Sunday, September 30, 2012

Nice NYT Piece on the Results of the DOJ-Georgia Olmstead Settlement

D.N.M.: Under ADAAA, Back Injury that Prevents Lifting More than 60 Pounds or Climbing Utility Poles May Be a Disability

Last week, Judge Martha Vazquez of the United States District Court for the District of New Mexico issued an opinion denying a motion to dismiss in Rico v. Xcel Energy, Inc., ___ F. Supp.2d ___, 2012 WL 4466631 (D.N.M., Sept. 25, 2012).  Rico experienced a back injury at work, which prevented him from lifting more than 60 pounds or climbing utility poles -- both of which were requirements of his position.  He requested a transfer to a position for which he would not have to lift more than 60 pounds or climb utility poles, but his employer rejected that request and terminated him (though it ultimately rehired him in a lower-paying position and wiped out his seniority).  He sued under the ADA.  The employer moved to dismiss on the ground that Rico did not have a disability, because the inability to lift more than 60 pounds or climb utility poles did not substantially limit any major life activity.

The court denied the motion.  The employer had relied on pre-ADAAA cases holding that even more severe lifting restrictions (e.g., no more than 25 pounds) did not substantially limit major life activities, but the court concluded that those cases were overturned by the ADAAA.  The court explained:
The express language of the ADAA and its interpretative regulations thus call into question the continued precedential value of pre-amendment cases, such as those cited by Defendants, which well might have applied a higher degree of functional limitation than is now permissible under the statute to determine whether lifting restrictions are stringent enough to qualify an individual as disabled. 
* * * 
Under the broadened standards of the ADAAA, the Court finds Plaintiff's allegations as to his disability sufficient to withstand the pleading requirements of Rule 12(b)(6). According to the Complaint, Plaintiff's condition renders him unable to climb utility poles or engage in heavy lifting. Post-surgery, his doctor limited him to work that did not involve lifting over sixty pounds or climbing utility poles. Moreover, Southwestern recommended that Plaintiff apply for long-term disability benefits. These allegations, read in the light most favorable to Plaintiff, are sufficient to raise an inference that Plaintiff was disabled at the time of his termination. Accordingly, the Court would be premature in dismissing Plaintiff's ADA claim at this stage of the litigation.

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Florida Seems to Invite DOJ Lawsuit Over Kids Institutionalized in Nursing Homes

See this article from the Miami Herald.  It begins:
The war of words between Florida health administrators and federal civil rights lawyers continued Friday as the administration of Gov. Rick Scott rebuffed the U.S. Justice Department’s offer to help remove hundreds of children from nursing homes.

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Interesting Practitioner Piece on Workplace Weight Restrictions Under the ADAAA

See this piece in Thomson Reuters News and Insight, by management lawyers Julie Ungerman and Jennifer Jones.  It begins:
We live in a society that is obsessed with appearance, and studies show that many people equate appearance to success. While employers may not be aware of these studies, some are trying to control appearance in the workplace by imposing weight restrictions on job applicants or employees as a condition of employment.

Whether these policies are permissible can only be answered with a “maybe.” There is no federal law that prohibits obesity discrimination, so plaintiffs have brought weight discrimination claims under the Americans with Disabilities Act (“ADA”) with varying degrees of success.1 However, in light of recent amendments to the ADA, one wonders whether plaintiffs will be more or less successful in bringing weight discrimination claims.

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Thursday, September 27, 2012

NCD Issues Major Report on Parents with Disabilities

Jonathan Young and his colleagues on the National Council on Disability are really doing terrific work.  Today, the Council issued this must-read report entitled Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children.  From the executive summary:
These parents are the only distinct community of Americans who must struggle to retain custody of their children. Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent. In families where the parental disability is physical, 13 percent have reported discriminatory treatment in custody cases. Parents who are deaf or blind report extremely high rates of child removal and loss of parental rights. Parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children. 
Clearly, the legal system is not protecting the rights of parents with disabilities and their children. Fully two-thirds of dependency statutes allow the court to reach the determination that a parent is unfit (a determination necessary to terminate parental rights) on the basis of the parent’s disability. In every state, disability may be considered in determining the best interest of a child for purposes of a custody determination in family or dependency court. In theory, a nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent’s disability is creating a detriment that cannot be alleviated. However, this is not the reality. 
Discrimination against parents with disabilities is all too common throughout history, and it remains an obstacle to full equality for people with disabilities in the present. Furthermore, this problem is not limited to traditional categories of disability, such as physical or sensory impairments. Discrimination by legal authorities and in child custody proceedings against parents with emerging disabilities is common as well. For example, as improved diagnosis and expanding diagnostic criteria have enhanced identification of children and adults on the autism spectrum, discrimination against parents diagnosed as autistic has emerged as a serious and ongoing systemic problem. As our society recognizes autism and other newly identified disabilities in a greater percentage of the next generation, the percentage of the American public susceptible to discrimination will increase. Parents who belong to these groups will experience the same abuses of their civil rights that parents with psychiatric disabilities currently experience; notably, status-based removals and deprivation of due process protections such as reunification services. 
This report recommends actions that should be taken immediately to ensure the rights of parents with disabilities and their children. Whether action is taken at the state or federal level, as an amendment or a new law, the need for action could not be more timely or clear.

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Feds Threaten Lawsuit Over Kids in Nursing Homes

See this AP dispatch by that title.  It discusses events in Florida, and it begins:
Federal investigators threatened swift legal action Tuesday if Florida health officials do not work with them to resolve allegations that children with disabilities are being sent to adult nursing homes unnecessarily. 
In a terse letter, U.S. Department of Justice officials said the state is violating the federal Americans with Disabilities Act by allowing more than 200 children with disabilities — including babies — to be segregated in nursing homes, often for years, without a clear path to return home. 
"We hope you will reconsider your unwillingness to cooperate with our investigation," Assistant Attorney General Thomas Perez wrote to state health officials, noting his agency has resolved similar issues in Georgia, Virginia, North Carolina and Delaware.

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Student Note on Tester Standing and ADA Title III

Just out: Leslie Lee, Note, Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine is Not the Right Solution to Abusive ADA Litigation, 19 Va. J. Soc. Pol'y & L. 319 (2011).  The abstract:
Over twenty years after the enactment of Title III of the Americans with Disabilities Act (“ADA”), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a “cottage industry” formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices. 
This Note will argue that ADA “testers,” disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III - specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney's fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.

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Lukasik on Asperger Syndrome and the IDEA

Establishing a child's eligibility for services and protections under the Individuals with Disabilities Education Act (IDEA) requires “a difficult and sensitive analysis.” This is particularly true when a child's family and her school agree that she has a disability that could qualify her for special educational benefits under the Act, but disagree about whether that disability in fact renders her eligible for those benefits. Such disagreements highlight a gap in the federal law that several circuit courts of appeal recently filled with a requirement that children with disabilities who also receive passing grades in school, like many children with Asperger's Syndrome, “fail first” academically before they may qualify as “a child with a disability” eligible for services and protections under the Act. 
This Article is among the first to consider the Asperger's Syndrome example in the context of these decisions. It argues that recent restrictive constructions of regulatory definitions of IDEA-eligible disabling conditions frustrate the purpose of the IDEA, create an unnecessary constitutional vulnerability in the Act, and fly in the face of public policy supporting preparation of “all children with disabilities” not only to get good grades in school, but also for “employment[] and independent living” as productive citizens in their communities. It also proposes a more inclusive understanding of the phrase “child with a disability” under the IDEA to better serve the statute's expressed educational and societal goals.

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Arehart on GINA

I keep thinking I've posted on this, but I don't think I have.  As a result, I'm a bit late to the game, but you should check out Bradley Arehart's article on SSRN (which is now out at 46 Ga. L. Rev. 705 (2012)), entitled GINA, Privacy, and Antisubordination.  The abstract:
This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees. 
GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.

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Spieler and Burton on Work-Related Disability and Workers' Compensation

New on SSRN: Emily Spieler & John F. Burton Jr., The Lack of Correspondence Between Work-Related Disability and Receipt of Workers' Compensation Benefits, 55 Am. J. Indus. Med. 487 (2012). The abstract:
This paper reviews previous studies examining receipt of workers’ compensation benefits and data from surveys of people with disabilities. The evidence shows that a very substantial proportion of persons with work-related disabilities do not receive workers’ compensation benefits. The obstacles to compensation include the definitional structure of workers’ compensation statutes, barriers that discourage workers from filing legitimate claims, increasingly restrictive rules for compensability and higher procedural hurdles that have evolved in recent years in many state workers’ compensation programs. The solutions to this problem, such as providing healthcare to workers regardless of the source of injuries or diseases, are complicated and controversial.

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Tuesday, September 25, 2012

Second Circuit: School District Can't Rehabilitate Inadequate IEP with Testimony that Services Beyond the IEP Would Have Been Provided

Last week, the Second Circuit decided a technical but important case about the Individuals with Disabilities Education Act and private school reimbursement.  The case, R.E. v. New York City Department of Education, involved the legal rules that apply to the following fact pattern: A school district offers a child with a disability an individualized education plan, but the child's parents reject the proposed IEP as inadequate, place the child in private school, and seek tuition reimbursement.  In the reimbursement proceeding, the parents argue that the IEP was, within its four corners, inadequate.  But the district argues that if the parents had allowed them to implement the IEP the district would have rectified the inadequacies that the plan had on paper.

The court addressed the question whether a school district can offer this sort of hypothetical or counterfactual testimony (which the court confusingly called "retrospective testimony") to rehabilitate an inadequate IEP.  The court answered that question in the negative.  The court reasoned that the IDEA gives parents a choice when presented with the IEP: accept the IEP and keep their child in public school, or unilaterally place their child in private school and seek reimbursement.  And the only way that this system can work is if parents can rely on what is in the written IEP:
In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. Under the Department’s view, a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services.
The court did say, though, that a reimbursement hearing need not be limited to the four corners of the IEP.  A school district can provide testimony "that explains or justifies the services listed in the IEP," but the court held that it cannot provide testimony "that materially alters the written plan."

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Friday, September 21, 2012

Huffington Post on Mental Health Budget Cuts

See this article, which begins:
As states have struggled to balance their budgets, they've often eyed public mental health programs for cuts. But those cuts have hit a particularly vulnerable population: low-income people with often severe mental health disorders or addiction issues. 
Experts and mental health advocates say the reductions have led to longer waiting lists for care, less money to help these people get housing and jobs, and more people visiting emergency rooms for psychiatric care. 
Chris Wysocki has seen this crisis firsthand. As administrator of Juniata Valley Behavioral and Developmental Services, he oversees mental health services for three largely rural counties in central Pennsylvania. According to the Pennsylvania Department of Public Welfare, the state allocated $662 million for its mental health programs in fiscal year 2012, down from around $717 million in 2011. It's Wysocki's job to deal with these cuts while trying to minimize the impact on people in his community.

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Globe and Mail on Canadian Study of Housing First

See this article.  An excerpt:
The study’s preliminary findings, to be released Friday by the Mental Health Commission of Canada, show the potential value of an approach known as “housing first.” 
The idea is that a safe and comfortable place to live is an essential first step to coping with mental illness, and that giving people the support they need in their communities will reduce the burden on shelters, hospitals and the criminal justice system. 
The research project looked at how participants like Ms. Day fared compared with others in a control group, who were treated in the more conventional way – in systems that rely on shelters and temporary housing and require homeless people to meet a number of conditions, like getting treatment for addictions, before becoming eligible for help with an apartment. 
The housing-first approach does not expect people to prove they are ready for a home of their own. It offers them choices of where they would like to live, usually apartments rented from private-sector landlords, and then helps them deal with their problems.

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The Guardian on British Prisoners with Disabilities

See this troubling article.  An excerpt:
Hall's claims, though shocking, are not unique. Despite the Paralympics helping to challenge myths and raise awareness about disability, the neglect of disabled people in prison is well documented. 
Estimates of the number of disabled prisoners vary. The prison service database records a figure of 5% (around 4,500 prisoners), but inspectorate surveys record 19% (around 16,000). A Ministry of Justice (MoJ) survey earlier this year, found 18% of prisoners interviewed had a physical disability of some kind. The dramatic rise in the number of older prisoners in the system over the last decade is likely to further increase the disabled prisoner population. 
Yet a joint report by the Inspectorate of Prisons and Care Quality Commission in 2010 found an ageing prison population, where "disabilities were not being adequately dealt with and many prisons not having a disability policy". It also reported that it was "rare to find any form of needs analysis or consultation with prisoners to help establishments carry out their duties under the Disability Discrimination Act".

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Vaughn G. Litigation Ends

See this story from the Baltimore Sun on the end of the long-running Baltimore City special education litigation.  It begins:
The nearly three-decade legal fight that transformed the long-beleaguered special-education system in Baltimore city schools has officially come to an end. 
Vaughn G. et al. v. the Mayor and City Council of Baltimore, a federal suit filed by the Maryland Disability Law Center in 1984 alleging that city students weren't receiving timely assessments and services to students with disabilities were grossly inadequate, was finally resolved Saturday after a two-year settlement agreement the two entities entered in 2010. 
City schools CEO Andrés Alonso said in a statement Thursday that the resolution reflects the system's progress, and the law center "pushed us where we needed pushing."


Wednesday, September 19, 2012

Brown Signs Anti-Serial-Litigation Law

Alabama Prison HIV Segregation Trial Begins

See this Reuters dispatch from earlier this week.  It begins:
Alabama, one of two U.S. states that segregate inmates with HIV from the rest of their prison population, will seek to defend the policy against a class action lawsuit headed to trial in federal court on Monday. 
The American Civil Liberties Union sued Alabama in 2011 for what the group contends is a discriminatory practice that prevents most HIV-positive inmates from participating in rehabilitation and retraining programs important for their success after prison. 
The state says the civil liberties group has failed to prove that there would be no significant risk of the infection being transmitted to other prisoners if inmates with HIV were fully integrated, according to court documents. 
An appeals court upheld the segregated housing policy in 1999, but ACLU attorney Margaret Winter said advances in treatment for HIV infection warranted the court taking another look at the practice.

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EEOC Wins $1.3 Million Judgment in Henry's Turkey Case

Via this press release comes very big news -- the EEOC wins a big judgment in a case involving the exploitation of workers with intellectual disabilities.  The press release begins:
Hill Country Farms Inc., doing business as Henry's Turkey Service, violated the Americans with Disabilities Act (ADA) by paying 32 workers with intellectual disabilities severely substandard wages, a judge has ruled in a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The court ordered the company, based in Goldthwaite, Texas, to pay its former employees lawful wages totaling $1.3 million for jobs they performed under contract at a turkey processing plant in West Liberty, Iowa between 2007 and 2009.

The EEOC alleged in its lawsuit (No. 3:11-cv-00041, filed in U.S. District Court for the Southern District of Iowa, Davenport Division,) that Henry's Turkey exploited a class of disabled workers because their intellectual impairments made them vulnerable and unaware of the extent to which their legal rights were being violated. 
In this latest ruling, Senior U.S. District Court Judge Charles R. Wolle found that, rather than the total of $65 dollars per month Henry's Turkey paid to the disabled workers while contracted to work on an evisceration line at the plant, the employees should have been compensated at the average wage of $11-12 per hour, reflecting pay typically earned by non-disabled workers who performed the same or similar work. The EEOC's wage claims for each worker ranged from $28,000 to $45,000 in lost income over the course of their last two years before the Henry's Turkey Service operation was shut down in February 2009.
You can also read this AP dispatch, which begins:
A Texas company that profited for decades by supplying mentally disabled workers to an Iowa turkey plant at wages of 41 cents per hour must pay the men $1.37 million in back wages, a federal judge ruled late Tuesday. 
The judgment against Henry's Turkey Service in Goldthwaite is the third of more than $1 million against the company after state authorities in 2009 shut down a dilapidated bunkhouse in rural Iowa where the men had lived since the 1970s. 
The 32 employees had been paid $65 per month to work the processing line at a huge turkey plant in West Liberty after Henry's improperly deducted fees for room and board, care, transportation and other expenses out of their pay and Social Security checks, U.S. District Judge Charles Wolle ruled. The amount they were paid never changed during the 30-year period they worked at the plant, regardless of whether they worked more than 40 hours per week, he found.
This is an extremely important case, and the judgment's a very big deal.

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Friday, September 14, 2012

de Lora on Disability-Selective Abortion and the CRPD

Over at Harvard Law's new Bill of Health blog, Spanish law professor Pablo de Lora has this interesting post on efforts by disability rights groups in Spain to use the Convention on the Rights of Persons with Disabilities to justify a ban on disability-selective abortion.  I am not persuaded by de Lora's discrimination analysis, and my sense is that the reaction of most American readers to the issue will be driven by their views of abortion in general.  But the post is very much worth a read.

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Thursday, September 13, 2012

Hershey School Settles HIV Discrimination Case

See this article from the Philadelphia Inquirer.  It begins:
The Milton Hershey School for impoverished children will pay $700,000 to settle a federal lawsuit filed by a 14-year-old Delaware County boy who claimed he was denied admission last year because of HIV. 
The school also will pay $15,000 to the federal government to settle potential civil penalties. 
The Justice Department investigated the boy's complaint and determined that the Hershey School violated provisions of the Americans With Disabilities Act, or ADA, in denying the boy admission, according to the settlement.

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Sunday, September 09, 2012

New York Magazine on the Judge Rotenberg Center

Continuing the restraint/seclusion theme, this article in New York Magazine on the Judge Rotenberg Center is a must-read.  The arresting first paragraph won't surprise those who have followed JRC through the years:
Cheryl McCollins got her first hint that something was wrong when she answered her phone on the ­evening of October 25, 2002. “Andre had a bad day.” It was a case manager calling from the residential school her son ­attended in Massachusetts, roughly 215 miles away. Cheryl had received calls like this before, but the news tonight was ­nearly incomprehensible: That day, her son had received 31 electric shocks as punishment for misbehaving.


Saturday, September 08, 2012

Powerful Op-Ed on Seclusion

Tomorrow's New York Times contains this op-ed on seclusion of kids with disabilities in public schools.  It's a must-read.  Here's how it begins:
In my public school 40 years ago, teachers didn’t lay their hands on students for bad behavior. They sent them to the principal’s office. But in today’s often overcrowded and underfunded schools, where one in eight students receive help for special learning needs, the use of physical restraints and seclusion rooms has become a common way to maintain order. 
It’s a dangerous development, as I know from my daughter’s experience. At the age of 5, she was kept in a seclusion room for up to an hour at a time over the course of three months, until we discovered what was happening. The trauma was severe.

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Cannon on Community-Based Mental Health Treatment for Children

Just out: Yael Zakai Cannon, There's No Place Like Home: Realizing the Vision of Community-Based Mental Health Treatment for Children, 61 DePaul L. Rev. 1049 (2012).  From the introduction:

There are a number of federal legal regimes explicitly structured to ensure that children like Mary are provided with timely community-based mental health treatment. This Article argues that local and state public agencies often fail to comply with their duties and fulfill the aims of these federal regimes, leading to unnecessary institutionalization of youth. Mary's placement in a residential treatment facility reflects a failure of the multiple systems in which she was involved to achieve the goals of related federal legal regimes. Like Mary, a child living in poverty may be entangled in the child welfare and juvenile justice systems and may have unmet special education and health care needs. Rather than coordinating to address a child's needs holistically, these systems typically operate as though they are in silos. For example, officials from the child welfare agency responsible for a child's foster care placement might never communicate with the school officials responsible for the child's special education needs. This can lead to failure and crisis in both the foster home and the school, resulting in the child's placement in a more restrictive institutional setting. 
Just as public agencies often operate in silos, the examination of problems affecting low-income youth also typically occurs through singular, myopic lenses. Scholars often engage in an individual assessment of challenges related to one system, such as the child welfare system or the juvenile justice system.  In addition, courts usually segregate hearings related to children, with family court judges handling an “abuse/neglect docket” and handling a “juvenile delinquency docket” in different family court hearings and different administrative hearing officers handling special education and Medicaid-related claims in other fora. Moreover, attorneys are appointed by courts or offer themselves for hire for a particular category of matters and typically remain in their own silos.  This Article expands the analysis of the legal systems affecting at-risk youth by looking at them holistically, analyzing their intersections, and evaluating the harmful effects of the compartmentalization. As a result of this compartmentalization and other factors, the common goals of federal legal regimes related to child welfare, special education, health care, juvenile justice, and disability rights continue to go unrealized, resulting in the denial to children of much-needed treatment and educational services and their subsequent placement in restrictive settings. 
Part II examines the over-institutionalization of children in harmful and costly residential treatment centers (RTCs), a largely invisible problem about which policymakers, judges, attorneys, and taxpayers should all be concerned.  Part III reviews the various legal regimes structured to ensure that children with mental health needs receive community-based services and remain out of these institutions.  Through their statutes, regulations, case law, and policies, federal legal regimes related to child welfare, special education, health care, juvenile justice, and disability rights share these common aims, which remain unrealized. Part IV assesses the reasons for the disjunction between the shared goals of these legal regimes and the reality that many children living in poverty are unnecessarily institutionalized due to their inability to access community-based services.  The stigma surrounding mental illness, compartmentalization among child-serving public agencies, and the scarcity of providers contribute collectively to this disjunction, with devastating consequences. 
In Part V, the Article concludes by calling for the fulfillment of the goals of these legal regimes through the implementation of principles and best practices in the field of children's mental health identified by researchers in other disciplines, such as psychiatry, psychology, social work, and health policy.  Public agencies should adopt and make operational the “system of care” philosophy, an approach to children's mental health developed by the National Institute of Mental Health that emphasizes coordination among various child-serving public agencies.  Local and state agencies should also ensure the provision of specific mental health services proven to be effective through valid and robust scientific studies, known as “evidence-based practices,” to keep children at home and in their communities.

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Friday, September 07, 2012

Seventh Circuit Reverses Itself on Reassignment as Reasonable Accommodation

As I noted in this post a few months ago, "there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position":
The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position. The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant. The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled. (Disclosure: I was one of Huber's counsel in the Supreme Court.)
As I explained in that post, back in March a panel of the Seventh Circuit issued a decision in a case entitled EEOC v. United Air Lines, Inc., in which the EEOC had argued that the Seventh Circuit's precedent on reassignment had been undermined by the Supreme Court's ruling in US Airways, Inc. v. Barnett.  The Seventh Circuit in March explained that the court was bound by its longstanding precedent on the issue but invited the EEOC to file a petition for rehearing en banc to prompt the court to reconsider its precedent in light of Barnett.  The EEOC did file for rehearing en banc.  But instead of rehearing the case en banc the panel today simply issued a new decision overruling the court's prior precedent on reassignment.  The panel noted that it had circulated its new decision to all of the active judges on the court, and none of them requested en banc consideration.

Today's decision holds that the Seventh Circuit's prior precedent on reassignment "did not survive Barnett":
We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. 
With this decision, the Seventh Circuit switches sides in the circuit split, joining the Tenth and D.C. Circuits and leaving the Eighth Circuit alone as the defender of the "most qualified" rule.  Although there is still a conflict in the circuits, this decision does suggest that the conflict might resolve itself in favor of what is now the prevailing position in the courts of appeals.  Although United might well file for certiorari in the Supreme Court, the diminishing nature of the conflict would counsel against the Court's granting review.

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Thursday, September 06, 2012

DOJ Moves to Intervene in Testing Accommodations Lawsuit Against LSAC

See this press release, which begins:
The Justice Department announced today that it seeks to intervene in a class action lawsuit against the Law School Admission Council (LSAC) in federal court in San Francisco to remedy violations of theAmericans with Disabilities Act (ADA). The lawsuit, The Department of Fair Employment and Housing v. LSAC, Inc., et al., charges LSAC with widespread and systemic deficiencies in the way it processes requests by people with disabilities for testing accommodations for the Law School Admission Test (LSAT). As a result, the lawsuit alleges, LSAC fails to provide accommodations where needed to best ensure that those test takers can demonstrate their aptitude and achievement level rather than their disability.

The department’s proposed complaint identifies additional victims of LSAC’s discriminatory policies and details LSAC’s routine denial of accommodation requests, even in cases where applicants have submitted thorough supporting documentation from qualified professionals and demonstrated a history of testing accommodations.

The department further alleges that LSAC discriminates against prospective law students with disabilities by unnecessarily “flagging” test scores obtained with certain testing accommodations in a way that identifies the test taker as a person with a disability and discloses otherwise confidential disability-related information to law schools during the admissions process. LSAC’s practice of singling out persons with disabilities by flagging their scores – essentially announcing to law schools that examinees who exercise their civil right to the testing accommodation of extended time may not deserve the scores they received – is discrimination prohibited by the ADA. The department’s proposed complaint seeks declaratory and injunctive relief, compensatory damages and a civil penalty against LSAC.

“Credentialing examinations, such as the LSAT, are increasingly the gateway to educational and employment opportunities, and the ADA demands that each individual with a disability have the opportunity to fairly demonstrate their abilities so they can pursue their dreams,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department’s participation in this action is critical to protecting the public interest in the important issues raised in this case.”

One of the victims identified in the complaint, for example, has severe visual impairments and previously received special education services at a school for people who are blind. Even though she provided LSAC with extensive medical documentation of her conditions, as well as proof that she had received testing accommodations since kindergarten, LSAC denied nearly all her requested accommodations, and even refused to provide her a large print test book. When she tried to appeal the denial, LSAC informed her that she had missed the deadline for reconsideration. She then reapplied two more times for testing accommodations, resubmitting all the information previously provided to LSAC, as well as additional medical documentation. Despite her extensive history of receiving the very same testing accommodations throughout her educational career and on standardized tests, and in disregard of the recommendations of a qualified professional, LSAC refused her requested testing accommodations on three separate occasions.
You can find DOJ's complaint in intervention here.


DOJ Finds Florida Violates Olmstead by Unnecessarily Institutionalizing Hundreds of Children with Disabilities in Nursing Facilities

On Tuesday, the Civil Rights Division of the United States Department of Justice issued this findings letter to the State of Florida.  Here's the key intro paragraph:
Our review of the State’s system reveals that the State fails to meet its obligations under Title II of the ADA and its implementing regulations, 28 C.F.R. Part 35, by unnecessarily institutionalizing hundreds of children with disabilities in nursing facilities. Many children entering nursing facilities in the State are unnecessarily separated from their families and communities for years. With adequate services and supports, these children could live at home with their families or in other more integrated community settings. The State’s policies and practices also place numerous other children who have medically complex or medically fragile conditions at risk of placement in nursing facilities and other institutional settings.
And here's the longer summary of findings:
We conclude that the State fails to provide services to children who reside in nursing facilities in the most integrated setting appropriate to their needs, and that the State’s policies and practices put many other children with medically complex or medically fragile conditions at risk of placement in such facilities.

Hundreds of children are currently segregated in nursing facilities throughout Florida. They are growing up apart from their families in hospital-like settings, among elderly nursing facility residents and other individuals with disabilities. They live segregated lives—having few opportunities to interact with children and young adults without disabilities or to experience many of the social, educational and recreational activities that are critical to child development.

As part of our investigation, we visited the six large nursing facilities that house the vast majority of children who reside in such facilities in Florida. At each facility, we met with numerous children and received a substantial amount of data. From our review of this data, we found a wide range of diagnoses among the children residing in each facility. Yet we consistently identified children who are qualified to receive services in the community, and who would benefit from moving home with their families or to other community settings if appropriate supports were provided to them. We also spoke with many families who want to have their children living at home but report their frustration with State policies that inhibit their ability to do so.

Indeed, the State has planned, structured, and administered a system of care that has led to the unnecessary segregation and isolation of children, often for many years, in nursing facilities. For example, despite State and federal policies that require the State to evaluate children entering nursing facilities for appropriate placement in community-based settings, we found few examples of concrete efforts by the State to identify services that would enable children entering these facilities to return home to their families. As a result, many children continue to be separated from their families simply because the State has failed to identify or connect them to sufficient community-based services to meet their needs.

The State has also implemented policies and practices that impair access to medically necessary services and supports that would enable children to transition home or to other community-based settings. For example, we learned of many instances of the State reducing or limiting the availability of in-home services that had been prescribed as medically necessary by a child’s physician, without reasonably considering the child’s actual needs. And in the last several years, the State has made substantial cuts to programs designed to support children and adults with developmental disabilities in the community, leading to a years-long waiting list to access services. While cutting community-based services, the State has simultaneously implemented policies that have expanded facility-based care, including payment of an enhanced per diem rate to nursing facilities serving children who have medically fragile conditions. These policies put children with medically complex or medically fragile conditions who currently live in the community at risk of placement in nursing facilities and other segregated institutional environments to receive necessary care.

Many family members of children in the facilities we visited have expressed their desire to bring their children home or see them move to a community-based setting. “I want my baby home,” said the mother of one three-year-old with Down syndrome and other conditions that require intensive assistance with respiratory and nutritional needs. Her daughter has been in a nursing facility since infancy. The mother expressed frustration that, in light of the services authorized by the State, she is only able to care for her child at home on certain weekends. Another mother traveled two hours round trip every day to visit her son, who resided in the children’s wing of a nursing facility for more than three years. Her son has a number of medical complications as a result of a near-drowning incident, and utilizes a ventilator for assistance with breathing. Although her son’s physician prescribed home health services to meet his needs at home, for years the State denied the amount of prescribed hours. Now that he receives the prescribed services, he lives at home with his family.

Providing appropriate services and supports to these children in more integrated settings can be reasonably accommodated. The State’s service system already makes available in-home care services to Medicaid-eligible children, as required by the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provisions of the Medicaid Act, including home health services, private duty nursing, personal care services, and certain day treatment services. In addition, the State currently provides other home and community-based services to individuals through its Medicaid program. Rather than ensuring the availability of these services when medically necessary and appropriate, the State’s system of services overly relies on institutional care in nursing facilities.

The State’s reliance on nursing facilities to serve these children violates their civil rights and denies them the full opportunity to develop bonds with family and friends and partake in educational, social, and recreational activities in the community. By implementing the remedial measures described below, the State will correct identified ADA violations and other unlawful deficiencies and fulfill its commitment to individuals with disabilities.
An extremely important case and issue.  If the state does not reach a negotiated resolution with the Department of Justice, DOJ could file suit.

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Updates on Medicaid Cuts Litigation

Today's news brings two articles on key challenges to state Medicaid cuts.  One is from the New York Times, reporting on a preliminary injunction issued to block certain cuts to Medicaid personal care services in New York City and state.  The article begins:
Charles Strouchler, a former publicity agent for classical-music management companies, has such severe multiple sclerosis that he has to be washed, fed, secured in a wheelchair during the day and turned in bed at night. For the past 15 years, he said, he has been able to live at home only because Medicaid pays for aides to take care of him around the clock. 
Earlier this year, he received a notice saying that his help was being cut to one live-in aide per day, who would sleep through the night, rather than two aides working for 12 hours each. Mr. Strouchler and others like him filed a class-action lawsuit, challenging reductions in care. 
While not ruling on the merits of the case, a federal judge in Manhattan decided on Tuesday that the plaintiffs had a “substantial likelihood” of proving that New York City and New York State had violated federal law in cutting back on Medicaid-financed personal care for hundreds of New Yorkers like Mr. Strouchler since last year.
The other, from KOMO in Seattle, reports on efforts by disability rights activists to convince Washington Governor Christine Gregoire not to seek cert. to review the Ninth Circuit's decision in M.R. v. Dreyfus, which blocked certain Medicaid cuts.  (I've blogged about M.R. before.)  From the story:
"There are a lot of vulnerable folks who rely on this service," Ganapathiraju said. "It's unfair, of course, that the situation is how it is. It's understandable that there are political forces at work." 
Ganapathiraju is referring to state-mandated budget cuts, which slashed in-home personal health care services for the elderly and the disabled. A judge upheld that the cuts are legal, but the 9th Circuit Court of Appeals overturned that decision, arguing that the cuts violate the Americans with Disabilities Act. 
The state has until September 17 to appeal the case to the U.S. Supreme Court, said Carl Peterson with the Autistic Self-Advocacy Network. Peterson joined with other advocates for the disabled Wednesday to call on the state and the governor to not appeal the decision. 
"What really is at stake here is the ability for somebody with a disability to stay and live fruitfully and as a positive part of the community instead of living in an institution," Peterson said. "We understand that the governor needs to save money and stuff but this is not the way to do it."

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Wednesday, September 05, 2012

Today in Misleading Headlines, Special Education Funding Edition

The headline on this story reads, "Academic success in special education not linked to spending, study finds."  But the Fordham Institute study to which the story refers finds nothing of the kind.  The study actually makes three findings:

1.  There is a great deal of variation in special education spending and staffing across school districts in the United States.

2.  In two pairs of school districts in each of five states (so ten pairs of districts total) -- pairs "chosen to illustrate the inverse relationship between special education inputs (spending) and outcomes (achievement)" (p. 11, emphasis added) -- the district with higher test scores for kids with special needs spent the same amount as or (usually) less than the district with lower test scores.

3.  If school districts across the country with above-average staffing instead staffed at the national median, they would collectively save billions of dollars.

Based on these findings, the author recommends that the federal government should end maintenance-of-effort requirements that in many circumstances prevent states and school districts from cutting special education spending. The author also recommends that Congress should preserve and strengthen the subgroup accountability provisions of No Child Left Behind, and that it should give states more flexibility in using IDEA funds. And the author recommends that local districts should employ "better teachers, not more teachers or non-teachers" (p. 34) and should better manage special education caseloads.

I have sympathy for some, though not all, of these recommendations. But the crucial point is that the study does not advance the case for them. Much less does it show that academic success in special education isn't linked to spending. The only achievement comparison the study draws is the comparison among ten pairs of districts that were specifically chosen because they were pairs of districts in which the higher-achieving district wasn't higher spending. This is a pretty blatant case of selecting on the dependent variable, and it eliminates any possibility of drawing a causal inference (e.g., that higher spending doesn't lead to higher achievement).

The study plays cute with this point. It includes a parenthetical statement that "[w]e do not imply that these relationships are causal," and that, given that the district pairs "were chosen to illustrate the inverse relationship between special education inputs (spending) and outcomes (achievement)," it's "not surprising that they did, in fact, illustrate that relationship" (p. 11). But if the study results have anything whatsoever to do with the recommendations included at the end, it must be because there is a causal relationship. Unless the study has shown that there is no connection between high spending and high achievement, it can provide no justification for policy recommendations that say districts should spend less. So the authors at least trade on the suggestion that they have shown a causal inference -- a suggestion that the Washington Post's copy desk elevated into a headline.

A real study would compare a broad portfolio of demographically diverse districts, a portfolio chosen for its representativeness of districts across the country. It would not look at 20 districts chosen precisely because they illustrate the point the author wanted to make. And, unlike the Fordham Institute study, it would attempt to control not just for differences in socioeconomic characteristics of the districts it studied but also for differences in the types and extent of the disabilities in the children served by those districts.

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Why We Need A Better Law Than The Air Carrier Access Act

Read this story, watch the attached video, and explain to me why federal law should deny this family a meaningful remedy for the discrimination they seem to have experienced.  Note that the problem is both the weak remedies in the Air Carrier Access Act and the preemptive effect many courts have found that the federal laws in this area have on state laws, thus blocking effective state-law remedies for discrimination in airline service.  Maybe one of these people or these people can do something about this problem.


Monday, September 03, 2012

Tenth Circuit on Leave as a Reasonable Accommodation

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Robert v. Board of County Commissioners.  Robert worked for the county as an Adult Intensive Supervision Officer, which basically meant that she supervised adult offenders who were on probation.  The job required extensive time out of the office; between a quarter and a half of Robert's time was spent conducting site visits to her offenders' homes and workplaces.  In November 2005, Robert fell down a flight of stairs at work, which severely restricted her mobility.  She scheduled surgery for April 2006.  In the meantime, she could not conduct site visits, so her supervisors assigned her to work that could be done in the office.  Robert had her surgery as scheduled and took FMLA leave to recover.  That leave expired on July 5, 2006.  A couple of weeks later, Robert's doctor told Robert and her supervisor that she might be able to walk with a cane in a month.  But because Robert could not yet return to work, and she had exhausted her FMLA leave, the county fired her.  Robert sued the county.  Among other things, she claimed that her termination violated the ADA.  The United States District Court for the District of Kansas granted summary judgment to the county.

The Tenth Circuit affirmed.  In an opinion by Judge Carlos Lucero, the court concluded that supervising offenders in person was an essential function of Robert's job, and that she concededly could not perform that function at the time she was terminated.  The court acknowledged that a leave of absence could be a reasonable accommodation that would enable an employee to perform the essential functions of her job, but only if: (1) the employee "provide[s] the employer an estimated date when she can resume her essential duties"; and (2) the leave request "assure[s] [the] employer that [the] employee can perform the essential functions of her position in the 'near future.'"  The court concluded that Robert's leave request failed at least the first of these requirements:
There is no evidence in the record that Robert's employer had any estimation of the date Robert would resume the fieldwork essential to her position. Although the doctor's prognosis varied before and after the surgery, Naylor told Sloan on July 19, 2006—just after Robert's follow-up appointment and shortly before she was terminated—that Robert could be walking with a cane in three to four weeks. However, Robert questioned whether this time frame was “too fast,” and testified that she assumed her job would be protected “regardless of the length” of her recovery. In any event, the doctor's prediction that Robert could walk with a cane in a month's time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork. As Robert herself recognized, she needed near-full mobility to ensure her safety as she visited felony offenders in their homes, workplaces, and treatment facilities, an activity that could be dangerous. Accordingly, the record shows that, at the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law.
This decision highlights the importance, for employees seeking leave as a reasonable accommodation, of being quite clear in the duration of the leave requested.  Of course, the expectation that an employee recovering from an injury or surgery can provide a clear date of return is not especially realistic.  But the Tenth Circuit's decision here is consistent with a trend in the courts to place the burden of uncertainty on the employee with a disability.

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Sunday, September 02, 2012

Eleventh Circuit Overrules Objections to Disney Segway Class Action Settlement

A few days ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Ault v. Walt Disney World Co..  The case was brought as a class action to challenge Disney's refusal to permit Segways in its facilities.  After some back and forth, the district court certified a settlement-only class of everyone with a mobility impairment or disability who has brought, intends to bring, or may bring in the future a Segway into one of the Disney Resorts (including Disneyland, Disney World, and other Disney facilities).  And the district court approved a class settlement under which Disney would continue to refuse to permit Segways.  In that settlement, Disney agreed to "develop a four-wheeled, electric-stand up-vehicle ('the ESV') for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."  Notably, Disney committed only to provide 15 of these ESVs, and the terms of the settlement permitted Disney to charge patrons with disabilities for renting them.  The settlement also included "a nationwide waiver of declaratory or injunctive claims relating to Disney’s policy."  The case was certified as an injunctive class action under Federal Rule of Civil Procedure 23(b)(2); class members thus were not permitted to opt out of the class or the settlement.

A number of individuals with disabilities, organizations, state attorneys general, and the United States objected to the settlement.  (Disclosure: I supervised the relevant section of the Civil Rights Division at the Department of Justice during part of the time this litigation proceeded, and I had some involvement with the case in that capacity, though I was gone from the Department by the time the United States filed its brief on appeal.)  The district court overruled the objections and approved the settlement, and various objectors appealed.  In its opinion last week, the Eleventh Circuit affirmed.

In an opinion by Chief Judge Joel Dubina, the Eleventh Circuit first rejected the objectors' challenges to the class certification.  The objectors argued that the named plaintiffs' claims were not typical of those of the class, because the named plaintiffs only occasionally used Segways for mobility.  Myany absent members of the class, by contrast, rely on the Segway as their primary mobility aid.  The Eleventh Circuit waved this argument off:
Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole.
The Eleventh Circuit then turned to the question whether the district court abused its discretion in determining that the settlement was fair, adequate, and reasonable (the showing required for a settlement of a class action).  The appellate court found no abuse of discretion, because it concluded that the plaintiffs would have been unlikely to prevail if the case had been tried to a final judgment:
During an extensive fairness hearing before the district court, Hale [Disney's Chief Safety Officer] testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in showing that it has fulfilled its obligations under Title III. Objectors and the DOJ would like us to hold that this finding constitutes an abuse of discretion. We decline to do so. The issue before us is not who prevails over whom, but rather, the question is whether the district court abused its discretion in its finding regarding who was most likely to prevail at trial. We conclude from the record that there is no abuse of discretion.
The court also noted in a footnote that the Ninth Circuit had recently permitted an ADA challenge to Disney's exclusion of Segways to proceed.  (I blogged about that case here.)  But it distinguished that case on the ground that the Ninth Circuit hadn't reached the question whether there was a legitimate safety basis for Disney's policy.

A few quick points about this decision:

1.  The settlement here was extremely problematic on class action grounds.  The district court heard substantial testimony that the ESV -- the Disney-created alternative to the Segway -- just would not work for a number of the absent class members due to their height or the nature of their disabilities.  And many of the absent class members, unlike the named class members, use the Segway as their principal means of getting around.  Yet this class action settlement, brought by named plaintiffs whose disabilities were substantially different from the disabilities of that set of absent class members, forecloses those absent class members from challenging the no-Segway policy and provides them nothing.  That's a typicality/adequacy-of-representation problem if I ever heard one.

2.  In concluding that Disney would likely have prevailed on its safety defense if the case had gone to trial, the Eleventh Circuit completely failed to engage the analysis of the Department of Justice, which drafted and enforces the relevant ADA regulation:
The relevant question under the regulation is not whether “unrestricted” Segway use would raise safety concerns, see R.208 at 124, but “[w]hether legitimate safety requirements can be established to permit the safe operation of [Segways] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv). The regulation permits a public accommodation to impose reasonable time, place, or manner restrictions on the use of OPDMDs to ensure safe operation. See 28 C.F.R. 36.311(b)(2); 75 Fed. Reg. at 56,299. Specifically, the regulation prescribes several factors that a public accommodation must consider in determining whether permitting use of a particular class of OPDMDs is safe and reasonable. See 28 C.F.R. 36.311(b)(2). Among those factors are the vehicle’s speed, the design and operational characteristics of the facility, and the volume of pedestrian traffic, including variations in such volume during the day, week, month, or year. 28 C.F.R. 36.311(b)(2)(i), (ii), & (iii). In its commentary interpreting the regulation, the Department explained that “[o]f course, public accommodations may enforce legitimate safety rules established for the operation of [OPDMDs] (e.g., reasonable speed restrictions).” 75 Fed. Reg. at 56,299. The Department further emphasized that “public accommodations should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public accommodations should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device.” Ibid.

Other safety-related restrictions may be permissible, depending on the circumstances and the particular facility. For example, Segway users may be required to use elevators, but not escalators, to move between floors, and they may be banned from using cell phones or headphones while operating Segways. See McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR, 2008 WL 4277716, at *5, *7 (D. Kan. Sept. 15, 2008) (upholding such restrictions imposed by a shopping mall). It may also be reasonable in some facilities to temporarily suspend Segway use during periods of heavy crowds until the congestion clears. See ibid. And in some circumstances, a public accommodation might legitimately require an individual with a disability to perform a brief field test to show his ability to maneuver a Segway prior to using it in the public accommodation’s facility, particularly if the individual wishes to use the Segway when the facility is especially crowded.

Disney also failed to present a facility-specific analysis to establish the safety defense. As noted, the relevant inquiry is “[w]hether legitimate safety requirements can be established to permit the safe operation of the [OPDMDs] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv) (emphasis added); accord 75 Fed. Reg. at 56,299. “Facility” is broadly defined to include “any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. 36.104.

Even if legitimate safety concerns might justify a ban (or partial ban) on Segway use at one Disney facility, those concerns would not necessarily mean that Disney could establish a valid safety defense for other facilities that differ in size, configuration, or levels of pedestrian traffic. Disney’s Segway ban applies to a wide variety of facilities within its resorts, including six theme parks (and the multiple facilities found in each park), hotel complexes, restaurants, shopping districts, and individual stores. R.208 at 124-126. Disney’s evidence of Segways’ purported safety risk was limited the devices’ use at its theme parks. E.g., R.208 at 92, 94-95, 110-111; R.209 at 301-302. Disney’s general assertion that Segways, by design, pose a risk in a crowded venue is insufficient to establish that at every time of day, every day, all of Disney’s facilities have a crowd capacity that would preclude the safe operation of Segways. See R.208 at 77-78, 80-81, 88, 115-116. The district court thus erred in concluding that Disney’s evidence “likely” would establish this safety defense. R.252 at 8.
3.  Finally, even if this decision does not formally conflict with the Ninth Circuit's recent decision, the breadth of the class approved by the Eleventh Circuit, and of the release of claims in this settlement, creates a serious practical impediment to other cases challenging Disney's no-Segway policy.  I doubt this decision is the last word we'll hear on the matter.

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Saturday, September 01, 2012

DOJ and NFB Reach Settlement with Sacramento Public Library Over Inaccessible E-Readers

See Wednesday's DOJ press release, which begins:
The Justice Department announced today that it and the National Federation of the Blind have reached a settlement with the Sacramento Public Library Authority in Sacramento, Calif., to remedy alleged violations of the Americans with Disabilities Act (ADA). The agreement resolves allegations that the library violated the ADA by using inaccessible Barnes & Noble NOOK electronic reader devices in a patron lending program.

Under the settlement agreement, the library will not acquire any additional e-readers for patron use that exclude persons who are blind or others with disabilities who need accessible features such as text-to-speech functions or the ability to access menus through audio or tactile options. The library has also agreed to acquire at least 18 e-readers that are accessible to persons with disabilities. The settlement agreement also requires the library to train its staff on the requirements of the ADA.

“Emerging technologies like e-readers are changing the way we interact with the world around us and we need to ensure that people with disabilities are not excluded from the programs where these devices are used,” said Assistant Attorney General Thomas E. Perez.
Here's the NFB press release:
The National Federation of the Blind (NFB), the nation’s leading advocate for access to information by the blind and other people with print disabilities, announced today that a complaint filed by the NFB with the United States Department of Justice, Office of Civil Rights, against the Sacramento Public Library Authority has been resolved. The NFB filed the complaint last fall because the library was lending NOOK e-readers preloaded with e-books to its patrons. Unlike some other e-reading devices, the NOOK, which is manufactured and sold by Barnes & Noble,cannot be used by blind and print-disabled readers because it does not have text-to-speech capability or the ability to send content to a Braille display.

The goal of the agreement is “to provide a library e-reader circulation program where library patrons, with and without vision disabilities, are able to access and use the same technology to the maximum extent possible.” Under the agreement, the library will “acquire only technology that does not exclude persons who are blind or others” who need accessibility features such as text-to-speech or Braille output and the ability to access the device’s menus and controls independently. The library’s commitment is also in line with a resolution passed in 2009 by the American Library Association entitled Purchasing of Accessible Electronic Resources, which urged “all libraries purchasing, procuring, using, maintaining and contracting for electronic resources and services” to “require vendors to guarantee that products and services comply with Section 508 regulations, Web Content Accessibility Guidelines 2.0, or other applicable accessibility standards and guidelines.” 
Dr. Marc Maurer, President of the National Federation of the Blind, said: “We are pleased that the Sacramento Public Library Authority is showing leadership by ensuring that the e-books that it lends will be accessible to all of its patrons, including those who are blind or have print disabilities. E-books represent an opportunity for the blind to have access to the same books at the same time as our sighted friends, family, and colleagues, but sadly most e-book vendors have not designed their technology so that it can be used by the blind, despite the fact that it is not difficult or costly to do so. Libraries, schools, and other institutions have a legal and moral obligation to make sure that the content they deploy is accessible to the blind and print-disabled. If they meet these obligations by demanding accessibility from their e-book vendors, then accessibility will happen.”
The settlement is here.  This is a big deal in the efforts both DOJ and NFB have taken to ensure the use of accessible e-reader technology by ADA-covered entities.

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California Serial Litigation Bill to Governor Brown

So I spent the last week of the summer getting ready to teach a new crop of students, but now I'm back, and there are a number of important cases and events that happened this week and that I'll report this weekend.  One happened just this morning.  The California legislature passed, and sent to Governor Brown, the latest iteration of its anti-serial-litigation bill.  You can read about it here.  I may have some analysis of the bill over the next few days.

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