Tuesday, January 31, 2012

More Local Press on DOJ's Mississippi Olmstead Findings

See this local TV news story.

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Long LA Times Article (Is There Another Kind?) on Sidewalk Accessibility Suits

See this article, which begins:
Los Angeles may be the land of the freeway, but it is notorious for its bad sidewalks — buckled, cracked and sometimes impassable. By the city's own estimate, 42% of its 10,750 miles of pedestrian paths are in disrepair. 
Now a series of civil-rights lawsuits against Los Angeles and other California cities is for the first time focusing attention — and money — on a problem that decades of complaining, heated public hearings and letter-writing campaigns could not. 
The lawsuits were filed by disabled people who say broken sidewalks make it impossible for them to get around and seek repairs or improvements. The plaintiffs contend that the conditions violate the federal Americans With Disabilities Act, a tool that has been used across the country to force better access at restaurants, department stores, movie theaters and the like.


Idaho Motel Pays $500 for Charging a Fee for a Service Dog

They'll also adopt a service animal policy.  See this article.

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Interesting New Web Accessibility Suit Filed in Great Britain

See this press release from the Royal National Institute of Blind People.  It begins:
Leading sight loss charity the Royal National Institute of Blind People (RNIB) is taking legal action over low cost airline bmibaby's failure to ensure web access for blind and partially sighted customers. 
Bmibaby Ltd has failed to make vital changes to its website to allow customers with sight loss to use their online services instead of being forced to search for flights or make bookings via a call centre. Concerns were first raised in 2010 when RNIB was made aware of the problem through frustrated customers, no longer able to book flights through the bmibaby website. 
One of those customers is Alexandra from Loughborough, who is registered blind. She says: "I regularly need to book flights and had also wanted to book a surprise weekend away for my husband on one occasion, but was let down by the website. I didn't want to use the call centre as costs can mount up and I wanted the freedom to compare flights and prices before making a decision.

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New Study on Parent Involvement in the IEP Process

Ed Week's On Special Education blog has this interesting report on a new study of parental involvement in the IEP process.  The report begins:
Parents and students with disabilities aren't as involved in the process of mapping out their goals with schools as much as they should be, although federal law intends for parents and school staff to work together on these plans, a new study finds. 
The study, published this month online in the Journal of Disability Policy Studies, found that participation in IEP (Individualized Education Program) meetings varied based on the type of disability a student has, their family income, and their racial or ethnic background. Parents of students who had demonstrated "challenging" behavior at school, or who had poor social skills, reported they found meetings about their IEPs or transition from high school to college or work less than satisfactory, the authors found.

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Monday, January 30, 2012

DOJ Files Important Effective Communications/Academic Deference Brief

See this amicus brief that the Department of Justice's Civil Rights Division filed in the Eighth Circuit last week in Argenyi v. Creighton University.  The key passages from the brief's summary of argument:
The district court erred in holding that Argenyi is entitled to his requested auxiliary aids and services only if he would have been effectively excluded from Creighton’s programs without them. The district court’s decision runs counter to the language of Title III of the ADA and Section 504 of the Rehabilitation Act, as well as their implementing regulations. Both statutes and their implementing regulations require covered entities to provide auxiliary aids and services to enable individuals with an auditory disability to participate fully and equally in their programs. This standard exceeds the standard the district court used to determine whether Argenyi’s request for auxiliary services should be granted. In addition to applying the incorrect legal standard, the district court erred in disregarding Argenyi’s statements regarding how the auxiliary services Creighton provided failed to result in effective communication.

The district court also erred in deferring substantially to Creighton’s decision not to allow interpreters in clinical courses by calling it an “academic” decision. Argenyi was not seeking to modify or be excused from satisfying Creighton’s curriculum. Moreover, academic reasons, and the deference properly accorded them, may be informative in deciding whether a request for auxiliary aids or services requires a “fundamental alteration” of an academic program, but the district court did not make a finding of fundamental alteration. In any event, the record shows that Creighton’s decision was not based entirely on academic reasons, but in part on financial reasons, which are not entitled to such “academic” deference.

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EEOC Gets $275K Settlement With Walmart for Failing to Accommodate Employee After Cancer Surgery

See this article, which begins:
Popular retail store chain Walmart will be paying monetary compensation to settle a disability lawsuit. The settlement, filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of a former employee of the company, will also include nonmonetary relief. 
The EEOC filed the lawsuit back in October of 2010. In the suit, Walmart was charged with a failure to reasonably accommodate an employee who had cancer surgery, rendering the man with a weakness in his right shoulder. The employee had worked at the company’s East Tennessee distribution center #6039 in Midway, TN, for 12 years. Following his surgery, he worked as a forklift driver. He submitted a request and asked that it not be a requirement for the man to cover a 20-minute break in the shipping department, as it would entail manual lifting. The request was denied, and the man’s employment was subsequently terminated. The company claimed that the firing was due to the employee being unable to perform functions deemed essential for the job.

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Saturday, January 28, 2012

D. Hawaii Addresses Interesting IDEA Issue

Earlier this week, in Department of Education v. C.B., 2012 WL 220517 (D. Hawaii, Jan. 24, 2012), Judge Susan Oki Mollway of the United States District Court for the District of Hawaii addressed an interesting issue under the IDEA.  In state administrative proceedings, the hearing officer concluded that the child, C.B., had been denied a free appropriate public education, and it ordered the state to reimburse his private school tuition.  The state filed for judicial review in the federal district court and sought a preliminary injunction against the tuition reimbursement order.  Although the court found that the state was likely to succeed on the merits, it nonetheless denied a preliminary injunction because the state had not shown irreparable harm and the balance of hardships tipped in favor of C.B.

What is interesting to me is the court's irreparable harm holding.  The court relied on the traditional rule that a monetary harm is not irreparable because money improperly paid can always be recouped later.  But the state had argued that once it reimbursed C.B.'s parents for their tuition it could not legally reclaim the money from them even if it later succeeded in showing that the tuition reimbursement order had been improper.  As the court noted, there is some district-court-level authority for the state's argument, but nothing in the statute clearly says that education agencies can't recoup improperly-ordered reimbursements.  The court explicitly left open the possibility that should the state prevail it could recoup the reimbursements from C.B.'s parents.

Still, the state's argument on this point has to be right, doesn't it?  The basis of reimbursement, as the Supreme Court reaffirmed in the Forest Grove case, is the general statutory language providing for appropriate relief for a violation of the IDEA, read in light of general equitable principles.  It doesn't seem at all consistent with general equitable principles for a court to order a parent to pay back a tuition reimbursement when the parent incurred a significant liability to a third party school in reliance on a state decisionmaker's directive that the education agency reimburse the parent.  Not to say that the ultimate decision here is wrong.  The balance of hardships, informed by the policies underlying the IDEA's stay-put provision, still likely justify ensuring that C.B. can stay where he is until the court has the opportunity to sort out the issues in the case.  But the irreparable-harm holding is questionable.

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Journal of Law and Education Symposium on Rowley

Just out: The Journal of Law and Education has published a symposium on the Supreme Court's Rowley decision after 30 years.  The articles:

Mark C. Weber, Foreword: Board of Education v. Rowley After 30 Years, 41 J.L. & Educ. 1 (2012);

Andrea Kayne Kaufman & Evan Blewett, When Good Enough is No Longer Good Enough: How the High Stakes Nature of the No Child Left Behind Act Supplanted the Rowley Definition of a Free Appropriate Public Education, 41 J.L. & Educ. 5 (2012);

Scott F. Johnson, Rowley Forever More? A Call for Clarity and Change, 41 J.L. & Educ. 25 (2012);

Maureen A. MacFarlane, The Shifting Floor of Educational Opportunity: The Impact of Educational Reform on Rowley, 41 J.L. & Educ. 45 (2012);

Terry Jean Seligmann, Sliding Doors: The Rowley Decision, Special Education Law, and What Might Have Been, 41 J.L. & Educ. 71 (2012);

Mark C. Weber, Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley, 41 J.L. & Educ. 95 (2012); and

Sarah E. Redfield & Theresa Kraft, What Color is Special Education?, 41 J.L. & Educ. 129 (2012).

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Thursday, January 26, 2012

Early News Coverage of DOJ-Virginia Olmstead Settlement

See this from WTVR.

UPDATE:  And see this from CNN.

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Virginia Press Release on DOJ Olmstead Agreement

Virginia's press release is here:
Governor Bob McDonnell announced today that a settlement agreement has been reached between the Commonwealth and the U.S. Department of Justice (DOJ) regarding Virginia's compliance with the Americans with Disabilities Act (ADA) and the 1999 Supreme Court decision in the Olmstead case.

The investigation, which began in 2008 at the state-run Central Virginia Training Center in Lynchburg, was expanded in 2010 to cover Virginia's comprehensive system of services for individuals with intellectual and developmental disabilities, including all five state training centers and community-based services. DOJ issued a findings letter to Governor McDonnell in February 2011 that concluded Virginia is not providing services in the most integrated and appropriate setting, not developing a sufficient quantity community services, and that Virginia has a flawed discharge process at training centers. Virginia then began good-faith negotiations to reach a settlement agreement with DOJ while not subjecting the Commonwealth to a costly and lengthy legal battle.

"The settlement agreement reflects Virginia's long-term goal of improving treatment for intellectually and developmentally disabled Virginians," said Governor McDonnell. "For decades we have said we ought to move to a community-based system for individuals with developmental disabilities and reduce our dependence on state-run training centers, the most costly and restrictive form of services available. In fact, when I was a delegate, I patroned legislation to help set the policy to ensure Virginia was providing the most compassionate, least-restrictive, community-based care for these individuals to ensure their highest possible quality of life. While we have made progress, and would have continued to make progress without this agreement, this agreement accelerates those efforts in a fiscally responsible and strategic manner. This agreement will ultimately provide the necessary services so more individuals with intellectual and developmental disabilities can live successfully in their home communities and it will lead to a more effective use of public funds."

In addition, Virginia is required to provide a plan to the Chairmen of the House of Delegates Appropriations and Senate Finance Committees within one year of the agreement to cease residential operations at four of Virginia's training centers. This is consistent with Virginia's longstanding policy of transitioning individuals from an institutional model of care to a community-based system to meet the needs of the population served by the training centers. The population of the training centers has declined from 6,000 individuals to approximately 1,000 individuals. Virginia's latest projections show there will be fewer than 1,000 residents in training centers by March 31, 2012, with the census dropping to less than 600 by 2015. The continued operation of residential services at current levels is fiscally impractical due to the significant and ongoing decline in population.

Major highlights include:

Expanding Community-Based Services
Adds 4,170 new Intellectual Disability (ID) waiver slots over 10 years to transition individuals currently living in training centers to community services and to provide for continued growth of slots for individuals in the community who are on the waiting list for waiver slots

Supporting Quality Community-Based Services
Strengthens quality and risk management systems for community services
Expands the role of licensing specialists and the responsibilities of case management services

Transitioning from Training Centers
Helps guide and support individuals moving from training centers to new homes by creating teams to facilitate communication and planning with individuals and families, and to resolve any problems delaying discharges
Virginia is required to provide a plan to cease residential operations at four of Virginia's training centers. Plans have been developed and include timeframes for training center closures as follows: Southside Virginia Training Center in Petersburg (to close by June 30, 2014), Northern Virginia Training Center in Fairfax (by June 30, 2015), Southwestern Virginia Training Center in Hillsville (by June 30, 2018), and Central Virginia Training Center in Lynchburg (by June 30, 2020). Southeastern Virginia Training Center in Chesapeake will continue to downsize to 75 beds.

Secretary of Health and Human Resources Bill Hazel said, "Throughout negotiations, we took painstaking efforts to ensure the final result would be the best possible outcome for Virginians with intellectual and developmental disabilities and that it would be fiscally responsible. I believe we've achieved both objectives. Our focus now turns to working closely with individuals in training centers and their families to help them choose the best community setting that meets their unique needs and preferences, and to ensure safe, successful transitions to their new homes. Meanwhile, we will be developing new services and improving oversight in communities statewide. It will be challenging, but our goal is to close training centers safely while simultaneously adding community waiver slots so we are steadily reducing the waiver waiting list."

The Department of Behavioral Health and Developmental Services (DBHDS), which operates the training centers, will also be maximizing options for training center staff. There are approximately 3,050 employees at the four training centers that will close between 2014 and 2020. DBHDS will provide information and explain options, answer questions and help employees find positions at other DBHDS facilities, other state agencies or community-based services wherever possible.

"We want to help training center staff as they determine their next steps," said Secretary Hazel. "Training center staff are among the most qualified to fill the positions that will be needed when more community homes and programs open to support training center closures and waiver waiting list reduction. We hope they will work in the new homes or even become providers themselves."

In the 2011 General Assembly session, Governor McDonnell and legislators together added $30 million to the Behavioral Health and Developmental Services Trust Fund to transition individuals from training centers to the community in preparation for the pending settlement agreement with DOJ.

This year, Governor McDonnell included an additional $30 million in his proposed budget for the coming session to continue to meet the terms of the agreement.

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DOJ Press Release on Virginia Olmstead Settlement

Here's DOJ's press release:
The Justice Department today announced that it has entered into a comprehensive settlement agreement that will transform the Commonwealth of Virginia’s system for serving people with developmental disabilities, including intellectual disabilities, and will resolve violations of the Americans with Disabilities Act (ADA). Under the ADA and the Supreme Court’s landmark decision in Olmstead v. L.C., individuals with disabilities have the right to receive services in the most integrated settings appropriate to their needs. The ADA and Olmstead require states to provide people with disabilities the opportunity to live and receive services in the community instead of in institutions.

“As affirmed by the Supreme Court over a decade ago, people with disabilities should be given the same opportunities to participate in community life as those without disabilities,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “This agreement will enable people in Virginia who have developmental disabilities to live successfully in their homes and communities. I commend Governor McDonnell for his long-standing leadership on this issue, and we will continue to work with states around the country, as we have with Georgia, Delaware and Virginia, to ensure that people with disabilities are given the choice to live in community-based settings.” 
The agreement expands community-based services so that Virginia can serve people with developmental disabilities in their own homes, their family’s homes or other integrated community settings. The agreement will provide relief for more than 5,000 Virginians with developmental disabilities and will have an impact on thousands more individuals receiving developmental disability services. Over the next 10 years, Virginia will expand community services by providing home and community-based Medicaid waivers to nearly 4,200 individuals; providing family supports to 1,000 individuals currently living in the community; and expanding and deepening its crisis services, including a hotline, mobile crisis teams and short term crisis stabilization programs. This expansion will provide individuals the opportunity to transition successfully from its five state-operated training centers to community settings that can meet their needs and prevent new people from being unnecessarily institutionalized.

The agreement will also expand opportunities for individuals with developmental disabilities to live independently through a fund for housing assistance and enhanced coordination of existing rental assistance programs. Virginia will also offer other supports for community living, including supported employment. Finally, Virginia will implement a comprehensive, robust quality and risk management system to ensure that people are safe, receive the supports and services they need, and have opportunities for real community inclusion. The agreement is court enforceable, and compliance will be monitored by an independent reviewer with extensive experience in developmental disability systems.

The settlement follows a Department of Justice investigation of the commonwealth’s developmental disabilities system, from which the department issued a letter of findings on Feb. 10, 2011, that outlines violations of the ADA. During the investigation and while negotiating the settlement, the Justice Department met with a wide range of stakeholders throughout the commonwealth, including individuals living in the training centers and in the community, their families, nonprofit and for-profit service providers, community service boards, researchers and advocacy groups. The commonwealth worked cooperatively with the Justice Department to negotiate a settlement resolving alleged violations of the ADA.

The Civil Rights Division enforces the ADA, which authorizes the attorney general to investigate whether a state is serving individuals in the most integrated settings appropriate to their needs. Please visit www.ada.gov/olmstead to learn more about the division’s ADA Olmstead enforcement efforts andwww.justice.gov/crt to learn more about the other laws enforced by the Justice Department’s Civil Rights Division. 
The agreement in this case is due to the efforts of the following division staff: Alison Barkoff, Special Counsel for Olmstead Enforcement; Jonathan Smith, Chief; Benjamin Tayloe, Deputy Chief; Aaron Zisser and Jacqueline Cuncannan, Trial Attorneys; Joan Yost, Investigator; and Yvonnie Demmerritte, Paralegal Specialist.

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Huge News: United States and Virginia Enter Big DD/Olmstead Settlement

This is now a huge week for Olmstead enforcement.  Just a little while ago, the United States Department of Justice filed a complaint and settlement agreement in the case now entitled United States v. Virginia (E.D. Va.).  The agreement settles the federal government's Olmstead allegations regarding Virginia's developmental disability system.  It's a really strong agreement, with a 9-year term.  It provides for the Commonwealth to create 4170 new waiver slots for individuals with intellectual or developmental disabilities who are currently residing in state institutions, are on waiting lists for intellectual or developmental disability waivers, or are children living in other ICFs or nursing homes.  It provides for supports for an additional 1000 families providing care and support to family members with intellectual or developmental disabilities who are at the most risk of institutionalization.  It contains detailed requirements for the Commonwealth to set up and operate a crisis system across Virginia.  It includes requirements to ensure that people with intellectual and developmental disabilities can participate in integrated day activities and supported employment.  It also provides state-funded housing assistance so that individuals on waivers can live in their own homes or apartments.  Importantly, the agreement includes substantial provisions to ensure that the community services are of high quality, measured in various significant ways.

I should note that I supervised the relevant unit at DOJ Civil Rights when it issued its letter of findings in this matter and was involved in the initial negotiations of this agreement before I left, though I have had no involvement in the negotiations since then.  Congratulations to my former colleagues at DOJ and to the forward-thinking Virginia officials who have entered into an agreement that should make important and long-overdue change for Virginians with intellectual or developmental disabilities!

Watch this space.  When I find a postable link to the settlement and any press releases, I will post those later today.  

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More Coverage of the Oregon Sheltered Workshop Suit

See this from Reuters and this from Oregon Public Broadcasting.

UPDATE:  And this from Courthouse News Service.

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Wednesday, January 25, 2012

Coverage of the Atlanta Police Department HIV Discrimination Argument

See this report from the Atlanta Journal-Constitution on today's Eleventh Circuit argument.

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Department of Justice Files Brief Making Clear Compliance with IDEA Does Not Establish Compliance with the ADA

This is a matter on which school districts are often confused, so it's good to see the DOJ (in a brief also signed by the Department of Education's Acting General Counsel) weighing in on it.  The case is K.M. v. Tustin Unified School District, No. 11-56259 (9th Cir., pending).  Here's the relevant portion of the brief's Summary of Argument:
The IDEA’s FAPE obligation to students with a hearing disability, and Title II of the ADA’s effective communication obligation, have different elements, specify different rights, and serve different purposes. Title II of the ADA is a nondiscrimination statute that requires, inter alia, public entities, including schools, to provide individuals with disabilities public services that are equal to those services provided individuals without disabilities. 42 U.S.C. 12131-12132. Under Title II, a public school must provide individuals with a hearing disability communications that are as effective as those provided individuals without a disability. See 28 C.F.R. 35.160(a)(1). Providing effective communications entails a comparative assessment of the services and information provided to individuals with and without disabilities. Ibid.

Under the IDEA, in contrast, a school must develop an educational program that is based on an individual child’s specific and unique needs, including the child’s communication needs. See 20 U.S.C. 1401(9), 1414(d)(1)(A), and 1414(d)(3)(A) and (B). A school is not required to compare an educational program developed for a student with a disability to those provided to students without disabilities, although it may choose to do so as part of its FAPE determination. Under the IDEA, the educational program need provide only a “meaningful” educational benefit. See N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1210, 1213 (9th Cir. 2008). Moreover, the IDEA, unlike the ADA, does not include defenses of fundamental alteration or undue burden. Thus, the district court erroneously concluded that the school’s compliance with the IDEA for this student automatically satisfied the school’s Title II effective communication obligations to this student. It is possible that compliance with the IDEA can, for some students, also satisfy Title II’s effective communication obligation. However, the court’s decision effectively reads Title II’s communication protections out of the elementary and secondary educational setting for all students with hearing disabilities who are eligible for communication services under the IDEA, a result fundamentally at odds not only with the broad remedial purposes of the ADA, but also with the precise text of the IDEA. See 20 U.S.C. 1415(l); 42 U.S.C. 12101(a)(3), (b)(1).

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Big News: Olmstead Challenge to Sheltered Workshops Filed in Oregon

See this article, which begins:
The United Cerebral Palsy Association of Oregon and Southwest Washington along with eight individuals representing thousands of Oregonians with intellectual or physical disabilities filed a class action lawsuit Wednesday against Gov. John Kitzhaber and top managers at the Department of Human Services.

Advocates hope the lawsuit, filed in U.S. District Court in Portland, will set a national precedent and end the practice of having people with disabilities to spend their days in "sheltered workshops," where they complete repetitive or rote tasks for a sub-minimum wage and without the opportunity for training or advancement.

At any given time, according to the lawsuit, more than 2,300 Oregonians are "stuck in long-term, dead-end, facility based sheltered workshops that offer virtually no interaction with non-disabled peers."
More coverage here.

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Taxi Ruling Could Set New Standard for City Services

See this Reuters piece by that title on the NYC taxi suit.

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Sad Termination of Parental Rights Case

I read a lot of termination of parental rights cases, both because it's an area that interests me generally and because disability issues are often implicated in those cases.  Every termination of parental rights case seems to me almost unfathomably sad, but I came across one today that is unusually so from a disability perspective.  The case, which resulted in an unpublished decision from the Michigan Court of Appeals last month, involved a father's parental rights with respect to his son, DC, who is now 14.  DC has been diagnosed with an intellectual disability, ADD, and PTSD -- the last a result of sexual abuse perpetrated against DC by his mother's boyfriend.  After that incident of sexual abuse, DC was removed from his mother's care and placed in his father's.  DC's father has been diagnosed with depression and anxiety, has what the court called "cognitive challenges," and, in the court's words, "likely has an IQ of less than 87" (so specific and yet so not).  It became clear that the father needed assistance in supervising and advocating for DC, and the state seems to have provided it, though only after taking DC back into its custody:
Respondent removed DC from therapeutic services through Community Mental Health Services (CMHS) and claimed to follow a doctor’s advice in seeking increased doses of the child’s medications as a method of controlling his behavior. The DHS took DC back into custody in December 2009 after DC started a small house fire with a lighter left out by respondent. The initial Child Protective Services (CPS) worker who investigated the allegations suggested that DC remain in the home with the implementation of a safety plan. Respondent refused to accept a safety plan and the worker had to summon police assistance to remove the child from the home.

Over the next 17 months, the DHS provided various intensive services to respondent, all modified to accommodate his special needs. Respondent received a psychological evaluation and was referred to a psychiatrist to reevaluate his own dosage of psychotropic medications. Respondent participated in parenting and life skills classes. A life skills mentor worked closely with respondent, visiting him more than twice each week for a six-month period. The mentor tried to teach respondent personal and environmental hygiene, budgeting, and how to organize appropriate activities for DC. The life skills mentor also supervised home visits and advised respondent regarding parenting skills. Respondent participated in meetings with DC’s school, doctors, psychiatrists and other service providers but often left prematurely. After each meeting, DHS staff utilized many methods to assist respondent in understanding DC’s goals and needs. A DHS staff member even created a binder with visual aids to assist respondent’s memory regarding DC’s care. But respondent was reluctant to accept the help given, throwing the binder at the care worker in the courtroom. And, after each meeting, respondent complained to his life skills mentor that he did not understand what was expected of him.

Despite the intensive, specially coordinated services provided to respondent, he did not actually benefit. Respondent did not attempt to maintain structure or cleanliness in his home and failed to engage in activities with DC. During parenting time, respondent usually watched television while DC played alone. Respondent still could not recognize DC’s special needs and blatantly asserted that he would discontinue DC’s services through CMHS as soon as the child was returned to his care. Exacerbating the troublesome situation, respondent’s live-in girlfriend, who had served as DC’s primary caregiver, lost her sight in 2010.

DC, on the other hand, thrived while in DHS care. He received specialized services to teach him basic life skills, regulate his medication, improve behavioral issues and increase his academic success. Through visual aids, structured schedules and a combination of reduced medication with increased therapy, DC flourished.
The trial court terminated the father's parental rights on a number of grounds, including that there was a reasonable likelihood that DC would be harmed if he was returned to his father's home.  The court of appeals, however, found insufficient evidence of the likelihood of harm:
Respondent clearly did not make the best choices in relation to DC’s medical and psychiatric care. Petitioner presented some testimony regarding corporeal [sic] punishment used in the home, but nothing reaching the level of abuse. The petitioner presented no real evidence that DC would be in physical or emotional danger if returned to respondent’s care to support termination on this ground.
But the court of appeals affirmed the termination of parental rights on the ground that there was no reasonable expectation that the father could provide DC proper care and custody within a reasonable time.  The court's analysis on this point is what struck me:
While the care and custody provided by respondent might have been sufficient for an average child, DC requires more. When DC came into care, he was failing academically, had severe behavior issues and lacked basic life skills such as managing his personal hygiene. DC’s treating psychiatrist reduced the amount and type of psycho-stimulant medications he was given. In exchange, DC attended group, individual and family therapy sessions several times a week. With the advocacy of a caseworker, the school district provided a more intensive Individual Education Plan (IEP) and DC’s performance improved. Care providers instituted a system of visual aids, which allowed DC to remain on task, and imposed a highly structured schedule on his day, which greatly reduced DC’s stress levels. DC’s occupational therapist discovered that he could focus better when wearing a weighted vest and using a “sit in move cushion.” Over time, DC improved so much that he needed to attend counseling only once per week.

DHS workers explained the benefits of these various methods to respondent many times and in many different ways. One caseworker even tried visual aids to explain DC’s needs to respondent, a method that had proven successful with DC. Yet, when questioned to determine his level of comprehension and retention, respondent could provide only vague or superficial answers. Even at trial, respondent could not provide a clear example of something he learned through services; respondent merely testified that he learned that DC has ADD and the family would have to learn to work around it. Respondent refused to impose any structure during unsupervised parenting time and instructed DC to keep that a secret. Although respondent requested a weighted vest and “sit in move cushion” for DC’s use at home, respondent self- reported that they did not use these tools. Respondent failed to advocate for DC to receive a specialized IEP, which would have resulted in the loss of special education services had the caseworker not intervened. Most troubling, despite significant evidence of DC’s improvement on lower doses of medication and higher levels of therapeutic services, respondent still insists that DC needs only medication and minimal counseling.

From this evidence, it does not appear that respondent intentionally neglected DC’s special needs. Rather, DC requires a proactive parent who will advocate for necessary services and accommodations and provide a rigid structure to ease DC’s stress and confusion. Unfortunately, because of his own cognitive limitations, respondent cannot provide this necessary higher level of care and custody. * * *.

We similarly conclude that termination was in DC’s best interests. By continuing in care, DC will be represented by caseworkers who will advocate for his IEP and other necessary services. Potentially, DC will be placed with foster or adoptive parents who are able to provide the structure and sensory tools he needs to succeed. Most importantly, DC will not be in danger of being over-medicated and under-served. Although respondent and DC love each other, the record evidence more than adequately supports that termination of respondent’s parental rights serves DC’s physical and emotional best interests.
There's a lot going on here.  Note the many places where disability comes into the analysis:  DC's disabilities, which require services and a parent who will advocate for them; DC's father's disabilities, which interfere with his ability to understand and advocate for the services and supports DC needs; DC's father's girlfriend's loss of her sight, which (to the court at least) seems to make her unqualified to serve as DC's caregiver.  The court of appeals shows a commendable concern with overmedication of kids with disabilities, and it also shows a realistic sense of the immense degree of parent advocacy that our system effectively requires if a kid with a disability is to get appropriate services and supports.  But without necessarily quarreling with the result in this case given the system we have, the facts do highlight for me the limitations of that system.  As a practical matter, there are very few parents who have the time, the education, the money, and the overall efficacy to effectively advocate for their kids with disabilities under the IDEA.  The IDEA system works very well for the kids of those parents.  But it does not work as well for the very, very large number of other kids with disabilities.  And -- again, leaving aside what should happen in this particular case -- the systemic solution cannot be to find different parents for those kids.  Despite what seem like the commendable efforts of the CMHS workers here, I can't help but think that there should be a way to keep a loving family like this one intact in a system that both did a better job of providing support to parents of kids with disabilities (parents both with and without disabilities themselves) and that did not require them to carry so much of the load of obtaining the necessary support for their kids.  Maybe someday I'll write that book.

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Student Note on the CRPD and Supermax Confinement

Just out: Kathryn D. DeMarco, Note, Disabled by Solitude: The Convention on the Rights of Persons with Disabilities and its Impact on the Use of Supermax Solitary Confinement, 66 U. Miami L. Rev. 523 (2012).  From the introduction:
This article argues that the use of supermax facilities is inconsistent with the CRPD. Confining an individual to a supermax facility in essence creates a mental disability. While the major concern of the CRPD is to protect “the rights and development of people with disabilities,” it cannot be consistent with the CRPD for the government to make someone disabled. Accordingly, the use of supermax facilities violates the CRPD.  
Because the disability inflicted by supermax facilities is inconsistent with the CRPD, what effect will ratification of the convention have? This article addresses a major policy question heretofore not analyzed in the already significant body of commentary on the CRPD. Specifically, with what reservations, understandings, and declarations might the Senate approve the treaty? The United States has an established pattern of ratification of human rights treaties, the ratification of which is typically accompanied by a standard package of reservations, understandings, and declarations. This package is designed to modify the substantive commitments the United States takes on, bring them into conformity with existing domestic U.S. law, and ensure that U.S. courts lack jurisdiction to enforce the treaty. 
Were the Senate to take up the question of ratifying the CRPD, it would likely give serious consideration to exempting supermax facilities from its scope. This article will analyze how it might seek to do so, arguing that it may be extraordinarily difficult to formulate a reservation or understanding that is both politically acceptable and successful in exempting supermax facilities from international scrutiny under the CRPD.

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Tuesday, January 24, 2012

HIV-Infected Man Fights to Become Atlanta Officer

See this story by that title from Fox News Atlanta.  It begins:
A former investigator with the city of Los Angeles claims Atlanta police rejected his job application solely because he has HIV, a decision he said breaks the law and perpetuates stereotypes about people with the virus. 
Atlanta police argue hiring the man poses a threat to the health and safety of the public, setting up a legal fight that is being followed closely by gay rights groups and police agencies. 
A federal appeals court is scheduled to hear arguments in the case Wednesday, and judges will have the chance to pepper both sides with questions.

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Dept. of Dude, It Was a Joke!

See this from the always interesting Walter Olson, making fun of the title of this post of mine.

Georgia Health News on Supported Housing and the Georgia-DOJ Olmstead Agreement

See this interesting article about one of the pillars of the 2010 Olmstead settlement between the federal government and the State of Georgia.  An excerpt from the article:
Her apartment comes as a result of a housing initiative agreed to by the state of Georgia in a 2010 settlement with the U.S. Justice Department. 
According to that five-year pact, 2,000 individuals with serious and persistent mental illness will be placed in state-funded ‘‘supported housing’’ by 2015, as part of a broader commitment to establish community services for about 9,000 Georgians with mental illness. 
Such housing programs are designed for people with disabilities, mental illness or addictive disease. They feature ‘‘supports’’ such as counseling and offer help with everyday needs, including medication and transportation. They also help teach basic skills such as cooking, keeping a checkbook or applying for a job. 
Such arrangements can stabilize people who are homeless or at risk of institutionalization, experts say.

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California Officials Oppose Extending Federal Oversight Over Two Psych. Hospitals

See this article from the LA Times.  It begins:
California officials Monday filed documents in U.S. District Court opposing extended federal oversight of two state mental hospitals, arguing that new leaders have already taken measures to improve patient care and safety. 
The state attorney general's filing came in response to a scathing U.S. Justice Department portrayal last month of Napa State Hospital and Metropolitan State Hospital in Norwalk. Federal attorneys faulted the hospitals for preventable suicides, nursing errors, improper use of restraints and unchecked violence.


Iowa High-Risk Pool Denying Coverage to People with HIV?

That's what this article says, though it looks like the state legislature may do something about it.

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Ninth Circuit Certifies to California Supreme Court Question of Who is Responsible for Providing Special Education to Eligible Kids in County Jails

The order certifying the question is here, in the case of Los Angeles Unified School District v. Garcia.  The Ninth Circuit asked the California Supreme Court to answer the following question:
Does California Education Code § 56041 — which provides generally that for qualifying children ages eighteen to twenty-two, the school district where the child’s parent resides is responsible for providing special education services — apply to children who are incarcerated in county jails?


The European Court of Human Rights' Olmstead?

See this press release from the Mental Disability Advocacy Center, which has a link to the court's judgment in what looks like a very important case about institutionalization and guardianship.  The press release begins:
The Grand Chamber of the European Court of Human Rights (ECtHR) today delivered a landmark victory for the rights of persons with psycho-social disabilities and intellectual disabilities in the case of Stanev v. Bulgaria. The Mental Disability Advocacy Center and the Bulgarian Helsinki Committee represented Mr. Stanev in his attempts to bring domestic proceedings and at the ECtHR. The London-based NGO Interights intervened as a third party in the case. 
The Court found a violation of Article 5 (1) of the European Convention on Human Rights (ECHR), finding that the applicant was “detained” in a social care institution, the first time that the Court has made such a finding. As Mr. Stanev was legally unable to challenge or seek compensation for his detention, Articles 5(4) and 5(5) of the ECHR had been violated. The Court also held unanimously that Mr. Stanev had been subjected to degrading treatment in violation of Article 3 of the ECHR by being forced to live for more than seven years in unsanitary and unlivable conditions and that domestic law did not provide him any remedy for such violations. This is the first case in which the Court has found a violation of Article 3 in a social care setting.

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Wishes of Individuals with Mental Illness Ignored by Family Courts

Following up on the abortion/sterilization story from a few days ago, see this Boston Globe article, which begins:
The wishes of individuals declared mentally incompetent often go unheeded in family court, lawyers and social workers say, costing them control over the most personal decisions. 
In light of this month’s stunning family court ruling that a woman diagnosed with schizophrenia should undergo an abortion and be sterilized, mental health specialists say the case, while an extreme example, casts light on an often unsettling reality for those deemed unable to make decisions for themselves. 
Even when individuals voice opposition to a course of treatment, from antipsychotic medication to hospitalization, the courts often rule otherwise, lawyers say.

Monday, January 23, 2012

More on Seclusion and Restraint

See this blog post on the Atlantic's website.  It begins:
Some schools call it the time-out room. Or the quiet room. But in Middletown, Conn., it's known to many as the "scream room." 
Students -- typically those with disabilities -- are put in the small, windowless room as a means of controlling their behavior. The room's cinderblock walls aren't thick enough to drown out the sounds from within, according to this story from the Hartford Courant. In order to be placed in the room, the student usually must have an Individualized Education Plan (known as an IEP) that allows for this type of isolation as a form of "treatment." I put treatment in quotes in this context, given that special education experts say "there was no evidence that secluding a child had any therapeutic value," according to the Courant story.

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Saturday, January 21, 2012

Ed Week on OCR Dear Colleague Letter on the ADA Amendments Act

See this blog post, which begins:
A new letter from the Office for Civil Rights at the federal education department details how school districts should act on some changes to federal law regarding people with disabilities. The way I'm reading it, the letter expands the range of students to whom school districts' may have to provide special education services and accommodations, including some who in the past may have been found not to need those services. 
The letter is intended to clarify school districts' obligations following amendments made to the Americans with Disabilities Act that took effect in 2009. Those amendments say school districts should define disability very broadly, writes Russlynn Ali, the assistant secretary for civil rights, in aset of questions and answers that accompany the letter. 
"Students who, in the past, may not have been determined to have a disability under Section 504 [of the Rehabilitation Act of 1973] and Title II [of the Americans with Disabilities Act] may now in fact be found to have a disability under those laws," the guidance says. "A student whom a school district did not believe had a disability, and therefore did not receive...special education or related services before passage of the Amendments Act, must now be considered under these new legal standards. The school district would have to evaluate the student, as described in the Section 504 regulation, to determine if he or she has a disability and, if so, the district would have to determine whether, because of the disability, the student needs special education or related services."

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SJ State Senate President Wants to Make it Illegal to Deny Transplants to People with Disabilities

See this article, which begins:
Outraged over reports about a renowned hospital in Philadelphia declined to perform a kidney transplant on a Camden County child because she is intellectually disabled, Senate President Steve Sweeney said today he planned to introduce a bill making it illegal for a New Jersey hospital from denying life-saving health care to disabled people here. 
The parents of 3-year-old Amelia Rivera of Stratford said a physician from Children's Hospital of Philadelphia told them last week the child would not be eligible for a kidney transplant because she is "mentally retarded." 
"There is no doubt that this story has highlighted a seriously overlooked issue in the country: Hospital policy regarding organ transplants for people with developmental disabilities," said Sweeney, whose daughter has Down syndrome.


Toledo Free Press on Effort to Strengthen the Air Carrier Access Act

See this story, which raises an incredibly important issue.


Heumann on Inclusive Thinking

See this blog post from Judy Heumann on her work to get countries around the world to include people with disabilities.


Friday, January 20, 2012

LA Times on California In-Home Services Cuts Case

See this article, which begins:
A federal judge will continue blocking millions of dollars in cuts to in-home care for the elderly and the disabled, parties to a lawsuit over the services said Thursday. 
U.S. District Judge Claudia Wilken had temporarily halted the cuts in December. The $100 million in reductions to home aid, built into the state budget in case revenue did not match projections, were to have kicked in this month.

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Thursday, January 19, 2012

Federal Judge Says She'll Stop IHSS Cuts

See this article by that title.

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Quinn Announces Community Care Transition Plan

See this press release from the Illinois state government, which begins:

January 19, 2012. Governor Pat Quinn today announced a plan to rebalance the state’s approach to care for individuals with developmental disabilities and mental health conditions. Called the Active Community Care Transition (ACCT) plan, the initiative will increase the number of people with developmental disabilities and mental health conditions living in community care settings across Illinois. Under the first phase of the plan, residents of Jacksonville Developmental Center (JDC) in Jacksonville, IL and patients of Tinley Park Mental Health Center (MHC) in Tinley Park, IL will be transitioned to community settings and the facilities eventually closed. 
“My administration is committed to increasing community care options and improving the quality of life for people with developmental disabilities and mental health conditions,” Governor Quinn said. “The approach we are taking will allow for the safe transition of care for some of our most vulnerable citizens to community care settings. I want to thank the members of the public, the General Assembly and advocates who worked with my administration to meet this challenge and help our state move forward.”

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Extensive Psychology Today Blog Post on Seclusion and Restraint

See this post, which begins:
A urine soaked scream room. A child stuffed in a duffel bag. Vinegar soaked cotton balls put in a child's mouth. Slapped on the head with plastic bottles. Child dragged through a playground across asphalt with pants down. Shoved to the floor and dead from asphyxiation. Handcuffed and duct-taped. Degraded. Dehumanized. Traumatized. Mob stories? No, it is just a scratch of the surface of what has happened to children in special education in the past year. Not in a third world country, but here in America.

Today, as I write, children with autism are regularly and legally restrained and secluded against their will. Most states have little to no laws regarding seclusion and restraint. What is even worse is the fact that seclusion, restraint and aversives have been proven to be an ineffective way to modify behavior, but they are still used in education. In fact, it actually increases behavior in many children, and has the potential to cause physical and long lasting trauma to a child.


Unfortunate Shift in Attitudes Toward People with Disabilities in Ireland

See this interesting and troubling story, which begins:
PEOPLE IN IRELAND’s attitudes towards those with a disability have become more negative in the last five years, according to new research out today.


Jamaican Parliament to Become More Accessible

See this interesting story, which begins:
THE Houses of Parliament is pledging to at least have the Oath of Allegiance written in Braille to accommodate visually impaired community persons. 
This, after Government Senator Floyd Emerson Morris — who made history in 1998 when he was the first blind person to be appointed to the Upper House — had to be assisted with the words of the oath when he was being sworn in for the second time on Tuesday.


Court Strikes Decision for Mentally Ill Woman's Abortion

See this article by that title from the Boston Globe.  It begins:
Earlier this month, a Norfolk probate judge declared a pregnant woman with schizophrenia incompetent and ordered her to undergo an abortion, stating she could be “coaxed, bribed, or even enticed’’ into the hospital for the procedure. 
Unbidden, the judge further directed that the 32-year-old woman be sterilized “to avoid this painful situation from recurring in the future.’’ 
Yesterday, the state’s appeals court struck down the decision in unusually harsh terms, saying the woman had clearly expressed her opposition to abortion as a Catholic.
As the probate court's actions in this case demonstrate, abuses like the ones folks are now discussing in North Carolina are, sadly, still with us.

An Update on the Children's Hospital of Philadelphia Story

See this dispatch, which has more facts than we've seen before.  Certainly the parents seem now to be putting the blame on one doctor, not the hospital in general.


Wednesday, January 18, 2012

Interesting Papers from the American Journal of Comparative Law's Symposium on Antidiscrimination Law

Just out: the American Journal of Comparative Law's symposium issue on "Evolutions in Antidiscrimination Law in Europe and North America."  The issue contains two papers about disability rights law:

1.  Gerard Quinn & Eilionoir Flynn, Transatlantic Borrowings: The Past and Future of EU Nondiscrimination Law and Policy on the Ground of Disability, 60 Am. J. Comp. L. 23 (2012).  The abstract:
This Paper explores the interrelationship between U.S. and EU disability discrimination law in terms of founding principles, implementation and practice. It addresses the evolution of a “civil rights” model (broadly based on a social construct of disability) which underpins discrimination law in the United States, and its subsequent adaptation in the EU context to fit with a broader European social model. This Paper also examines the role of the UN Convention on the Rights of Persons with Disabilities in furthering the shift from civil rights approaches to locating disability rights within a broader theory of social justice, and the significance of the EU's conclusion of procedures necessary to ratify the Convention. Finally, it offers some perspectives on the future of a transatlantic dialogue on ensuring that people with disabilities are viewed as rights-holders, supported, and enabled to exercise their rights.
2.  Elizabeth Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, 60 Am. J. Comp. L. 205 (2012).  The abstract:
This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts' narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA carves up the definition of disability, for the first time distinguishing “actual disability” from “regarded as disability,” and expressly reserving the right to accommodation for “actual disability.” This move repudiates a strong form of the social model of disability and accedes to a hierarchy of discrimination that treats the failure to accommodate as a different and lesser form of bias than direct discrimination. Second, and less prominently, the ADAAA introduces an express ban on reverse discrimination claims. Though the provision is arguably positive on a practical level, the fact that this provision could pass without protest-- at a time when reverse discrimination claims on the basis of sex and race have become increasingly prominent and legitimate--sets into relief the low status of disability in the popular imagination. Finally, the expanded definition of “disability” under the ADAAA, though useful for many potential plaintiffs, may have unanticipated attitudinal consequences. As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures. A key question is how to turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities.

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Louisiana Settles Personal Care Budget Cut Suit

See this article, which begins:
Louisiana health officials will ask the federal government for 200 waivers that would allow disabled Medicaid recipients to receive long-term personal care services, according to the terms of a settlement.

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Tuesday, January 17, 2012

AFSCME Hits Quinn for Meeting with Legislators About Closing Institutions

See this AP dispatch, which begins:
Aides to Gov. Pat Quinn have been meeting quietly with a handful of legislators to discuss closing state institutions for people with mental illnesses and disabilities, leading a key union to claim Monday that Quinn is trying to exclude the public from important decisions about government jobs and services. 
"It's grossly irresponsible to plot to close these facilities behind closed doors," said Henry Bayer, executive director of the Illinois branch of the American Federation of State, County and Municipal Employees.

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More of the Local Perspective on DOJ's Mississippi Olmstead Investigation

See this new piece from the Laurel (MS) Leader-Call.

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D.D.C.: Private-School Placement Inappropriate Where FAPE Could Be (Though Wasn't Yet) Provided in More Integrated Public School

Last week, in N.T. v. District of Columbia, --- F.Supp.2d ----, 2012 WL 75629 (D.D.C., Jan. 11, 2012) judge Rosemary Collyer of the United States District Court for the District of Columbia granted summary judgment to the defendant school district in an interesting IDEA case.  When the events at issue began, the plaintiff, N.T., was a first grader at a private school in Washington, DC, who had recently been diagnosed with ADHD.  Her parents initiated a referral to the DC Public Schools to evaluate her eligibility for special education services.  While the two parties discussed an IEP to cover N.T.'s second grade year, the parents decided to place N.T. in a different private school in DC, one that accepted kids with disabilities only.  In October of her second grade year, N.T.'s parents rejected the proposed IEP -- in pertinent part because it didn't include a requirement that N.T. be educated in a small-group setting -- and initiated an administrative due process hearing seeking reimbursement for her private school tuition.  The hearing officer rejected the claim for reimbursement.

N.T., through her parents, sought review in the federal district court, which granted summary judgment to the school district.  The court agreed that the IEP as proposed by the school district did not provide a free appropriate public education, because it did not provide that N.T. would receive instruction in small classes.  But the court also found reimbursement to be an improper remedy.  The court explained that the school district was capable of providing N.T. instruction in a small-group setting in her neighborhood public school -- a school that included students with and without disabilities.  The private school, by contrast, admitted only those students who had disabilities, so it would not be the least restrictive environment for N.T.  Although the court recognized that a parental placement need not be the least restrictive environment, it concluded that a hearing officer and court may consider whether the private school is the least restrictive environment in determining whether reimbursement is an appropriate remedy.  Here, the court concluded, the proper remedy was to modify the IEP to provide that N.T. would receive small-group instruction at her integrated public school.  With that change, the court explained, "N.T. could receive a FAPE at a public school" and would not need a private placement.

This is an outcome that I imagine Ruth Colker would dislike, but that makes a lot of sense to me.  One of the risks of the reimbursed-private-placement system the courts and Congress have set up is that it can encourage further segregation of kids with disabilities in a way that undermines the core IDEA principle of integration.  (Ruth and I have a friendly disagreement about the role and force of that principle.  For my salvo in that dispute, see this brief piece.)  Decisions like Judge Collyer's serve to mitigate that risk.

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Families Rally for Intellectual Disability Waivers in Virginia

See this story (which continues an odd trend among Virginia journalists in calling Medicaid waivers for people with intellectual disabilities "mental health money").  Interesting quotes from Ken Cuccinelli at the bottom of the piece on the status of the state's negotiations with DOJ on an Olmstead settlement.

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USA Today on Children's Hospital of Phila. Kidney Transplant Story

See this article, which begins:
When Chrissy and Joe Rivera walked into a conference room at Children's Hospital of Philadelphia (CHOP) a few days ago, they thought they were going to see a slide show to help them start preparing their 3-year-old daughter Amelia for a kidney transplant. 
Instead, a doctor and social worker told the Riveras that Amelia, who has a rare genetic disorder called Wolf-Hirschhorn syndrome, would not qualify for a transplant because she is "mentally retarded" and has "brain damage," Chrissy Rivera claimed in a blog post Thursday and in phone interviews.


Monday, January 16, 2012

NYC Appeals to Second Circuit in Taxi Case

See this article.

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Courthouse News Service Report of Disney Segway 9th Circuit Argument

is here.  Very interesting.

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Sunday, January 15, 2012

Is the Children's Hospital of Philadelphia Denying Kidney Transplants to Kids with Intellectual Disabilities?

That's what this story alleges.  The hospital has apparently responded by issuing a statement on their Facebook page denying that it has "any criteria which exclude patients from being considered for transplant solely on the basis of their cognitive status," but not (so far as I could see by navigating there) specifically addressing the allegations of the particular parent at issue.


One Institution Director's Perspective on DOJ's Mississippi Olmstead Investigation

See this piece from the Laurel (MS) Leader-Call, which reports an interview with the director of a large state institution for people with developmental disabilities.  It begins:
Ellisville State School has provided comprehensive services to individuals with intellectual and developmental disabilities for more than 90 years, but an investigation by the U. S. Department of Justice may place the state school and other mental health facilities in jeopardy. 
The state’s mental health system has come under scrutiny by the Justice Department for violating the Americans with Disabilities Act. A Justice Department investigation concluded that thousands of Mississippians with disabilities or mental illness are unnecessarily institutionalize at facilities across the state.

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Saturday, January 14, 2012

Tenth Circuit Holds ADA Doesn't Validly Abrogate State Sovereign Immunity in Medical Licensing Cases

The opinion, in Guttman v. Khalsa, is here.  I may have more to say on this later.  (Disclosure: I represented Dr. Guttman, the plaintiff, in earlier Supreme Court proceedings in this case.)

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American University Journal of Gender, Social Policy, and Law Publishes IDEA Symposium

The American University Journal of Gender, Social Policy, and Law just published its second symposium on disability issues in recent months.  (I noted their law students with disabilities symposium here.)  Now out is their symposium on Current Issues in Special Education Advocacy.  It includes:

Yael Zakai Cannon, Who's the Boss: The Need for Thoughtful Identification of the Client(s) in Special Education Cases, 20 Am. U. J. Gender Soc. Pol'y & L. 1 (2011);

Ruth Colker, The Learning Disability Mess, 20 Am. U. J. Gender Soc. Pol'y & L. 81 (2011);

Elisa Hyman, Dean Hill Rivkin & Stephen A. Rosenbaum, How IDEA Fails Families Without Means: Causes and Corrections from the Frontlines of Special Education Lawyering, 20 Am. U. J. Gender Soc. Pol'y & L. 107 (2011);

Torin D. Togut, The Gestalt of the School-to-Prison Pipeline: The Duality of Overrepresentation of Minorities in Special Education and Racial Disparity in School Discipline on Minorities, 20 Am. U. J. Gender Soc. Pol'y & L. 163 (2011);

Jonathan Feldman, Racial Perspectives on Eligibility for Special Education: For Students of Color Who Are Struggling, Is Special Education a Potential Evil or a Potential Good?, 20 Am. U. J. Gender Soc. Pol'y & L. 183 (2011);

Jennifer N. Rosen Valverde, Cara Chambers, Megan Blamble Dho & Regina Schaefer, Integrating Educational Advocacy into Child Welfare Practice: Working Models, 20 Am. U. J. Gender Soc. Pol'y & L. 201 (2011); and

Patricia E. Roberts & Kelly Whalon, Empowering Special Education Clients Through Cross-Disciplinary Collaboration: Lessons Learned for Current Clients and Future Professionals, 20 Am. U. J. Gender Soc. Pol'y & L. 233 (2011).

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An Interesting Counterpoint to the Easyjet Story

See this story from Australia, describing a case in which an advocate who uses a wheelchair lost a lawsuit very similar to the Easyjet suit I blogged about earlier today.  The article also is an interesting read on attitudes toward disability rights enforcement in Australia generally.


Redbox Sued for Inaccessibility

See this article.  Excerpts:
Redbox is being sued by a group of people with disabilities. The federal civil rights lawsuit says the giant movie rental service discriminates against blind people.

* * *

But the kiosks of the video rental giant Redbox are difficult, if not impossible, to use for those who are blind and visually impaired. The lawsuit says Redbox needs to change the technology in their kiosks so the visually impaired can rent movies too.

"They have neither tactile buttons nor any other screen feature that would allow blind people to navigate their way through the kiosks," Martinez said.

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Easyjet Fined for Disability Discrimination

See this article by that title.  It begins:
The low-cost airline Easyjet has been found guilty of disability discrimination and ghee 70,000 Euro by a French court. 
The case centres on the airline refusing to allow three wheelchair-bound passengers to board its planes, citing security reasons. 
“This is a landmark ruling,” said Patrick de la Grange, lawyer for the plaintiffs and for the French Paralysed Association (APF).


Friday, January 13, 2012

Waterstone on North Carolina Eugenics Compensation Proposal

Law Prof Michael Waterstone has this piece at the HuffPost on the North Carolina sterilization compensation proposal.  It begins:
A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Taking a Tougher Stance on Fair Housing

See this article by that title.  It begins:
Communities that rely on federal money to preserve historic properties or install handicapped ramps may need to clean up and modernize regulations to get funding this year. 
Bucks County has been reviewing local municipal zoning regulations to ensure they are in compliance with the federal Fair Housing Act and thus eligible for the popular Community Development Block Grants. 

The review is in response to the U.S. Department of Housing and Urban Development’s recent crackdown on fair housing compliance.


Wednesday, January 11, 2012

DDC: Under Rehab Act, Employment Accommodation May Be Required Even if Not Necessary to Enable Plaintiff to Do the Job

Yesterday, Judge Royce Lamberth of the United States District Court for the District of Columbia issued an opinion denying the defendant's motion for summary judgment on the plaintiff's Rehabilitation Act claim in Loya v. Sebelius, --- F.Supp.2d ----, 2012 WL 52265 (D.D.C., Jan. 12, 2012).  Loya, who has Type I diabetes, argued that the defendant federal employer violated the Rehabilitation Act by assigning her in an office building that required her to walk too long a distance to frequent meetings.  She contended that the employer should have accommodated her by assigning her to an office in the building where her meetings often took place (and where she formerly had an office).  The court concluded that this accommodation claim presented triable issues of fact.  It's mostly a factbound opinion, but there is an interesting legal nugget in it.  The defendant argued that Loya was not entitled to an accommodation because she was evidently able to walk between the two buildings, even if evidence suggested that she faced some risk of hypo- or hyperglycemia in doing so.  According to the defendant, an employer is required to provide an accommodation only when that accommodation is necessary for the plaintiff employee to do her job.  The court rejected that argument: "A reasonable jury could therefore find that, although a reassignment to the Portals building may not have been strictly necessary for Loya to perform her job, it would nonetheless have 'assist[ed]' Loya 'in performing the duties of [her] job,' 29 C.F.R. app. § 1630.9, by reducing her risk of hypoglycemia or hyperglycemia and so assisting her in performing the job duties that (a reasonable jury could find) required her to travel between buildings."


Study Shows More Disabled Kids Sent Out of State

See this AP dispatch by that title.  It begins:
An advocacy group for people with disabilities is calling on North Carolina officials to better care for children who have both a mental illness and developmental disability, hundreds of whom have been sent to live in facilities outside the state because of a lack of adequate resources closer to home. 

A study released Wednesday by Disability Rights North Carolina says the state is failing children with a "dual diagnosis," such as having both autism and bipolar disorder. 
A lack of available mental health services in the state is leading to waits in hospital emergency rooms that can last days. Hundreds of North Carolina children have been sent to out-of-state residential treatment facilities hours away from their families.

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Tuesday, January 10, 2012

Cox on Pregnancy as Disability

See this column on CNN.com by law professor Jeannette Cox.


Student Note on the ADA and Prescription Drug Use in the Workplace

Just out: Elisa Y. Lee, An American Way of Life: Prescription Drug Use in the Modern ADA Workplace, 45 Colum. J.L. & Soc. Probs. 303 (2011).  The abstract:
The dramatic rise in prescription drug use in the United States over the past two decades, with its attendant risk of a myriad of side effects, has left employers struggling with ways to balance their interests in productivity and safety with potential liability for violating their employees' legal rights under the Americans with Disabilities Act. Under the ADA, an employer may claim a “direct threat” defense if it fired or refused to hire an employee based on a threat the employer determined the employee posed to safety and health in the workplace. In a recent case, several employees brought an ADA suit against their employer after they were fired from their safety-sensitive jobs for the mere legal use of certain prescription drugs their employer had decided posed a safety risk in its workplace. The district court denied the employer's motion for summary judgment on the ground that a reasonable juror could find that the employer's drug policy was broader than necessary because the employer automatically excluded all employees who took certain drugs from working at the company, without any regard for individualized circumstances as required by the ADA. However, the Sixth Circuit reversed the decision on the ground that the employees were not disabled and thus were not protected under the ADA. In light of the ADA Amendments Act of 2008 and other developments since the passage of the ADA in 1990 that call for expanded protection under the Act, this Note establishes the contours of the highly individualized inquiry employers and courts must perform in addressing the problem of prescription drug use in the workplace.

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Student Note on the Fair Housing Act and Integration in the Community

Just out: Glenna Riley, Note, The Pursuit of Integrated Living: The Fair Housing Act as a Sword for Mentally Disabled Adults Residing in Group Homes, 45 Colum. J.L. & Soc. Probs. 177 (2011).  The abstract:
Today, many state-licensed group homes for mentally disabled adults have come to resemble their predecessor psychiatric institutions in that they segregate residents from the community at large. In 2010, a court found that private group homes in New York discriminated against the mentally disabled in violation of the Americans with Disabilities Act (ADA). The court ordered the state to establish non-discriminatory housing alternatives where residents could live, and become part of, the community at large. This groundbreaking litigation has prompted similar efforts in other states. In addition to the ADA, the Fair Housing Act (FHA) also protects the mentally disabled from discrimination arising from segregated housing. This Note examines whether the FHA supports a discrimination claim on behalf of the mentally disabled residing in segregated group homes. The differences between the ADA and FHA approaches are analyzed in terms of standing, defenses, and remedies, in order to determine whether a FHA claim increases the chances of successful litigation, in turn furthering the underlying policy goal of ending discrimination in housing.

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Monday, January 09, 2012

Disabled, Seniors Worry About Cuts to In-Home Care

See this AP dispatch by that title.

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Advocates Push for More ID Waivers in Virginia

See this article from the Washington Times.

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Wishes for the NH Mental Health System in 2012

See this interesting piece from the Concord Monitor.  I was particularly struck by wish number 3:
A positive resolution to the Department of Justice finding. I hope that the commissioner of Human Services and the attorney general can put aside whatever offense they have taken at the Department of Justice finding that New Hampshire's mental health system is out of compliance with the Americans with Disabilities Act and the Olmstead decision. Our leaders need to face facts, facts that they have admitted themselves in their own report: Our mental health system is "broken." If we focus on developing evidence-based services that keep people out of expensive levels of care it will be a win for our clients and a financial win for the state.

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Another Reminder . . .

. . . that we need to do a much better job educating businesses about their responsibilities regarding service animals.  See this article from my neck of the woods.

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Saturday, January 07, 2012

W.D. Ky. Decides ADAAA Case for Defendant

A couple of days ago, in Azzam v. Baptist Healthcare Affiliates, Inc., 2012 WL 28117 (W.D. Ky., Jan. 5, 2012), Judge Thomas Russell of the United States District Court for the Western District of Kentucky issued an unusual decision applying the ADA Amendments Act to rule for the defendant.  Azzam is an employment case.  The plaintiff, Azzam, is a nurse who was assigned to defendant BHA's surgery unit.  Surgery nurses at BHA work 8-hour shifts from Monday-Friday, and they must be on call one night a week, and on weekends, on a rotating basis.  After Azzam experienced a neurological event that may have been a stroke, she found that she experienced too much fatigue to perform her night/weekend on-call responsibilities.  When the other nurses complained about having to cover for her in performing those responsibilities, and Azzam's doctor would not clear her to be on call nights and weekends, BHA terminated her.

Azzam sued under the ADA.  BHA moved for summary judgment on the grounds that Azzam had no disability and that the ability to perform night/weekend on-call duties were an essential function of the job of surgery nurse.  Because the termination took place in 2009, the court applied the ADAAA to the disability question.  The court had no doubt that the neurological event and its effects constituted an impairment, whether or not it was actually a stroke, but the court concluded that it did not substantially limit any major life activity.  Azzam claimed that the impairment substantially limited her neurological functions and her ability to work or concentrate.  The court found that she had not presented any evidence regarding her neurological functions or her ability to concentrate, so it focused only on the major life activity of working.  Even after the ADAAA, the court concluded, the inability to perform a particular function at work (here, being on call nights and weekends) did not constitute a substantial limitation.  Interestingly, the court referred significantly to the EEOC's ADAAA regulations and interpretive guidance, even though those were not issued until after the employment termination decision in this case.  The court also concluded that, at BHA, the ability to be on call nights and weekends is an essential function of the surgery nurse position.  Accordingly, it granted summary judgment to BHA.

Query whether the disability issue would have come out differently if the plaintiff had presented evidence of the effect of her impairment on her neurological functions.

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Thursday, January 05, 2012

Assisted Suicide Should Be Legal, Says Major Report to Parliament

See this article by that title from the Guardian.  It begins:
MPs should consider changing the law on assisted suicide to allow some terminally ill people to end their lives at home with the help of their doctor, a major report into the subject has concluded. 
The Commission on Assisted Dying, chaired by the former lord chancellor Lord Falconer, says a choice to end their own lives could be safely offered to some people with terminal illnesses, provided stringent safeguards were observed. 
Describing the current law on assisted dying as "inadequate and incoherent", the commission will today outline a legal framework that would permit only those who had been diagnosed with less than a year to live to seek an assisted suicide, and then only if they met strict eligibility criteria.
The commission at issue appears to have been put together by a right-to-die group called Dignity in Dying.

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And a Similar Article From Canada . . .

See this piece from CBC News about the lack of mental health crisis services in Ottawa, Canada.  It begins:
Ottawa police and area shelters are calling for more resources to help people with mental health issues before they end up in crisis. 
In 2011 police said they responded to more than 4,000 calls that were related to a mental health issue, up 40 per cent from 2010. 
Police say because people aren't getting the services they need earlier, the police end up dealing with them as they investigate criminal activity.

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Texas's Failure to Fund Mental Health Treatment Leaves Hundreds Stranded in Jails

See this article by that title from the San Antonio Current.  The article goes a bit off course in suggesting that the problem is that there aren't enough state hospital beds; to my mind, the fundamental problem is a lack of housing, intensive treatment services, and crisis services in the community.  Law enforcement and the criminal justice system should not be the entities that respond to a mental health crisis.  But the article as a whole is very well done.

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Wednesday, January 04, 2012

NYT Op-Ed Opposing Universal Accessibility for Taxis

See this piece, by Matthew W. Daus.  The key paragraph:
My proposal is this: convert the existing van program run by the M.T.A. into a system of subsidized door-to-door taxi rides. The van system, known as paratransit or Access-a-Ride, spends more than $380 million a year. The average cost per ride is $30 to $50, which I believe could be lowered to $12 to $15 if the little-used vans were replaced with accessible cabs. The system would rely on usage patterns to determine the right number of cabs — instead of setting them by fiat. Passengers would pay $2.25 a ride (with a discount for purchasers of certain fare cards), the same cost as a subway trip.


Corbett on GINA

Just out: William R. Corbett, What is in GINA's Genes?  The Curious Case of the Mutant-Hybrid Employment Law, 64 Okla. L. Rev. 1 (2011).  From the introduction:
For all of its accolades, however, GINA also is a conundrum. It is the first employment discrimination statute passed without a history of discrimination against the protected class. Accordingly, one commentator labeled it “the first preemptive antidiscrimination statute in American history,” and further noted that it is “perhaps the first antidiscrimination statute passed without an associated identity group.” One might say that genetic testing of GINA has revealed it to be a mutant antidiscrimination statute, differing in significant ways from prior antidiscrimination laws. 
The discovery of such a mutation should be monumental. However, it has been argued that GINA, at least in practice, may turn out to be much ado about very little.  Genetic information employment discrimination was not a problem when GINA was passed, and it may never have become a problem even without the passage of GINA. With the new law, it seems very unlikely that a significant problem will emerge regarding genetic information discrimination. So, maybe this mutation is not so monumental. Perhaps it will fade almost unnoticed into the annals of antidiscrimination law. 
From a theoretical perspective, however, GINA is well worth considering as an aberrant antidiscrimination law, and reconsidering it as something other than just an antidiscrimination mutant. A law like none other before it may have significant theoretical implications. It may reveal something important about the current state of our employment laws, as well as the history, and perhaps the future. If GINA is such an exceptional law, how did it come to be enacted? Does its enactment suggest possible trends for the future of employment law? Ruminating about GINA may elucidate some truths about how employment law, politics, and societal values interact and provide some insight into future employment laws.

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NFB Files Complaint Against Baltimore City Schools

See this press release:
The National Federation of the Blind (NFB), the nation's leading advocate for access to technology by the blind, announced today that it has filed a complaint with the United States Department of Justice, Civil Rights Division, requesting an investigation of the Baltimore City Public Schools' proposed acquisition of NOOK devices. The NFB filed the complaint because the Baltimore City Public Schools recently announced a partnership with the Harry and Jeanette Weinberg Foundation to overhaul the school libraries in six middle schools in the district. As part of the partnership's plan, the selected school libraries will acquire an unspecified number of NOOK e-reader devices. These devices are inaccessible to blind and other print-disabled students. The NFB raised its concern with leaders in the Baltimore City Public Schools but has been told that the district is moving forward with its plans to implement these devices while it seeks "alternative emerging technology"-- in other words, a needlessly segregated technology for students with print disabilities. Because the NOOK is inaccessible to blind students, the Baltimore schools' use of the devices violates Title II of the Americans with Disabilities Act (ADA). 
Dr. Marc Maurer, President of the National Federation of the Blind, said: "The National Federation of the Blind will not tolerate blind students receiving an unequal education. If e-reading devices are available in school libraries, they must be accessible to all students, not just the sighted. Appropriately, the date of this complaint falls on the birthday of Louis Braille, who first brought literacy to the blind and fought for the right of blind students to read independently. He would not stand for this glaring inequity and neither will we. That is why we have asked the United States Department of Justice to act swiftly and decisively to ensure that blind students receive the same education as their sighted peers." 
The National Federation of the Blind is represented in this matter by Daniel F. Goldstein and Daniel A. Ross of the Baltimore firm Brown, Goldstein & Levy, LLP.


Monday, January 02, 2012

Yingling on Testing Accommodations Under the ADAAA

Just out: M. Patrick Yingling, Learning Disabilities and the ADA: Licensing Exam Accommodations in the Wake of the ADA Amendments Act of 2008, 59 Clev. St. L. Rev. 291 (2001).  The introduction:
“That's the real problem with kids who struggle with learning . . . Some kids feel like they're stupid. I want them to know that they're not. They just learn differently. Once they understand that and have the tools to learn in their individual way, then they can feel good about themselves.”  This quote from Charles Schwab, the financial pioneer who discovered that he had dyslexia at the age of 40, embodies the importance of having federal statutes, such as the Individuals with Disabilities Education Act and Section 504 the Rehabilitation Act, that guarantee special education programs and reasonable accommodations to eligible students with learning disabilities. However, learning disabilities are not exclusive to the formal education process. In fact, learning disabilities often remain with individuals long after their experiences as students. Unfortunately, until the enactment of the Americans with Disabilities Act of 1990 (“ADA”), individuals with learning disabilities often faced a roadblock when seeking to make the transition from student to professional. The roadblock came in the form of a state licensing exam. 
The ADA was the first piece of federal legislation to guarantee accommodations on state licensing exams for individuals with learning disabilities.  The ADA had the purpose of assuring “equality of opportunity” and the “elimination of discrimination” in regard to all individuals with disabilities.  However, over the course of two decades, the courts steadily narrowed the ADA's scope of protection.  Individuals with learning disabilities who sought accommodations on licensing exams experienced the negative effects of such judicial interpretations. As a result, Congress took action to restore a “broad scope of protection” under the ADA by enacting the ADA Amendments Act of 2008 (“ADAAA”).  
This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals who request accommodations on licensing exams. Finally, Part V puts forth recommendations for the courts to provide appropriate standards for individuals requesting accommodations on licensing exams under the amended ADA. Specifically, this Article suggests that: (1) courts should no longer foreclose the finding of a substantially limiting impairment in regard to the major life activity of reading due to an individual's academic success; (2) “working” should be recognized as an appropriate major life activity under which to evaluate claims for accommodations on the bar exam (and possibly other licensing exams), with such evaluations involving a comparison to most people having comparable training, skills, and abilities; and (3) reading disabilities should be recognized not only by psychometric tests that show a substantial limitation in comparison to most people, but also by test scores that indicate a significant discrepancy between an individual's intellectual capacity and actual reading ability. By following these recommendations, the courts will be able to evaluate future claims for accommodations on licensing exams with standards that reflect Congress' intention to provide a broad scope of protection under the ADA.

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