ASAN Issues Report on Organ Transplants and People with Disabilities

This past week, the Autistic Self Advocacy Network issued a report on organ transplants and people with intellectual or developmental disabilities.  You can find the report here.  The recommendations include:

FIRST, states should follow California’s example and pass legislation explicitly clarifying legal protections against discrimination for people with disabilities seeking organ transplants. Sugh legislation should explicitly include the following points:
a) a prohibition against discriminating against people with disabilities that are not medically relevant to the transplantation process; b) clarification that support services should be considered when assessing the ability of a transplantation candidate to comply with postoperative procedures, and c) the scope of services and health care interactions relevant to the law, including referrals, evaluation and recommendation for access to the transplantation list.

SECOND, HHS should seriously consider issuing guidance to the field explicitly clarifying the applicability of the ADA and Section 504 to organ transplantation settings, indicating examples of acceptable and unacceptable criteria for evaluation and clarifying that non-medically relevant conditions, including I/DD, should not be held against an individual in seeking access to organ transplantation. * * *.

THIRD, both policymakers and national leaders in the I/DD community should consider measures to elevate the priority of services designed to assist people with I/DD in postoperative care management. * * *.

FOURTH, the I/DD community must learn to effectively defend its interests in the bioethics realm. * * *. Possible measures include the establishment of a journal focusing on these issues from a disability rights perspective, additional support to the publication efforts of researchers and academics friendly to the disability rights perspective, the organizing of a conference on disability rights priorities in bioethics to allow for coordination and discussion between activists and academics and a wide variety of other social change strategies. * * *.

FIFTH, additional resources must be given to providing people with I/DD and their families with advocacy services to fight discrimination when it becomes apparent. * * *. Congress should allocate additional fiscal resources to Protection and Advocacy agencies to monitor hospitals, medical establishments and other medical entities, train provider groups, and investigate potential violations of the civil and human rights of individuals with disabilities in regards to due process protections within health care settings.

EEOC Sues Toys "R" Us for Discriminating Against Deaf Applicant

See this press release, which begins:

Toys "R" Us, Inc., one of the world's largest retailers of toys and juvenile products, violated federal law when it first refused to provide an interpreter for a deaf applicant and then failed to hire her, the U.S Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer's Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas' mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas's mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

Nice to see EEOC bringing failure-to-hire suits!

AP on Disability and Employment

See this story, which begins:

Whether it means opening school track meets to a deaf child or developing a new lunch menu with safe alternatives for students with food allergies, recent Obama administration decisions could significantly affect Americans with disabilities. But there’s been little progress in one of the most stubborn challenges: employing the disabled. 

According to government labor data, of the 29 million working-age Americans with a disability — those who are 16 years and older — 5.2 million are employed. That’s 18 percent of the disabled population and is down from 20 percent four years ago. The employment rate for people without a disability was 63 percent in February.

The job numbers for the disabled haven’t budged much since the passage of the Americans with Disabilities Act of 1990, which gave millions of disabled people civil rights protections and guaranteed equal opportunity in employment, public accommodations, transportation, government services and more.

Reid on How the DMCA Makes Digital Media Inaccessible

See this interesting Slate piece by Blake Reid.  Excerpts:

Making creative works accessible often involves transforming content from one medium to another—such as adapting the audio of a television show to closed captions to make it accessible to people who are deaf or hard of hearing. Copyright law ordinarily vests authors of creative works with the exclusive right to create adaptations, such as translations to foreign languages. But making works accessible to people with disabilities is arguably exempt from copyright law under the fair use doctrine and other laws like the Chafee Amendment to the Copyright Act. Congress, federal courts, the U.S. Copyright Office, and even the World Intellectual Property Organization have begun to recognize that it’s bad policy to block efforts to create accessible versions of copyrighted works. 

At least, that’s the case with physical and analog media. But publishers, video programmers, and other copyright owners lock down digital content with digital rights management technology designed to limit users’ ability to access, copy, and adapt copyrighted works to specific circumstances. And copyright owners frequently fail to account for the need to adapt DRM-encumbered works to make them accessible to people with disabilities. For example, e-books often include DRM technology that preventspeople who are blind or visually impaired from running e-books that they have lawfully purchased through a text-to-speech converter that reads the books aloud. Similarly, Internet-distributed video and DVD and Blu-ray discs include DRM features that prevent researchers from developing advanced closed captioning and video description technologies that make movies and television shows accessible. (For example, some Internet-delivered videos don't include closed captions at all, and subtitles on DVD and Blu-ray discs can be incomplete, riddled with errors, or so badly formatted that they can't be read.)

Bypassing this DRM technology is often trivial from a technical perspective. But the DMCA makes it illegal—even if the person bypassing DRM is doing so for a noninfringing use like making it accessible to people with disabilities. If you want to get around the DMCA, there is no fair use; instead, you must petition the librarian of Congress for a special exemption to circumvent a class of works, such as e-books. The proceeding to consider exemption petitions, known as the “triennial review,” takes place only once every three years and requires petitioners to navigate a complex bureaucratic process, satisfy an incredibly high burden of proof, invest months of effort, and overcome opposition from copyright lobbying groups with nearly bottomless resources. It’s no wonder the vast majority of exemption petitions are denied.

National Council on Disability Seeks "Further Research and Negotiation" Before New Wage-and-Hour Rules for Personal Assistance

See this letter from NCD to the Office of Management and Budget, which is considering regulations prepared by the Department of Labor on the issue.  The letter begins:

Thank you for meeting with the National Council on Disability (NCD) and members of the disability and aging communities on March 15, 2013, to discuss the Department of Labor’s (DOL) proposed changes to the Companionship Exemption to overtime compensation under the Fair Labor Standards Act. The complexity of this issue is reflected in the extensive time that DOL, your office, and others have spent crafting and reviewing the proposed rule and the many opinions expressed to guarantee that consistent and fair standards of pay are ensured for the growing industry of companion and service provider caregivers. There is a clear concern expressed by consumers that the proposed rule will create changes that have a significantly adverse impact on the community of Americans with disabilities and seniors that rely on such services. Therefore, NCD urges OMB to require DOL to engage in further research and negotiation in order to fairly balance the complex needs of both the service providers and the disability and aging communities.

Plaintiffs, California Settle In-Home Support Cuts Lawsuit

See this press release, which begins:

Lawyers representing IHSS consumers, unions and the State of California have reached a settlement that will prevent the implementation of devastating cuts to In-Home Supportive Services (IHSS). The settlement resolves a federal lawsuit, David Oster et al. v. Lightbourne (formerly V.L. v. Wagner). The settlement also resolves a second lawsuit challenging wage reductions for IHSS providers.

In the Oster lawsuit, IHSS recipients and their caregivers had won temporary court orders over the past 4 years that stopped the State from implementing cuts to IHSS. These cuts would have meant a significant reduction in hours, or complete disqualification from IHSS, for hundreds of thousands of current IHSS recipients. The State had appealed the earlier favorable court decisions, which meant that a higher court could allow the deep cuts in IHSS to go into effect. Finally, the settlement provides a pathway to stabilize the IHSS program with new revenue and the possibility of restoring all cuts in IHSS hours (including the 3.6% cut that went into effect in 2009) over the next two years.

In the settlement, the State has agreed to repeal and eliminate two major cuts to IHSS: (1) the 20% across-the-board reduction in IHSS hours from 2011, and (2) the termination or reduction in IHSS for many recipients based on their functional index score from 2009.

Instead, the settlement:

• Replaces the permanent 20% cut in IHSS hours with a temporary 8% cut in July 2013. (This is an additional 4.4% on top of the 3.6% current cut.) 

• Reduces the cut to 7% (3.4% on top of the 3.6% current cut) in July 2014. 

• Restores the hours lost from the 7% cut as early as the spring of 2015 if the State obtains federal approval of a provider fee which could bring significant new federal revenue to California. 

• Commits any savings from retroactive federal approval of the new provider fee to fund a program to benefit IHSS recipients, such as the SSI Special Circumstances program, which was used to pay for refrigerators and stoves, rent to avoid eviction and other emergency needs but has not been funded in the budget for many years.

Good Article on Inaccessible Doctors' Offices

Via Bloomberg, here.  It begins:

Almost one-fourth of doctors are unable to accommodate and treat patients who use wheelchairs more than 20 years after the passing of the Americans with Disabilities Act, a study found. 

About 22 percent of 256 doctor’s offices surveyed said they couldn’t assist people in wheelchairs, with most of those saying it was because they weren’t able to safely transfer the patient to an exam table, according to research published today in the Annals of Internal Medicine. Lack of access to the building was a secondary reason, the researchers said. 

The Americans with Disabilities Act, passed by the U.S. Congress in 1990, is aimed at ending discrimination for people with disabilities in everyday activities including access to medical care facilities and the services provided there. Today’s findings are one of the first to show where barriers to medical services remain for wheelchair-bound patients, said Tara Lagu, the study’s lead author.

Divided Fifth Circuit Panel Decides Section 504 Student-on-Student Abuse Case

On Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion in Stewart v. Waco Independent School District, --- F.3d ----, 2013 WL 1091654 (5th Cir., Mar. 14, 2013).  The facts of the case (based on the complaint, which is all that is before the court at this point) are quite sad. Andricka Stewart has an intellectual disability, as well as speech and hearing impairments.  In 2006 to 2007, when the events at issue in the case took place, she was a student at a high school operated by the defendant school district.  Late in 2005, after what the court calls "an incident involving sexual contact between Stewart and another student," the district modified her IEP to limit her contact with male students and ensure that she remain under close supervision while at school.  But, her complaint alleged, she experienced a number of further incidents of sexual abuse by other students.  The Fifth Circuit's opinion describes those incidents, as alleged in the complaint:

In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart "was at least somewhat complicit" in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student "exposed himself" to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse.

Stewart sued under, among other statutes, Section 504 of the Rehabilitation Act.  The district court dismissed for failure to state a claim.

In a divided opinion, the Fifth Circuit reversed.  Judge Catharina Haynes wrote the majority opinion, for herself and Judge Jennifer Walker Elrod.  The majority first ruled that Stewart did not state a claim under a student-on-student harassment theory because the complaint did not allege sufficient facts to "plausibly state" that the school district was deliberately indifferent to known disability-based harassment.  

But the majority concluded that "Stewart may nonetheless state a § 504 claim based on the District's alleged refusal to make reasonable accommodations for her disabilities."  In so holding, the court put a helpful gloss on the "bad faith or gross misjudgment" standard that some circuits apply to Section 504 claims in the school context.  The majority explained that "bad faith or gross misjudgment" is not a requirement for 504 claims in this context but is instead simply an "alternative way[] to plead the refusal to provide reasonable accommodations."  In particular, the bad faith or gross misjudgment standard makes clear that a district has failed in its accommodation obligation not only when it explicitly refuses a requested accommodation but also "when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment."  The majority explained that a plaintiff can establish a violation of the reasonable accommodation requirement -- including under the bad faith or gross misjudgment standard -- without showing that the defendant school district's actions rose to the level of the deliberate indifference that is required to make a district liable for student-on-student harassment.  

Applying those standards to the facts as alleged in the complaint, the majority held that Stewart had plausibly alleged a violation of the school district's accommodation obligations.  The majority explained:

She alleges that she was sexually abused on campus on three separate occasions after the District initially modified her IEP. Regardless of what role Stewart allegedly played in facilitating this misconduct, her IEP was designed to prevent such encounters, and Stewart can plausibly argue at this stage that its effective implementation would have obviated any need for discipline. The complaint also contains allegations that the District knew of specific aspects of the alleged abuse that could have given rise to further modifications. For example, the first two additional instances both involved Stewart's use of the restroom and effectively occurred only three months apart, assuming an intervening three-month summer break, supporting a plausible argument that the District could have modified Stewart's IEP to prohibit her from going to the restroom unattended. It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.

The majority nonetheless "emphasize[d] that courts generally should give deference to the judgments of educational professionals in the operation of their schools."  And it reaffirmed that "[i]solated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims."  But it concluded that the complaint plausibly alleged something more than that.

Finally, the majority held that Stewart was not required to exhaust administrative remedies under the IDEA before bringing her Section 504 suit -- an issue that the school district had not raised before the Fifth Circuit, but that was the centerpiece of the dissent.  The majority noted, first, that the school district had "arguably forfeited administrative-exhaustion arguments" by failing "to raise the issue on appeal or in its motion-to-dismiss briefing before the district court."  As the majority observed, the circuits are split on the question whether IDEA exhaustion is jurisdictional.  The Fifth Circuit has not yet weighed in on that conflict.  And the majority saw no need to weigh in on it here, because it concluded that Stewart's was not the sort of case under which exhaustion was required under 20 U.S.C. § 1415(l):  "In short, Stewart's gross-misjudgment theory of liability—premised on sexual abuse fostered by the district's alleged disability discrimination—does not appear to seek damages 'as a substitute for relief under the IDEA'"(citing the Ninth Circuit's relatively recent decision in Payne v. Peninsula School District).

Judge Higginbotham dissented.  He argued that exhaustion of IDEA's administrative remedies was required because "at the heart of Ms. Stewart's lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes."  "Exhaustion aside," Judge Higginbotham argued that "when an IEP is in place, its shortcomings must find their answer within the detailed remedial scheme under the IDEA unless those shortcomings are somehow of a meaningfully distinct character."  To support this point, he relied on the Supreme Court's statement in Smith v. Robinson that "Congress did not intend a handicapped child to be able to circumvent [the IDEA's] requirements or supplement [its] remedies . . . by resort to the general antidiscrimination provision of § 504."  Judge Higginbotham failed to note, however, that Congress overturned Smith in Section 1415(l) -- the very statutory provision on which he relied for his exhaustion argument.  Section 1415(l) provides that, so long as the applicable exhaustion requirement is satisfied, the IDEA does not restrict the substantive rights accorded to kids with disabilities under Section 504 "or other Federal laws protecting the rights of children with disabilities."

Given the active circuit splits over the IDEA exhaustion requirement, which I've noted before, this may not be the last we hear of this case.  But Friday's opinion certainly makes me want to renew my membership in the Catharina Haynes fan club.

Latest DOJ Settlement over HIV Discrimination by Health-Care Providers

See this press release, which begins:

The Justice Department announced today that, as part of its Barrier-Free Health Care Initiative, it has reached a settlement with Glenbeigh Hospital of Rock Creek, Ohio, under the Americans with Disabilities Act (ADA). The settlement resolves allegations that Glenbeigh violated the ADA by denying admission to someone because of HIV. This is the fourth settlement that the Justice Department has reached in six weeks addressing HIV discrimination by a medical provider.

The Justice Department found that Glenbeigh unlawfully refused to admit someone with HIV into its alcohol treatment program because of the side effects of his HIV medication. Glenbeigh’s alcohol treatment program consists of helping patients through the physical aspects of recovery, as well as providing counseling and incorporating spiritual healing. The department determined that Glenbeigh cannot show that treating the complainant would have posed a direct threat to the health or safety of others.

“Ensuring access to medical care for people with HIV requires that those in the medical field make medical decisions that are not based on fears or stereotypes,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The ADA does not tolerate HIV discrimination and neither will the Justice Department.”

Czapanskiy on Parents and the IDEA

New on SSRN: Karen Czapanskiy, Special Kids, Special Parents, Special Education, 46 U. Mich. J. L. Reform ___ (forthcoming 2013).  The abstract:

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a free appropriate education. In this article, I argue that the special education system must begin to pay attention to the needs of parents if it is going to fully serve the children. In particular, the system needs to support parental competence and pay attention to conserving parental resources. I propose three significant reforms to the special education system that, I argue, will improve the chances that children in need of special education will receive it. The three reforms are: 1) putting parents in touch with each other, 2) requiring school systems to commit to common special educational plans through a public process, and 3) adopting universal design pedagogies in general education when practicable. While the most expensive of the three proposals is the adoption of universal design pedagogies, the most controversial is requiring school systems to commit to common special educational plans for similarly-situated children. None is cost-free, however, so I conclude by demonstrating that the costs of parent-oriented reforms are justified for reasons of pragmatism, to comply with congressional expectations, and to achieve social justice for parents with special needs children as compared with other parents and with each other.

Student Note on the Nexus Requirement in Reasonable Accommodation Law

Just out: Note, Three Formulations of the Nexus Requirement in Reasonable Accommodations Law, 126 Harv. L. Rev. 1392 (2013).  From the introduction:

The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself.  Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, the Americans with Disabilities Act  (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder.  This Note seeks to classify the various approaches that courts have brought to the so-called “nexus requirement,” to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability. 

A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples.  The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, and courts have recently entertained the idea of including commuting-related accommodations as well.  Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.

* * * 

Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not.  But the existing variety of judicial treatments calls for a more comprehensive, nuanced framework. This Note introduces a tripartite scheme for classifying the ways in which courts have attempted to reconcile statutory nexus requirements with the factual uncertainties inherent in disability. The first, discussed in Part I, requires the requested accommodation to bear a direct causal relationship with the substantial limitation of a major life activity that the plaintiff alleges. The second, discussed in Part II, asks whether the requested accommodation is more logically integrated with the disability or with some other aspect of the plaintiff's circumstances. The third, discussed in Part III, conceptualizes disability broadly and defers to the judgments of individuals on issues related to their own intimate life experiences. Each formulation has merit, yet none can resolve every case in a way that satisfies the diverse interests at stake in the American disability law regime. These categories are interrelated and far from mutually exclusive; courts have applied very different reasoning to different areas of disability law, and some have even shifted their analyses within a single opinion. Nonetheless, the framework may serve to illuminate the complexities of the nexus inquiry, and Part IV discusses the ways in which judges might employ its insights to compensate for the shortcomings of their own understandings of disability.

An interesting discussion of an important issue.  I don't think the first theory -- direct causal relationship with the substantial limitation of the major life activity -- can make any sense after the ADAAA, where for a lot of people the substantial limitation will be something entirely internal to the body (because the relevant major life activity will be a "major bodily function").  Of course, I didn't think the first theory made a lot of sense before!

In These Times on the Subminimum Wage

See this interesting article, which begins:

In his State of the Union address earlier this year, President Barack Obama called for increasing the minimum wage from $7.25 an hour to $9 an hour. On Tuesday, Congressional Democrats did him one better, unveiling a plan to raise the minimum wage to $10.10 an hour, as well as raise the subminimum wage for tipped workers from $2.13 an hour to 70 percent of the minimum wage. 

Their proposal, however, would not cover the 420,000 Americans with disabilities who are currently paid a subminimum wage of as little as a few cents per hour in some state-sponsored "sheltered workshops," such as Goodwill. These programs, licensed under provision 14c of the Fair Labor Standards Act of 1938, are intended to be for training, but many workers wind up as perpetual “trainees,” employed in sheltered workshops for years earning subminimium wage rates; thus becoming stuck in a cycle of poverty. While advocates have repeatedly tried to address this issue divides within both the Democratic Party and the disability community have so far prevented these laws from being sensibly revised.

CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech

Alice Wong passes along this interesting story about a Ninth Circuit argument yesterday.  It begins:

The 9th Circuit pressed advocates for the deaf to explain how their demands for captioned videos on CNN's website supersede First Amendment media rights. 

Hoping to keep a jury from hearing claims that it discriminates against more than 100,000 deaf web surfers, CNN had sought relief under California's anti-SLAPP (strategic lawsuit against public participation) statute. Such laws allow for the early dismissal of claims that are designed to chill the exercise of First Amendment rights. 

It claimed that the lawsuit threatens its right to gather and disseminate news on matters of public interest, and that the disability advocates cannot establish a likelihood of success in the suit.

D. Colo. Grants Summary Judgment to Plaintiffs in Class-Action Challenge to Hollister's Placement of Steps at the Front of its Stores

My friends at Fox & Robertson, counsel for the plaintiffs, have the details over at their blog.

Settlement in New Jersey Olmstead Suit

Somehow I missed this a couple of weeks ago, but New Jersey has agreed to settle Disability Rights New Jersey's longstanding Olmstead litigation challenging unnecessary institutionalization of individuals with intellectual disabilities in the state's Developmental Centers.  The agreement provides that the state will, over the next five years, place 600 individuals currently residing in Developmental Centers into the community.  The agreement also provides for diversion and pre-admission review so that individuals are not unnecessarily placed in Developmental Centers in the first instance.  And it provides that the state's executive branch will seek sufficient funding from the legislature for community-based services and will expand community-based supports through the state's Medicaid waiver.  (I should note that while I was at DOJ, I argued the summary judgment motion in this case representing the United States, which filed as an amicus in support of the plaintiffs.  The US was not a party to this agreement.)

Travis on Impairment Discrimination

Up on SSRN: Michelle A. Travis, The Part and Parcel of Impairment Discrimination, __ Emp. Rts. & Emp. Pol'y J. ___ (forthcoming).  The abstract:

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the status of an independent protected class under federal antidiscrimination law. The ADAAA's effective elevation of impairment to protected class status demands a deeper understanding of the ways in which impairment discrimination - as distinct from disability discrimination - manifests itself in the workplace. This Article explores one aspect of that larger inquiry by analyzing whether impairment discrimination encompasses employment decisionmaking based on the symptoms of an impairment or on the mitigating measures that one uses for an impairment. This Article demonstrates that understanding symptom-based and mitigation-based decisionmaking as a form of impairment discrimination is not only consistent with the statutory language and legislative intent, but also accurately reflects the social, medical, and practical reality of what it means to be "impaired."

Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function

Earlier this week, the United States Court of Appeals for the Second Circuit issued an opinion in McMillan v. City of New York, --- F.3d ----, 2013 WL 779742 (2d Cir., Mar. 4, 2013).  Early in the opinion, Judge Walker summarizes the major take-away from the case:

It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of aprima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.

McMillan, who works for the city, has schizophrenia, which he manages with medication.  But the medication unfortunately can make him extremely drowsy in the mornings.  "As a result, he often arrives late to work, sometimes after 11:00 a.m. The City makes no allegations that McMillan malingers; instead, it is undisputed that his inability to arrive at work by a specific time is the result of the treatment for his disability."  For at least ten years, the city explicitly or implicitly approved McMillan's late arrivals, provided he made up his hours at the end of the day.  But in 2008, the city shifted course and stopped approving them.  At that point, McMillan made a number of requests for the city to approve his late arrivals once more, but his supervisors refused.  

McMillan sued under, among other statutes, the ADA.  Judge Rakoff of the United States District Court for the Southern District of New York granted summary judgment to the city.  Judge Rakoff deferred to the city's determination that arrival at work within a one-hour time frame was an essential function of McMillan's job.  He thus concluded that McMillan's requested accommodation (to arrive as late as 11, while making up the hours later) was unreasonable.

The Second Circuit reversed.  Here is the nub of its analysis:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan's particular job. For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. 

This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.

Paul Mollica has commentary on the case here.

Fourth Circuit Upholds PI in Personal Care Cut Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an opinion in Pashby v. Delia, --- F.3d ----, 2013 WL 791829 (4th Cir., Mar. 5, 2013).  In this case, North Carolina had tightened the eligibility requirements for in-home personal care services (PCS) under Medicaid.  A number of PCS recipients filed suit under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.  The district court granted a preliminary injunction to halt the cuts and certified a plaintiff class.  The state appealed.  Yesterday's decision addressed the state's appeal from the preliminary injunction.

Upholding the district court's conclusion that the plaintiffs were likely to succeed on the merits of their ADA/Section 504 claims, the Fourth Circuit held that the district court had not abused its discretion in concluding that the new eligibility standards placed them at a significant risk of institutionalization.  After the new eligibility standards were put in place, the plaintiffs argued, it would be easier to obtain personal care services in a congregate "adult care home" than in one's own home.  The state argued that the ADA does not prohibit placing people with disabilities at risk of institutionalization.  The Fourth Circuit, deferring to the views of the Department of Justice, disagreed:

Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that “the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.” U.S. Dept. of Justice,Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C.,http://www.ada.gov/olmstead/q & a_ olmstead .htm (last updated June 22, 2011); see also Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)). Moreover, the Tenth Circuit has held that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). In sum, individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.

The state also argued that adult care homes are not institutions.  But the Fourth Circuit, again deferring to the views of the Department of Justice, disagreed.  And the state argued that "continuing to offer in-home PCS to the class members and named Appellees constitutes a fundamental alteration due to the administrative and financial burdens it entails."  The Fourth Circuit rejected that argument, too.  The court "join[ed] the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant to the fundamental alteration calculus, financial constraints alone cannot sustain a fundamental alteration defense."

The Fourth Circuit also concluded that the plaintiffs satisfied the other three requirements for a preliminary injunction (irreparable harm, balance of hardships, and the public interest), so it agreed that a PI was warranted.  The court remanded, however, because it concluded that the preliminary injunction issued by the district court failed to satisfy Rule 65's specificity requirement.  It thus directed the district court to describe the enjoined conduct in greater detail.

Judge Agee dissented.  He concluded that the plaintiffs had not shown a sufficient risk of institutionalization to establish a likelihood of success on the merits.  He also concluded that the state had presented a sufficient fundamental alteration defense to make the plaintiffs unlikely to succeed.

UN Special Rapporteur Says Judge Rotenberg Center Violates Torture Convention

See pages 83-84 of this report (hat-tip to Disability Rights International, which set this process in motion).  The key language:

[T]he Special Rapporteur determines that the rights of the students of the JRC subjected to Level III Aversive Interventions by means of electric shock and physical means of restraints have been violated under the UN Convention against Torture and other international standards. The Special Rapporteur calls on the Government to ensure a prompt and impartial investigation into these continued practices. He calls on the Government to provide information on the Department of Justice‟s (DOJ) investigation into possible violations of civil rights laws and to take measures to prohibit the use of Level III Aversive Interventions for all students on a national level, including those students who had an existing court-approved treatment plan as of 1 September 2011 in Massachusetts.

W.D. Va.: Farmers' Market is a Place of Public Accommodation Under the ADA

Last week, Judge Jackson Kiser of the United States District Court for the Western District of Virginia issued an opinion and order in Clement v. Satterfield, 2013 WL 765374 (W.D. Va., Feb. 28, 2013).  Clement had been refused a slot as a vendor at a local farmers' market; he alleged, among other things, that the market's president (Satterfield, the defendant) refused him that opportunity because he has a disability that resulted from a stroke.  Satterfield moved for summary judgment.  The district court denied summary judgment on the ADA claim.  The court concluded that the South Boston Farmers Market is a place of public accommodation under Title III of the ADA, that individuals who operate places of public accommodation may be properly sued under Title III, and that there was a genuine issue of material fact regarding whether Satterfield, the President of the Halifax County Farmers Market Association, operated the market.

This case tickles me a bit, because in an amicus brief I did for disability rights groups years ago in PGA Tour v. Martin, I used farmers' markets as an example of an entity -- like the PGA Tour -- that is a place of public accommodation with Title III obligations both to buyers and to sellers.  So it's nice to see a court rely in part on PGA Tour to hold that farmers' markets are covered by the statute in their dealings with potential sellers.

Journal of the National Association of the Administrative Law Judiciary Symposium on the IDEA

Just out in the Journal of the National Association of the Administrative Law Judiciary: a symposium on the IDEA.  It contains the following pieces:

Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory and Adversarial in Fact, 32 J. Nat'l Ass'n Admin. L. Judiciary 423 (2012);

Ruth Colker, California Hearing Officer Decisions, 32 J. Nat'l Ass'n Admin. L. Judiciary 461 (2012);

Robert A. Garda, Jr., Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA, 32 J. Nat'l Ass'n Admin. L. Judiciary 516 (2012);

S. James Rosenfeld, It's Time for an Alternative Dispute Resolution Procedure, 32 J. Nat'l Ass'n Admin. L. Judiciary 544 (2012);

Torin D. Togut & Jennifer E. Nix, The Helter-Skelter World of IDEA Eligibility for Specific Learning Disability: The Clash of Response-to-Intervention and Child Find Requirements, 32 J. Nat'l Ass'n Admin. L. Judiciary 568 (2012); and

Mark C. Weber, Procedures and Remedies Under Section 504 and the ADA for Public School Children with Disabilities, 32 J. Nat'l Ass'n Admin. L. Judiciary 611 (2012).

Check it out!