Thursday, October 27, 2005

New Disability Blog by a Law Student

Check it out here.

Interesting Article on the Workplace Experiences of Individuals with Psychatric Disabilities

New on Westlaw: Susan G. Goldberg et al., The Disclosure Conundrum: How People with Psychiatric Disabilities Navigate Employment, 11 Psychol. Pub. Pol'y & L. 463 (2005). The abstract:

The vocational rehabilitation and mental health literatures usually urge people with psychiatric disabilities to disclose their disability at work. Reasons for preferring disclosure include the opportunity to invoke rights conferred by the Americans with Disabilities Act of 1990, the risk of losing federal disability benefits when earning a higher income, and the belief--held by many professionals--that people with psychiatric disabilities will experience permanently debilitating symptoms. However, a newer model of recovery from psychiatric disability challenges these assumptions. A qualitative study of people with psychiatric disabilities explored these issues. The participants were current or former recipients of social security benefits provided to persons with significant disabilities. Participants described complex situations around employment and disclosure, which were more difficult to resolve than disclosure advocates have recognized.

Wednesday, October 26, 2005

Headline Scares Blogger

So I read the headline of this story and was very afraid. But it turns out it's a worker's comp issue.

Has Wal-Mart "Bought Itself a Nice Americans with Disabilities Act Class Action Lawsuit"?

So says Nathan Newman, here.

Thursday, October 20, 2005

Edge-Centric on Sowell on the ADA

Check out this post, which responds to this Thomas Sowell article.

New Jersey Fund Home Services for People with Developmental Disabilities

See this article in the Star-Ledger, which begins:

Four months after lawmakers passed a state budget providing no additional money to care for developmentally disabled people at home, state officials yesterday announced a $12.5 million fund to assist up to 2,000 people who live with their families.

Funded with $8.9 million from state coffers and $3.57 million in federal Medicaid reimbursements, the money will pay for respite workers giving 1,500 families a break from daily care, and educational and vocational programs for 200 young adults who have finished school but need daytime supervision.

Also, 300 families will be admitted into the state's "real life choices" program that gives each disabled person up to $63,000 to make home renovations, arrange transportation and hire aides to make home care easier. This would double the families to 600 who participate in the program, Department of Human Services spokesman Gary Brown said.

Human Services Commissioner James Davy and Assembly Budget Committee Chairman Louis Greenwald (D-Camden) said the state found the money after 6,000 people with disabilities, their families and advocates signed a petition seeking money to support home care. They submitted the petition after staging a Statehouse rally during the annual budget hearings in June. Lawmakers passed a budget that provided no new money for the Division of Developmental Disabilities, leaving it at $1 billion.

Op-Ed on Disability-Selective Abortions

See this piece, which begins:

If it's unacceptable for William Bennett to link abortion even conversationally with a whole class of people (and it is), why then do we as a society view abortion as justified and unremarkable in the case of another class of people: children with disabilities?

I have struggled with this question since our daughter Margaret opened her big blue eyes and we got our first inkling that there was a full-fledged person behind them.

Whenever I am out with Margaret, I'm conscious that she represents a group whose ranks are shrinking because of the wide availability of prenatal testing and abortion. I don't know how many pregnancies are terminated because of prenatal diagnoses of Down syndrome; some studies estimate 80 to 90 percent.

Tuesday, October 18, 2005

Miers on HIV Discrimination?

Over at SCOTUS Blog, Lyle Denniston has a great post about Harriet Miers's substantive responses in the Senate Judiciary Committee's questionnaire. At the end, he notes some responses Miers gave in 1989 to a questionnaire sent by the Eagle Forum to Dallas City Council candidates. She answered "no" to the following two questions:

"Would you support an ordinance that would force individual property owners and businesses to provide accommodations to persons with AIDS (acquired immune deficiency) and those perceived to have AIDS?"
"Would you support an ordinance that would force businesses to hire persons with AIDS and those perceived to have AIDS?"

Saturday, October 15, 2005

Illinois "Freedom Ride"

See this article, which begins:

Evoking the civil rights spirit of the 1960s, disability advocates will embark on a "freedom ride" Sunday to push for an end to institutionalization of those with disabilities.

About 30 people with disabilities, senior citizens and their families will make the 700-mile trek around the state, ending Thursday in Springfield, to drum up support for the Community First Act. The legislation would compel the state to spend its money on support services allowing the disabled to live in their communities, rather than institutions or large group homes.

October is Disability Awareness Month, and the event comes just before the fall legislative veto session.

The Freedom Ride '05 tour was organized by the Campaign for Real Choice in Illinois, founded by Lester and Barbara Pritchard of Urbana. Lester Pritchard is chairman of the Illinois Council on Developmental Disabilities, and Barbara Pritchard is former director of Persons Assuming Control of Their Environment, in Urbana.

The group argues that 20 years of scientific research conclusively shows that people with significant disabilities are better off in small, family-scale homes. Yet the state continues to spend hundreds of millions of dollars to keep these individuals in "outdated, ineffective institutions," it says.

Illinois spends $300 million annually on nine state institutions for the developmentally disabled, which currently house 2,740 people, said Tom Green, spokesman for the Department of Human Services.

It spends millions more for roughly 6,000 people in about 250 private intermediate-care facilities, from nine beds to a few hundred, disability advocates say.

It would cost about $54,000 per person – half the cost of the state institutions – to provide 24-hour support for independent living, the campaign claims.

Ninth Circuit Issues (Better) New Opinion in Arc of Washington v. Braddock

Yesterday, in response to a petition for rehearing, a panel of the Ninth Circuit withdrew its earlier opinion in Arc of Washington, Inc. v. Braddock, and issued an amended opinion written by Judge Kozinski. The case is an Olmstead challenge to Washington State's refusal to seek to expand its Home and Community-Based Services Medicaid waiver to serve more individuals with developmental disabilities in the community. In the original opinion, written by Judge Fernandez, the panel held that the more specific Medicaid statute trumps the more general ADA, and therefore the existence of a cap can never violate Olmstead. That decision didn't make much sense, at least read broadly: The Medicaid statute recognizes that HCBS waivers will have a population cap, but it doesn't say what that cap should be. If a state can't satisfy its integration obligations under Olmstead without going beyond the existing cap for its HCBS waiver, there's no reason why the state shouldn't at least be required to ask the federal Department of Health and Human Services to expand the waiver. (For my earlier comments on the original panel opinion, which suggested that it should be read narrowly, see here.)

In the amended opinion, the panel eliminated the problematic aspects of its earlier opinion, but resolved the case by relying on another problematic Ninth Circuit opinion. Judge Kozinski's new opinion instead holds that, even without seeking expansion of its HCBS waiver, Washington had satisfied Olmstead's requirement that it have a "comprehensive, effectively working plan" for deinstitutionalization. Relying on the Ninth Circuit's earlier opinion in Sanchez v. Johnson (about which I blogged critically here), the panel explained that Washington's commitment to deinstitutionalization appeared to be at least as strong as was California's in Sanchez. Here's the key passage:

The record reflects that Washington's commitment to deinstitutionalization is as "genuine, comprehensive and reasonable" as the state's commitment in Sanchez. Id. at 1067. Washington's HCBS program is substantial in size, providing integrated care to nearly 10,000 Medicaid-eligible disabled persons in the state. See Decl. of Timothy Brown ¶ 5. The waiver program is full, and there is a waiting list that admits new participants when slots open up. See Dist. Court Order, Nov. 17, 2000; cf. Olmstead, 527 U.S. at 605-06. Unlike in Townsend, all Medicaid-eligible disabled persons will have an opportunity to participate in the program once space becomes available, based solely on their mental-health needs and position on the waiting list.

Further, the size of Washington's HCBS program increased at the state's request from 1,227 slots in 1983, to 7,597 slots in 1997, to 9,977 slots beginning in 1998. Decl. of Susan E. Poltl ¶ 7. The annual state budget for community-based disability programs such as HCBS more than doubled from $167 million in fiscal year 1994, to $350 million in fiscal year 2001, despite significant cutbacks or minimal budget growth for many state agencies. See Decl. of Timothy Brown ¶ 7. During the same period, the budget for institutional programs remained constant, while the institutionalized population declined by 20%. See id. Today, the statewide institutionalized population is less than 1,000.

The Department's Division of Developmental Disabilities (DDD) has also seen its biennial budget grow steadily from $750 million in 1995 to over $1 billion in 1999, making it one of the fastest growing budgets within the Department. See id. at ¶¶ 8-9. Family support services, given to families of DDD clients living at home, have grown even faster, benefitting from a 250% budget growth over five years. See id. There is thus no indication that the state is neglecting its responsibilities to the HCBS program relative to other programs.

Judge Kozinski's opinion for the panel emphasized that "
We do not hold that the forced expansion of a state's Medicaid waiver program can never be a reasonable modification required by the ADA. What we do hold is that, in this case, Washington has demonstrated it has a 'comprehensive, effectively working plan,' Olmstead, 527 U.S. at 605, and that its commitment to deinstitutionalization is 'genuine, comprehensive and reasonable,' Sanchez, 416 F.3d at 1067."

Judge Fernandez filed a separate concurrence, which explained that he continued to believe that the Medicaid HCBS cap provision trumps the ADA.

E.D. Cal. Limits Standing in ADA Title III Cases

In White v. Divine Investments, Inc., 2005 WL 2491543 (E.D. Cal., Oct. 7, 2005), the U.S. District Court for the Eastern District of California held, for the second time in a couple of months, that plaintiffs challenging inaccessible public accommodations under ADA Title III have standing only to challenge those architectural barriers they knew of at the time they filed their lawsuit. If plaintiffs subsequently identify barriers in the store or facility, they cannot seek an injunction eliminating them. This decision doesn't make much sense to me, and it seems inconsistent with an Eighth Circuit opinion, but it's consistent with judges' efforts to restrict public accommodations suits under Title III.

Interesting Student Note on Sutton

New on Westlaw: Katherine Hsu Hagmann-Borenstein, Much Ado About Nothing: Has the Supreme Court's Sutton Decision Thwarted a Flood of Frivolous Litigation?, 37 Conn. L. Rev. 1121 (2005). From the introduction:

Although the Sutton majority grounds its reasoning in the "plain meaning" of the ADA, an important pragmatic concern lies below the surface of its holding. The plaintiffs in Sutton and Murphy had common ailments that affect a large segment of America's population. In the briefs and oral argument, the parties and Justices repeatedly referred to the number of people who would benefit from ADA protection if the Court found for the plaintiffs. The majority clearly harbored concerns that a broad interpretation of "disability" would unleash a flood of frivolous litigation, and other members of the legal community shared these concerns. For example, Stephen Bokat, general counsel for the U.S. Chamber of Commerce commended the decision as avoiding a huge increase in cases. Peter J. Petesch, an attorney who represents the Society for Human Resource Management, also applauded the decision. Petesch remarked that Congress designed the ADA to protect an insular minority, and a decision for the plaintiffs would have trivialized the statute by stretching it to cover a majority of Americans.

At first blush, these fears appear valid, but Justice Stevens raised a compelling rebuttal in his dissent. Under other anti-discrimination legislation, anyone may file a race, sex, or religious discrimination claim. If plaintiffs are not filing scores of frivolous lawsuits under Title VII, why would a broader ADA encourage them to do so?

This Comment tests Justice Stevens's hypothesis. At least two states, California and Massachusetts, have explicitly rejected the Sutton trilogy by deciding that their state anti-discrimination statutes contemplate impairments in their unmitigated forms. Massachusetts's judiciary came to this conclusion even though its statutory definition of disability is nearly identical to the ADA's definition. California's disability definition was also modeled after the ADA, but, in 2001, the California legislature altered its statute in response to the Supreme Court's ruling. This Comment examines disability claim filing statistics from the California Department of Fair Employment and Housing ("DFEH") and the Massachusetts Commission Against Discrimination ("MCAD") to determine whether these jurisdictions have, in fact, experienced a flood of claims in response to the changes in their laws. It also examines how these jurisdictions' courts have balanced employers' interests in weeding out frivolous claims against disabled employees' interests in vindicating their rights.

While claim filings involving certain mitigated disabilities increased after California's Sutton disavowal, the data suggests that individuals with run-of-the-mill impairments such as nearsightedness are not flocking to the courthouse. In addition, increases in the number of disability claims occurred in proportion to overall increases in DFEH claim filings. In other words, increases in disability claim filings are part of a larger trend which could be caused by population growth instead of by the public's response to a change in the law. Thus, it appears that the relatively liberal California and Massachusetts state laws have had little negative effect, while they have greatly enhanced the protections afforded to the states' disabled populations. Plaintiffs with legitimate claims who sue under the state statutes are much less likely to be thrown out of court based on the definition of "disability." Yet courts in California and Massachusetts retain many methods to dismiss frivolous suits. In sum, these states have achieved a better balance between plaintiffs' and defendants' rights than exists under federal law.

Friday, October 14, 2005

Yours Truly on Disability, Life, Death, and Choice

I have a new article, hopefully provocative, on SSRN: Disability, Life, Death, and Choice. Here's the abstract:

The dominant narrative of the Schiavo case ignores an important point: That case is the latest of several instances in which disability rights activists - many of whom consider themselves to be neither conservative nor opponents of abortion rights - entered into a conflict between pro-life and pro-choice forces and sided with the pro-lifers. This disability rights/right to life connection deserves close attention, for there is good reason to believe that it represents a model that anti-abortion advocacy will increasingly follow outside of the disability context in the coming years. Beginning with the "Baby Doe" cases in the 1980s, and extending through the Schiavo case, many disability rights activists have made common cause with anti-abortion activists on a number of significant right-to-life/right-to-die issues. Those disability rights advocates embrace the notion of "choice," but they contend that societal stigmas and other social pressures effectively coerce people into making decisions that reflect biases against people with disabilities. It follows that regulation of a decision like abortion is not inconsistent with a commitment to free choice; such regulation in fact might be necessary to promote free choice. In the case of assisted suicide, disability rights advocates have taken this point to an extreme and urged that the social and professional pressures are so great that no regulation will be sufficient to protect free choice; a flat ban on the practice is necessary. Disability rights advocates have identified similar pressures on abortion decisions in cases where prenatal testing reveals fetal disability, but many have pointedly refused to endorse a regulatory solution.

Even if most disability rights advocates do not seek regulation of abortion, however, anti-abortion activists clearly will favor it. As I show in this Essay, current Supreme Court abortion doctrine practically invites anti-abortion activists to justify regulation on the "pro-choice" ground that it overcomes private and social obstacles to "truly" free choice. That doctrine is rooted in a principle of autonomy - that the woman gets to choose - but it embraces the Legal Realist point that private as well as public actions may impinge on individual freedom. It thus permits regulations that are calculated to remove (private or societal) obstacles to a woman's free choice. But the Supreme Court's Legal Realist move faces a classic Legal Realist problem: Once we recognize that private as well as public pressures may interfere with autonomy, we cannot know which pressures are coercive (and thus can justify regulation) unless we can judge them against some normative standard independent of free choice itself.

Although disability rights activists have deployed their arguments only in settings where the choice relates in some way to disability, those arguments, when read in the light of the Court's recent abortion decisions, suggest a more general line of attack for opponents of abortion rights: Restrictions on abortion even outside the disability context might be justified based on the argument that the regulation counteracts social pressures that would otherwise coerce a choice to abort. These prospects present a dilemma for the many disability rights advocates who are firm supporters of abortion rights. Although the logic of their critique of selective abortion might seem naturally to justify regulation of that practice - just as they believe that the same critique justifies a ban on assisted suicide - disability rights advocates cannot endorse regulation in the abortion context without setting a precedent that may be applied to scale back abortion rights in areas that go far beyond disability.

Tuesday, October 11, 2005

Supreme Court Calls for Solicitor General's Views on IDEA Fee Split

As Lyle Denniston reports here, today's Supreme Court orders list contained an order calling for the Solicitor General's views regarding the cert. petition in Arlington Central School District v. Murphy, No. 05-18. As I noted here, that case presents the question whether prevailing parents in IDEA cases may recover expert fees, as well as attorneys fees, a question that has divided the courts of appeals. There is no time limit on the SG's response to invitations like this, and I wouldn't expect a response at least until the time over the winter when the arguments for this Term are about to fill up.

Wall Street Journal on Marrying With Down Syndrome

From time to time, the news pages of the Journal have some excellent disability coverage. Today's article on two folks with Down syndrome who are getting married is a great example. It's here (subscription required).

Monday, October 10, 2005

Assisted Suicide Debate in UK

See this article in the Guardian about the debate in the House of Lords.

Friday, October 07, 2005

A Ticket to Bias

See this op-ed by that title from today's New York Times. An excerpt:

When I asked the Garden staff how they could, in good conscience, sell a ticket that afforded no possible view of the stage for a person who cannot stand up, their response was, "It's an old building."

What about the Americans with Disabilities Act and sight-line regulations, I asked them. Aren't you breaking the law? Again the reply, "It's an old building."

The final blow was when someone from the disabled services office accused me of swapping my ticket to, I suppose, get closer to the stage.

Later, I wondered what Sir Paul would say if he knew what had happened. His wife, after all, is disabled, and maybe she knows what I now know: No matter who you are, no matter how much money you have, no matter how many laws are passed, true equality remains a dream out of reach.

Hotel Golf Course ADA Suit

See this article. It begins:

Two men are suing Marriott International, alleging the company discriminates against disabled people by refusing to provide specially equipped golf carts at the Ritz-Carlton resort links outside Half Moon Bay and its other courses.

The plaintiffs -- including one from Atherton -- filed a lawsuit Tuesday in San Francisco federal court charging Marriott with violating the Americans with Disabilities Act and state civil rights laws.

``The reason we're focusing on Marriott is it's a huge player in the golf industry,'' said Mark A. Chavez, a Mill Valley attorney representing plaintiffs Richard Thesing and Laurence Celano. ``We're hoping that this lawsuit will prompt it to lead the way in opening up access to individuals with mobility disabilities.''

Justice Department Settles Disability Rights Case in Pennsylvania

See this press release by that title. It begins:

The Justice Department today announced that it has reached an agreement with a continuing-care retirement community for persons 65 and older in Bucks County, Pennsylvania that restricted residents' use of manual wheelchairs and motorized chairs and scooters within its complex, resolving a lawsuit that alleged disability-related housing discrimination.

"Persons with disabilities who choose to make their homes in retirement communities do not forfeit the protections of the Fair Housing Act," said Bradley J. Schlozman, Acting Assistant Attorney General for the Civil Rights Division. "Wheelchairs and motorized scooters assist individuals to live and move about independently. A person can lose the right to that aid only if he or she operates it in a way that poses a significant risk of harm."

According to the government's complaint, Twining Services Corporation (TSC), which owns the Twining Village retirement community, banned manual wheelchairs from its dining rooms until February 2005, and continued to ban motorized wheelchairs and scooters from those rooms and other public and common use areas. It also allegedly required persons who use scooters to indemnify TSC and to submit to an evaluation and training program annually, regardless of their "driving record."

Cape Town is Inaccessible

See this article.

Supreme Court Updates

I've been a bit swamped, so I didn't post on all the reactions to Wednesday's arguments in the assisted suicide and IDEA burden-of-proof cases in the Supreme Court, but here are a few good places to look for info:

On SCOTUSBlog, Tom Goldstein had this take on the assisted sucide argument, and Lyle Denniston had this one. Howard Bashman has links to news articles on the argument here and here. And the Washington Post's piece on the IDEA argument is here.

Wednesday, October 05, 2005

SCOTUSBlog on "Death with Dignity" Argument

See Lyle Denniston's take here.

Split in Society for Disability Studies Over Oregon Assisted Suicide Case

See this interesting article. It begins:

The U.S. Supreme Court today will hear arguments about a federal challenge to an Oregon measure that allows physician assisted suicide in certain cases.

The case has divided many medical ethicists — and also scholars in the growing field of disability studies. In May, the Society for Disability Studies joined 11 disability rights groups in submitting a brief to the Supreme Court opposing Oregon’s system as one that had the potential to devalue and damage the lives of people with disabilities. But while the press release announcing the brief proudly includes the Society for Disability Studies, the brief itself no longer does so.

That’s because the society found itself facing criticism from many of its members, some of whom thought the Oregon policy was not as bad as others argued. But beyond the specifics of the Oregon case, some professors argued that the scholarly society had no business taking a stand on an issue like this on which there was no scholarly consensus, that the society hadn’t followed proper procedures to take such a stand, and that a form of political correctness made it hard for professors to speak out in opposition to the brief or to stands taken by some prominent disability rights groups, such as Not Dead Yet, which organized the brief in question.

Thanks to the lovely and talented Margo Schlanger for tipping me off to this!

N.M. Supreme Court Applies Intermediate Scruitiny to Mental Disability Discrimination Claim

This is almost two months old, but new on Westlaw as far as I can tell: In Breen v. Carlsbad Municipal Schools, the New Mexico Supreme Court held that the state's worker's compensation system violated the state constitution's Equal Protection Clause. In particular, as the court described them, the legal provisions setting up the system "grant compensation for life for total permanent physical disabilities and up to 700 weeks of compensation for permanent partial physical disabilities, yet cap compensation for all primary mental disabilities at 100 weeks." The court held that under the state constitution, people with mental disabilities make up a quasi-suspect class, and that the physical/mental distinction failed intermediate scrutiny. This is a really important opinion, both for what it says about the scrutiny applied to disability-based classifications and for its parity holding.

Monday, October 03, 2005

Supreme Court GVRs Guttman v. Khalsa

Today's orders list from the Supreme Court includes at least one tidbit of interest in the disability law world. In Guttman v. Khalsa, an ADA Title II case in which a doctor challenged the revocation of his license, the Court granted cert., vacated the Tenth Circuit's judgment, and remanded for further consideration in light of Exxon Mobil Corp. v. Saudi Basic Indus. Corp.. The Tenth Circuit had held that Dr. Guttman's ADA claim was barred by the so-called Rooker-Feldman doctrine, because Dr. Guttman had previously challenged the license revocation unsuccessfully in state court. Dr. Guttman filed his federal-court ADA case while the state-court proceedings were still pending, but the state-court proceedings were resolved adversely to Dr. Guttman before the federal courts ruled. In Exxon Mobil, which was decided after the Tenth Circuit ruled, the Supreme Court held that the Rooker-Feldman doctrine does not bar federal-court litigation that is initiated before parallel state-court proceedings are concluded. The Tenth Circuit's holding is pretty clearly inconsistent with Exxon Mobil, so on remand the court probably cannot apply Rooker-Feldman to bar consideration of Dr. Guttman's claim.

(Disclosure: I helped Dr. Guttman's lawyer prepare his cert. petition, which sought a GVR in light of Exxon Mobil.)