Thursday, May 31, 2012

S.D. Fla. Holds that Fair Housing Act Requires Allowing Emotional Support Animals as a Reasonable Accommodation

Earlier this week, Judge James I. Cohn of the United States District Court for the Southern District of Florida denied the defendants' motion for summary judgment in Falin v. Condominium Association of La Mer Estates, Inc., 2012 WL 1910021 (S.D. Fla., May 28, 2012).  The plaintiff claimed that the condo association violated the Fair Housing Act when it refused to waive its no-pet policy for his mother, who has a disability and uses an emotional support dog.  The association moved for summary judgment.  Among other things, it argued that the FHA does not require the accommodation of emotional support animals.  The court rejected that argument:
Defendants first point out that Ms. Falin's dog is not a “service animal” that is trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures. Indeed, the record shows conclusively that the dog has no such training but instead serves as an “emotional-support animal” for Ms. Falin. This fact, however, is not dispositive of Plaintiff's claim. Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation under the FHA. See, e.g., Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1256–57 (D.Haw.2003), aff'd on other grounds sub nom.,Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006). But more recent decisions, recognizing that the FHA and its implementing regulations include no such training requirement, have concluded that an emotional-support animal may be a reasonable accommodation under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights. See, e.g., Fair Housing of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc.,778 F.Supp.2d 1028, 1035–36 (D.N.D.2011); Overlook Mut. Homes, Inc. v. Spencer, 666 F.Supp.2d 850, 858–61 (S.D.Ohio 2009); cf. Majors v. Hous. Auth. of DeKalb Cnty., 652 F.2d 454, 457–58 (5th Cir. Unit B Aug.1981) (reversing grant of summary judgment to housing authority on Rehabilitation Act claim concerning disabled person's emotional-support animal, and remanding for trial on factual issues). This Court finds the latter decisions more persuasive and adopts their reasoning here. Accordingly, the fact that Ms. Falin's dog is an emotional-support animal, rather than a trained service animal, does not entitle Defendants to summary judgment.

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Swansea, Mass., Rescinds Vote That Excluded Kids with Autism from Summer Camp

Thank the Town Attorney for recognizing the town's duties under the ADA.


Chicago Tribune Op-Ed Gives Institutional Family Perspective on Deinstitutionalization Litigation

See William Choslovsky's op-ed, Who Speaks for the Disabled?  These three grafs give a sense of the argument:
Although the advocates are wrong, even if they were right, shouldn't my family's choice be honored? After all, if this is about respect and honoring choice — in all its forms — why is Rita's choice wrong? I respect and applaud any disabled person's choice to live in the "community," so why won't the advocates in turn respect our choice? 
The advocates also prey on labels like "community" versus "institutions." But community is an artificial term, too often used as a limiting condition that divides more than it describes. 
My "institutionalized" college dormitory was more of a community than many of the (supposed) "integrated" places I lived subsequently. One man's institution is another man's home. The labels mean little and are simply code to support pre-existing positions.

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Wednesday, May 30, 2012

Federal Bankruptcy Court Discharges Student Loan Debt Because of Supposedly Debilitating Nature of Asperger's Syndrome

Via the terrific Weirdlaw blog comes word of this case in which Judge Robert A. Gordon of the United States Bankruptcy Court for the District of Maryland issued a ruling discharging the student loan debt of a woman with Asperger's Syndrome.  As Weirdlaw comments:
I can’t quarrel with the overall outcome. This woman had amassed over $300,000 in student loan debt that she couldn’t possibly repay. She had started amassing the debt pursuant to her Rehabilitation Plan at 39, having never held a long-term job in her entire life. While education is often helpful, it’s unclear why Rehab Sevices would encourage a woman who’d never held a job in her life to go to law school, a profession that has a remarkably poor employment rate and high debt load, then drop out of law school and get a masters degree from some random place and then a PhD from an unaccredited online university, is just beyond me. All of these seemed practically calculated to saddle this woman with high student loan debt in return for utterly worthless degrees and no prospect for post-graduation employment. And, indeed, the debtor had not gotten a single job despite getting a Masters and a “PhD.” This is student loan abuse and ANYONE in a similar situation should have their student debt forgiven. 
In addition, it appears that Ms. Todd lost many of the supports that had made her few past employment experiences possible. Despite having a significant disability that made it difficult to live independently, she received no housing support, no vocational supports beyond funneling her into overpriced educational programs, and no independent living supports. She was basically set up to fail.
That said, the opinion itself focused less on the inequitable actions of the lenders and rehab people, and more on how her “eerie disconnectedness from a comprehensive life experience” as a result of her “incurable ailment,” i.e. autism.
Click on the links above to see just how ignorant and offensive were the comments of the bankruptcy judge -- and even the debtor's own doctor and expert witness! -- regarding the effects of Asperger's.


Bill Limiting Public Accommodations Suits Unanimously Passes California Senate

See the latest from the Sacramento Bee.

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Is the South Dakota Medical Licensing Board Violating the ADA?

That's the provocative question this op-ed asks.  The key grafs:
In March, the South Dakota Medical Board filed a public reprimand against a young physician within our state because of his previous diagnosis of multiple sclerosis. The reprimand came about after the applicant answered these personal questions on his application to the state board. The board’s inquires about illness and addiction do not elicit meaningful knowledge regarding competence and go against the ADA. These questions fail to achieve ostensible goals of protecting the public. Instead of violating the applicant’s privacy with questions that do not satisfy the state’s interest of protecting the public, why not ask questions about their conduct? 
This example of a state-written public reprimand for this doctor’s diagnosis of multiple sclerosis flaunts a misuse of power by the board.


Tuesday, May 29, 2012

Bipartisan Support for CRPD

See this article from Politico.  Excerpts:

A bipartisan group of senators said the United States must fully endorse a United Nations convention on rights for the disabled, noting the challenges many wounded veterans face while traveling abroad.

* * * 
Senators taking part in Friday's announcement were: McCain, Dick Durbin (D-Ill.), Jerry Moran (R-Kan.), Tom Harkin (D-Iowa), John Barrasso (R-Wyo.), Chris Coons (D-Del.) and Tom Udall (D-N.M.)


Saturday, May 26, 2012

Sixth Circuit Rejects Sole Cause Test for ADA Claims

See this article: 6th Circuit shifts test for disability discrimination.  Analysis will follow after the long weekend.

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Thursday, May 24, 2012

Salon on Seclusion, Restraint, and Arrests of Students with Disabilities

Washington Post on Institutional Parents' Opposition to DOJ-Virginia Olmstead Settlement

Wednesday, May 23, 2012

Mitt Romney Wants to Voucherize IDEA

IDEA as camel's nose for school vouchers goes national.  See this position paper released today by the Romney campaign.

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Might Virginia Be Risking Another Olmstead Suit?

This time on mental health?  The state's inspector general suggests so:
Virginia, already mired in a $2 billion settlement agreement with the U.S. Department of Justice, is again at risk of violating the Americans with Disabilities Act — this time for failing to release discharge-ready patients from state-run behavioral-health hospitals. 
During a six-month period of review by the state’s inspector general for behavioral health, an average of 165 people per month were clinically ready to be released from Virginia’s eight adult mental-health hospitals, but could not be discharged — most often because of a lack of community-based housing. 
During the review, about 13 percent of the system’s beds were occupied for more than 30 days by patients who had been cleared to leave. The operating capacity of the state’s eight facilities was 1,514 as of July 1.

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Tuesday, May 22, 2012

NY AG Announces Big Public Accommodations Access Settlements

See this article, which begins:
New York Attorney General Eric Schneiderman says three retail chains have agreed to ensure that people with disabilities have equal access to the merchandise, services, and amenities in all their stores statewide.
The chains are JC Penney, Century 21, and Petland, with over 100 locations total covered by the settlement.


New NDRN Report on Medical Procedures That Violate the Rights of People with Disabilities

Just out from the National Disability Rights Network: a very important report entitled Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights.  From the Executive Summary:
Five years ago, news broke worldwide that a six-year-old child with developmental and physical disabilities, Ashley, was given growth attenuation treatment via estrogen and had her uterus and breast buds removed. The intent of the treatment was to keep her permanently small. The child’s parents and doctors claimed that this set of procedures was in her best interest for numerous reasons, including that it would make it easier to care for her at home. Supporters of the treatment claim that this is the most personal of family decisions and there is no need for external judicial review of the decisions made by the family.

People with disabilities and advocates in the disability rights movement, however, assert that all individuals, regardless of their disability status, have individual rights that cannot be ignored. Decisions like those made in this case are the most personal of “personal rights,” not “family rights.” Every individual person has the right to bodily integrity, clearly recognized in our legal tradition, through the constitutional rights of liberty and privacy and the common law right to be left alone unless the individual chooses to have their body disturbed in some way. Individuals with disabilities, no matter the nature or severity of their disability, are no different. The Constitution and antidiscrimination laws make it clear, all people, including people with disabilities, are entitled to equal treatment under the law. 
* * * 
Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights provides a crucial, but missing, link in the discussion about how society can and should make medical decisions that uphold the rights and inherent dignity of people with disabilities.

The report puts individuals with disabilities at the center of this discourse. It reviews the facts of Ashley X, as a case study for a larger discussion and presents a continuum of common experiences and treatment of individuals with disabilities within a context of medical decision making. The report explores the potential and actual conflict of interest that medical decision making may present between a parent and his or her child. It describes the vital role that the legal system has in ensuring that the civil and human rights of individuals with disabilities are protected. The report discusses how the deprivation of these rights is harm within and of itself and that all individuals have substantive rights regardless of the severity of their disability. It goes on to outline how discrimination inherently causes harm to both the person who experiences the discriminatory conduct and society as a whole. Finally, the report presents a series of recommendations for how the legal and medical systems at the local, state, and national level, including protection and advocacy agencies, ethics committees, institutional review boards, and the courts can perform critical “watchdog” functions to ensure that the human and civil rights of individuals with disabilities are protected.


Atlanta Journal-Constitution on Deficiencies in Georgia Personal Care Homes

See this article, which begins:
Deficiencies in care, living conditions and record-keeping have piled up in scores of Georgia personal care homes, with the state rarely shutting down violators or levying heavy fines, The Atlanta Journal-Constitution has found. 
An analysis of five years worth of inspections, violations and enforcement actions revealed that many frequent violators have faced nothing more than a fine of a few hundred dollars. 
The Atlanta Journal-Constitution’s investigation found numerous troubling instances — from live cockroaches in the kitchen of one home to another in which eight residents were out of medication.

Ninth Circuit Holds ADA Does Not Bar California Cities from Shutting Down Medical Marijuana Dispensaries

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in James v. City of Costa Mesa.  The case, brought by individuals who lawfully use medical marijuana under California law, sought to challenge efforts by two California cities to shut down medical marijuana dispensaries.  The district court denied the plaintiffs' request for a preliminary injunction, and the Ninth Circuit affirmed.  Judge Fisher, writing for himself and Judge Pregerson, explained the court's ruling:
Concerned about the possible shutdown of the collectives they rely on to obtain medical marijuana, the plaintiffs brought this action in federal district court, alleging that the cities’ actions violate Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination in the provi- sion of public services.  District Judge Guilford sympathized with the plaintiffs, but denied their application for preliminary injunctive relief on the ground that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.

We affirm. We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.
Judge Berzon dissented in part.

The LA Times's coverage of the decision appears here.

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Popeyes Apologizes to Man with Service Dog

See this article by that title from the Atlanta Journal-Constitution.  It begins:
The Popeyes restaurant chain said Monday it has apologized to the college student asked to leave a Cobb County location because he had his service dog with him. 
Taylor Gipson, 20, has Type 1 diabetes and relies on a British Lab named Bear to alert him to rises or drops in his blood sugar levels, he told the AJC. But during a recent visit to the Popeyes on Windy Hill Road near Marietta, Gipson was asked to leave by the store manager, who then called police. 
"After reviewing all of the facts, I think we could have handled the situation better," Wendy Harkness, chief legal officer for Popeyes' parent company, told the AJC in a statement Monday.

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SLU is Sued by Ex-Med Student with Learning Disability

See this article by that title in the St. Louis Post-Dispatch.  It begins:
St. Louis University's medical school is being sued by a former student with a learning disability who says he wasn't given enough time to complete tests. 
The lawsuit, claiming violations of the Americans with Disabilities Act, was filed last week in federal court in St. Louis on behalf of the student, who was identified as John Doe. The lawsuit says the student was kicked out of the SLU medical school after failing multiple timed tests required to progress through school.

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Flint Agrees to Increase Accessibility at Polling Sites

See this article by that title in the Detroit Free Press.  It begins:
The City of Flint has agreed to make polling places more accessible for the mobility impaired in time for the November presidential election, the U.S. Attorney’s Office in Detroit announced today.

Acting on a complaint, the Justice Department’s Civil Rights Division conducted a study which showed a substantial number of Flint polling places were not accessible to people in wheelchairs.

The city recently signed a legal document pledging to make all of its polling places accessible to the mobility impaired head off a federal lawsuit. The agreement is designed to bring Flint into compliance with the Americans with Disabilities Act.

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Monday, May 21, 2012

Nations Must Protect Their Children, Not Their Reputations

See this op-ed by that title by Laurie Ahearn in the Washington Post.  It begins:
The Duchess of York, Sarah Ferguson, seems to be in hot water again. A Turkish court has accused her of “acquiring footage and violating the privacy” of children in a Turkish state-run orphanage. Her trial began two weeks ago in Ankara in absentia, following Britain’s refusal to extradite the former royal. The charges, which carry a maximum sentence of up to 22 1 / 2 years in prison , are a result of her participation in an undercover documentary that aired on Britain’s ITV in 2008 , exposing abuses in the facility. 
The hypocrisy of the Turkish government in prosecuting the duchess, who courageously exposed torture and neglect of Turkish children, is appalling. Turkish officials seem concerned with the privacy of children, most of whom have intellectual and physical disabilities, even as they violate those children’s most basic human rights.


D. Or. Holds That Olmstead Applies to Integrated-Employment Claims

On Thursday, United States Magistrate Judge Janice M. Stewart of the United States District Court for the District of Oregon issued an opinion addressing the state's motion to dismiss in Lane v. Kitzhaber, a case about which I've blogged before.  Lane challenges the state's provision of employment services to people with disabilities in segregated sheltered workshops as a violation of the ADA's integration mandate.  Magistrate Judge Stewart rejected the state's arguments that the Olmstead integration mandate does not apply to employment services and held that the case could proceed.  She interpreted certain allegations in the plaintiffs' complaint as seeking impermissibly to impose a standard of care, which Olmstead held was not required by the ADA, so she ordered the plaintiffs to submit a new complaint omitting those allegations.

All told, this is a very significant decision.  It's the first case to hold that individuals with disabilities can bring an Olmstead claim to challenge their unnecessary placement in segregated employment programs, though I'm sure it won't be the last.


Sunday, May 20, 2012

President Obama Sends Ratification Package for Disabilities Convention to the Senate

See this story from Disability Scoop, which begins:  

Nearly three years after signing the United Nations Convention on the Rights of Persons with Disabilities, the Obama administration is asking the U.S. Senate to grant final approval of the treaty.
The United States signed the convention in 2009, but Senate approval is required in order to make participation official.
The convention is designed to expand community access and improve the standard of living for the estimated 650 million people around the world with disabilities. It is the first new human rights convention this century.


DOJ Extends Deadline for Pool-Access Compliance Until January 31, 2013

Tomorrow's Federal Register will contain a final rule delaying the date by which existing swimming pools must comply with the new accessibility requirements until January 31, 2013.  The final rule is a curious document, to be sure.  It actually does a quite effective job of explaining why the hotel industry's arguments for an extension make no sense.  See, for example, the following excerpts:

First, some commenters suggested that the requirement that the pool lift be fixed was not part of the title III regulation published by the Department in September 2010, but was, instead, an interpretation the Department later developed outside of the rulemaking process. However, the Department has had a longstanding position that the ADA Standards apply to fixed and built-in elements. See, e.g., Department of Justice, Americans with Disabilities Act, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities (Supp. 1994), III-5.3000, available at, (providing that “[o]nly equipment that is fixed or built in to the facility, is covered by the accessibility standards”). The Department codified that position in both the revised title II and title III regulations, see 28 CFR 35.151(d) and 36.406(b). Throughout the six-year process of revising the ADA regulations, the Department stated that the ADA Standards did not apply to freestanding (e.g., non-fixed, moveable, or portable) equipment.  
* * * 
A second group of commenters who owned or operated public accommodations and who supported the extension mistakenly believed that if they could not comply with the pool access requirements of the 2010 Standards (because compliant pool lifts were unavailable or they could not afford to provide a lift, for example), they would be forced to close their pools. This is also a misunderstanding of the ADA regulations. Compliance with the 2010 Standards is only required to the extent that it is “readily achievable”—a term that means “easily accomplishable and able to be carried out without much difficulty or expense.” See 28 CFR 36.104. Thus, title III of the ADA does not require that a public accommodation close its pool facility if, for example, compliant pool lifts are not available or if the facility cannot afford such a lift. 
* * * 
Several commenters, including a pool lift manufacturer, supported an extension on the basis that there is currently a significant backlog in availability of compliant lifts. They were concerned that if the pool access requirements took effect, pool owners and operators who could not acquire a lift because of a manufacturing backlog would be in violation of the ADA. However, the lack of availability of a compliant lift because of limitations in manufacturing capacity would demonstrate that it is not readily achievable to comply with the requirements, until such time as a lift becomes available.
Nonetheless, the rule states that DOJ has decided to grant an extension largely because the hotel industry was mistaken in those very respects:

On the other hand, as stated above and in the Department’s NPRM, it is clear to the Department that a significant number of pool owners and operators may continue to have misunderstandings and concerns about their obligations with regard to providing access to existing pools. These misunderstandings have affected pool operators and owners in at least three ways that are relevant to the Department’s proposal. First, it appears that some places of public accommodation initially proceeded on the misunderstanding that a portable pool lift would in all circumstances satisfy the pool accessibility requirements of the 2010 Standards. Those pool operators and owners will need time to undertake a fact-specific analysis about whether the installation of a fully compliant pool lift is “readily achievable,” and to implement their compliance plan. Second, the comments suggested that at least some pool owners and operators who generally speaking would find installation of a compliant pool lift to be “readily achievable” currently are having difficulty locating compliant pool lifts that are available for purchase. The Department believes that this circumstance provides an additional reason to postpone the compliance date, thereby allowing a greater number of covered entities to purchase and install compliant pool lifts. Third, comments received by the Department also raise concerns that, absent an extension, some covered entities might respond to the compliance date by taking steps that the law does not require and that would actually undermine the goal of ensuring that individuals with disabilities obtain the benefits that the regulations sought to ensure—safe and compliant pool access to existing pools when it is readily achievable to provide it. For example, if pool owners and operators close pools because they incorrectly believe that the 2010 Standards require that a fully compliant pool lift must be installed in all cases, those closures will reduce access to pools for everyone, including individuals with disabilities. Similarly, if pool owners and operators are unable to obtain compliant lifts because of the lack of availability, they may unwittingly purchase non-compliant lifts that will not provide safe and independent pool access to persons with disabilities. 

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Friday, May 18, 2012

Watch This Space

I've been caught up with some pressing matters today, but watch this space over the weekend for analysis of the latest decision on the Oregon Olmstead sheltered workshop case; the DOJ swimming pool rule; the latest on the Disabilities Convention; and perhaps other updates.

I Love Seeing Disability Rights on Perez Hilton

Even if it's because of what seems like a clear case of prosecutorial pettiness in refusing to waive appearance.  Thanks, Noah Wyle, for bringing attention to this issue!

Thursday, May 17, 2012

Cuomo Abuse-and-Neglect Bill Passes NY State Senate

See this article from the New York Times, which begins:
The State Senate unanimously passed Gov. Andrew M. Cuomo’s legislation to protect developmentally disabled and mentally ill New Yorkers on Wednesday, but some high-profile advocates have been unnerved by what they perceive as flaws in the bill. Assembly Democrats have said that they intend to pass the bill, but will negotiate some changes before the legislative session ends on June 21.

Myths About Miniature Horses

Rep. Jason Chaffetz has this op-ed in the (Provo, UT) Daily Herald.  It begins:
Should a restaurant be required to allow horses in the dining room? Incredulously, a recent Justice Department ruling now says yes. In response, last week I proposed an amendment to the Commerce, Science, and Justice appropriations bill that would repeal this ridiculous mandate. Having passed the House, the proposal now awaits the Senate's unlikely approval. 
Despite the difficulty (some would say impossibility) of housebreaking a horse, the Obama Justice Department ruled that "service" horses -- miniature horses used to accompany people with disabilities -- are no different than guide dogs under the Americans with Disabilities Act (ADA). As a result, shops, restaurants, hotels and even airlines could be sued if they did not accommodate horses.
With all respect, this reflects a fundamental misunderstanding of what the ADA regulations require.  Those regulations specifically define "service animals" to include dogs only.  As the regulations specifically say, "[o]ther species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition."  28 C.F.R. 36.104. A business is required to accommodate service animals -- dogs -- except where "[t]he animal is out of control and the animal's handler does not take effective action to control it" or "[t]he animal is not housebroken."  28 C.F.R. 36.302(c).  So, even if we're dealing with a service dog, if it's not housebroken, a business does not have to let it in.

Because some people with disabilities are allergic to dogs or have religious objections to using dogs as service animals, the ADA regulations provide that in certain circumstances businesses must allow people with disabilities to use miniature horses to serve them.  But, far from treating them as "no different than guide dogs," the regulations place service horses in a distinctly disfavored position.  Unlike service dogs, which must be admitted unless they are out of control or not housebroken, miniature horses must be admitted only where doing so is reasonable.  The regulations specifically allow businesses to exclude miniature horses not only where they are out of control or not housebroken, but also where the facility can't accommodate "the type, size, or weight of the miniature horse," where the miniature horse's presence "compromises legitimate safety requirements," or in any other circumstance where it would not be reasonable to admit the miniature horse.  28 C.F.R. 36.302(c)(9).  What is so unreasonable about that?

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Wednesday, May 16, 2012

Illinois AG to Sue High School Athletic Association Over Lack of Competition Standards for Athletes with Disabilities

See this story from the Chicago Tribune.  It begins:
Paralyzed from the waist down, 16-year-old Mary Kate Callahan relies solely on upper-body strength to power through the water in the 200-meter freestyle, her favorite race. 
Accustomed to overcoming obstacles, Callahan is now fighting for the chance to swim in the state championship during the next school year. 
The Fenwick High School student has been denied the opportunity to compete with her team because the Illinois High School Association lacks athletic competition standards for students with disabilities, according to a complaint drafted by the Illinois attorney general's office.

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Human Rights Watch on Disability Voting Rights in Peru

See this press release, with linked report.  The release begins:
Peru should remove significant barriers preventing people with disabilities from exercising their right to vote and other civil rights, Human Rights Watch said in a report released today. The failure to dismantle the obstacles is undermining Peru’s leadership as one of the first countries to ratify, in 2008, the Convention on the Rights of Persons with Disabilities. 
The 89-page report, “‘I Want to be a Citizen Just Like Any Other’: Barriers to Political Participation for People with Disabilities in Peru,” documents the legacy of a policy, changed only in October 2011, that arbitrarily denied people with sensory, intellectual, and psychosocial disabilities their right to vote, considering them legally incompetent to exercise such a decision. Human Rights Watch also examined the barriers that people with these and other disabilities face when exercising their political rights, including the difficulty of getting identity documents essential for voting, and the absence of support mechanisms to help people with disabilities make voting decisions. 
“Peruvians with disabilities are no-less citizens than anyone else,” said Shantha Rau Barriga, disability rights researcher and advocate at Human Rights Watch. “Everyone is equally entitled to vote and participate in society – and the law and government policy should see to it that they have the support they need and that no one is arbitrarily and unjustifiably excluded.” 
The report is based on interviews with more than 100 people with disabilities and their families, as well as with Peruvian government officials and disability advocates.

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Tuesday, May 15, 2012

News on North Carolina-DOJ Olmstead Settlement Negotiations

See this story from WRAL, which begins:
The North Carolina Department of Health and Human Services could end up paying millions of dollars to avoid a lawsuit over alleged violations of the Americans With Disabilities Act, state lawmakers learned Tuesday. 
State health officials briefed the Joint Legislative Oversight Committee for Health and Human Services on Tuesday about the progress of the months of negotiations with the U.S. Department of Justice. 
The issue stems from a justice department report last summer that found that the state's mental health system needlessly institutionalized thousands of mental health patients, segregating them from the community and impeding their interaction with people who do not have disabilities.
Just to be clear, the money this story is talking about is not money to be paid out as damages but instead the money that will be necessary in the short term to restructure the state's mental health system.  Over the long run, the state is likely to save a substantial amount of money by moving to a more community-based system.

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Department of Education Issues "Resource Document" on Restraint and Seclusion

Read it here.


Ninth Circuit Decides Important IDEA/ADA/504 Issues in Pro Se Case

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in Oman v. Portland Public Schools.  The case, brought pro se by the parent of a child with a disability, raised two basic questions by the time it got to the Ninth Circuit:  (1) whether a court can award nominal damages for a violation of the IDEA; and (2) whether a school district violates Title II of the ADA or Section 504 of the Rehabilitation Act by refusing to modify its admissions policy for a magnet high school for an individual whose failure to satisfy the policy resulted from his disability and the school district's prior failure to provide a free appropriate public education.

The court answered both of these questions in the negative.  As to the first question, it held that the IDEA's grant of authority to district courts to award "appropriate" relief for violations of the statute did not extend to the award of money damages.  And it held (without much analysis) that the remedies set forth in the IDEA itself are the exclusive remedies for the violation of the statute, so that there can be no Section 1983 claim for a violation of the statute.  The court was right, I think, that this holding was consistent with precedent from the Ninth Circuit, but all of the precedent on which the court relied preceded the Supreme Court's decision in Forest Grove School District v. T.A., which emphasized the broad discretion that the IDEA's appropriate-relief language grants to district courts to determine proper remedies.  Although I think there are arguments the Ninth Circuit could have made here, the court did not even attempt to engage Forest Grove's interpretation of the appropriate-relief language.  Indeed, the Ninth Circuit did not even cite Forest Grove.

The Ninth Circuit resolved the second question in language that, while potentially confinable to the case's facts, rather broadly suggests that the admissions policies of charter and magnet schools can only rarely if ever be challenged under the ADA and Section 504:
Whether a party may bring a damages action based upon the admissions policies of a magnet school is a question of first impression in this circuit, if not in this country, and thus we turn to the requirements of the Rehabilitation Act. “Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate,” but merely requires them not to exclude a person who is “otherwise qualified” based upon his or her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). To be “otherwise qualified,” an individual must be “able to meet all of a program’s requirements in spite of his handicap.” Id. at 406; see also St. Johnsbury Acad. v. D.H., 240 F.3d 163, 173 (2d Cir. 2001) (applying the Davis standard to a high school’s special education evaluation process).  
Though we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, cf. id., we “extend[] judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.” Zuckle, 166 F.3d at 1047. And it is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school.

That Congress did not intend to provide a private cause of action for monetary damages based on such a claim is confirmed when these provisions are read in the context of Con- gress’s other education policies. In particular, Congress has explicitly contemplated that public school districts might create magnet and charter programs. See 20 U.S.C. § 1413(a)(5); 34 C.F.R. §§ 226, 280. It has required special approval by the Secretary of Education that any such program is in compliance with federal law for magnet schools to receive federal funding. 34 C.F.R. § 280 (implementing the Magnet Schools Assistance Program). Hundreds of school districts have taken advantage of these procedures, many creating schools with competitive admissions policies more stringent than those here. Cf. U.S. Dep’t of Education, Successful Magnet High Schools: Innovations in Education (2008), available at choice/magnet-hs/index.html. And yet, we know of no case holding such institutions liable for violations of the ADA or Rehabilitation Act. Nor do we know of any regulation adopted pursuant to the Rehabilitation Act, the ADA, or the IDEA that prohibits such practices. Indeed the burgeoning number of charter and magnet school programs operating without the interference of either Congress or the Department of Education confirms that they are an accepted part of our educational system. As such, we will not impose liability upon them without further indication of Congressional intent.
This language is deeply problematic.   Both the ADA and Section 504 require school districts to make reasonable modifications in their policies and practices in order to avoid discrimination on the basis of disability.  That's clear from the Department of Justice regulations implementing Title II of the ADA, the Department of Education regulations implementing Section 504 in the school setting, and a long line of post-Southeastern judicial decisions.  And there is nothing in those statutes that exempt magnet and charter schools from these requirements.  Indeed, Section 504 applies to every entity that receives federal financial assistance, and Title II applies to every service, program, or activity of a state or local government.  The Supreme Court's decision in Pennsylvania Department of Corrections v. Yeskey specifically rejected the notion that lower courts could demand "further indication of Congressional intent" (to quote the Ninth Circuit here) before applying those statutes to the fullest extent of their plain terms.

Perhaps the case is best read as simply holding that the modification the plaintiff sought to this magnet school's admissions criteria was necessarily unreasonable.  But the court provides no analysis on this point, only the statement that courts defer to academic decisions and the ipse dixit that "is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school."  And the remainder of the court's language suggests a much broader, and more problematic, holding.

To decide questions of the magnitude of the ones presented here, in such broad terms, in a published opinion, and to do so in a case in which the losing party was not even represented by counsel, does not seem to me the right way to go about things.

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Monday, May 14, 2012

Guest Prawfs Post on Timed Exams and Testing Accommodations

I have a somewhat lengthy guest post over at Prawfs on timed exams and testing accommodations.  It may interest one or the other of the readers of this blog.


New Zealand Court of Appeal Holds State Must Pay Parents Who Care for Children with Disabilities

See this interesting article, which begins:
In a landmark decision, the Court of Appeal has this morning ruled that parents of disabled children are being unreasonably discriminated against by not being allowed to be paid carers.
The test case today dismissed the Ministry of Health’s appeal against a finding that its current policy is discriminatory. 
“The parents should be compared to those persons who are able and willing to provide disability support services to the ministry,” the court ruled. 
Today’s decision follows a court hearing in February that was told only rough estimates had been done of what it would cost the ministry to pay parents of disabled children. Estimates varied from between $17 million and $593 million. 
The ministry appealed, saying the Bill of Rights allowed for "a reasonable limits of rights to achieve a sufficiently important governmental objective" but the Court of Appeal ruled the policy "imposed a limit that was greater than was reasonably necessary… and was not a reasonably limitation on the right to freedom from discrimination".

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MHSAA Proposes Age Limit Waiver for Student-Athletes with Disabilities

See this story, which begins:
For the first time in a couple years, Dean Dompierre is in complete agreement with the Michigan High School Athletic Association. 
Dompierre was pleased with the language in the proposed amendment to the MHSAA constitution that would provide studentswith disabilities to exceed the 19-year-old age limit to participate in athletics. 
“I think the MHSAA leadership did an excellent job of wording it,” he said. “It’s pretty much what we’ve been asking for at least these last two proposals. It’s not limited to just one disability. It’s broad enough to cover anyone who meets the criteria. Yet it’s restrictive enough to make it difficult, if not impossible, for someone to abuse it.”


Institutional Parents Granted Intervention in DOJ-Virginia Olmstead Case

See this story.

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Wichita Eagle on Kansas Waiting List Case

See this editorial, which begins:

Gov. Sam Brownback is correct in noting that he inherited a long waiting list for social services. But as advocates for individuals with physical disabilities point out, he is overstating his administration’s efforts to solve the problem. 
The fact is that Brownback deliberately chose not to use available resources to reduce the waiting list, preferring instead to cut taxes. 
More than 3,400 Kansans with physical disabilities are on a waiting list for home- and community-based services. Many have been on the list for more than two years. This appears to be a violation of the Americans With Disabilities Act and court decisions including the U.S. Supreme Court’s 1999 Olmstead case, which ruled that a disabled person has a right to live in the “least restrictive environment.”

Read more here:

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W.D. Mo. Approves Settlement on Deaf Access to Mental Health Services

See this story, which begins:
A federal judge has approved the settlement of a lawsuit filed on behalf of more than 1,000 deaf Missourians, claiming the state failed to provide adequate mental health services for the deaf. 
U.S. District Judge Matt Whitworth approved the settlement Thursday in Jefferson City in the suit filed by the Missouri Association of the Deaf and 13 named plaintiffs. The suit accused the state of violating the Americans with Disabilities Act by not providing adequate mental health care for the deaf. 
Among the settlement's many provisions, it requires greater availability of sign language interpreters, the development of outpatient and inpatient centers that are staffed with clinicians and case managers trained in aiding the deaf and better training to ensure mental health professionals can assist the deaf.


DOJ Settles Two HIV Cases

See this press release, which begins:
The Justice Department announced that it has reached two settlements today resolving claims that health care providers refused to serve people with HIV in violation of the Americans with Disabilities Act (ADA).

The first complaint was filed by a man with HIV who went to the Mercy Medical Group Midtown Clinic in Sacramento, Calif. After meeting with the patient and examining him, a podiatrist at the clinic informed the patient of his treatment options. Although surgery was one of the treatment options, the podiatrist incorrectly told the patient that he could not perform the surgery because of a risk that he would contract HIV from the patient during surgery. The United States determined that the podiatrist’s actions violated the ADA by denying the patient the full and equal enjoyment of the services offered at the clinic on the basis of his disability. 
The second complaint was filed by a man with HIV who went to the Knoxville Chiropractic Clinic North in Knoxville, Tenn., for chiropractic treatment following an automobile accident. After examining him, the doctor determined that the patient required 24 subsequent appointments to treat his injuries. On his third visit to the clinic, however, the receptionist informed him that the doctor would not see him because they could not treat people “like him.” The United States determined that Knoxville Chiropractic Centers had a blanket policy of refusing treatment to persons with HIV in violation of the ADA.

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Wednesday, May 09, 2012

Geva on Parental Mental Health and Child Custody

Just out: Anat S. Geva, Judicial Determination of Child Custody When a Parent is Mentally Ill: A Little Bit of Law, a Little Bit of Pop Psychology, and a Little Bit of Common Sense, 16 U.C. Davis J. Juv. L. & Pol'y 1 (2012).  The abstract:
In adjudicating child custody, the court weighs multiple factors to determine the best interest of the child. Most state statutes and court decisions in the United States permit judges to consider the factor of parental mental health. To answer how judges consider this factor when adjudicating child custody, 17 judges who oversee child custody determinations participated in semi-structured in depth interviews conducted by the author. By providing judges with an opportunity to discuss their decision-making process in such cases, this paper provides a unique occasion to understand and gain insight into the process by which judges consider this best interest factor. Thus, the study reported here is the first to specifically examine judicial consideration of parental mental health when adjudicating custody. These interviews reveal that for judges, parental mental illness is not an a priori reason to deny custody. Judges make custody decisions based on information from the observations and recommendations of a Guardian ad litem, custody evaluations, and personal observations of the judge, framed by “common sense.” Judges, however, tend to overestimate their understanding of the psychological factors relevant to post-divorce adjustment. At the same time, they do not discharge effectively their gatekeeping role when they consider, without question, the evidence, opinions, and conclusions offered by evaluators. To address these problems, it is recommended that judges overseeing child custody proceedings be required to receive more effective training concerning the relevancy and significance of parental mental health, understanding and applying social science and behavioral research, and evaluating expert recommendations. In addition, the law should afford such judges more latitude to consider remissions of a contesting parent's psychiatric symptoms. Lastly, both the law and the judges who enforce it should presumptively afford the mentally ill parent an opportunity for rehabilitation before implementing a permanent custody order.


KABC on the California Legislature and Serial Access Litigation

See this story.  An excerpt:
State leaders are finally listening. They've approved a bipartisan bill that would stem the tide of ADA lawsuit abuses. 
* * *
Among other things, the proposal would put a stop to threatening demand letters businesses get. 
"It would ban demand for money letters that say, 'Pay me now, or pay me more later,' which unfortunately are sent by a few lawyers and law firms basically looking to make a quick buck," said state Senate President Darrell Steinberg (D-Sacramento). 
The proposal also seeks to give businesses at least 30 days to fix the problem before a lawsuit can proceed.

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Monday, May 07, 2012

WSJ on Day-Care Discrimination Against Kids with Diabetes

See this article.

Why the DOJ-Virginia Olmstead Settlement is Important

See this story, about a pair of twins with developmental disabilities who have been on a waiting list for community-based services for twelve years.

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LA Times on Clustering of Group Homes/Care Homes

See this interesting article.  An excerpt:
A Times analysis found 24 licensed facilities offering residential care for the elderly within a mile of the proposed project and three more waiting for state approval. It is one of several such clusters that have emerged in Los Angeles County — including parts of the San Fernando Valley and South Bay — where families can afford fees that run into thousands of dollars per month. Large swaths of the county's less affluent areas have no such facilities.
This is an incredibly important, extremely difficult issue.  As the article notes, community opposition can make it difficult to operate the community-based programs that enable people with disabilities to leave or avoid entering nursing homes.  On the other hand, the kind of clustering described in the article makes these settings less truly integrated in the community.

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Cuomo to Seek New Agency to Protect Against Abuse of People with Disabilities

See this article in the New York Times.  It begins:
Gov. Andrew M. Cuomo, seeking to strengthen the state’s chronically weak response to abuse of disabled people who live in publicly financed homes, plans this week to propose creating an agency dedicated to investigating problems with the care of nearly one million vulnerable New Yorkers.

The new law enforcement and oversight agency would monitor those in state or private care who have developmental disabilities like autism or cerebral palsy, mental illnesses including schizophrenia, and other conditions, among them traumatic brain injuries, that put them at risk. The agency would employ a special prosecutor and would be granted subpoena power and the authority to convene grand juries, according to a draft plan obtained by The New York Times. 
The administration is also proposing tougher laws to punish those who abuse people with developmental or other cognitive disabilities. And Mr. Cuomo would, for the first time, expand the reach of the state’s Freedom of Information Law by requiring the thousands of nonprofit organizations that house the bulk of those in state care to make abuse and neglect records public.
We'll see if this package can get enacted.  If it does, crucial questions include whether the new agency will apply the same standards to publicly and privately owned facilities, and how well the agency will balance the interests in protection of and free choices for people with disabilities.  All told, though, this looks like a serious and credible effort to respond to the abuses that the Times has done such important work to document.


Thursday, May 03, 2012

Long LA Times Story on Pool Lifts

See this story, which is pretty good, though it downplays one key point and omits another.  The point it downplays is that (as I've said before) existing pools have to install new lifts only if doing so is readily achievable -- in the vernacular, cheap and easy.  It is simply not true that every pool in America has to have a lift by May 21.  If a "small mom-and-pop hotel . . .  can't afford the cost," as the article quotes someone putting it, it doesn't have to install a permanent lift in an existing pool.  But the article is easily read to suggest otherwise.

The point the article omits is any discussion of the reason why many people with disabilities prefer permanent lifts to temporary ones.  At a small hotel with only a temporary lift, there are often unlikely to be staff available to bring out the lift and put it in place when a person with a disability asks for it.  A permanent lift, by contrast, is always there and thus gives people with disabilities the same opportunity to swim as nondisabled patrons.

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Judge Approves Maine Nursing Home Olmstead Settlement

See this article, which begins:
Young adults with disabilities will have more choices of where to live after a judge signed off on an agreement this week that settles a class-action lawsuit brought by the families of three young men whose only option was to live in nursing homes. 
The lawsuit alleged that Maine’s Department of Health and Human Services, in the operation of the MaineCare program, violated the Americans With Disabilities Act and the Nursing Home Reform Act. In addition, plaintiffs claimed that for those who do live in nursing homes, DHHS has not provided federally mandated services that promote independence and community involvement.

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George Will on His Son with Down Syndrome

Read him here.

Institutional Parents File Lawsuit to Keep Vineland (NJ) Developmental Center Open

See this article, which begins:
A group of Vineland Developmental Center residents has filed a suit in federal court claiming the state has violated patients’ rights by trying to close the facility. 
The state last year announced it wants to close the Landis Avenue center that treats women with developmental disabilities and move those residents into group homes and other facilities. The announcement was met with backlash from some residents’ families, and Gov. Chris Christie later signed legislation that called for further research of the impact of a closure. 
Center employees are working without a contract, and guardians of residents say they still don’t know whether the center will remain open. The state has said it wants to shutter the facility by June 30, 2013, a move that would eliminate more than 1,300 jobs.
Hard to see the federal cause of action here.  Though I know certain of the institutional parents' groups think that Olmstead requires the state to provide institutions for those who "need" them, that's not what Olmstead says.

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Wednesday, May 02, 2012

NFB Announces Lawsuit Against Philadelphia Library for Using Inaccessible E-Readers

See this press release from the National Federation of the Blind:
With the assistance of the National Federation of the Blind, four blind patrons of the Free Library of Philadelphia—Denice Brown, Karen Comorato, Patricia Grebloski, and Antoinette Whaley—have filed suit (case number: 12-2373) against the library because they cannot access one of the library’s programs for which they are eligible. The Free Library of Philadelphia has instituted and announced plans to expand a program in which free NOOK Simple Touch e-readers, which are manufactured and sold by Barnes & Noble, are loaned to patrons over the age of fifty. Unlike some other portable e-readers that use text-to-speech technology and/or Braille to allow blind people to read e-books, the NOOK devices are completely inaccessible to patrons who are blind. The library’s conduct violates Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA).

The Free Library of Philadelphia is aware that the NOOK devices are inaccessible, and library personnel have openly discouraged two of the blind plaintiffs from even attempting to check out one of the devices. The library is also aware that it is violating federal laws, having been so advised by the United States Department of Education, which has issued both a Dear Colleague letter and a subsequent Frequently Asked Questions document regarding the obligation of federally funded institutions to purchase accessible e-book readers and other technologies. The Free Library of Philadelphia does have a branch that lends Braille and audio books from the National Library Service for the Blind and Physically Handicapped of the Library of Congress to blind patrons, but the selection of books is limited, and books are not available in these formats until months or years after they are released to the general public. 
Dr. Marc Maurer, President of the National Federation of the Blind, said: “The technology to make e-books accessible exists, allowing blind people for the first time to buy or borrow books as soon as they are released. Too many e-book platforms and devices, however, remain needlessly inaccessible to the blind and others who cannot read print. Libraries have a legal obligation to serve their blind and print-disabled patrons and to not discriminate against them. They should be purchasing accessible e-book reading devices and demanding that their vendors provide them, not perpetuating the status quo by purchasing inaccessible technology and needlessly relegating their blind and print-disabled patrons to separate and unequal service. This is the standard to which we intend to hold the Free Library of Philadelphia and any other public library that chooses to flout the law by purchasing and lending inaccessible e-book technology.” 
Denice Brown, one of the plaintiffs in the lawsuit, said: “I am disappointed and frustrated that I cannot use the exciting new e-book technology being offered by my local library. Worse yet, I was treated like a second-class citizen when I visited the library and asked about this new technology, with library personnel initially refusing even to help me fill out a form so that I could check out a NOOK Simple Touch. I hope that the Free Library of Philadelphia, of which I am a patron, will make a strong commitment to accessibility and cease its discrimination against me and other blind patrons.”

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NYC Board of Ed. Moves to Enhance Integration of Students with Disabilities

The UFT doesn't seem very happy about it, though.  See this article from the New York Post.  It begins:
Special-education kids who would have been segregated in the past will be shifted into classrooms with general-education students under an ambitious program being launched in city public schools this fall. 
The move is intended to boost the students’ performance by giving them more exposure to their peers — while keeping them closer to home by requiring for the first time that all schools accept them. 
But some educators say the push is financial rather than educationally driven — and will likely deprive students of services and cause havoc in the classrooms.

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Tuesday, May 01, 2012

DOJ: Sheltered Workshops May Violate ADA

See this story from DisabilityScoop on a brief the Justice Department filed a couple of weeks ago in Lane v. Kitzhaber.  The article begins:
The Obama administration is coming out in support of a group of adults with developmental disabilities who say they’re being relegated to sheltered workshops even though they’re capable of working in the community. 
Attorneys for the U.S. Department of Justice filed a statement of interest in late April in a class action lawsuit pitting some 2,300 people with developmental disabilities against the state of Oregon. 
In the suit filed in federal court in January, residents with disabilities alleged that the state is violating the Americans with Disabilities Act by failing to provide supported employment services, which allow people with disabilities to work in the community.
I blogged about this case when it was filed back in January.  The DOJ brief is here.

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Guest-Blogging on Prawfsblawg This Month

I'm guest-blogging over at Prawfsblawg this month.  I'll still be publishing my updates on disability law here.  But over at Prawfs I'll do some more in-depth and opinionated blogging, as well as some blogging that doesn't really connect with disability issues.  My first guest post, which certainly has relevance for disability law, is the first of three discussing the Supreme Court's Douglas v. Independent Living Center decision.

Eighth Circuit Denies IDEA Reimbursement for "Home-Based Program"

Last Friday, the United States Court of Appeals for the Eighth Circuit issued its opinion in T.B. v. St. Joseph School District.  The case was an IDEA reimbursement action with a twist: Rather than enrolling their child in a private school when they were dissatisfied with the individualized education plan the school district offered, the parents here withdrew their child (who has autism) from school and enrolled him in a "home-based program."  The home-based program at issue was provided pursuant to a Medicaid waiver obtained by the Missouri Department of Mental Health.  According to the Eighth Circuit, it provided "personal assistance, day habilitation, transportation, environmental accessibility adaptation, respite care, and behavior therapy."  The school district refused to pay for the program (though I'm not sure why the parents had any out-of-pocket costs if the program was funded through Medicaid).  The parents filed an administrative complaint.  Although the administrative review panel concluded that the district had "violated the IDEA by failing to conduct a triennial re-evaluation of T.B., as required by 20 U.S.C. § 1414(a)(2), and by failing to inform the parents in writing of its intent not to conduct such evaluation," it nonetheless "denied the parents' request for reimbursement on the ground T.B.'s home-based program was 'woefully inadequate' and the parents had failed to prove they actually paid for the costs associated with it."  The parents sought review in the district court, which concluded that the district had not violated the IDEA and that T.B.'s parents had in any event "failed to show what expenses for the home-based program, if any, they had actually incurred."

The Eighth Circuit affirmed the denial of reimbursement.  The court assumed arguendo that the school district had violated the IDEA.  But it concluded that "the parents are still not entitled to reimbursement as they cannot show the home-based program is 'proper' under the IDEA," because it was not reasonably calculated to enable T.B. to receive educational benefits.  The court explained:
Consistent with the services provided through the waiver, the record further shows T.B. engaged in the following types of activities for the duration of his home-based program: daily living, community access, money management, protective oversight, and exercise. See Appellee's App. at 391-417 (providing copies of T.B.'s daily activity log sheets). For example, T.B. worked on answering social questions like "What's your address?", "What's your phone number?", and "What's your name?" He also worked on developing basic social skills by learning how to make eye contact, respond to questions in simple conversations, wait in line at the store, order from a menu, and play games with others. The program further focused on teaching T.B. the proper sequence for certain household and daily activities, such as doing laundry, making popcorn, or brushing his teeth.

To be sure, the record does indicate the program provided some educational services, including math, reading, and listening comprehension. These educational services, however, were often secondary to the teaching of social and behavior skills. Math, for example, was included as part of learning how to wait in line and place an order or as part of the money management lessons. Spelling and vocabulary expansion were done on the way to a social activity. Thus, while the home-based program may have offered some activities to help supplement T.B.'s educational needs, these activities were in no way intended to supplant the educational services available to him through the School District. In fact, the Lopez waiver specifically provides that the services available through the program "may not duplicate or replace special education-related services, which otherwise are available to the child through a state and local agency." Hr'g Tr., Nov. 9, 2009, at 141.
This is an odd fact pattern in a lot of ways.  I'm still having trouble understanding what the out-of-pocket cost to the parents was here.  And nobody could reasonably think that Medicaid waiver services like these are designed to supplant or fully substitute for special education services.  Nonetheless, this case continues the trend (now in a published appellate opinion) of courts carefully examining the alternative placement before granting tuition reimbursement under the IDEA.

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Exhibit 346 in Why We Need a Real Long-Term Care/Personal Assistance Policy

See this story from NPR.


California Agency Ripped Over Disparities in Autism Spending

See this article by that title in the LA Times.  It begins:
California lawmakers and advocates for children with autism assailed the state Department of Developmental Services during a hearing Monday over the deep racial and ethnic disparities in how it spends money on the disorder. 
"Families that are already the most disadvantaged get the least," Martha Matthews, an attorney for the advocacy group Public Counsel, testified before a panel of legislators in Sacramento. "This is exactly the opposite of what it should be." 
State Sen. Darrell Steinberg, who heads a committee on autism, called for legislation to provide greater accountability in the $4-billion-a-year entitlement program for people with developmental disabilities. Autism now accounts for about a quarter of the 252,000 people in the state system and 45% of all new disability cases it accepts. Budgets have not kept pace.