Disability Law Book Club: Boris & Klein on Home Health Workers

I just had the opportunity to read Eileen Boris and Jennifer Klein's great new book, Caring for America: Home Health Workers in the Shadow of the Welfare State.  The book is a really outstanding labor history of the home "care" worker sector, broadly construed (including personal assistance for people with disabilities) from the early 20th Century to now.  It does a great job of connecting the development of this labor sector with cycles of welfare reform and welfare rights agitation, successive waves of different types of deinstitutionalization (from chronic care hospitals in the middle of the 20th Century, from nursing homes later), and the rise of various identity-based social movements.  This is one of the few treatments of the personal-assistant work sector in which the disability rights/independent living movement is taken seriously as an important actor.  Although I am sympathetic to the book's critiques of the neoliberal implications of some strands of disability rights thinking on this topic (critiques that resonate with an article I wrote a number of years ago), I do think Boris and Klein at times fail to appreciate the important interests on the disability rights side of the ledger here and why they might legitimately be in conflict with the interests of personal attendants.  I am working on a piece, which probably won't see daylight for many months, that provides my take on these issues in more depth.  But I would urge you to read Boris and Klein's book.  Even though I have my disagreements, it's a very sophisticated take on a supremely important set of issues for people with disabilities and the future of the labor movement.

Good Daily News Editorial on the NYC Taxi Case

Read it here.  The headline gives you the gist: "The MTA’s Access-A-Ride costs more than half a billion dollars for lousy service -- Wheelchair-accessible taxis will save money and improve efficiency."

CBS Miami on Kids-in-Nursing-Homes Olmstead Case

See this story, which begins:

Zurale Cali, a Florida mother, is fighting to bring her special needs, 5-year-old son home from a place, she says, he should have never been placed: a nursing home. 

Now, she and hundreds of other families in a similar situation have filed a class-action lawsuit against the state in hopes of receiving the proper home care they say their children deserve: 24-hour nursing care at home.

CMS Issues Rule to Implement Community First Choice Option, Punts on What is a Community-Based Setting

Hot off the presses:  The final rules to implement the Community First Choice Option, a provision of the Affordable Care Act that will enable states to expand their provision of community-based services to people with disabilities.  The final rules, which were a long time coming, will provide a framework for states to now begin submitting plan amendments that will include this new option.  It's unclear how many states will choose to do this, but the new option can be a major tool in assisting states in complying with their Olmstead obligations.

There is one dark cloud, though.  After all these months, CMS decided not to issue the portion of its rule that defined what constitutes a community-based setting.  This is obviously a crucial omission.  CMS explained its decision this way:

In consideration of the comments received, we are not finalizing the setting provisions of proposed §441.530 at this time. The comments received indicated to us that the proposed provisions caused more confusion and disagreement than clarity and we believe further discussion and consideration on this issue is necessary. In addition, similar language proposed in the notice of proposed rulemaking for revisions to the 1915(c) waiver program garnered significant public comment. Therefore, we intend to issue a new proposed regulation that will provide setting criteria for CFC that we developed in light of the comments received and to invite additional public comment on our proposal. We plan to propose home and community-based settings shall have all of the following qualities, and such other qualities as the Secretary determines to be appropriate, based on the needs of the individual as indicated in their person-centered service plan:

● The setting is integrated in, and facilitates the individual’s full access to, the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, in the same manner as individuals without disabilities;
● The setting is selected by the individual from among all available alternatives and is identified in the person-centered service plan;
● An individual’s essential personal rights of privacy, dignity and respect, and freedom from coercion and restraint are protected;
● Individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact are optimized and not regimented;
● Individual choice regarding services and supports, and who provides them, is facilitated.;
● In a provider-owned or controlled residential setting, the following additional conditions must be met. Any modification of the conditions, for example, to address the
safety needs of an individual with dementia, must be supported by a specific assessed need and documented in the person-centered service plan: 

++ The unit or room is a specific physical place that can be owned, rented or occupied under another legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord tenant law of the State, county, city or other designated entity;
++ Each individual has privacy in their sleeping or living unit:
-- Units have lockable entrance doors, with appropriate staff having keys to doors;
--Individuals share units only at the individual’s choice; and
--Individuals have the freedom to furnish and decorate their sleeping or living units;
++ Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time;
++ Individuals are able to have visitors of their choosing at any time; and
++ The setting is physically accessible to the individual.

We also plan to propose that home and community-based settings do not include
the following:

1) A nursing facility;
2) An institution for mental diseases;
3) An intermediate care facility for the mentally retarded;
4) A hospital providing long-term care services; or
5) Any other locations that have qualities of an institutional setting, as determined
by the Secretary. The Secretary will apply a rebuttable presumption that a setting is not a home and community-based setting, and engage in heightened scrutiny, for any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment in a building on the grounds of, or immediately adjacent to, a public institution or disability-specific housing complex. CMS will engage States in discussion and review any pertinent information submitted during the SPA review process to determine if these facilities meet the HCBS qualities set forth in the proposed rule.

While we are proposing the aforementioned setting requirements in a new proposed rule, the CFC option is in full effect. CMS will rely on the proposed setting provision as we review new 1915(k) State plan options and we will fully expect States to comply with the setting requirements and design and implement the benefit accordingly. To the extent there are changes when this language is finalized, we are committed to permitting States with an approved section 1915(k) State plan amendment a reasonable transition period, at a minimum of one year, to make any needed program changes to come into compliance with the final setting requirements. We are committed to minimizing disruption to State systems that have been established based upon compliance with these proposed regulations. 

It is our intent to and to apply this criteria to sections 1915(c) and 1915(i) of the Act authorities. 

As expressed earlier, we believe further discussion is necessary and we believe this can be accomplished by soliciting public comments on the modified criteria. Therefore, we are not finalizing the setting provision at this time.

The decision to punt on the standards for what constitutes a community-based setting will be quite disappointing to disability rights advocates, and it might greatly limit the degree to which the CFC Option promotes real integration.  The proposed regulation to define what constitutes a community setting appears here.  The proposed rule should appear in the Federal Register on May 3, and the comment period on that rule will close 30 days later.

What Part of "Readily Achievable" Don't You Understand?

More sky-is-falling rhetoric on the pools issue.  I refer both of my readers once again to my comprehensive discussion of this issue.

ADA Challenge to Requirement that Blind Runners Wear "Black-Out Glasses" in Triathlon

See this story from CNN, which begins:

A legally blind athlete is suing three triathlon groups over a rule that makes him and other vision-impaired runners wear blackout glasses -- leaving them temporarily sightless -- in a controversial effort to "level the playing field.'' 

The lawsuit was filed Wednesday in U.S. District Court for the Eastern District of Michigan by Aaron Scheidies, a 30-year-old athlete. Scheidies says the rule violates the Americans with Disabilities Act of 1990. 

Having a legally blind person compete in the running portion of a triathlon with blackout glasses "poses substantial danger to not only the competitor but those around them,'' the complaint says.

As I read the article, the folks who host the triathlon rank blind competitors separately from all other competitors.  They require anyone with limited vision who wishes to be ranked in the blind category to wear black-out glasses so that everyone ranked in that category has the same level of vision.  (Again, that's just my understanding from reading the article and complaint.  I'd be interested to hear more if my understanding is wrong.)  What's not clear to me from the article and complaint is whether Scheidies wants to be ranked in the blind category, despite his residual vision, without wearing the black-out glasses, or whether the triathlon administrators will totally bar him from the race if he does not wear those glasses.  If it's the latter, that would seem pretty clearly to be a violation of the law.  If it's the former, the case is much harder, even though the policy would still seem to me an ignorant one that should be abandoned.

EEOC Delays New Reasonable Accommodation Guidance

See this story from BloombergBusinessweek, which begins:

Advocates for employees with disabilities said new guidelines on discrimination in the workplace from the U.S. Equal Employment Commission are being delayed by political opposition from business. 

The agency abruptly deleted the proposal today from the agenda for a meeting, a week after business groups led by the U.S. Chamber of Commerce pressed the Obama administration to block the guidelines.

Ah, election year!

Disney Class Action Settlement Proposed

Yesterday, the plaintiffs and defendants filed in the United States District Court for the Central District of California a proposed class action settlement in Shields v. Walt Disney Parks and Resorts US, Inc..  The case was brought by three individuals with visual disabilities, on behalf of a class of individuals who lacked full and equal access to Disney's theme parks because Disney failed to provide effective communication at its parks, imposed improper restrictions on service animals, and did not provide accessible websites.  The district court granted nationwide class certification for several proposed classes last year, but it also denied certification for others.  Yesterday's proposed settlement seeks certification of four settlement classes (encompassing some of the classes the district court certified last year and others it refused to certify) and seeks to resolve the dispute.  Given the importance of the matters in dispute, and the nationwide nature of the class, this proposed settlement deserves careful scrutiny by the disability community.

NYT on Social Security Disability Insurance

Today's Economic Scene column has a good summary of the conventional wisdom on the problems with Social Security Disability Insurance and possible solutions.

Fourth Circuit Issues Good Standing Opinion

Jessie Weber passes along word that the United States Court of Appeals for the Fourth Circuit ruled in her favor today in Daniels v. Arcade, L.P..  The plaintiff sued to challenge inaccessible features at Baltimore's Lexington Market, but the district court dismissed for lack of standing.  Reversing in an unpublished opinion, the Fourth Circuit explained:

Although we agree with the district court that Daniels was required to state a plausible allegation that there is a likelihood that he will suffer future harm, we disagree with the district court’s conclusion that Daniels’ allegations are insufficient. Daniels alleged that he “intends to continue to visit the [Market] in the future for his shopping needs.” We must accept this allegation as true for purposes of the motion to dismiss, and we deem the allegation plausible because Daniels resides in relatively close proximity to the Market.

The district court found Daniels’ statement that he intends to return to the market implausible for two reasons. First, the district court held that Daniels’ failure to provide exact dates that he visited the Market in the past, and a more specific time at which he intends to visit the Market in the future, demonstrated the absence of a reasonable likelihood that he would return. However, we are aware of no precedent in this Circuit that requires this degree of specificity to survive a motion to dismiss, and we decline to impose such a requirement here.

Second, the district court held that Daniels’ litigation history “undermine[d]” his statements concerning his intention to return to the Market. However, we are not faced with the issue here whether a party’s extensive litigation history may be used to determine the plausibility of his alleged future intentions, because Daniels’ litigation history is scant and, thus, cannot have served to undermine his allegations. As the district court observed, Daniels was a party to two lawsuits raising claims of ADA violations in Maryland. There is no indication in the record that either of these two lawsuits was held to have been frivolous.

“The right to sue and defend in the courts . . . is one of the highest and most essential privileges of citizenship . . . [and] is granted and protected by the Federal Constitution.” Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907). Absent a determination that Daniels has abused those privileges, we will not hold his past participation in the judicial process against him. Accordingly, we conclude that Daniels’ litigation history is not relevant to this case.

Richard Epstein Against the ADA, Again

Over at the Hoover Institution's website, Richard Epstein has a column restating his long-held views opposing the ADA -- this time, jumping off from the NY Times story on serial litigation, focusing on the public accommodations provisions of the statute.  A taste:

One successful ADA lawyer, Martin Coleman, puts it bluntly: “As a private attorney, every lawsuit that I file is to make money, because that’s how I make a living. . . . And in that regard, I’m no different than any other private attorney.” 

My gripe is not with Mr. Coleman, but with the legal system that authorizes this type of litigation in the first place. The lawyers behind the ADA scheme claim that their private enforcement beefs up public enforcement. But private lawsuits need not be aligned with social welfare. Indeed, in this instance, they work at cross purposes. Lawyers like Mr. Coleman march to the incentives the ADA creates for them. They don’t know and don’t care that these capital expenditures produce little to no social benefit. Indeed, if there had been any perceptible need for the changes demanded in such lawsuits, some regular customer would have sued long ago.

Thanks to Michael Stein for the pointer.

WSJ Editorial Page Fears Changes to EEOC Reasonable Accommodation Guidance

See this editorial in today's Journal, which refers to tomorrow's meeting at which the Commission will take up revisions to its reasonable accommodation guidance.

HHS Refers Kansas Waiting List Case to DOJ

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

Federal officials have notified advocates for the physically disabled that efforts to get Gov. Sam Brownback’s administration to address long-standing waiting lists for services have been unsuccessful. 

As a result, the U.S. Department of Health and Human Services has turned the case over to the U.S. Department of Justice. 

“We were told Friday afternoon,” said Shannon Jones, executive director at the Statewide Independent Living Council of Kansas. “I’m not surprised by the decision, but I am disappointed that it’s had to go this far. This is about 3,400 people who’ve been lingering and suffering on waiting lists for one, two and three years.”

As the KHI article suggests, the referral is a potential step toward a federal lawsuit, though the Department of Justice typically engages in further negotiations before bringing suit.

A Good Perspective on the NYT on Serial Litigation

See this interesting blog post.  An excerpt:

My caregiving job emphasized community integration, so I took people on lots of walks and transit outings in different neighborhoods in the Portland area. When that’s the crux of your work, you learn pretty quickly which sidewalks are passable and which are just slightly overgrown with hedges; you learn which sidewalks have appropriate curb cuts and which sections of the neighborhood are better traversed right on the street. You learn whose wheelchair will fit on the bus and whose won’t. 

And you learn which businesses are accessible and which are not. Obviously, you avoid the latter. Planning dates — and these days, planning my own forays into the community — requires a similar, but different, set of calculations about what’s accessible and what isn’t. 

What I’m getting at is that if you write that no one is being hurt by a lack of accessibility, you’re right, but only because the ambulance chaser analogy and framing is fundamentally flawed. That people with disabilities are in many cases more likely to accept segregation than to seek out — and attempt to access — businesses they know aren’t going to be accessible for them doesn’t surprise me. Nor does it surprise me that some plaintiffs have shown little interest in accessing businesses named in the claims their names were attached to. Most of us — able-bodied or not — only visit places we can get to, and where we’ll feel comfortable, and avoid places that don’t fit that category for so long they just drop off our internal map and out of our routine.

Reports on the NYC Taxi Oral Argument

See this piece from Thompson Reuters and this one from DNAinfo, which report on today's oral argument in the Second Circuit in the New York City taxi case.

Jost on the Constitutionality of the ACA -- and Medicaid

Tim Jost has a piece up on the New England Journal of Medicine's website entitled "Is Medicaid Constitutional?"  It begins:

Although the media and the U.S. public focused primarily on the minimum-coverage requirement, or individual mandate, during the recent oral arguments in the challenges to the Affordable Care Act (ACA) before the Supreme Court, the most important issue before the Court may well be the constitutionality of the ACA's Medicaid expansion. There are potential alternatives to the minimum-coverage requirement, but a finding that the Medicaid expansion is unconstitutional could threaten all federal spending programs that set minimum participation standards. Indeed, as Justice Stephen Breyer observed during the oral argument, if the plaintiff's argument is accepted, then “Medicaid has been unconstitutional since 1964.”

NPR on Abuse in California DD Facilities

See this story, which begins:

Fairview Developmental Center in Costa Mesa, Calif., is a sprawling facility of offices, residential buildings and therapy rooms set between a noisy boulevard and a golf course. 

Some 400 people with developmental disabilities live at Fairview. And while minor scratches and bruises are not uncommon for these patients, over the years, the center has seen scores of serious injuries and even deaths. 

Fairview is one of five state-run developmental centers in California — homes for people with developmental disabilities who are unable to care for themselves. 

An investigation by member station KQED and the nonprofit group California Watch has uncoveredpatterns of abuse at a number of these institutions, including Fairview.

Extensive AP Story on New Pool Accessibility Rules

It's here, and it begins:

Owners and managers of swimming pools at hotels, city recreation centers and public parks are scrambling to install mechanical chair lifts to comply with new federal requirements that all public pools be accessible to disabled swimmers. 

Some hotels fear the cost of the equipment or fines for noncompliance could put them out of business, and an industry lobbyist says others may close their pools this summer if they can’t upgrade in time, though the government can offer more time to those having trouble paying for it. Swimmers with disabilities say the changes are overdue. 

“I couldn’t get into the pool without it,” said Karyn Kitchen of Savannah, who has multiple sclerosis and relies on a poolside chair lift at the Chatham County Aquatic Center for her physical therapy workouts up to four times a week.

Jacob Sullum Gets It About Serial ADA Litigation

Over at the Reason blog (which I highly recommend, though I certainly don't always agree with), Jacob Sullum has a good post about the Times's article yesterday on serial ADA litigation.  The key language:

If you accept the ADA's premise, which is that the government should force business owners to bear the cost of making the world more navigable for disabled people, you should be grateful to lawyers like Weitz for helping enforce that rule. More than two decades after the law was passed, Weitz is rooting out violators and making them comply, all at no cost to taxpayers.

New York Times Discovers Serial ADA Litigation

See this article from today's paper.  My views on this issue are a matter of public record: The ADA has been on the books for more than 20 years.  Private lawsuits are, as a practical matter, the only way to effectively enforce the law against businesses that are still violating it.  And Congress recognized that private lawsuits will not be brought unless successful plaintiffs can recover attorneys' fees.  So if the suits brought by serial litigators are legally meritorious -- and extremely often, those suits are -- the fact that their lawyers are motivated by money and not by abstract do-gooderism may seem tacky to some, but that's how Congress designed the system.  I continually fail to understand why it's okay for defendants' lawyers to be motivated by money, but it's the worst thing ever when plaintiffs' lawyers are.

HHS Announces New Administration on Community Living

See this press release:

A Statement from Secretary Sebelius on the Administration for Community Living 

All Americans – including people with disabilities and seniors – should be able to live at home with the supports they need, participating in communities that value their contributions – rather than in nursing homes or other institutions. 

The Obama administration and my department have long been committed to promoting community living and finding new mechanisms to help ensure that the supports people with disabilities and seniors need to live in the community are accessible.

Today, with the creation of the new Administration for Community Living (ACL), we are reinforcing this commitment by bringing together key HHS organizations and offices dedicated to improving the lives of those with functional needs into one coordinated, focused and stronger entity. 

The Administration for Community Living will bring together the Administration on Aging, the Office on Disability and the Administration on Developmental Disabilities into a single agency that supports both cross-cutting initiatives and efforts focused on the unique needs of individual groups, such as children with developmental disabilities or seniors with dementia. This new agency will work on increasing access to community supports and achieving full community participation for people with disabilities and seniors.

The Administration on Community Living will seek to enhance and improve the broad range of supports that individuals may need to live with respect and dignity as full members of their communities. These support needs go well beyond health care and include the availability of appropriate housing, employment, education, meaningful relationships and social participation. 

Building on President Obama’s Year of Community Living, the ACL will pursue improved opportunities for older Americans and people with disabilities to enjoy the fullest inclusion in the life of our nation. 

For more information, please visit http://hhs.gov/acl

An important step, but, as they say, the proof is in the pudding.  The question is whether this new agency can play an effective role in both promoting state community living initiatives and ensuring that CMS uses its very powerful fiscal leverage to support community living.

Interesting Article on Chicago Charter Schools and Kids with Disabilities

It's here, via EdWeek.

Court Approves Mass. Prison Mental Health Settlement

See this article from the New York Times.  It begins:

A federal judge on Thursday approved a settlement meant to guarantee alternatives to segregation for mentally ill inmates in Massachusetts prisons.

The settlement results from a lawsuit filed in 2007 by an advocacy group. It sought to stop Massachusetts from placing mentally ill inmates with disciplinary problems in small isolation cells for up to 23 hours a day, saying that doing so violated their constitutional rights against cruel and unusual punishment as well as the Americans with Disabilities Act.

The Video Played in the Judge Rotenberg Center Trial This Week

See this story from Mother Jones, which embeds the video.

D. Colo. Certifies Class Action in Accessibility Suit v. Hollister

See this article, which begins:

A U.S. District Court of Colorado judge on Monday certified a nationwide class-action suit brought against a national clothing retailer by a Denver attorney. 

Judge Wiley Daniel had already ruled “the center front entrances [with steps] at the Hollister stores at Park Meadows mall and Orchard Town Center mall violate the Americans with Disabilities Act.” 

The ruling means the lawsuit now covers Hollister stores across the United States, not just those in Colorado.

EEOC Obtains Substantial Settlement in Obesity Discrimination Suit

See this press release, which begins:

Resources for Human Development, Inc. (RHD), doing business as Family House of Louisiana, a treatment facility for chemically dependent women and their children, will pay $125,000 to settle a disability discrimination suit filed in September 2010 by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. 

The court-approved settlement resolves the charge of Lisa Harrison, who worked as a prevention / intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007. In its suit, the EEOC charged that RHD violated the Americans With Disabilities Act (ADA) when it fired Harrison because of her disability, severe obesity, even though she was able to perform the essential functions of her job. Before the EEOC filed suit, Harrison died. 

During the litigation, the court denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA. EEOC v. Resources for Human Development, Inc., --- F. Supp. 2d ----, 2011 WL 6091560 (E.D. La. Dec. 2011) (“severe obesity qualifies as a disability under the ADA”). The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder, rejecting RHD’s argument to the contrary.

Ninth Circuit Holds Predictable Attendance an Essential Function of the Job of NICU Nurse

The case is Samper v. Providence St. Vincent Medical Center, ___ F.3d ___ (9th Cir., Apr. 11, 2012), and the opinion is here.  Now, I could tell you that the decision (which upholds summary judgment to the hospital in an ADA Title I case brought by a nurse who worked in the neonatal intensive care unit) is a bit sloppily reasoned.  And I'd be right!  The hospital defendant did seem to allow its NICU nurses to have unplanned absences for a number of reasons and on a number of occasions.  The Ninth Circuit's opinion doesn't really grapple with the degree to which those facts undermined the hospital's claim that it really did insist on predictable attendance from its NICU nurses.  But who am I kidding?  To describe the question presented in the case is to tell you everything you need to know.  Of course a court is going to say predictable attendance is an essential function of a NICU nurse position!

Barry on Autism and the Social Model of Disability

Just out: Kevin Barry, Gray Matters: Autism, Impairment, and the End of Binaries, 49 San Diego L. Rev. 161 (2012).  From the introduction:

The medical-versus-social model binary is therefore a poor way of distinguishing between autism's factions. Far from distinguishing the two sides in the autism debate, the medical-versus-social model binary suggests that both parents and the neurodiverse seek the same thing: an end to disability, albeit through very different means. Furthermore, although the two sides clash over the pursuit of cures and certain treatments for autism, those policy choices are dependent on moral frameworks--not disability's dueling models of causation. And lastly, although both models of disability agree that impairment is inevitable, this turns out to be precisely what parents and the neurodiverse do not agree about. 

The real fight within the autism community has to do with autism's essence, but the hard-and-fast distinction between impairment's biological core and people's experience of impairment is illusory. Given the recent amendments to the definition of disability under the ADA, which defines disability as an “impairment that substantially limits one or more major life activities,” the meaning of impairment is now more salient than ever.  

A recent second wave of disabilities studies suggests that impairment, like disability, is constructed by the social practices and institutions that name and diagnose it. This is true so far as it goes, but the autism debate suggests another way that impairment is constructed: it is constructed not only by those who name it but also by those who are named--autistic people, themselves. The neurodiversity movement, which claims autism as a way of being, is neither quaint nor quackery. It underscores that part of autism is the experience of those who are classified as having autism and who are changed by being so classified. For them, autism is a part of their being, not--or not only--some as of yet unknown biological pathology. Moreover, by adapting to, resisting, and transforming the social practices and institutions that classify them, autistic people change autism.  Autism, like other impairments, is therefore not fixed; its meaning is evolving as the group denoted by the diagnosis changes. 

Although many legal scholars have articulated the distinction between the social and medical models of disability and between impairment and disability, few have scrutinized the assumptions upon which these binaries are based. That is the purpose of this Article. Using autism as a case study, this Article attempts to show that the oft-claimed binary between the social model of disability (which holds that disability is socially constructed) and the medical model of disability (which holds that it is not) is not as stark as it is often made out to be, and that impairment is not solely biological but instead socially constructed, in part, by those who are diagnosed. Although these conclusions do not make peace between autism's dueling sides, they help to explain how the sides disagree “and why, perhaps, the twain shall never meet.”

Although this piece participates in the unfortunate academic trend of using "binary" as a noun, I think it's nonetheless an incredibly engaging treatment of an important set of topics. Much recommended!

Good NYDN Article on Inaccessible Public Housing in the Bronx

The article begins:

A tenant leader at Soundview Houses is fuming over the city’s refusal to work with her to make the complex handicapped-accessible. 

Mary McGee, the tenant association president, says she can’t leave her building or even check her mail alone since a recent surgery temporarily confined her to a wheelchair. Two steps in the lobby, between the elevators and the front door, strand her inside unless neighbors lift her over them. 

”I’m a prisoner in my own home,” the petite and typically energetic woman said Wednesday.

Garda on Special Education and Charter Schools

Just out: Robert A. Garda, Jr., Culture Clash: Special Education in Charter Schools, 90 N.C. L. Rev. 655 (2012).  The abstract:

Charter schools and special education for disabled students are based on conflicting education reforms and agency oversight principles. Charter schools operate in a culture of regulatory freedom and flexibility. They arose out of the modern era of accountability reform, in which student outcomes are the primary measure of school success and the driving engine of agency oversight. In stark contrast, special education laws were conceived in the civil rights era of education reform, which emphasized process and paid little attention to outcomes. The education of disabled students is steeped in a culture of regulatory oversight focused on rigid compliance with complex procedures. Special education and charter schools stand on competing foundations in the same schoolhouse. The Article discusses this culture clash and the consequences to disabled students. The uncomfortable fit between charter schools and special education often leads to violations of disabled students' civil rights. The Article suggests how the three primary sources of law affecting charter schools--federal law, state law, and charter agreements--should be changed to achieve a seamless fit of charter schools' square peg into special education's round hole for the benefit of disabled students.

Looby on High School Athletes with Disabilities and the ADA

Just out: James P. Looby, Reasonable Accommodations for High School Athletes with Disabilities: Preserving Sports While Providing Access for All, 19 Sports Law. J. 227 (2012).

Department of Education Returns to Strict Interpretation of IDEA Maintenance-of-Effort Clause

See this story from Ed Week.  It begins:

The U.S. Department of Education this month took back an offer it made to school districts last summer that would have let them cut special education spending permanently, with only a one-time penalty, and for reasons other than existing exemptions in federal disability education law.

As Justice Frankfurter said, wisdom too often never comes, so one ought not to reject it because it comes late.  Kudos to the Department of Education for changing its mind here.

The NFL, Learning Disabilities, and the Wonderlic Test

See this interesting article about a story that's making the rounds of sports bloggers and talk shows.

NYT on the Second Circuit's DAI Decision

Here's the article, which appeared in Saturday's paper.  The decision can be found here.

More on Conditional Spending and the ACA Medicaid Expansion

Over at Balkinization, I have a guest post responding to some recent discussion regarding the constitutionality of the Affordable Care Act's Medicaid expansion.  If you're interested, head over and check it out!

Some Activists Want to Expand Involuntary Commitment in California

See this article in today's LA Times.  It seems to me that simply turning the clock back a few decades is not the way to solve the real problems of California's (or any state's) mental health system.  See this paper for more on my views of the question.

Interesting NPR Story on Cochlear Implants and Deaf Schools

This ran this weekend, but I didn't notice it.  Thanks to my student Beth Kurtz for the pointer!

James Bovard Doesn't Like DOL's Proposed Disability Affirmative Action Regulations

See this piece in the Wall Street Journal.

Second Circuit Vacates DAI Judgment on Narrow Standing Grounds

Breaking news:  The United States Court of Appeals for the Second Circuit just issued its long-awaited decision in Disability Advocates, Inc. v. Cuomo.  (The argument, at which I represented the United States, was in December of 2010.)  This is the case in which the Eastern District of New York had held that New York violated the ADA and Olmstead by administering a system in which people with psychiatric disabilities were sent to live in "adult homes" rather than more appropriate, integrated settings.  Today's decision vacates the district court's judgment and remands for dismissal of the action for lack of standing.  The case was brought by and in the name of Disability Advocates, Inc. (DAI), which, pursuant to a contract, exercises some of the authority of New York's protection and advocacy system.  The Second Circuit today held that DAI lacked associational standing to sue on behalf of the constituents of New York's protection and advocacy system.  The court declined to weigh in on the question whether protection and advocacy systems generally have associational standing to sue on behalf of their constituents -- an issue  that has led to conflicting decisions in the circuits.  The court simply held that a contractor to a protection and advocacy system did not have that sort of standing, because the mechanisms of constituent control of the protection and advocacy system did not necessarily extend to contractors of that system.

More to come.

Coleman and Drake WSJ Op-Ed Opposing Massachusetts Assisted Suicide Referendum

Not Dead Yet's blog links to Diane Coleman and Stephen Drake's Wall Street Journal op-ed opposing assisted suicide.  The full op-ed is available to subscribers only, and it's well worth a read.

Judge Rules in Favor of Fired Employee with Bipolar Disorder

See this story by that title.

Texas Hospital Says Fat People Need Not Apply

See this article by that title.

N.D. Ga. Holds that Georgia Violates Rights of Deaf Georgians who Use Mental Health Services

Last week, Judge Richard W. Story of the United States District Court for the Northern District of Georgia issued an opinion granting the plaintiffs' motion for summary judgment on liability in Belton v. Georgia, 2012 WL 1080304 (N.D. Ga., Mar. 30, 2012).  The named plaintiffs are two deaf individuals who have both psychiatric and developmental disabilities.  The state found each eligible to receive home and community-based waiver services in a group home, but neither could find a group home provider that would accommodate a deaf client who speaks American Sign Language.  They sued for themselves and on behalf of a class of deaf Georgians who qualify to receive mental health and developmental disability services from the state.  They alleged that the Georgia mental health and developmental disability system violated the ADA and Rehabilitation Act rights of deaf consumers in four respects:

(1) the State's lack of ASL-fluent mental health practitioners; (2) the State's failure to reimburse medical providers for interpreting services; (3) the State's failure to provide deaf-appropriate group home care settings; and (4) the State's refusal to provide adequate funding for deaf services.

The plaintiffs moved for summary judgment on liability (both on their individual and their class claims), and the court granted the motion.  The court concluded that the record established "as a matter of law that the named Plaintiffs have been denied the benefit of a State-provided mental health care service, group home living, in violation of the ADA."  As to the class claims, the court pointed to unrebutted testimony "that the State currently faces a severe shortage of community living arrangements designed to accommodate the needs of the deaf"; that "the State faces a severe shortage of ASL-proficient practitioners," which "is a barrier to deaf consumers receiving adequate mental health care"; and that "the State's failure to reimburse health care providers for the cost of interpreters disincentives practitioners from serving deaf consumers, thereby exacerbating deaf consumers' lack of access to the State's mental health care services."  The court ordered that the case be assigned to a magistrate judge for mediation to determine the appropriate remedy.

This is an important decision with potentially far-reaching implications.

Vermont Governor Signs Bill to Retool Mental Health System

See this article by that title.

VOPA Supports DOJ-Virginia Olmstead Settlement

See this story, which begins:

A state agency that looks out for the rights of people with disabilities is advocating for a proposed settlement that would shift the care of Virginians with intellectual disabilities from state-run institutions. 

The Virginia Office for Protection and Advocacy is asking a federal judge to approve the agreement, saying it will increase the safety of people who live in the state’s five training centers. The centers offer housing, therapy, medical care and other services for people with profound disabilities, and the agreement proposes to close four of them by 2020. 

VOPA argues in its brief that the status quo puts those residents at risk of abuse, neglect, injury and death. The group also says that since 2007, it has investigated 184 injuries and deaths at training centers that it thinks were caused by abuse or neglect.

Illinois Movie Captioning Settlement

See this story, which begins:

Hundreds of movie screens in Illinois will be equipped with technology to help residents with hearing and vision disabilities under a settlement announced Wednesday by Illinois Attorney General Lisa Madigan.

As part of the settlement, Kansas City, Mo.-based AMC Theatres will provide personal captioning services and audio-description technology at all of its Illinois movie theaters, which include 460 movie screens. The services will be available by 2014 at nearly all theaters and at all listed showings. 

Before the settlement, 21 of the 246 movie theaters in Illinois offered closed captioning and 10 offered audio description.

D.N.J.: New Jersey Law Against Discrimination Requires Accommodation in Perceived-Disability Cases, Although ADA Doesn't

Last week, Judge Noel Lawrence Hillman of the United States District Court for the District of New Jersey issued an opinion holding that the New Jersey Law Against Discrimination requires employers to provide reasonable accommodation to employees who are perceived to be disabled, whether or not they have a present disability.  Under federal law after the ADA Amendments Act, of course, the rule is the opposite.  The case is Dennis v. County of Atlantic County, 2012 WL 1059420 (D. N.J., Mar. 28, 2012).

SDNY Denies Reimbursement Because Private School Setting was Unnecessarily Segregated

A couple of weeks ago, Judge Cathy Seibel of the United States District Court for the Southern District of New York issued an opinion granting summary judgment to the defendant school district in C.L. and G.W. v. Scarsdale Union Free School District, 2012 WL 983371 (S.D.N.Y., Mar. 22, 2012).  This IDEA case involved a child, C.L., who appears to have had a learning disability and fine motor issues.  From Kindergarten through third grade, the school district provided C.L. various special education services -- and offered others that C.L.'s parents declined -- but it did not formulate an IEP for C.L. pursuant to the IDEA, because it did not believe him eligible for services under that statute.  Nonetheless, C.L. made progress in his classes.

Believing that C.L. was entitled to services under the IDEA, and therefore disagreeing with the district's decision not to provide him those services, C.L.'s parents removed him from the public schools after his third grade year.  They enrolled him at the Eagle Hill School in Greenwich, Connecticut, a school that exclusively serves children with learning disabilities.  They then sought reimbursement pursuant to the IDEA.  A hearing officer concluded that the school district had denied C.L. a free appropriate public education pursuant to the IDEA, that Eagle Hill was an appropriate educational setting for C.L., and that the district must accordingly reimburse C.L.'s parents for the cost of his tuition.  On an administrative appeal, the state review officer agreed that the district had denied C.L. a FAPE.  But the review officer concluded that the parents were not entitled to reimbursement, because Eagle Hill was not an appropriate placement.

The parents sought judicial review in the federal district court, which affirmed the state review officer's decision.  The parties agreed that the school district had denied C.L. a FAPE, and the court did not express any doubt on that point.  But the court agreed with the review officer that Eagle Hill was not an appropriate placement.  The court pointed to significant evidence in the record that C.L. had made substantial progress in the public school setting through third grade.  It also concluded that "ample testimony" supported the state review officer's finding that C.L. "benefitted from interaction with his nondisabled peers" -- interaction he would not experience at Eagle Hill, a school that is limited to students with disabilities.  The court concluded:  "In sum, while Eagle Hill seems to be a fine school, I cannot say—given the record of CL's progress while mainstreamed at Greenacres, the propriety of the services offered to CL despite his erroneous classification, and the deference owed the SRO—that the SRO erred in his view that the pros of Eagle Hill did not outweigh the cons of an unnecessarily restrictive environment that separated CL from his non-disabled peers."

This ruling reflects what I see as a salutary trend of district courts taking account of integration issues in resolving requests for private-school reimbursement under the IDEA.  Unless courts pay attention to these issues, the private-school reimbursement rule can be an engine for the unnecessary segregation of children with disabilities, contrary to the overall purposes of the IDEA and disability rights law.  Although these cases are difficult for parents, it's good to see the courts preserving the IDEA's integrationist goals.

S.D. Indiana Denies Preliminary Injunction in Rare Rehab Act Title I Case

A couple of weeks ago, Judge Tanya Walton Pratt of the United States District Court for the Southern District of Indiana issued an opinion denying the plaintiff's motion for preliminary injunction in Yochim v. Gargano, 2012 WL 1014840 (S.D. Ind., Mar. 23, 2012).  The case was brought under Title I of the Rehabilitation Act (the portion of the statute that provides for vocational rehabilitation services).  Yochim, who is blind, has a bachelor's degree and worked for nearly 30 years in Florida in a telephone-sales job.  When he moved to Indiana with his family a few years ago, he needed assistance finding a new job (in part, it seems, because of a lack of available accessible transportation).  He obtained vocational rehabilitation services, but the service provider assigned to him by the state was deficient in a number of ways.  Yochim ultimately did his own research and found a vocational rehabilitation program in Colorado that everyone seems to agree would meet his needs.  When he asked the Indiana VR department to pay for him to attend this out-of-state program, they refused.  A hearing officer upheld that decision, and an administrative appeal proved unsuccessful.

Yochim (represented by my friends at Brown, Goldstein & Levy) then sued in federal district court and sought a preliminary injunction.  In its opinion, the court denied the injunction.  The court first concluded that, despite some earlier cases to the contrary, a 1998 amendment to the Rehabilitation Act made clear that individuals aggrieved by the result of state administrative proceedings reviewing the decision of a state vocational rehabilitation agency have a right of action in federal district court to seek judicial review of those proceedings.  But when it turned to the merits, the court concluded that it had no basis to overturn the hearing officer's decision affirming the decision of the VR agency, a decision that the court determined was entitled to deference.  The hearing officer had concluded that Yochim's needs could be met in Indiana and that, in any event, a program in Colorado would not make Yochim any more likely to obtain a job in Indiana.  The court found this analysis sound.  The court found further support in two principles it identified in the regulations and the case law:  (1) that an agency may "prefer in-state facilities over out-of-state facilities to keep down costs"; and (2) that "clients of vocational rehabilitation agencies do not have carte blanche to choose their vocational facility."

More on Sen. Feinstein and Serial ADA Litigation

See this column in the San Francisco Chronicle.

Virginia Disability Groups Unite Behind Care Plan

See this AP dispatch by that title.  It begins:

Advocacy groups, service providers and community mental health boards are joining to support a proposed agreement between Virginia and federal government to shift the care of people with intellectual disabilities away from state-run institutions.


The Arc of Virginia and its regional offices, community-based providers, and groups supporting Virginians with Down syndrome and autism have joined the statewide coalition. Other backers include the Virginia Association of Community Services Boards, the Virginia Association of Personal Care Assistants and the Virginia Poverty Law Center.

More Coverage of DOJ Intervention in New Hampshire Olmstead Suit

Listen to this segment from New Hampshire Public Radio, which contains an extensive interview with DOJ Olmstead Special Counsel Alison Barkoff.  Very enlightening.

Good Article on Budget Cuts and Protests in Pennsylvania

It's here, in the Philadelphia Inquirer.

DOJ Settles Effective Communication Suit with Hospital in Fort Dodge, IA

See this article.  Of especial interest is the large monetary award for this sort of case:

The Justice Department statement said "the settlement requires Trinity to pay $198,000 to aggrieved individuals and a $20,000 civil penalty; provide training to hospital staff on the requirements of the ADA; and adopt specific policies and procedures to ensure that auxiliary aids and services are promptly provided to patients or companions who are deaf or hard of hearing."

Concord Monitor Asks NH Gubernatorial Candidates About the Ongoing Olmstead Suit

See this interesting article.

Good Article on Employer Wellness Programs

It's in USA Today, collaborating with Kaiser Health News, and it's here.  These programs are quite problematic for people with disabilities, among others.