disability-based anti-discrimination law that applied to a broad range of workers. Whereas some studies have focused on its impact on workplace accommodation, this is the first to do so while accounting for previous state anti-discrimination and Workers' Compensation laws. Using data from the Health and Retirement Study, the authors find that prior to the implementation of the ADA, employers were more likely to accommodate workers if their disability onset was work-related and hence likely to be covered by Workers' Compensation laws. State anti-discrimination laws significantly increased accommodations to workers whose disabilities were not work-related, effectively bringing their accommodation rates in line with workers whose disabilities were. Though implementation of the ADA increased accommodation for all workers, the authors point out that failure to account for pre-existing state anti-discrimination and Workers' Compensation laws will underestimate its effect.

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Czapanskiy on Disabled Kids and Their Moms

Just out:  Karen Syma Czapanskiy, Disabled Kids and Their Moms: Caregivers and Horizontal Equity, 19 Geo. J. on Poverty L. & Pol'y 43 (2012).  An excerpt:
This Article's argument is simple. Public benefits should be available to disabled children and their co-resident caregivers in amounts adequate to ensure that the household standard of living is high enough to reward and appreciate home-based caregiving. The form of this public benefit should be a stipend to the caregiver. Doing otherwise ignores the many benefits conferred on the public by these caregivers. Doing otherwise unfairly puts almost the entire financial sacrifice of caregiving on the individual caregivers. Doing otherwise ignores the profound changes over the last few decades in terms of home care for people for disabilities and the importance of paid work for women. And doing otherwise perpetuates unjustifiable differences in the standards of living among caregivers.


D.D.C. Issues Important Olmstead Decision

Yesterday, Judge Ellen Segal Huvelle of the United States District Court for the District of Columbia issued a ruling denying the defendant's motion to dismiss or for summary judgment in Day v. District of Columbia, --- F.Supp.2d ----, 2012 WL 456491 (D.D.C., Feb. 14, 2012).  The case was brought by five individuals with physical disabilities who receive Medicaid services in private nursing homes in D.C. but who wish to receive services in the community.  They seek to represent a class, though no motion for class certification was yet before the court.  The District of Columbia moved to dismiss or for summary judgment, and the court denied that motion.  Among the court's significant (though not, I should say, unprecedented) rulings: (1) Olmstead applies to cases involving people who receive Medicaid services in private nursing homes; (2) Olmstead can require a state to provide services to an individual in the community even in the absence of a determination by the state's own treatment professionals that community-based treatment is appropriate; (3) to make out an Olmstead claim, a plaintiff does not need to allege that providing her services in the community would be cheaper than providing her services in a nursing facility; and (4) to establish a fundamental alteration defense, the state must show at a minimum that it has a plan that "demonstrates a measurable commitment to deinstitutionalization."  Also notable is the court's extensive reliance on and reference to the Department of Justice's technical assistance document on Olmstead.

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Tuesday, February 14, 2012

EEOC Publishes Q and A on High School Diploma Requirements and the ADA

The EEOC has issued this question-and-answer document in a self-evident effort to clear up the record about the controversial letter its staff issued a while back on high school diploma requirements and the ADA.  I am on record as asking what was new in that letter, which just reiterated long-established law.  But I doubt this Q and A document will quell the controversy, alas.

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Monday, February 13, 2012

New Kaiser Commission Policy Brief on Medicaid Managed Care and People with Disabilities

The Kaiser Commission on Medicaid and the Uninsured has just issued a very interesting policy brief on issues for people with disabilities in designing Medicaid managed care plans.  Check it out!


Friday, February 10, 2012

Interesting Case on IDEA and Charter Schools

On Wednesday, Judge John E. Jones III of the United States District Court for the Middle District of Pennsylvania issued an opinion in I.H. v. Cumberland Valley School District, --- F.Supp.2d ----, 2012 WL 400686 (M.D. Pa., Feb. 8, 2012). The case raises interesting questions about the respective obligations of a public charter school and a child's geographical home school district under the IDEA. The case involves a middle schooler, I.H., who has been diagnosed with various disabilities, including Autism Spectrum Disorder, learning disabilities, and ADHD. The hearing officer found that his home school district denied him a free appropriate public education by, first, having him receive only half days of instruction and then assigning him to receive only homebound instruction (separated by a brief, seemingly disastrous, two-day interlude in which the district assigned him to what the court described as "a school for severely emotionally and behaviorally disturbed children which regularly has to call the police to handle problems with students"). After a semester of homebound instruction, and "[b]ecause the Defendant School District would not work with Plaintiff and Plaintiff's Guardian to develop a satisfactory special education plan, Plaintiff's Guardian withdrew Plaintiff from the Defendant School District and enrolled him at Agora Cyber Charter School ('Agora'), a public cyber charter school, for the 2010–2011 school year." 

Finding the denial of a FAPE, the hearing officer ordered the home school district to provide compensatory education for the period before I.H. was enrolled at Agora.  But because under Pennsylvania law a charter school is its own local education agency, and the home school district was therefore no longer I.H.'s LEA once he was enrolled at Agora, the hearing officer refused to order the home school district to provide a FAPE or an IEP prospectively.  I.H. sought judicial review of this decision, and the home school district moved to dismiss.  The court concluded that the case should be dismissed insofar as it sought an order requiring the home school district actually to provide a FAPE; once I.H. moved to a charter school, the court concluded, providing a FAPE became the charter school's responsibility.  But the court concluded that, accepting the complaint's allegations as true, the home school district nonetheless was required to provide I.H. with a new and sufficient IEP so that he and his guardian could consider whether to reenroll him in the local schools:  "On the facts as pled in Plaintiff's Complaint, the school district of residence cannot be relieved of its responsibility to provide a requested IEP under the IDEA simply because the student has not enrolled in the school district, especially where the school district's previous failure to provide an adequate IEP is the reason for the student's unenrollment in the first place."

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Thursday, February 09, 2012

Press on New Hampshire Olmstead Suit

See this from New Hampshire Public Radio and this from the AP.

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Kentucky to Avoid Testing Lawsuit for Now?

See this update from On Special Education on the Kentucky story from last week.  The state has apparently decided to delay its no-readers rule until next school year.

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Private Plaintiffs File Mental Health Olmstead Suit Against New Hampshire

See this press release:
Advocates from the Judge David L. Bazelon Center for Mental Health Law, the Disabilities Rights Center, the Center for Public Representation and Devine, Millimet & Branch, PA, filed a class-action complaint today on behalf of New Hampshire residents with serious mental illnesses who are or are at risk of being institutionalized in state-run facilities due to the state’s failure to provide community-based mental health services. 
Over the last twenty years, New Hampshire has favored funding costly institutions over providing the community-based services and supports people with mental disabilities need to enjoy a full life in the community like anyone else. 
“The vast majority of people with serious mental illnesses or intellectual disabilities can lead fulfilling lives in their communities, provided they have the community services and supports they need to succeed,” said Ira Burnim, legal director of the Bazelon Center for Mental Health Law. “Living independently, maintaining meaningful relationships and having gainful employment should be the goal for people with mental disabilities.” 
State officials have failed to provide treatment in the most integrated setting possible, say advocates, and are in violation of the Americans with Disabilities Act (ADA,) Section 504 of the Rehabilitation Act of 1973 and the Preadmission Screening and Resident Review (PASRR) provisions of the Nursing Home Reform Act. The complaint calls for New Hampshire to expand services with proven success rates, including mobile crisis services, assertive community treatment, supportive housing and supported employment. 
Advocates filed a complaint after New Hampshire failed to respond to an April 2011 finding from the United States Department of Justice that New Hampshire’s state mental health system is in violation of the ADA. In November 2010, advocates sent a letter to two of the complaint's defendants, Commissioner Nicholas Toumpas of the New Hampshire Department of Health and Human Services and Administrator Erik Rivera of the New Hampshire Bureau of Behavioral Health, describing the state’s violations and seeking negotiations. The complaint was filed when negotiations reached an impasse.

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Wednesday, February 08, 2012

Access Board Proposed Medical Equipment Accessibility Standards to be Published in Tomorrow's Federal Register

Via Ken Shiotani, I see that the Access Board is publishing in tomorrow's Federal Register its proposed standards for accessibility of medical diagnostic equipment.  Those proposed standards are available today at this link.  There will be a 120-day comment period, plus two public hearings, one in Washington on March 14, and one in Atlanta on May 8.  Pursuant to the Affordable Care Act, the Access Board is required to promulgate those standards by March 23, 2012, a date that it can't meet given the comment period (not to mention the time that will be necessary to incorporate the comments in a redraft and go through the necessary intra-governmental processes to get final standards out the door).  Still, by government standards, this isn't especially late.  The standards themselves will not bind anyone, but they are likely to be incorporated in one way or another by later rules and settlement agreements by the Department of Justice, the Department of Health and Human Services, and other entities.

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Mia Farrow (Really!): Shame on the Milton Hershey School!

See this from the Huffington Post.

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ABA Joins Disability Advocates in Pressuring LSAC

See this article by that title in the National Law Journal.  It begins:
The American Bar Association has sent a message to the Law School Admission Council that it's not happy with that group's handling of requests for special accommodations by takers of the Law School Admission Test.

The ABA's House of Delegates voted unanimously on Feb. 6 to adopt a resolution urging the council to "ensure that the exam reflects what the exam is designed to measure, and not the test taker's disability." The vote came during the ABA's midyear meeting in New Orleans.


Hershey School Files Answer in HIV Discrimination Suit

See this story from the Philadelphia Inquirer, which begins:
The Milton Hershey School said it was well aware that people with AIDS have been victims of "discrimination arising from ignorance." 
But the boarding school founded by the nation's most-famous chocolate merchant insisted it nonetheless acted properly in denying admission to an HIV-positive Delaware County teenager. 
In its recently filed response to a lawsuit, the school said the case "requires a realistic examination of teen sexuality" and the "inability to control consensual sexual activity . . . in the unique residential setting."

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Monday, February 06, 2012

ABA Supports "Breed Neutral" Policies for Service Animals

See this dispatch by that title from the ABA Journal.


Georgia Supreme Court Invalidates Advertising-Assisted-Suicide Statute on First Amendment Grounds

Today's opinion in Final Exit Network, Inc. v. State is here.  As Not Dead Yet's blog notes, "[t]his is not exactly unexpected," as the state law at issue does not ban assisting someone in suicide; it bans publicly advertising that you will assist someone in suicide.


CT Governor to Take on Nurse Practices Act

This could be big if it happens.  The CT Mirror's story begins:
Under Connecticut law, a home health aide can spend all day caring for you, but if you need help taking your pills, you'll need a nurse to come give them to you. 
Gov. Dannel P. Malloy next week will recommend changing that, a move his administration says could save the state more than $28 million a year and remove a barrier that keeps people from moving out of nursing homes. 
The plan is likely win the backing of advocates of efforts to enable more seniors and people with disabilities to receive care at home, who say that the expenses associated with medication administration have made moving out of nursing homes cost-prohibitive for many people. 
But it's also likely to draw opposition from nurses and some home health care agencies, which criticized a similar proposal last year, arguing that the expertise of nurses is needed to safely administer medications to vulnerable patients and identify problems that occur.

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Saturday, February 04, 2012

Ninth Circuit Reverses Reduction of Attorney's Fee Award in ADA Public Accommodations Case

On Thursday, the United States Court of Appeals for the Ninth Circuit issued an unpublished opinion in Hohlbein v. Utah Land Resources, LLC..  The case looks like a pretty straightforward barrier removal case involving a business called The General Store.  The district court granted summary judgment to the plaintiff on the merits -- which is awfully unusual and suggests that the business's case here was especially weak -- and the plaintiff moved, as the prevailing party, for attorney's fees as provided by the ADA.  The district court (presided over by a new judge, as the original judge retired between the merits ruling and the fees ruling) granted attorney's fees but chose to award less than the plaintiff had sought (and apparently less than the "lodestar" figure of a reasonable rate multiplied by a reasonable number of hours).  The Ninth Circuit held that the reduction was an abuse of discretion.  Here's the key analysis:
First, the district court’s factual finding that The General Store quickly complied with the ADA is clearly erroneous. The record contains no evidence to support the finding that the defendants removed the barriers quickly or that they removed the barriers at all. To the contrary, the only evidence in the record is that the defendants did not comply with the ADA. Judge Sandoval made a finding that, eight months after Hohlbein filed the Complaint, the barriers were still present, and he granted summary judgment and ordered the injunction for that reason.

Second, the district court’s finding that paying the requested fees would likely put The General Store out of business is clearly erroneous. The record contains no evidence of the defendants’ financial status. Defendants had an opportunity to raise the ADA’s “not readily achievable” defense, but they conceded in the interrogatories that compliance with the ADA was readily achievable. Based on that concession, they chose not to produce any financial documents. Judge Sandoval relied on that concession when granting summary judgment.

Moreover, there is no evidence in the record of the cost of compliance. Although defendants’ counsel has argued that complying with the ADA’s requirements would be expensive, defendants have not provided any bids, plans, affidavits, or other evidence to support that contention.

Third, the district court committed a legal error by concluding that the amount of requested fees “would perhaps be appropriate against a large business entity, but it would be unjust in a case like this one [against] a relatively small establishment.” We have never held that a court may consider a defendant’s ability to pay when awarding fees to a plaintiff under the ADA.

* * *.

Fourth, the district court erred by reducing Kilby’s hourly rate without considering the uncontested evidence regarding (1) the result Kilby obtained, (2) the prevailing rates in the community, and (3) Kilby’s skill, reputation, and experience.
The court of appeals sent the fee motion back to the district court for reconsideration.

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Friday, February 03, 2012

Seventh Circuit Vacates Class Certification in Milwaukee IDEA Class Action

Via Paul Mollica, I see that the United States Court of Appeals for the Seventh Circuit today issued an opinion in Jamie S. v. Milwaukee Public Schools -- a large and long-running IDEA class action -- that vacated the certification of the plaintiff class and wiped out a settlement agreement that the plaintiffs had entered into with the State of Wisconsin.  The case, which applies the Supreme Court's recent Wal-Mart decision, has troubling implications for IDEA litigation, as well as for class action practice in the Seventh Circuit generally.

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Kentucky Invites a Lawsuit

See this post from On Special Education.  It begins:
This week, the Kentucky Board of Education banned the use of readers on state tests, whether that means people or computer software that read text aloud, an accommodation used by some students with disabilities, who also use this kind of help in class every day. The switch affects end-of-year state exams, as well as the National Assessment of Educational Progress or NAEP. 
The shift has some people alarmed, especially about the effect on students whose education plans (IEPs) require the use of a reader. Apparently, the switch was driven in part by the goal of reducing how many students' scores are eliminated when calculating NAEP scores. State exclusion rates on NAEP, often called the nation's report card, have dropped recently, but some state exclusion rates remain high. When students are excluded, there are obvious questions about whether a state's scores actually reflect all of the state's students. 
Special education advocates opposed the move, including hundreds of Kentucky teachers. The Kentucky Department of Education wanted to delay the elimination of readers, but the state board didn't agree.
If the blog post is describing this policy accurately, I don't see how the policy can possibly be consistent with the ADA.  It's not just people with learning disabilities but also, for example, blind people who use readers (and equivalent software).  A blanket rule against readers and equivalent software would be very difficult to justify, even granting that the state has a clear interest in encouraging reading among (some? many?) who get these accommodations now.


Important Developments in Vermont's Mental Health Redesign

See this article.  There remains a dispute between the governor and the legislature over whether the newly-built psychiatric hospital will have 25 or 16 beds.


Connecticut Medicaid and the Habilitation/Rehabilitation Distinction

See this article, which begins:
When she was younger, Natalia Caraballo used some words and sign language to communicate. But around her 2nd birthday, Natalia, who has Down syndrome and autism, stopped speaking and started making less eye contact with those around her. 
Her parents hoped to continue the intensive therapy Natalia, now 4, had received through an early intervention program. 
But their insurance, HUSKY, the state's Medicaid program, denied coverage for the services, known as applied behavioral analysis, saying that the services were for "habilitation" purposes, not rehabilitation.


Thursday, February 02, 2012

Kansas Legislative Testimony on Diversion Agreements for People with Psychiatric Disabilities

A tool in avoiding transinstitutionalization.  See this article, which begins:
A father whose mentally ill son has had several encounters with police testified today in favor of a bill that would create a legal framework so that low-level offenders who are mentally ill could get treatment for their problems instead of jail time. 
“When persons like my son are not treated, they do strange things that involve breaking laws,” said Alan Brumbaugh. “Thank God, my son breaks things rather than people.”

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Will Florida's Shift to Private Managed Care for Medicaid Push People into Nursing Homes?

This article says it will.  The article begins:
When the Legislature decided last year to cap Medicaid funding and turn long-term care over to private managed care companies, some experts warned that growing waiting lists would drive people into expensive nursing homes. 
A study released Tuesday by the Legislature's own policy analysts underscores that fear.

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Dept. of Say What?

See this column from the Orlando Sentinel, entitled Theme Parks Were Smart to Bar Girl with No Hands from Thrill Rides.


First Monitor's Report Issued in Delaware Psychiatric Olmstead Case

See this article, which begins:
Delaware has made "significant advances" in its efforts to transform the Delaware Psychiatric Center, but its byzantine bureaucratic structure cripples significant reform and widespread ignorance of the rights of those with disabilities often prevents effective, efficient care. 
So says mental health expert Robert Bernstein in his first report on Delaware's response to problems uncovered by a federal investigation into abuses and mismanagement at the state-run psychiatric hospital. The report comes six months after the state reached settlement terms with the U.S. Dept. of Justice, which found the state had violated the civil rights of DPC patients by failing to provide services that would allow them to live in less-restrictive environments.

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Wednesday, February 01, 2012

Eleventh Circuit Vacates and Remands in Atlanta Police HIV Case

That was quick.  The unpublished opinion vacating the grant of summary judgment to the city and remanding for further proceedings is here.

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Report on Missouri Legislative Hearings Regarding Downsizing DD Facilities

See this story from the venerable KMOX.

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DOJ Gets $70,000 Settlement with Henry Ford Health System for Denying Interpreter to Deaf Patient

See this article from the Detroit News.  It begins:
Henry Ford Health System will pay $70,000 to a family who alleges the system failed to provide sign language intreptereters, and must train staff on the requirements of the Americans with Disabilities Act, according to a settlement announced Wednesday by the U.S. Justice Department. 
The agreement comes after the Justice Department's Civil Rights Division and the U.S. Attorney's Office for the Eastern District of Michigan investigated a complaint alleging the Detroit-based health system failed to provide certain auxiliary aids and services, including the sign language interpreter to a deaf patient and his family at Kingwood Hospital in Ferndale, an inpatient psychiatric facility. The lack of the interpretation service denied the deaf patient effective communication with hospital staff and the opportunity to participate in medical treatment decisions and that it did not have adequate systems in place to make sure deaf and hard of hearing patients are provided with aids and services to guarantee effective communication throughout medical treatment, according to a news release.