Wednesday, November 28, 2012

N.D. Cal. Declines to Extend Supreme Court's Douglas Decision in an IDEA Case

On Monday, Judge Thelton E. Henderson of the United States District Court for the Northern District of California issued an order in the ongoing Emma C.  litigation.  (The case is Emma C. v. Eastin, 2012 WL 5904750 (N.D. Cal., Nov. 26, 2012).)  The issue before the court concerned the obligations of the California Department of Education, under a consent decree between the parties, to monitor and ensure that students in the Ravenswood school district receive a free appropriate public education under the Individuals with Disabilities Education Act.

The state argued, among other things, that the Supreme Court's decision earlier this year in Douglas v. Independent Living Center (blogged about here) deprived the district court of jurisdiction to assess the state's system for monitoring local school districts' provision of FAPE, because the United States Department of Education approves the state's plan for implementing the IDEA.  The court rejected that argument:
CDE argues that, since Congress has vested the USDOE with jurisdiction to evaluate the adequacy of CDE's statewide system for monitoring the provision of FAPE, this Court should defer to the USDOE's OSEP and decline to exercise its own jurisdiction. CDE purports to base this argument on the Supreme Court's recent decision in Douglas v. Independent Living Center of Southern California, ––– U.S. ––––, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012), but Douglas is inapposite. In Douglas, the Court considered whether a Supremacy Clause challenge to a state statute could be maintained after the federal agency tasked with administering the relevant federal statute determined that the state statute was a valid implementation of the federal statute. Id. at 1211. Suggesting that deference might be due to the federal agency's intervening interpretation of the statute, and that the case should perhaps proceed under the Administrative Procedure Act rather than the Supremacy Clause, the Court remanded the case for further proceedings. Id. at 1210–11. CDE's attempt to draw an analogy between the agency decision in Douglas and OSEP's approval of CDE's monitoring system in the present case falls flat. CDE has not presented any evidence that OSEP has issued a ruling on the question presented in this case—whether CDE's monitoring system is “capable of ensuring continued compliance with the law and the provision of FAPE to children with disabilities in Ravenswood.” FACD § 13.0. And even if OSEP had ruled on that precise question, Douglas at most suggests that OSEP's decision would be entitled to some level of deference—it in no way implies that the Court should decline to exercise its jurisdiction. See id. at 1210 (“All parties agree that the agency's approval . . . does not make these cases moot.”).
This is likely to be an important decision, as I expect that other states will try to use Douglas in this way, both in the IDEA context and elsewhere.

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Tuesday, November 27, 2012

A Constructive Response to Serial ADA Litigation

See this story from San Francisco.  It begins:
Some small business owners in the Sunset and Richmond districts have a new tool to stave off predatory lawsuits and bring their shops into compliance with the Americans With Disabilities Act. 
A $200,000 pilot program Mayor Ed Lee launched with Supervisor Carmen Chu on Tuesday allows small business owners in select areas to get a free inspection and a plan for compliance. It also gives them access to grant money and a $1 million loan fund to make needed improvements. 
The idea is twofold: to stave off what Lee called “drive-by lawsuits” where the cost of litigation and fines can drive shop owners out of business, while also getting owners on track to have their shop accessible to those in wheelchairs or with other disabilities as required by federal law.

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Senate Takes Up CRPD

See this AP dispatch, which has today's news.


A Rejoinder to Michael Cannon Re the Rearguard Challenge to Obamacare

Michael Cannon has a post up responding to my post from yesterday critiquing his and Jonathan Adler's backdoor challenge to Obamacare.  I don't want to get in an endless back-and-forth on the blogs, so I will stop after this post.  But I thought I'd offer this rejoinder to Cannon's most recent post, as I regard that post as essentially conceding the crucial points in the argument.

To review the bidding:  The ACA imposed on individuals a mandate that they obtain health insurance.  To enable them to obtain health insurance, the ACA directed states to set up exchanges and provided individuals with tax credits to make the insurance purchased on those exchanges affordable.  Recognizing that states might not cooperate, the ACA provided that where the state does not establish the "required exchange," the federal government shall "establish and operate such exchange within the State."  42 U.S.C. § 18041(c)(1).

Despite this language , Cannon and Adler argue that the ACA forbids the IRS from providing tax credits to individuals who purchase insurance on federally-operated exchanges.  They make this argument even though Cannon recognizes that the exchange system will unravel -- that the exchanges won't be able to do what they were intended to do -- if participants cannot receive the tax subsidies that the ACA provides.  They argue that this result is required by Congress's use of the phrase "Exchange established by the State under section 1311" in the ACA provision that describes how the premium tax credits should be calculated, 26 U.S.C. § 36B(b)(2)(A), (c)(2)(A)(i).  But to read the "established by the State under section 1311" language as exclusionary would fly in the face of the "establish and operate such exchange" language that also appears in the statute.  More to the point, it would make the entire backup option that the ACA provides -- that the federal government will operate exchanges in states that don't set them up -- largely unable to achieve its purpose.  Again, Cannon basically admits this.

In other words, Cannon and Adler are arguing that a single statutory phrase -- a phrase that does not purport to identify what individuals can receive the ACA's premium tax credits -- trumps other statutory language and the overall structure of the ACA.  For such an argument to be plausible, Cannon and Adler have a pretty significant burden to explain why Congress would want to withhold the premium tax credits from participants in the federally-operated exchanges.  In the post to which I responded, Cannon attempted to do just that.  He gave two reasons why Congress would have wanted to grant tax credits only to participants in state-operated, but not federally-operated exchanges: (1) that "[i]n order to have state-run Exchanges, the bill needed some way to encourage states to create them without 'commandeering' the states"; and (2) that "[c]onditioning the tax credits on state compliance was the only way the [Senate Finance] Committee could even consider legislation directing states to establish Exchanges."

As I showed in my post yesterday, neither of these reasons explains why Congress would have wanted to grant tax credits to participants in state-operated exchanges while denying them from federally-operated exchanges.  Because the ACA gave the states the option to set up their own exchanges or stand aside and let the federal government do it directly, there was no commandeering problem to solve.  And the Senate Finance Committee's jurisdiction extends to granting tax credits to participants on federally-operated exchanges just as much as it extends to granting tax credits to participants on state-operated exchanges.

Tellingly, Cannon's post today largely acknowledges that I was right on these points.  But, Cannon argues, "[j]ust because Congress didn’t have to do something doesn’t mean Congress didn’t do it."  Well, sure.  But Cannon misunderstands his burden here.  He's the one who is taking a single statutory phrase and unnecessarily reading it as in conflict with other statutory language and with the overall structure of the statute.  So he's the one who has to explain why Congress would have intended that phrase to have that meaning and to trump the statute's other language and overall structure.  The best he can come up with is that Congress was trying to solve two problems (the commandeering problem and the committee jurisdiction problem) that he seems to admit weren't even problems.

But it is implausible to think that Congress would have intended to create a statute that was so at war with itself -- and that rendered largely useless its crucial backup provision for federally-operated exchanges -- in order to solve two nonproblems.  The far more plausible interpretation of the statutory text is the one that I set forth in my previous post: when Congress said that the federal government shall step in and operate the "required exchange," that language meant that the federally-operated exchange stands in the shoes of the exchange that the state was directed to, but did not, set up, and participants on federally-operated exchanges are entitled to the same tax credits as are participants on state-operated exchanges.

To borrow from Forrest Gump, that's all I have to say about that.

Reid to Bring Up Disabilities Convention; Santorum Opposes It

Yesterday (Monday), Senate Majority Leader Harry Reid announced that he would ask the Senate to take up ratification of the Convention on the Rights of Persons with Disabilities today.  But a number of Republicans, led by current Senator Mike Lee and former Senator Rick Santorum, are opposing the action.  Dana Milbank of the Washington Post has a great piece on the opposition, focusing on Santorum.  Here's the key passage:
Courageous? Or just contentious? The treaty requires virtually nothing of the United States. It essentially directs the other signatories to update their laws so that they more closely match the Americans with Disabilities Act. Even Lee thought it necessary to preface his opposition with the qualifier that “our concerns with this convention have nothing to do with any lack of concern for the rights of persons with disabilities.” 
Their concerns, rather, came from the dark world of U.N. conspiracy theories. The opponents argue that the treaty, like most everything the United Nations does, undermines American sovereignty — in this case via a plot to keep Americans from home-schooling their children and making other decisions about their well-being. 
The treaty does no such thing; if it had such sinister aims, it surely wouldn’t have the support of disabilities and veterans groups, the U.S. Chamber of Commerce, Republican senators such as John McCain (Ariz.) and John Barrasso (Wyo.), and conservative legal minds such as Boyden Gray and Dick Thornburgh.


Monday, November 26, 2012

The (Legally) Nonsensical Rearguard Challenge to Obamacare

Although the Supreme Court upheld the Affordable Care Act's individual mandate in its blockbuster NFIB decision this past summer, a move is afoot among the ACA's opponents to try to unravel that victory.  As I will show below, that move rests on an argument that is deeply legally flawed.  But to get there will require a bit of explanation about how the statute works.

The ACA's individual mandate was part of a coordinated set of interventions in health insurance markets that were designed, together, to guarantee affordable coverage to a wide range of people.  In addition to requiring that individuals obtain coverage, the statute also provides that states will create health insurance "exchanges" (essentially controlled marketplaces) for individuals to obtain that coverage, and it establishes a series of tax subsidies to make it possible for individuals to afford the insurance that is offered on those exchanges.  In states that do not set up exchanges, the statute provides that the federal government will set up and operate the exchanges for them.  The mandate, the exchanges, and the subsidies all work together (along with the statute's bar on discrimination against individuals with preexisting conditions, and its penalties for employers who do not cover their employees) to achieve the goal of expanded, affordable health insurance coverage.

Although the Obama Administration has extended the deadline for states to decide whether to set up their own health insurance exchanges, estimates are that up to 20 states will refuse to do so.  Those refusals, in many cases borne of continued opposition to Obamacare, will put a burden on the federal Department of Health and Human Services.  But under the statutory scheme, they should ultimately be no problem: in states that don't set up exchanges, the federal government will set up and operate the exchanges for them.

But some Obamacare opponents insist that, if a state refuses to set up an exchange and the federal government sets one up in its place, the individuals who purchase insurance on the federally-operated exchange will not be entitled to receive the statute's tax subsidies.  Directly rejecting that argument, the Internal Revenue Service has interpreted the statute as making the tax subsidies are available to individuals regardless of whether they live in a state that operates its own exchange or in one in which the federal government operates the exchange.  But the opponents are undaunted.  In an argument set forth most extensively in a widely circulated paper by Cato's Michael Cannon and my friend Professor Jonathan Adler, and in a federal-court challenge filed by the State of Oklahoma, they contend that the IRS's interpretation of the statute is illegal.

As Cannon acknowledges, the entire structure and operation of the ACA will unravel if individuals who receive insurance from federally-operated exchanges cannot receive the tax subsidies the statute establishes.  If participants can't get tax subsidies, many won't be able to purchase insurance on the exchanges.  That will harm those who cannot get insurance, and it will also undermine the benefits of mandated coverage.  And, perhaps not coincidentally, it will undermine support for the law.  As Jonathan Cohn argues, "Obamacare critics believe that, by blocking the subsidies, they’ll undermine the law’s effectiveness and eventually erode support to the point that people clamor for a conservative alternative."

Cannon and Adler's argument, taken up by Oklahoma in its lawsuit, is deeply flawed as a matter of law.  Their basic argument is this:  In Cannon's words, the provision of the ACA that establishes premium tax credits "explicitly and laboriously restricts tax credits to those who buy health insurance in Exchanges 'established by the State under section 1311.' There is no parallel language – none whatsoever – granting eligibility through Exchanges established by the federal government (section 1321)."

But that is not quite right.  Although the tax-credit provision twice uses the phrase "Exchange established by the State under section 1311," see 26 U.S.C. § 36B(b)(2)(A), (c)(2)(A)(i), that phrase does not have the exclusionary meaning Cannon attributes to it.  That is because Section 1321  (codified at 42 U.S.C. § 18041) makes clear that, when a state fails to set up an exchange, the federally-operated exchange will stand in the shoes of the state exchange for purposes of Section 1311.  Thus, Section 1311 provides that "[e]ach State shall" set up an exchange by January 1, 2014.  42 U.S.C. § 18031(b)(1).  Section 1321 provides that if a state "will not have any required Exchange operational" by then -- that is, an exchange required by Section 1311 -- then the federal government "shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State."  42 U.S.C. § 18041(c)(1) (emphasis added).  "[S]uch Exchange" in Section 1321 clearly refers to the "required exchange" -- that is, the Section 1311 exchange.  When the federal government operates an exchange pursuant to Section 1321, then, it is not operating some wholly foreign entity; it is operating the state exchange that Section 1311 required the state to set up but that the state failed to create.  Because Section 1321 provides that a federally-operated exchange will stand in the shoes of a state-operated exchange created by Section 1311, there is no basis for denying participants in federally-operated exchanges the same tax credits obtained by participants in state-operated exchanges.

The IRS's interpretation of the ACA to extend premium subsidies to participants in both state- and federally-operated exchanges thus seems to me not merely a permissible one but also the most plausible reading of the statutory text.  Nor is there any reason to think that Congress would have intended to treat participants in state- and federally-operated exchanges differently for purposes of obtaining the subsidies.  In both state- and federally-operated exchanges, the subsidies serve the same crucial role in achieving the statute's goal of expanded, affordable health coverage.  If you take the subsidies away from participants in either sort of exchange, the law's protections are likely to unravel in the same way.

Cannon argues, though, that Congress did intend to draw a distinction between state- and federally-operated exchanges for these purposes.  But his arguments are red herrings.  First, Cannon argues that "[i]n order to have state-run Exchanges, the bill needed some way to encourage states to create them without 'commandeering' the states," and that offering premium subsidies limited to states that set up their own exchanges was a means to overcome the commandeering problem.  But anyone who understands the Supreme Court's commandeering doctrine knows that the premium subsidies were not at all necessary to overcome any commandeering problem.  The anticommandeering principle forbids Congress from compelling the states to regulate private parties, but it permits Congress to give the states the choice between regulating private parties according to federal standards and standing aside to allow the federal government to regulate those parties directly.  That's the Court's square holding in New York v. United States.  And that, of course, is the precise choice that the ACA gave states even without the subsidies -- regulate individuals and insurance companies through state-operated exchanges, or stand aside and let the federal government set up and operate exchanges of its own.  So there is no reason to attribute to Congress a decision to limit subsidies to participants in state-operated exchanges in order to overcome any commandeering problem.  Once the federal government could set up its own exchanges, there was no commandeering problem.

Second, Cannon adverts to the limited jurisdiction of the Senate Finance Committee:  "The Finance Committee had even more reason to condition tax credits on state compliance: it doesn’t have direct jurisdiction over health insurance. Conditioning the tax credits on state compliance was the only way the Committee could even consider legislation directing states to establish Exchanges."  But there is nothing in the Finance Committee's jurisdiction that required it to limit tax subsidies to participants in state-operated exchanges.  Legislation that extended premium tax credits to participants in any exchange, whether state- or federally-operated, was fully within the Committee's jurisdiction.  And, as I have argued above, that is precisely the legislation that Congress passed.

Whatever its value to conservative activists and those who wish to relitigate NFIB and the election, the rearguard effort to undermine Obamacare is deeply flawed as a matter of law.

Wednesday, November 21, 2012

Georgia Department of Education Says Georgia Cyber Academy Violates IDEA

See this article from the Atlanta Journal-Constitution.  It begins:
The Georgia Department of Education has told the Georgia Cyber Academy that it will begin proceedings in April to shut down the online charter school if it fails to address numerous issues in its handling of special education students. 
Those concerns, spelled out in a report delivered to GCA on Tuesday, include failure to obtain individualized education plans special education students are taught from, problems in resolving parental complaints and failure to offer the individualized instruction special education students are eligible to receive under federal law. 
With 12,000 students, GCA is the largest public school in the state. The report says GCA’s special education problems stretch back to 2009, when the scores of its special needs students were among the lowest in the state.

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Mollica on the Seventh Circuit on Medical Privacy and the ADA

Over at his very helpful blog, Paul Mollica has this post on a case the Seventh Circuit decided yesterday on an employer's ADA obligations to keep employees' medical information confidential.  An excerpt:
While the Americans with Disabilities Act protects medical information about employees disclosed to an employer as a result of "medical examinations and inquiries," 42 U.S.C. § 12112(d), such protection is not infinitely elastic. The Seventh Circuit, affirming summary judgment in this ADA case, holds that the employer must "already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry." Fortunately for disabled employees, such circumstances are usually within their control if they are willing to come straight with their bosses about their work-related needs at the beginning of the relationship. 
EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. Nov. 20, 2012): The employee in this case (named Gary Messier) periodically suffered disabling migraines, a fact that he - fatefully, for this case - failed to disclose to his employer at the outset of the relationship. 
* * * 
In this case, because Messier apparently never informed the employer of his migraines (the record indicates that the employer had not suffered such a debilitating headache in six years), the panel held that the employee's volunteering of the medical information - in response to an inquiry about his absence from work - did not fall into the category of protected "medical examinations and inquiries." 
An employee with a disability may be best served then, after accepting employment, with informing the employer up-front about a disability that might cause a sudden absence from work. A dialog at this stage triggers the employer's ADA duty to offer a reasonable accommodation (which may include intermittent leave) and, importantly as this case shows, to maintain the confidentiality of the employee's information.

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Interesting Study on Charter Schools and People with Disabilities in New York State

The Center on Reinventing Public Education yesterday put out this report evaluating the enrollment of students with disabilities in charter schools in New York State.  It's well known that on average charter schools in New York enroll fewer students with disabilities than do district-run public schools.  This report attempts to disaggregate the data a bit to try to figure out what is going on.  The results are interesting, though more suggestive of areas for future research than conclusive of anything.  Here are the study's findings (the second and third findings are the key ones):
  • The statewide difference in charter and district enrollment is too simplistic of a comparison: Looking across New York State, charter schools on average serve a smaller share of special education students than do the state’s district-run schools, but the distribution and range of enrollment are not far off what we see in the district-run schools. 
  • Charter middle and high school enrollments are indistinguishable from district enrollments: At the middle and high school levels, the distribution of special education enrollment in charter schools looks very similar to the distribution of special education enrollment in district-run schools. This is true statewide and—in most cases—when charter schools are compared to their host districts. 
  • Charter elementary schools show underenrollment: Unlike charter middle and high schools, fewer students with disabilities enroll in charter elementary schools as compared to district- run elementary schools statewide and—in many cases—relative to the charters’ host districts. 
  • There is also variation among charter authorizers: While certain charter school authorizers oversee schools with special education enrollments that closely track those of nearby district-run schools, other authorizers oversee groups of schools that don’t mirror their local district-run schools’ special education enrollments.
It's an interesting study, and one that should advance the discussion, but there's a lot more you'd want to know here.  I'd particularly want to look at three questions:

  1. Whether there is a correlation between performance measures and the disability population of the school.  That is, are the "successful" charter schools, measured by high test scores, ones with disproportionately few students with disabilities?
  2. Whether the same proportion of students with disabilities attend charter middle and high schools in each year of schooling.  That is, do charter middle and high schools start out with a large number of students with disabilities who leave those schools before graduating?
  3. Whether different charter operators (not authorizers) have different percentages of students with disabilities.
One finding I will note from the study that seems quite interesting:  To the extent that charter defenders argue that charter schools can be beneficial by allowing students with disabilities to attend schools that are geared specifically to their disabilities -- and to the extent that folks like me say that sounds like the segregation the disability rights movement has been fighting against -- the study suggests that the facts don't support the defenders' argument or my worry.  The study finds only two charter schools in the state in which more than 35% of the students have disabilities -- and only one in which more than 50% do.

Much more to come I'm sure.

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Tuesday, November 20, 2012

Suit Alleges Portland (OR) 9-1-1 Services Inaccessible to Deaf Persons

See this article, which begins:
A deaf Portland man who reported he was the victim of a domestic assault said police and 9-1-1 operators failed to respond with a sign language interpreter, hampering the police inquiry and putting him at risk.

Philip Wolfe, 39, is suing the city of Portland in federal court, alleging the city violated the Americans With Disabilities Act, which prohibits discrimination against people with disabilities in state and local government services.

Wolfe's allegations highlight a gaping hole in Portland Police Bureau policy: Twenty-two years after the ADA was enacted, the bureau lacks any protocol on how to respond to people who are hearing impaired.


Judge to Decide in Lawsuit Over Inmates with HIV

See this article by that title.  It begins:
It's up to a federal judge in Montgomery to decide if the Alabama Department of Corrections can continue to isolate inmates who have tested positive for HIV even though the virus is no longer considered a death sentence. 
Last month, U.S. District Judge Myron Thompson heard arguments made during the month-long trial challenging Alabama's decades-old policy of mostly separating HIV-positive inmates from other prisoners. 
Currently, Alabama and South Carolina are then only states that segregate HIV-positive prisoners. 
ACLU lawyer Margaret Winter was the lead attorney representing the inmates. She said based on what Thompson told attorneys, she expects the judge to issue an opinion soon.

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DOJ, Memphis Negotiating Over Liberty Bowl Accessibility

Wow.  Here's a matter that predated my time at DOJ and is still going on.  See this article, which begins:
The city of Memphis and the federal government are working on an agreement that would bring the aging Liberty Bowl into compliance with the Americans with Disabilities Act. 
According to a settlement agreement obtained Monday, the federal government would promise not to file a lawsuit against the city if certain corrections and additions are made to bring the 47-year-old stadium into compliance. 
If both parties sign the agreement, it could bring to an end an issue that has plagued the city for years, stretching back to the administration of Willie Herenton.


Friday, November 16, 2012

Prejudice in the Heart of Florida

See this op-ed by that title in the Miami Herald.  It begins:
The mistreatment inflicted on children with disabilities is an unresolved issue in our society. From ancient times to the present, a heavy burden of discrimination, marginalization and exclusion has fallen, in most cultures, on those least able to bear it. 
Frequently, these minors are undervalued because of the physical, psychological and sensorial nature of their development. They are forever trapped under the label of “disabled” and therefore arouse pity, commiseration and mercy. In the worst cases, they end up abandoned and isolated in institutions. In some cultures, the bloody practice of infanticide remains. 
In Florida, hundreds of parents willing to offer all possible love to their children with disabilities are forced by the state to look after them without sufficient home nursing care. Otherwise, they have no other option but to separate themselves from their children and send them to nursing homes designed to care for frail elders.

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OSI Petitions European Parliament Not to Fund Institutionalization

See this press release:
EU Structural Funds should not be used to support the institutionalization of people with disabilities, said the Open Society Foundations in a petition to the European Parliament today. An estimated 1.2 million people with disabilities are confined in long-stay institutions, primarily in Central and Eastern Europe. 
Institutionalization violates the Charter of Fundamental Rights and the European Convention on Human Rights, to which the EU is bound. People living in institutions are isolated and often abused, denied basic rights like education and employment, and deprived of their dignity. 
Signed by a coalition of leading international disability rights organizations, self-advocacy groups, and community organizations, the petition also calls for transparency in the Structural Funds process itself, including easy access to data by outside groups. Deliberations lasting through 2013 have begun on the 2014–2020 round of Structural Funds. 
EU Member States’ obligations and the misuse of Structural Funds are further detailed in Open Society Foundations’ comprehensive report, The European Union and the Right to Community Living.

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Wednesday, November 14, 2012

National Fair Housing Alliance and PVA Settle Suit Against Housing Developer

See this post from the Blog of Legal Times.  Excerpts:
The National Fair Housing Alliance and Paralyzed Veterans of America settled a housing discrimination lawsuit against HHHunt Corporation on Wednesday. 
The lawsuit was initially filed on the grounds that HHHunt, a Virginia-based real estate development company, discriminated against people with disabilities since 2002 by constructing multifamily homes and public areas without the required accessibility features. 
* * * 
HHHunt is required to make the nine apartment complexes properly accessible to the handicapped within one to three years. An undisclosed amount will be paid to cover costs and attorney's fees for the National Fair Housing Alliance and Paralyzed Veterans of America.


Seattle NPR Affiliate on Argenyi v. Creighton University

See this story, which begins:
A Seattle man says his dreams of being a doctor are being dashed because Creighton University Medical School in Nebraska won’t accommodate his hearing impairment. At issue is just how far an institution must go to comply with the Americans with Disabilities Act. 
The case, Argenvi v. Creighton University, is being heard in the 8th Circuit Court of Appeals in St. Paul, Minnesota. 
Michael Argenyi, who has profound hearing loss, claims the school is in violation of the Americans with Disabilities Act because it has not provided him with interpreters and a real time captioning service known as CART.

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DOJ Sues San Jacinto, CA, for Zoning Out Group Homes

See this article, which begins:
The U.S. Department of Justice has sued San Jacinto, claiming the city discriminates against disabled residents by restricting where group homes can operate. 
According to the complaint, which alleges violations of the federal Fair Housing Act and Americans with Disabilities Act, the city’s residential zoning does not allow group homes anywhere in the city, unless granted a special permit to be in areas zoned for multi-family housing. 
The complaint cited a November 2008 sweep in which city officials and armed sheriff’s deputies visited 19 group homes and interrogated the residents of those with mentally disabled inhabitants, but didn’t interrogate the residents of the other homes. 
Following that sweep, some group homes were shut down. Others that still operate have been visited repeatedly, up through this year, and have been fined from $100 to $1,000 a day.

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Eleventh Circuit Decides Important Hospital-Interpreter 504 Case

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Liese v. Indian River County Hospital District.  The plaintiffs, a married couple, both of whom have hearing impairments, brought this lawsuit for compensatory damages under Section 504 of the Rehabilitation Act.  They claimed that the defendant hospital violated the statute by refusing repeated requests for a sign-language interpreter when they went to the hospital's emergency room.  The district court granted summary judgment to the hospital.  The Eleventh Circuit reversed that judgment in yesterday's opinion.

There are three key rulings here.  The first is the court's conclusion that a sign-language interpreter, as opposed to other forms of communication, will often be especially necessary where a patient's decisions about emergency surgery are at issue:
Whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment largely depends on context, including, principally, the nature, significance, and complexity of the treatment. For example, emergency surgery is often a complicated concept to convey to a person who can hear well; the attendant risks, manner of surgery, prognosis, and advantages or disadvantages of immediate or postponed surgery can only complicate this communicative task. Thus, under circumstances in which a patient must decide whether to undergo immediate surgery involving the removal of an organ under a general anesthetic, understanding the necessity, risks, and procedures surrounding the surgery is paramount. Under these circumstances, auxiliary aids limited to written notes, body gestures, and lipreading may be ineffective in ensuring that a hearing-impaired patient receives equal opportunity to benefit from the treatment.  [The court here refers to the Department of Justice's effective communications regulations under Title III of the ADA.]

In this case, IRMH medical personnel conducted a battery of tests on Liese and then removed her gallbladder through emergency laparoscopic surgery. The auxiliary aids that the personnel relied on to communicate the nature of and need for the surgery consisted of mouthing words for the Lieses to try and lipread, writing notes, and pantomiming. Viewed in a light most favorable to the Lieses, the record contains sufficient evidence to show that these limited auxiliary aids were ineffective and that additional aids were necessary. At her deposition, Liese testified that she did not understand much of what she was purportedly told about her condition, prognosis, and proposed treatment by the attending emergency room personnel. Liese did not understand the battery of tests that were conducted on her. She said in her deposition that she repeatedly asked Dr. Perry why she was having gallbladder surgery when she was suffering from chest pains, not stomach pains, a question to which Dr. Perry apparently responded by writing a note that said, “remove it and you’ll feel better after that.” Liese flatly asserted that the doctor “didn’t tell me [or] explain anything.” In light of the major surgery required, under a general anesthetic, on an emergency basis, it seems to us fairly arguable that effective communication entails telling the patient more than that the proposed surgery will solve the problem.
The second key ruling is the court's holding that a plaintiff can recover damages for a Section 504 violation by showing deliberate indifference; intentional discrimination is unnecessary.  This was new ground for the Eleventh Circuit, though most other circuits have ruled the same way.

And the third key ruling is that the deliberate indifference of the hospital's doctors (and not just its highest-level administrators) was sufficient to warrant liability:
The question of how far up the chain of command one must look to find an “official” is necessarily a fact-intensive inquiry, since an official’s role may vary from organization to organization. See Doe, 604 F.3d at 1256-57. In the § 504 context, we conclude that an official is someone who enjoys substantial supervisory authority within an organization’s chain of command so that, when dealing with the complainant, the official had complete discretion at a “key decision point” in the administrative process. See Doe, 604 F.3d at 1256-57. The “key decision point” language reflects the practical reality that, while some decisions are technically subject to review by a higher authority, such a review is not part of the entity’s ordinary decision-making process. See id.

In the present case, a reasonable juror could conclude from this record that the doctors at IRMH were officials within the meaning of Gebser. Viewed in a light most favorable to the Lieses, the record shows at least that the doctors had complete discretion to decide whether or not to provide the Lieses with an interpretive aid. While any Hospital staff member, be it a doctor or a nurse, had the authority to ask for an interpreter or to retrieve the Hospital’s MARTTI video interpreting system from the storage closet, on this record the evidence suggests strongly that the doctors had supervisory authority. Indeed, the doctors could overrule a nurse’s decision to not provide an auxiliary aid. In contrast, there is no evidence here to suggest that the doctors’ decisions were subject to reversal. Thus, unlike the nurses, the doctors enjoyed complete discretion over whether or not to provide the Lieses’ with an interpreter or other auxiliary aid.

A review of IRMH’s “Communication Barriers” policy confirms this arrangement. The policy provides that interpretive aids, such as interpreters and the MARTTI video interpreting system, are all “available” to provide assistance in communicating with patients. However, the policy offers no guidance or recommendation as to when doctors or nurses should use these aids; rather, it affords the IRMH staff complete discretion in these matters. Similarly, the training that IRMH provided to its staff on MARTTI dealt exclusively with how to use MARTTI, not when to use it.
Congratulations to FOB Matt Dietz on this huge win.

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Friday, November 09, 2012

EEOC Reaches $4.85 Million Settlement with Interstate Distributor Company

See this press release, which begins:
Interstate Distributor Company will pay $4.85 million and provide other significant relief to settle a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC's suit said the nationwide trucking firm unlawfully denied reasonable accommodations to hundreds of employees and fired them pursuant to Interstate's maximum leave policy.

According to the EEOC's suit, under the challenged leave policy, if an employee needed more than 12 weeks of leave, Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation. The EEOC also charged that Interstate violated federal law by refusing to make exceptions to its "no restrictions" policy. Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. 
Interstate's maximum leave and no restrictions policies violate the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. The law requires an employer to provide a reasonable accommodation, such as paid or unpaid leave or some modifications to the job functions or reassignment, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.
This is a very big settlement for the EEOC -- and a big reminder to other companies that maintain such restrictive and inflexible leave policies that they do so at their peril.

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Supreme Court of Canada Decides Important Learning Disability Education/Budget Cuts Case

Today, the Supreme Court of Canada issued its judgment in Moore v. British Columbia, a case that presented the question of a province's obligation to provide special education services to students with learning disabilities.  Although I'd like to hear reactions from my Canadian readers, and the court did not endorse the systemic remedy that the plaintiff had sought, the case seems, overall, like a big win for students with disabilities, and it includes some choice pull quotes, including (emphasis added):
The preamble to the School Act,[1] the operative legislation when Jeffrey was in school, stated that “the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. This declaration of purpose is an acknowledgment by the government that the reason all children are entitled to an education, is because a healthy democracy and economy require their educated contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.
And (with the awesome cite to Brown v. Board):
A central issue throughout these proceedings was what the relevant “service . . . customarily available to the public” was. While the Tribunal and the dissenting judge in the Court of Appeal defined it as “general” education, the reviewing judge and the majority defined it as “special” education. 
I agree with Rowles J.A. that for students with learning disabilities like Jeffrey’s, special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students:
It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. . . . In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education. [Emphasis added; para. 103.] 
The answer, to me, is that the ‘service’ is education generally. Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability.

To define ‘special education’ as the service at issue also risks descending into the kind of “separate but equal” approach which was majestically discarded in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination. It is not a question of who else is or is not experiencing similar barriers. This formalism was one of the potential dangers of comparator groups identified in Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396. 
If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to. This, as Rowles J.A. noted, “risks perpetuating the very disadvantage and exclusion from mainstream society theCode is intended to remedy” (see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at p. 1237; Gwen Brodsky, Shelagh Day and Yvonne Peters, Accommodation in the 21st Century (2012) (online), at p. 41).
And the nub of the court's conclusion:
It was therefore the combination of the clear recognition by the District, its employees and the experts that Jeffrey required intensive remediation in order to have meaningful access to education, the closing of the Diagnostic Centre, and the fact that the Moores were told that these services could not otherwise be provided by the District, that justified the Tribunal’s conclusion that the failure of the District to meet Jeffrey’s educational needs constituted prima facie discrimination. In my view, this conclusion is amply supported by the record.
And this discussion of budget cuts (which has obvious resonances with budget-cut litigation under the ADA here in the US):
The District’s justification centred on the budgetary crisis it faced during the relevant period, which led to the closure of the Diagnostic Centre and other related cuts. There is no doubt that the District was facing serious financial constraints. Nor is there any doubt that this is a relevant consideration. It is undoubtedly difficult for administrators to implement education policy in the face of severe fiscal limitations, but accommodation is not a question of “mere efficiency”, since “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier” (VIA Rail, at para. 125).  
In Jeffrey’s case, the Tribunal accepted that the District faced financial difficulties during the relevant period. Yet it also found that cuts were disproportionably made to special needs programs. Despite their similar cost, the District retained some discretionary programs, such as the Outdoor School — an outdoor campus where students learned about community and the environment — while eliminating the Diagnostic Centre. As Rowles J.A. noted, “without undermining the educational value of the Outdoor School, such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students” (para. 154). 
More significantly, the Tribunal found, as previously noted, that the District undertook noassessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. This was cogently summarized by Rowles J.A. as follows:
The Tribunal found that prior to making the decision to close [the] Diagnostic Centre, the District did not undertake a needs-based analysis, consider what might replace [the] Diagnostic Centre, or assess the effect of the closure on severely learning disabled students. The District had no specific plan in place to replace the services, and the eventual plan became learning assistance, which, by definition and purpose, was ill-suited for the task. The philosophy for the restructuring was not prepared until two months after the decision had been made (paras. 380-382, 387-401, 895-899). These findings of fact of the Tribunal are entitled to deference, and undermine the District’s submission that it discharged its obligations to investigate and consider alternative means of accommodating severely learning disabled students before cutting services for them. Further, there is no evidence that the District considered cost-reducing alternatives for the continued operation of [the] Diagnostic Centre. [Emphasis added; para. 143.] 
The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.

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EEOC Obtains $250K Settlement with Rite-Aid Over Firing of Employee with Epilepsy

See this article in the National Law Journal.  It begins:
Drugstore chain Rite Aid Corp., on the eve of trial, has agreed to pay $250,000 to settle charges brought by the U.S. Equal Employment Opportunity Commission that it wrongfully discriminated against a Maryland employee who has epilepsy. 
The settlement was one of four announced by the EEOC on November 7. A JW Marriott franchisee in Las Vegas also settled sexual harassment charges for $155,000, a hotel in California near Yosemite National Park paid $195,000 to resolve allegations of sexual harassment and retaliation, and a home for troubled youth in Michigan agreed to a 10-year consent decree to settle charges that it discriminated against pregnant employees. 
The EEOC sued Rite Aid in Baltimore federal court in 2008, alleging that the company violated the Americans with Disabilities Act when it fired Christopher Fultz from his position as a pharmacy order picker at the company Mid-Atlantic Customer Service Center in Perryman, Md.

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Thursday, November 08, 2012

Emens on Framing Disability

Just out: Elizabeth F. Emens, Framing Disability, 2012 U. Ill. L. Rev. 1383.  The abstract.
Mainstream attitudes toward disability lag behind U.S. law. This tension between attitudes and law reflects a wider gap between the ideas about disability pervasive in mainstream society--what this Article calls the “outside” view--and the ideas about disability common within the disability community--what this Article calls the “inside” view. The outside perspective tends to misunderstand and mischaracterize aspects of the experience, theory, and law of disability. 
The law can help to close this gap in attitudes by changing the conditions in which attitudes are formed or reinforced. Thus, this Article proposes using framing rules to target the moments when nondisabled people make decisions that implicate their future relationship to disability. Framing rules prescribe the frame applied to particular decision moments, by specifying the information and context that accompany the decision. The current messages surrounding disability decision moments tend to be misleading and negative, rooted in the outside view of disability. The proposed framing rules would instead provide insights from the inside view to people who have a reason to think about disability. 
This Article examines several decision points to which the inside framing perspective could be applied, including prenatal testing, driver's licensing, and disability insurance. Each of these areas is an example of a broader domain--thinking about the kind of children we want, injury prevention campaigns, and contingency planning--in which disability is frequently presented in negative terms. Reframing these disability-relevant moments from an inside perspective should help bring society closer to understanding how accessibility and inclusion provide a form of social insurance not just for some, but for us all.

I always enjoy and learn a lot from Emens's work, and this piece is no exception.


Interesting Article on Implications of the Hathitrust Ruling

See this article, which begins:
While the verdict in the Authors Guild v. HathiTrust case has been widely hailed for its impact on how libraries can handle digitization for search, the findings on access for the print-disabled may lead to even more profound changes in practice. On an Association of Research Libraries (ARL) webcast, Daniel F. Goldstein, counsel of the National Federation of the Blind (NFB), said the decision could revolutionize university services to their blind and print disabled students. LJ caught up with Goldstein to explore in more detail what the verdict means and what role university libraries might play in implementing the changes. 
According to Goldstein, up until now, many colleges and universities have re-digitized the same books over and over, on demand, for each blind or print-disabled student that needs them. It’s a process that “presupposes semesters geological ages long… I’ve talked to a blind student some years ago at Princeton who got her first materials for her microbiology class three days before the final,” Goldstein told LJ. “By the time the blind student shows up, if you haven’t already made the information available, it is too late.” Universities followed this cumbersome procedure because they weren’t sure they were legally allowed to retain the scan. 
It also meant that there wasn’t time to do anything to improve the quality beyond the minimum, because “every semester the disabilities services office is like a baby garter snake trying to swallow a chicken,” said Goldstein. “If you take Great Expectations, it’s really easy to make an accessible copy. There’s no complicated layout: Dickens didn’t use footnotes, graphs, or sidebars. But the more complex the print book is, the harder it can be to create an accessible digital copy from a print copy,” Goldstein explained. Tagging of illustrations, for example, must be done by hand. 
Now that the HathiTrust verdict has held that digitizing works for the purpose of providing access to the blind and print-disabled is not only a fair but a transformative use, schools can feel safer hanging onto those scans until the next student who needs them comes along, and can spend their efforts on improving them or scanning more books, instead of doing the same bare minimum of texts over and over. And Goldstein believes making the text available to sighted persons to crowdsource the manual work would also be fair use.

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Minnesota U.S. Attorney's Office Focusing on Downtown Minneapolis Restaurant Accessibility

See this post from the Minneapolis Star-Tribune, which begins:
Minnesota U.S. Attorney B. Todd Jones announced Wednesday that his office is sending a detailed questionnaire this week to 12 restaurants on or near Nicollet Mall to determine whether they are wheelchair accessible or otherwise complying with federal law requiring accommodations for people with disabilities. 
Jeanne Cooney, a spokesperson for Jones, said the U.S. Attorney’s office periodically looks into different types of venues to see if they are compliant with the Americans with Disabilities Act (ADA). She said the office works with the businesses to help them meet the ADA standards, but it also has the option to file a lawsuit. She said restaurants are expected to meet the ADA requirements that were in place at the type of the restaurant’s construction or latest renovation. 
She said her office cannot investigate all restaurants in the state, so it picked a small group in the same area. Other restaurants may be added to the inquiry. She said the U.S. Attorney’s office has no advance information about whether restaurants on Nicollet Mall are complying with the law.
This is a great way for US Attorney's offices to work on the enforcement of Title III of the ADA.

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Monday, November 05, 2012

Disability Power & Pride Publishes Guides to Disability Voting Rights in Swing States

You can find the guides here.


EdWeek's Shah Reflects on the IDEA

Nirvi Shah, over at EdWeek's On Special Education blog, has this post reflecting on the current state of the IDEA, prompted by a talk she gave to visitors from Kazakhstan.  An excerpt:
And here are a few things that have crossed my computer screen lately: 
  • In Seattle, formal complaints on behalf of the school district's 7,000 students with disabilities have doubled over the past two years, the Seattle Times reports. 
  • In San Francisco, the state education department is investigating whether the school district violated federal regulations by improperly denying summer school services to special education students to cut costs, the Bay Citizen writes. 
  • In Clinton, Tenn., the school district is accused of isolating and secluding special education students in ways that violate state laws, the Knoxville News Sentinel says. 
  • In Jackson, Miss., the school board actually wrestled with a decision to keep its accreditation and lose some of its autonomy in working with students with disabilities. Already, Jackson has been found not to be complying with IDEA for nearly two years. The state education department is giving it another eight months to do so, the Clarion Ledger reports.
 And I could keep going.

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Friday, November 02, 2012

Bioethicist Art Caplan Supports Massachusetts Assisted Suicide Referendum, Not Dead Yet's Stephen Drake Responds

You can find Caplan's views here.  Drake's response is here.


Waterstone on Voting Accessibility

Michael Waterstone has this interesting blog post on disability and voting.  An excerpt:
Although the situation has improved, there are still real concerns about the voting rights of people with disabilities in this election. In a 2000 Report, the General Accountancy Office found that 84 percent of polling places had at least one impediment that could deter persons with disabilities from casting their ballot. These barriers -- no ramps, lack of signage directing to an accessible entrance, an obstructed path to the polling place -- might seem trivial to voters without disabilities. But for people with disabilities, it can be the difference between voting and not voting. After increased litigation by advocates for people with disabilities, and passage of the Help America Vote Act, this situation has improved, but only somewhat. In a follow-up report examining the 2008 election, the GAO found that 73 percent of polling places had potential impediments to people with disabilities being able to access the voting areas, but 45 percent offered curbside voting. As I have argued elsewhere, curbside voting is a cheapened version of the voting experience. 
Recent reports indicate this problem has not gone away for this election cycle. In a recent case in New York, plaintiffs alleged that random samplings of New York City polling places revealed widespread inaccessibility, and that disability relevant criteria were not being used for polling place selection and that training for poll workers was inadequate to comply with the law. Plaintiffs prevailed on summary judgment establishing Defendant's liability (disclosure -- I was one of the expert witnesses in this case).


AP on Jackson, Mississippi, Special Education Lawsuit

See this story, which begins:
Lawyers for three disabled students say the state's plan to take over special education in Jackson city schools is not good enough. 
Lawyers on Thursday asked a federal judge to appoint a special education chief for Jackson Public Schools. They say the Mississippi Department of Education's history of delay proves the state is not up to the task. 
The move comes two days after Jackson's school board reversed itself and voted 4-3 to accept an agreement with the state. It calls for the state and Jackson to jointly name a new special education administrator who will report to the state. 
"We don't believe that will necessarily be adequate," Vanessa Carroll, a lawyer for the Southern Poverty Law Center, said in an interview.


Why Repealing Obamacare Would Worsen the Employment Problem for People with Disabilities

Eight years ago, I published an article that argued that our health insurance system posed the most important barrier to work for people with disabilities in the United States.  I therefore argued that enacting universal health care would be the most important step we could take to start reversing the problem of massive non-employment of people with disabilities.  (I didn't argue that universal health care would alone solve the problem, just that it was a necessary and central step toward solving the problem.)  I made the same argument in my book published three years ago.

Yesterday on the Nation's website, Ben Adler had this piece that, along similar lines, argues that repealing Obamacare would worsen the unemployment problem for people with disabilities.  An excerpt:
But one of Romney’s central campaign pledges—to repeal Obamacare—would undermine employment for those who are most likely to be unemployed: people with disabilities. The rate of unemployment among disabled adults has remained stubbornly high, even since the 1990 Americans with Disabilities Act banned workplace discrimination against them. In September, according to the Bureau of Labor Statistics, the labor force participation rate among people with disabilities was 21.9 percent, compared to 69.3 percent among people without disabilities. 
That is partly because our pre-Obamacare health insurance system makes it impossible for many people with disabilities to get a job. People with disabilities require comprehensive and continuous insurance coverage. If you are unemployed and impoverished, you qualify for Medicaid. If you get a job, your income will make you ineligible for Medicaid. But your job may not provide you with health insurance. Even if you get insurance, it may not cover services and medications you require. Or it may not cover pre-existing conditions. Or it may subject you to an annual or lifetime cap on coverage that you will exceed. Even if you have none of those problems, there may be an untenable three month waiting period for your insurance to kick in. “That’s a huge disincentive to working,” says James Weissman, general counsel of the United Spinal Association. “A person with disabilities on Medicaid doesn’t have any cap, lifetime or annual. A person on an employer’s plan, even if he’s covered right away and doesn’t have a waiting period, could still have an annual cap of $25,000.” 
Obamacare will correct all of those problems. It will eliminate annual and lifetime caps on coverage, make it illegal to deny coverage of pre-existing conditions and require large employers to provide immediate coverage to new employees. (It will also expand Medicaid coverage to include some 17 million low-wage workers.)