Gone FIshin'

Posting will be light to nonexistent over the next week as I enjoy a not-very-deserved vacation.  See you in the new year!

Plaintiffs Win NYC Taxicab Suit

See this story, which begins:

A federal judge has barred New York City's Taxi and Limousine Commission from issuing permits for taxicabs unless they're accessible to people with disabilities. 

Federal Judge George Daniels issued his written ruling late Friday. He says the commission can only provide taxi medallions for wheelchair-accessible vehicles until it produces a comprehensive plan to provide meaningful access to taxicab service for disabled passengers. He says such a plan must include targeted goals and standards and anticipated measurable results.

NYT on Drugging of People with Developmental Disabilities

Danny Hakim continues his excellent Abused and Used series in the Times today, with a well-researched article on the overmedication of people with developmental disabilities in the New York state DD system.  It's long, but do read the whole thing.

DOJ Finds Olmstead, EPSDT, and IDEA Violation in Mississippi

Just out:  The DOJ's letter of findings in its Mississippi Olmstead investigation, dated yesterday.  The first paragraph:

The United States has completed its investigation of the State of Mississippi’s system for delivering services and supports to thousands of persons with mental illness and/or developmental disabilities1 (“DD”). This letter is a report of our findings. Our review reveals that the State of Mississippi has failed to meet its obligations under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and its implementing regulations, 28 C.F.R. pt. 35, by unnecessarily institutionalizing persons with mental illness or DD in public and private facilities and failing to ensure that they are offered a meaningful opportunity to live in integrated community settings consistent with their needs. The United States looks forward to working with the State of Mississippi to develop an appropriate remedy to resolve these concerns.

In addition to finding violations of the ADA, the letter also finds violations of the Early and Periodic Screening, Diagnosis, and Treatment provisions of the Medicaid Act, as well as of the Individuals with Disabilities Education Act.  This case has the potential to be very big, whether it's litigated or results in a settlement. 

Another Potential Defendant in an HIV Discrimination Case Races to the Courthouse

We saw it in the Hershey School case (though Hershey didn't quite make it to court first), and now we're apparently seeing it again.  According to this article, the Great Expressions dental group, whose former employee James White had recently received a right-to-sue letter from the EEOC regarding his claims of HIV-based discrimination, struck in court first on Wednesday by filing a lawsuit against White.  Great Expressions apparently seeks a declaration that it did not discriminate against him.

Developments in California In-Home Support Services Case

See this from California Healthline.  It begins:

A federal judge temporarily halted automatic "trigger cuts" to the state's budget that would reduce In-Home Supportive Services by 20%. A hearing on the issue, originally scheduled this month, is now scheduled Jan. 19. 

In the meantime, a state declaration filed in the case said 66,000 Californians would be exempt from the cuts -- including all children younger than age 21. 

"In total, approximately 66,000 IHSS recipients will be completely exempt from the 20% reduction, which is roughly 15% of all IHSS recipients," according to a declaration by Eileen Carroll, deputy director of the Adult Programs Division at the Department of Social Services.

N.D. Cal. Denies Preliminary Injunction to Prevent Closure of "Warm Pool" in Berkeley

You might have to be a real ADA Title II wonk to be interested in this one, but here goes. Earlier this week, Judge Susan Illston of the United States District Court for the Northern District of California issued an opinion denying the plaintiff's motion for preliminary injunction in Cochrell v. Berkeley Unified School District, 2011 WL 6330657 (N.D. Cal., Dec. 19, 2011). Cochrell, who has neuropathy, sued the defendant school district to bar it from closing the "Warm Pool" on the Berkeley High School campus. That pool is in a gym building that the school district plans to demolish, because the building is outdated and does not meet seismic standards. Cochrell testified that, because of his disability, he needs to swim in a pool that is kept at 92 degrees and is sufficiently deep or he cannot get any other physical exercise, and that the Warm Pool is the only pool that the city maintains that meets those criteria. He also introduced evidence that the Warm Pool housed the city's only swim program that served people with disabilities. Relying on the (interesting, problematic) cases of Rodde v. Bonta and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, Cochrell argued that the impending closure of the Warm Pool violated Title II of the ADA, and he moved for a preliminary injunction.

Although the court found serious questions going to the merits, it nonetheless denied a preliminary injunction. The court concluded that a "critical difference" between this case and Rodde and Dreher Park was that the city here provides aquatics programs for people with disabilities at locations other than the pool that it plans to close.  Although those are not "warm pools," the court found force in the city's argument that there is no ADA accessibility standard that requires pools to be at 92 degrees, and that in fact some people with disabilities complain that 92-degree water is too hot or too cold. It also found that the balance of equities did not tip sharply in Cochrell's favor (as it would have to if the court were to grant a PI based on serious questions going to the merits). The court found it undisputed that a number of structural evaluations had found that the gym building containing the Warm Pool did not meet seismic safety standards, and it noted that "the Berkeley YMCA is located one block from the Warm Pool, and has two warm pools (one larger graduated depth pool heated to 88–90 degrees Fahrenheit, and one smaller shallow pool heated to 90–92 degrees Fahrenheit)."  The court said that the YMCA has expressed an intention to offer "streamlined financial assistance" to current users of the city's Warm Pool so that the cost of membership in the Y would be similar to the cost they currently pay to use the Warm Pool.

Bloom on Disabilities and Tort Litigation

New on SSRN: Anne Bloom, Blindsight: How We See Disabilities in Tort Litigation.  The abstract:

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards.

Quinn Signs Deal to Keep Mental Health Facilities Open

See this story by that title from CBS Chicago.  It begins:

Gov. Pat Quinn signed a budget deal into effect Monday aimed at avoiding the closure of seven mental health centers. 

As WBBM Newsradio’s John Waelti reports, just a month ago, protesters rallied outside the office of Mayor Rahm Emanuel at City Hall, in opposition to plans to close mental health clinics in the city.

Task Force to Decide Vineland Developmental Center's Fate

See this article by that title from the Asbury Park Press.  It begins:

The year has brought a lot of uncertainty about the Vineland Developmental Center, but with just a few weeks left in 2011, Gov. Chris Christie signed a bill that puts the center’s fate in the hands of a state-appointed task force. 

The governor’s budget called for shuttering the Landis Avenue facility by June 30, 2013, but state Sen. Jeff Van Drew had proposed a bill that became a lifeline for the Vineland Developmental Center. It called to establish a task force to conduct a comprehensive review of all seven of the state’s developmental centers and determine which center or centers to close. 

In August, Christie issued a conditional veto of the bill, changing some of the language to better align with the state’s intent. The governor signed off on the bill last week.

Disability Law Center Reaches Big Settlement with Massachusetts Over Prison Suicides

See this article, which begins:

A settlement reached between the state and the Disability Law Center resolving a nearly five-year-old federal lawsuit is expected to cost the Department of Correction $5.6 million a year to improve its treatment of prisoners with severe mental illness and at a higher risk of suicide. 

The lawsuit brought by the Disability Law Center against the Department of Correction in March 2007 alleged cruel and unusual punishment against inmates with mental illness stemming from the practice of segregating problem prisoners in isolation units. 

Filed just after Gov. Deval Patrick came into office and naming many Romney-era prison officials, the lawsuit contended that the conditions imposed by segregated confinement in Bay State prisons “exceed the limit of human endurance” for prisoners with severe mental illness.

Community Mental Health Centers Face Growing Budget Pressures in Kansas

See this article.

SF Chronicle Covers Ninth Circuit Budget Cut Ruling

On Friday, I posted about the Ninth Circuit's ruling in M.R. v. Dreyfus, which directed the district court to enjoin Washington State's cuts to in-home personal care services.  Today the San Francisco Chronicle has a story discussing that case's impact for pending budget-cut litigation in California.

NFB Obtains Contempt Ruling Against Cardtronics

See this press release:

A federal court has found that Cardtronics, Inc., has failed to comply with the terms of a settlement and subsequent remediation plan reached with the National Federation of the Blind (NFB) and the Commonwealth of Massachusetts to make all of the automated teller machines owned by Cardtronics accessible to the blind. In an order dated December 15, 2011, the Honorable Nathaniel M. Gorton of the United States District Court for the District of Massachusetts found that Cardtronics had not complied with the terms of the settlement agreement or remediation plan and that civil contempt was therefore appropriate. Judge Gorton ordered Cardtronics to comply with the remaining terms by March 15, 2012, or face monetary sanctions of $50 per month for each ATM that remained inaccessible to blind users—giving the company the “Shakespearean warning” to “beware the ides of March.”

“Instead of admitting their non-compliance and promising better effort, defendants disingenuously claim they have complied in spite of a plethora of evidence to the contrary,” Judge Gorton wrote in his memorandum opinion. “The deadlines they have consistently missed were, ironically, the ones they proposed in the first place."

Dr. Marc Maurer, President of the National Federation of the Blind, said: “It is critical that blind Americans have access to all of the technologies that are now a part of everyday life in the twenty-first century if we are to achieve full and equal integration into society, and this includes the technology necessary to handle our finances. Toward that end, we reached an agreement with Cardtronics to make its ATMs accessible, and when problems arose and initial deadlines were missed, we worked in good faith with the company to come up with a workable remediation plan. Sadly, however, Cardtronics has not complied with the agreed terms of the remediation plan. We are therefore pleased with the court’s decision requiring Cardtronics to meet its legal obligations.”

American Apparel to Pay $60K to Settle EEOC ADA Suit

See this story.

More on he New York Livery Cab Bill

Looks like it's the disability community against the world, but Gov. Cuomo appears to be holding firm.

More on the Hershey School HIV Suit

See this piece from today's Patriot-News.

Berube on Take-Home versus In-Class Exams

See this interesting blog post (and the comment thread on it) from Michael Berube on whether professors should give take-home or in-class exams.  Largely for the reasons he discusses (a desire for a kind of universal design, so that students with the kinds of disabilities that affect speed get sufficient time but don't have to take the exam under different conditions than anyone else), I have moved almost entirely to take-home finals.  But the comment thread has a useful discussion of the pluses and minuses of that decision.

D. Kansas on Blindness in One Eye and the ADAAA

Last week, Judge Monti Belot of the United States District Court for the District of Kansas issued an opinion on summary judgment in Markham v. Boeing Co., 2011 WL 6217117 (D. Kan., Dec. 14, 2011). The plaintiff alleged that he was terminated from his job as a security guard because he was blind in one eye. Applying the ADA Amendments Act, the court concluded that the plaintiff had presented sufficient evidence that his monocular vision was a disability, because he "testified that he has no depth perception and must turn his head 180 degrees in order to look to the right." But the court granted summary judgment to the defendants because the plaintiff "failed to offer any affirmative evidence that his blindness was a determining factor in defendant's employment decision."  This is another case that likely would not have reached the question of discrimination before the ADAAA.

Colorado Supermarket Chain to Pay $80,000 to Settle EEOC ADA Suit

See this press release.

Breaking: Ninth Circuit Orders Washington State Budget Cuts to Personal Care Services Enjoined

This is big news for a Friday afternoon.  Today, in M.R. v. Dreyfus, the Ninth Circuit ordered that Washington State's cuts to in-home personal care services provided under its Medicaid program be enjoined as potentially violating the ADA and Olmstead.  The panel's opinion, written by Judge William Fletcher, began as follows:

Plaintiffs, Washington State Medicaid beneficiaries with severe mental and physical disabilities, appeal the district court’s denial of their motion for a preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington’s Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal care services” available under the state’s Medicaid plan. The United States Department of Justice has filed a “statement of interest” in the district court supporting Plaintiffs’ request for an injunction.  

“Personal care services” provide assistance in performing basic life activities — such as eating, bathing, dressing, moving from place to place, and using the toilet — that Plaintiffs, because of their disabilities, cannot perform by themselves. To comply with Governor Christine Gregoire’s executive order that directed an across-the-board reduction in all state agency expenditures, DSHS promulgated a regulation that cut the base hours of covered in-home personal care services by an average of 10 percent per beneficiary per month.  

Plaintiffs argue principally that the regulation violates the antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health. The district court denied preliminary relief.  

We reverse. We conclude that Plaintiffs have demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization. We further conclude that Plaintiffs have raised serious questions going to the merits of their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). We therefore remand for entry of a preliminary injunction.

The panel's opinion contains an especially strong discussion of the application of Olmstead to cases in which a state's decisions put individuals at risk of institutionalization.  Judge Rawlinson dissented.

I should disclose that I was at DOJ supervising disability rights work when the statement of interest to which the panel refers was filed, so I'm obviously pleased by this result.

Sixth Cuit Decides Workplace Disability Harassment Case

On Wednesday, the United States Court of Appeals for the Sixth Circuit issued an opinion in McKelvey v. Secretary of United States Army.  The facts of the case should make any American upset.  The plaintiff, whose hand was blown off when he was trying to defuse a roadside bomb during his United States Army service in Iraq, returned to a civilian position with the Army in Michigan.  In that position, he was, according to the record in the case, subjected to rather intense and ongoing harassment by a coworker and his supervisor.  Here's how the court of appeals described the events:

In March or April 2006, one of McKelvey's coworkers told him that his supervisor, Alan Parks, was “going around telling everybody you're all fucked up from the war, you're a piece of shit, that he should have never hired you, you're worthless.” R.102 at 63. Parks did not assign McKelvey enough work to keep him busy, even though his coworkers were “slammed” with work. R.102 at 66–67. And the work Parks did assign tended toward the menial. When one employee asked for help moving some boxes, Parks “kind of chuckled and he [said] . . . ‘I'll send McKelvey down. He's worthless anyhow. I'll send the cripple down to you.’ “ R.98 at 21. 

Other colleagues were equally abusive. One, Maurice “Bud” Spaulding, got “pretty indignant” about the fact that McKelvey had a handicapped parking permit even though he was not mobility-impaired, and would sometimes call McKelvey “lefty” or “cripple.” R.102 at 64–65. McKelvey initially took these comments to be poor attempts at humor, and he asked Parks's supervisor, Deputy Garrison Commander Robert Graves, to suggest to Parks and Spaulding that they tone it down. 

That did not happen. Between June and August 2006, the comments “changed in tone. They didn't seem like they were meant to be a joke, and they were coming more frequently than previously.” R.102 at 70. Parks and Spaulding regularly called McKelvey a “fucking cripple” and became “agitated” with him for no apparent reason. R.102 at 70. Parks continued to assign McKelvey less work than his colleagues. In August or September, McKelvey complained again to Graves about his work environment, but nothing changed. Around this time, McKelvey also sought help from Mark Lewis, the office's Equal Employment Opportunity counselor, who encouraged him to file a formal complaint, but McKelvey preferred to try to work things out on his own. McKelvey began applying for other jobs in the federal government, but could not find any in Michigan. 

Things got worse. By September and October, the workplace abuse “picked up a lot,” with the taunting and name-calling becoming a weekly occurrence. R.102 at 80–81. At one point, Parks sought out McKelvey to ask him to destroy boxes of paper in an industrial shredder. McKelvey said he was not comfortable putting his only good hand into the machine, which prompted Parks to call him a “fucking cripple” and walk out of the room. R.102 at 81–82. Parks also excluded McKelvey from a meeting about a planning exercise that McKelvey was supposed to coordinate.

McKelvey eventually quit and sued under the Rehabilitation Act.  A jury found that he had experienced hostile-environment harassment and was constructively discharged; it awarded no compensatory damages for the harassment, but it awarded over $4 million in front pay for the constructive discharge.  The district court then granted a motion for judgment as a matter of law on the constructive discharge claim.  It concluded that no reasonable jury could have found that McKelvey was constructively discharged and that in any event the proper remedy for constructive discharge would have been reinstatement, not front pay.

The court of appeals reversed in part and affirmed in part.  Disagreeing with the district court, the appellate court concluded that McKelvey had presented sufficient evidence to support a finding of constructive discharge.  But the court of appeals concluded that the district court had not abused its discretion in declining to award front pay.  The court of appeals remanded "for proceedings consistent with [its] opinion, including a calculation of the amount McKelvey should receive in back pay for the period of time between his discharge and the Secretary’s offer of reinstatement."

 

Student Note on the ADA Beyond an Employer's Front Door

Just out: Scott C. Thompson, Note, Open for Business: The ADA Beyond an Employer's Front Door, 18 Tex. Wesleyan L. Rev. 383 (2011).  The abstract:

Although heralded as an emancipation proclamation for people with disabilities, the Americans with Disabilities Act (“ADA”) has done little over the course of its twenty-year history to increase the number or quality of employment opportunities available to individuals with a disability. Title I of the ADA requires employers to make reasonable accommodations for qualified employees with a disability so long as the accommodations do not impose an undue hardship on the employer. In applying Title I of the ADA, courts consistently drew a bright line at the employer's threshold and refused to compel employers to make any accommodations unrelated to the workplace. 

Frustrated by the ADA's lackluster results, Congress enacted the ADA Amendments Act of 2008 to extend coverage to individuals who had previously been denied ADA protection as the result of two Supreme Court decisions, which had narrowly defined who qualified as disabled for ADA purposes. Then in 2010, two court of appeals decisions blurred the once bright line excluding non-workplace accommodations when those courts held that an accommodation unrelated to the workplace but related to an employee's ability to get to the workplace may be required by the ADA. 

This Comment discusses the history of the ADA; the recent extension of the ADA's mandate to include commute-related accommodations; and the net-negative effect this extension is likely to have on disabled employees, disabled job applicants, and businesses.

Coverage of DOL Proposed Regulations to Cover Home-Care Workers Under FLSA

See this article from the New York Times, and this one from the LA Times.

KQED on California Budget Cut Litigation

See this story from KQED's health blog.  It begins:

Trigger cuts have been the weapon of choice in many recent budgetary negotiations, most famously as the Congressional ‘Super Committee’ failed to come to agreement last month. 

But in California, where Governor Jerry Brown yesterday announced nearly a billion dollars in additional reductions to state spending, that budget gun is jammed, as advocates for the elderly and mentally and physically disabled have managed to thwart the automatic reductions by asserting that the state’s severe cuts — some $15 billion to health and human services since 2008 — are beginning to violate federal law. 

That defense has largely been the result of an aggressive legal strategy by disability rights groups, something witnessed recently when the state aborted a plan to eliminate funding for adult day health care centers in the face of a lawsuit by Disability Rights California. The centers offer health care services, shared meals and exercise among other activities and, most experts agree, help keep seniors and disabled people out of nursing homes.

California Healthline has more on the state's budget cuts.

A Comment

I have enormous respect for school nurses.  And I appreciate that they are stretched thin these days.  But I would have greater sympathy on this question if they were not fighting like hell to ensure that only nurses can give insulin shots to schoolchildren with diabetes.

N.D. Ill.: Having to Wait Half an Hour for a Second Cab After the First Cab Refused to Pick You Up Because of Your Disability is not Discrimination on the Basis of Disability

Two weeks ago, Judge John Darrah of the United States District Court for the Northern District of Illinois issued an opinion granting the defendant's motion to dismiss the plaintiff's ADA public-accommodations claim in Poldberg v. 5 Star Flash, Inc., 2011 WL 6097990 (N.D. Ill., Dec. 1, 2011). The plaintiffs, a blind couple who use a service dog, called the defendant taxi company asking for a ride.  According to the plaintiffs' complaint as described by the court, a cab came, but "the driver refused to unlock his doors and permit the Plaintiffs to enter the cab, stating that his car, a Toyota Prius, did not have room for the Plaintiffs' seeing-eye dog."  The taxi company then dispatched a new cab about half an hour later.  The district court granted the motion to dismiss; it concluded that a half-hour delay does not illegal discrimination make:

Although Plaintiffs encountered somewhat of a delay, they were ultimately transported to their destination. Essentially, Plaintiffs' claim they had to wait for a taxicab for no more than half an hour to take them home.  The inconvenience of waiting for a taxi does not adequately plead a violation of the ADA. Plaintiffs' Complaints fails plausibly to allege that they are entitled to relief under the ADA, and any amendment to Plaintiffs' Complaint would be futile. Plaintiffs' ADA claim is dismissed with prejudice.

I get what Judge Darrah was trying to do here, but Title III forbids discrimination in the "full and equal enjoyment" of the defendant's transportation services.  Judge Darrah made no effort to explain why he thought these plaintiffs received full and equal enjoyment.  That said, I think the case may have had other problems; it's hard to get injunctive relief based on a single incident like this.  But the discussion of the issue the court actually decided is cursory.

E.D. Pa.: Sufficient Evidence at Summary Judgment that Irritable Bowel Syndrome is a Disability Under the ADAAA

Earlier this week, Judge Ronald Buckwalter of the United States District Court for the Eastern District of Pennsylvania issued an opinion denying the defendant's motion for summary judgment in Myles v. University of Pennsylvania Health System, 2011 WL 6150168 (E.D. Pa., Dec. 12, 2011), an ADA employment case.  The defendant argued, among other things, that the plaintiff's irritable bowel syndrome was not an ADA disability.  Applying the ADA Amendments Act, the court concluded that the plaintiff presented sufficient evidence that her IBS substantially limited her bowel functions (which are a "major bodily function" and hence a "major life activity" under 42 U.S.C. 12102(2)(B)), and her ability to work.  This case would likely have come out the other way under pre-ADAAA law.

Fort-Worth Star Telegram on Sidewalk Access

See this article about Frame v. City of Arlington, which I argued in the Fifth Circuit back when I was with the Department of Justice.  The Fifth Circuit held, en banc, that Title II of the ADA covers a city's new construction or alteration of sidewalks, and the city has just filed a cert. petition.

Florida Charter Schools Failing to Serve Kids with Disabilities

See this important NPR story.

Part II of Journal-Sentinel Series on Lessard's Legacy

It's here.  Again, very interesting and good statement of various views.  I do think, though, that the narcissism of small differences is big in this field, and that's reflected a bit in the article.  People whose bottom-line prescriptions aren't that different in the grand scheme of things nonetheless fight each other as if everything depended on it.

D. Minn. Applies State-Law Limitation on Medical Malpractice Cases to Federal Rehabilitation Act Claim

On Monday, Chief Judge Michael Davis of the United States District Court for the District of Minnesota issued an opinion dismissing the plaintiff's claims in Phillips v. Fairview Health Services, 2011 WL 6151514 (D. Minn., Dec. 12, 2011).  The plaintiff was admitted to the psychiatric care department of one of the defendant's hospitals during an acute episode.  He alleged that hospital staff were abusive to him, belittled him, and unduly restrained him due to his mental disability.  He sued the hospital under Section 504 of the Rehabilitation Act, as well as under state-law intentional infliction of emotional distress, false imprisonment, and battery theories.

The hospital moved to dismiss for failure to comply with Minn.Stat. § 145.682.  As the court described it, that statute provides that "'[i]n an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case' the plaintiff must serve the defendant, with the summons and complaint, an affidavit from his attorney stating that the facts have been reviewed by said attorney with an expert, and that it is the expert's opinion that one or more of the defendants deviated from the applicable standard of care, which caused plaintiff injury."  The district court concluded that the statute applied to all of the plaintiff's claims, both the Rehabilitation Act claim and the state-law claims.  Because plaintiff's counsel had not served the defendant with the affidavit the state statute requires, the court dismissed all of the plaintiff's claims with prejudice.

This decision seems to me quite wrong.  One might question whether any of the plaintiff's claims alleged "malpractice, error, mistake, or failure to cure"; this language doesn't easily fit intentional tort claims like the ones the plaintiff brought here.  But certainly as to the federal claim under the Rehabilitation Act, the court had no basis for applying state law to limit it.  That, it seems to me, is a straightforward application of the Supreme Court's 1988 decision in Felder v. Casey.  Felder makes clear that states can't go around establishing their own prerequisites for and defenses against federal-law claims created by Congress.

Student Note on IDEA Exhaustion

Just out: Peter J. Maher, Note, Caution on Exhaustion: The Courts' Misinterpretation of the IDEA's Exhaustion Requirement for Claims Brought by Students Covered by Section 504 of the Rehabilitation Act and the ADA but Not by the IDEA, 44 Conn. L. Rev. 259 (2011).  The abstract:

The Individuals with Disabilities Education Act (“IDEA”) expressly allows students with disabilities eligible under the IDEA to bring civil actions against their school districts not only for violations of the IDEA but also for violations of civil rights under Section 504 of the Rehabilitation Act (“Section 504”) and the Americans with Disabilities Act (“ADA”) provided the students first exhaust their IDEA remedies before filing their civil actions in court. However, many courts apply this exhaustion requirement to students who are covered only by Section 504 and the ADA who are ineligible or not identified under the IDEA. This Note argues that the courts’ extension of the IDEA’s exhaustion requirement to students covered only by Section 504 and the ADA misinterprets and misapplies the provision. The Note provides the proper interpretation of the IDEA’s exhaustion requirement with the bright line rule that the exhaustion requirement only applies to students covered by Section 504 and the ADA who are also covered by, or seeking coverage from, the IDEA. Otherwise, students who are covered only by Section 504 and ADA—but not by the IDEA—are not subject to the exhaustion requirement. This interpretation is supported by a discussion of IDEA hearings officers’ jurisdiction over purely Section 504 and ADA claims, the differences between the procedural and substantive rights of the IDEA and those of Section 504 and the ADA, and the legislative history of the IDEA’s exhaustion provision. This Note also discusses the policy arguments relating to administrative exhaustion of claims by students with disabilities and contains recommendations for clarifying this muddled issue.

NYT on the Cost of In-Home Services for People with Developmental Disabilities

Today's Times has an article on the costs New York pays the nonprofit providers of home-based services for people with developmental disabilities.  Basically, going by the figures given in the article, the state pays the provider an hourly rate for those services.  The rate is set regionally but is generally about $40 per hour.  The provider then pays a worker a substantially lower hourly rate (about $10-15 per hour).  It's not hard to see the incentive structure this system sets up, and the article describes a provider with 257 clients where the executive director makes $400,000 per year, which obviously seems like a large figure even in New York City.  Based on this article, the payment structure and billing process for home-based services in New York seems ripe for reform.  But it's important not to lose sight of the fact that, even with what is described in the article, home-based services are still cheaper than services provided in a group home -- and New York's group homes, as the Times has done a great job of showing, have their own problems in terms of cost and conditions.

TSA to Launch Hotline for Travelers with Disabilities

See this article from DisabilityScoop.  Nice to see my law school classmate Mike Gianaris (now, for his sins, a New York State Senator) keeping up the pressure on this issue.

Inside Higher Ed on Service and Emotional Support Dogs on Campus

See this interesting article, which jumps off from the University of Nebraska-Kearney suit I blogged about a couple of weeks ago.

WSJ on Psychiatric Disabilities on Campus

See the article from tomorrow's paper here.

Blog Post on North Carolina In-Home Services Case

See this post, which begins:

Last week, the North Carolina Disability Action Network, (NCDAN), received wonderful news regarding legal action that could benefit a number of the Medicaid recipients in our state. Federal District Court Judge Terrence Boyle ruled on December 7, 2011, that North Carolina’s personnel care policy, which is referred to as Policy 3E, violates the Medicaid Act, the Rehabilitation Act of 1974, and the Americans with Disabilities Act. Boyle granted a temporary injunction against the implementation of the policy and approved class action standing for the case. 

Specifically, the policy as it stands, inhibits consumers’ ability to obtain personal care services,(PCS), while living in their own home. These services are supposed to be provided to children and adults, covered by Medicaid, who need assistance with daily living needs. Instead, under Policy 3E, these individuals would be forced to enter an assisted living facility in order to receive the necessary services. The judge also indicated that the plaintiffs may have a claim of due process because, although Medicaid provided notification of termination of personal care services, that notification failed to adequately explain the reasons for the abrupt end to in-home services. This action only applies to those who qualify under the in-home care for adults (IHCA) or in-home care for children (IHCC) programs.

City of LA Faces False Claims Investigation for Inaccessible Housing

See this article from the LA Times, which begins:

The U.S. attorney has launched a fraud investigation to determine whether Los Angeles city officials ignored federal laws designed to protect the disabled when building or fixing up housing. 

City Atty. Carmen Trutanich and the Community Redevelopment Agency received letters last week from the U.S. attorney's civil fraud unit instructing them to preserve records for housing developments that have received federal funds through the city since 1988 — a time frame that covers scores of projects. 

The investigation spans January 2001 to the present, the letters said. If violations are uncovered, city agencies that used federal housing funds could face financial penalties, lose out on future grants or possibly become the subject of a criminal investigation, said Bill Carter, Trutanich's senior deputy.

An interesting use of the False Claims Act, which has all sorts of unexplored uses in the disability context.

Milwaukee Journal-Sentinel on Lessard's Legacy

See this interesting article (the first in a two-part series) on mental health policy in Wisconsin 40 years after the landmark Lessard v. Schmidt litigation.

Feds Strike Back in War of Words with New Hampshire

See this story in the Concord Monitor.  It begins:

In a harshly worded letter yesterday, a federal prosecutor rejected Attorney General Michael Delaney's recent defense of the state's efforts to improve its mental health system and his plea for more time to fix alleged violations of the Americans with Disabilities Act.

Raleigh N&O on the Butterball HIV Case

Coverage is here.

New Kaiser Survey Report on Money Follows the Person

The Kaiser Commission on Medicaid and the Uninsured's Money Follows the Person: A 2011 Survey of Transitions, Services, and Costs, can be found here. A key number: "As of August 2011, nearly 17,000 individuals nationally had been transitioned since the program’s inception, up from 8,902 individuals by 2010."

UCLA Health Policy Brief on Cuts to Community-Based Services

It's entitled Independence at Risk: Older Californians with Disabilities Struggle to Remain at Home as Public Supports Shrink, and it's here.

E.D. La. Holds Severe Obesity is a Disability

On Wednesday, Judge Ivan Lemelle of the United States District Court for the Eastern District of Louisiana held that "severe obesity" is a disability under the ADA even if the plaintiff does not prove the specific underlying physiological basis for it. The case is EEOC v. Resources for Human Development, Inc., --- F.Supp.2d ----, 2011 WL 6091560 (E.D.La., Dec. 7, 2011).

New Case from W.D. Tex. Shows Effect of ADAAA on Back Injury Claims

Earlier this week, Judge Frank Montalvo of the United States District Court for the Western District of Texas issued an opinion denying the defendant's motion for summary judgment in Molina v. DSI Renal, Inc., --- F.Supp.2d ----, 2011 WL 6076178 (W.D.Tex., Dec. 5, 2011). The case is a standard-issue back pain/lifting restriction case, but it nicely shows the impact of the ADA Amendments Act. (The case was brought under the Texas Commission on Human Rights Act, which the Texas legislature amended in 2009 to conform to the ADAAA, so the court relied on its interpretation of the ADAAA.)

In denying that plaintiff Molina's back injury was a disability, the defendant employer made a number of arguments that would likely have been successful under pre-ADAAA law, but which the court rejected based on the new statute. For example, the employer "point[ed] to Molina's testimony that her pain did not impact her ability to do any of her activities, and did not change the way she did her household activities or how she worked," as well as records from her initial EEOC interview, "where the intake worker wrote, 'Cp denies that she is limited in any way, and that she does everything as before.'" In the pre-ADAAA world, many plaintiffs lost at summary judgment based on those statements, but the court here relied on the EEOC's ADAAA regulations to conclude that "the fact that Molina learned to work through her pain to continue performing her regular tasks does not necessarily preclude her from being considered disabled." The court also noted that, to the extent that Molina could work through her pain, evidence suggested that was the result of medication, and the ADAAA requires courts to disregard the effects of medication in assessing disability. And the court held that a reasonable jury could find that the inability to lift more than 20 pounds was a substantial limitation on a major life activity, even though the defendant cited a number of pre-ADAAA cases holding it wasn't.

CA9: No Right to Accommodation of "Job Prerequisites" Like Licensing

Yesterday, the United States Court of Appeals for the Ninth Circuit issued its opinion in Johnson v. Board of Trustees. The case was brought by a teacher (Johnson) whose license lapsed because, due to a major depressive episode, she had not completed her continuing education requirements. State law allowed for a waiver of the continuing education requirement temporarily to permit a teacher to continue working while she makes up the education credits she owes, and Johnson asked her school district employer, as a reasonable accommodation, to request such a waiver. But the district declined to do so and instead discharged her. Johnson sued under the ADA.

The ADA, of course, requires that a plaintiff established that she is a "qualified individual," which the statute defines as an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (emphasis added). Johnson agreed that she could not perform her job without accommodation, because she needed a license to teach and would not have one without a waiver, but that she could perform her job if the district requested and the state granted a waiver.

The Ninth Circuit rejected that claim. In an opinion by Judge O'Scannlain, it did not hold that a waiver would be an unreasonable accommodation. Rather, it held that an individual with a disability is not entitled to reasonable accommodation of "job prerequisites" such as licensing; such an individual, in the court's view, is entitled to accommodation only in her performance of job functions. For example, the court explained, a blind individual hired to be an attorney is not entitled to accommodation of her employer's requirement that she be admitted to the bar, though she is entitled to accommodations on the job to enable her to read and review documents. In reaching this conclusion, the court relied principally on the EEOC's regulations implementing Title I of the ADA, which provide that a qualified individual is one “who satisfies the requisite skills, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m) (emphasis added). The court read this regulation as applying the accommodation requirement only to the second step of the inquiry (performance of essential functions), not the first (satisfying job prerequisites). The court concluded:

[A]n individual who fails to satisfy the job prerequisites cannot be considered “qualified” within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect. Otherwise, the default rule remains that “the obligation to make reasonable accommodation is owed only to an individual with a disability who . . . satisfies all the skill, experience, education and other job-related selection criteria.” 29 C.F.R. Pt. 1630, App. to §1630.9(a).

As the court noted, its opinion rejected the position taken by the EEOC and the Department of Justice as amici. (Disclosure: I supervised the DOJ's side of the work on the amicus brief the two agencies filed.) For coverage of the case from Mark Walsh's essential blog on education and the law, see this post.

Office Worker in Dental Clinic Claims HIV Discrimination

See this post describing the allegations, which the EEOC has found reasonable cause to pursue.  Following someone with HIV around with Lysol and spraying everything he touches?  Like the Hershey case, this is the kind of thing you would have seen twenty-five years ago, but not something you expect to see today.

The Perils of Drugging Foster Kids

See this editorial by that title from the Dallas Morning News.

California Releases Plan for Overhaul of Mental Health Programs

See this article by that title in the LA Times.  It begins:

California mental health officials on Wednesday detailed plans for a new Department of State Hospitals, a streamlined agency that they said would improve treatment and reduce patient violence at the troubled psychiatric facilities — as well as save money. 

The department, which will oversee the state's five mental hospitals and psychiatric programs at two of its prisons, is expected to replace the Department of Mental Health next year. The spinoff is the result of broader legislative changes intended to pass the department's other responsibilities — for community mental health care —- down to county governments.

Olson on the DSM Revisions and ADA Implications

See this post from Walter Olson over at Cato@Liberty.

Proposed Department of Labor Rules for Disability-Based Affirmative Action by Federal Contractors

Tomorrow's Federal Register will contain a notice of proposed rulemaking from the Department of Labor's Office of Federal Contract Compliance Programs regarding the obligations of federal contractors to avoid discrimination against, and provide affirmative action to, workers with disabilities.  The law requiring affirmative action in this context has been on the books since 1973, but it has basically served as an antidiscrimination requirement like the ADA.  The proposed rules would give real meaning to the affirmative action obligation in this context for the first time.  Notably, they include a 7 percent nationwide "utilization goal" of people with disabilities, covering federal contractors with 50 or more employees and a federal contract of at least $50,000.  Failure to meet the goal would not constitute a violation of the law, but it would trigger certain procedural obligations.  The notice provides for a 60-day public comment period.

SDNY Refuses to Vacate Injunction Requiring FDNY to Maintain Street Alarm Boxes

Last week, Judge Robert Sweet of the United States District Court for the Southern District of New York issued a ruling refusing to vacate its injunction in the long-running Civic Association for the Deaf case. See Civic Association for the Deaf of New York City, Inc. v. City of New York, 2011 WL 5995182 (S.D.N.Y., Nov. 29, 2011). The plaintiffs brought the case in 1995 to prevent the City's fire department from removing its street alarm boxes. Those boxes, among other things, make it possible for people who are deaf to summon the fire department. Back in 1996, the court issued an injunction that barred the City from "carrying out any shutdown, deactivation, removal, elimination, obstruction, or interference with the existing street alarm box system, and from acting to replace the existing accessible street alarm box system with notification alternatives which are not accessible to the deaf."

Citing the high cost of maintaining the street alarm boxes ($6-7 million per year, plus about $2 million in annual capital costs), the massive decline in legitimate use of the boxes (street alarm boxes now "report only 0.5% of all structural fires, 1.4% of non-structural fires, 0.6% of all non-medical emergencies, and 0.2% of medical emergencies"), and the high rate of false alarms originating from those boxes ("The malicious false alarm rate for street alarm boxes is 85%, while it is 3.1% for all other sources."), the City moved to vacate the injunction. The court denied the motion. The City argued that public payphones, with a "tapping protocol" that allowed deaf individuals to indicate the type of emergency they were reporting, would provide sufficient access. But the court concluded that "in practice, public payphones and the tapping protocol do not combine to establish an adequate accessible alternative to street alarm boxes, and they do not constitute a changed circumstance."  The court explained that the tapping protocol had not been tested on payphones; that, unlike street alarm boxes, payphones don't exist on every other corner, and the number of payphones is itself declining; and that it is impossible for a deaf person to know whether a payphone (many of which are poorly maintained) even has a dial tone.  The court also determined that the City had not performed sufficient education and outreach to the deaf community on the tapping protocol.

The court concluded with two paragraphs that are, no doubt, cold comfort to the City:

The Court is sympathetic to the burdens imposed by the expensive, false-report-prone street alarm box system. This case is living proof of the idiom that “no good deed goes unpunished.” The City's efforts to bring emergency services to more people now require it to maintain those services in order to provide deaf and hearing impaired persons meaningful access to report emergencies and to comply with the ADA and RA. The injunction remains an equitable solution. 

In the future, given the use of text-based communications in the deaf and hearing impaired community, allowing emergency reporting with mobile devices via text message or email may obviate that community's need for street alarm boxes to report emergencies from the street. Regrettably, that alternative is not yet at hand.

I think the Bloomberg Administration is doing absolutely the wrong thing in the taxicab matter, but this case is much closer to me.  It seems a necessary implication of the court's legal analysis that every city has to have something like the call box system, but of course very few cities do.  And the technology becomes more and more outdated and expensive all the time.  In light of the court's opinion last week, it would make sense for the City and the plaintiffs to work together to develop a plan for implementing Next Generation 911 as soon as practicable.  New York City could be a real leader on this front, and the plaintiffs could stop using long-running litigation to maintain a dinosaur technology.

Wheelchair Hell in Men's Central Jail

See this article by that title from the LA Weekly.

Sysco Settles EEOC "100% Healed" Suit

See this press release from the EEOC:

Sysco Oklahoma LLC., a leader in food distribution, will pay $82,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Sysco subjected a disabled employee to unlawful medical inquiries, demands and, ultimately, termination on the basis of her disability. 

The EEOC alleged that Amanda Thompson, who worked for Sysco as a customer service representative, was observed legally parking in one of the employer's unreserved handicap parking spaces in February 2009. In response to this observation, Sysco confronted Thompson and demanded that she describe how she was handicapped, produce supporting medical records, and provide Sysco with a physician's full medical release stating she is 100% able to perform her job without restrictions or be terminated. Sysco made these demands notwithstanding the fact that Thompson had a valid handicap parking permit and had been performing her job satisfactorily at all times, the EEOC said. Several days later, before the deadline for providing the medical release had passed, Sysco unlawfully fired Thompson. 

Such unlawful inquiries and demands related to Thompson's disability, the EEOC said, violated the Americans With Disabilities Act (ADA), as amended by the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). The EEOC filed its lawsuit in U.S. District Court for the Western District of Oklahoma (EEOC v. Sysco Oklahoma LLC, Case No.: 5:11-cv-00460-HE) after first attempting to reach a pre-litigation settlement through its conciliation process. In addition to declarative relief, the EEOC's lawsuit sought back pay, compensatory and punitive damages and reinstatement or front pay for Thompson and injunctive relief, including training for all Sysco managers on disability discrimination. 

The consent decree settling the suit, which must be approved by Judge Joe Heaton, also provides for injunctive relief, including posting notification to employees, revision and dissemination of anti-discrimination policies, and live training on disability anti-discrimination law. Sysco will also discontinue its practice of requiring disabled employees to be 100% able to work without considering whether they are able to work with a reasonable accommodation.
“It is alarming to know that a sophisticated, global company like Sysco, that trumpets its commitment to diversity and inclusion, would engage in such blatantly discriminatory conduct, stripping a disabled employee of not only her job, but her privacy and dignity as well,” said Barbara A. Seely, regional attorney of the EEOC's St. Louis District Office, whose jurisdiction includes Oklahoma. “Corporations and their subsidiary businesses need to do what they can to anticipate and prevent these violations of law that are both embarrassing and harmful to the employees and employers involved. We believe that this consent decree will go a long way to aid Sysco in preventing future violations.” 

Sysco Oklahoma, LLC markets and distributes food and related products to restaurants, health care and educational facilities, lodging, business establishments, and food service customers throughout the Oklahoma region. The company is based in Norman, Okla. Sysco Oklahoma, LLC operates as a subsidiary of Sysco Corp.

More on the DOJ-New Hampshire Olmstead Dispute

From the Union Leader.

National Law Journal on Accommodations for the LSAT

See this article, which begins:

The Law School Admission Council is no stranger to litigation over its testing policies. The organization has been sued numerous times by would-be takers of the Law School Admission Test who were denied accommodations for what they claimed were disabilities. 

Now the American Bar Association's Commission on Disability Rights has asked the council to change the way it handles requests for testing accommodations, to "ensure that the exam reflects what the exam is designed to measure, and not the test taker's disability."

Lawson on the (UK) Equality Act and Disability

Just out: Anna Lawson, Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated, 40 Indus. L.J. 359 (2011).  The abstract:

This article critically evaluates employment-related changes made by the Equality Act 2010 from a disability perspective. It identifies opportunities to enhance disability equality which were seized as well as those which were missed. Where relevant, these are held up for scrutiny through the lens of the United Nations Convention on the Rights of Persons with Disabilities, by which the UK is now bound. Two respects in which the Equality Act may fall short of that Convention's demands are identified. In addition, the article draws attention to equality measures in the Act which are specific to disability. It is suggested that, by including these measures and highlighting their disability-specific application, the Act has generated fresh opportunities to open debate about whether such measures should be extended to other protected characteristics.

New Hampshire Denies It's Violating Olmstead

See this NPR story.

Cuomo Wants All New NYC Taxis to be Accessible

See this story from the Daily News, which begins:

Gov. Cuomo will veto a bill to allow livery cabs to pick up street hails unless it is amended to require that every medallion in a new batch of yellow cabs be specifically for taxis accessible to the disabled, the Daily News has learned. 

The bill — passed in June and backed by Mayor Bloomberg — would permit the 30,000 livery cars in the city to pick up passengers on the street, as opposed to just serving customers who call ahead for a ride. 

The bill also calls for the Taxi and Limousine Commission to sell up to 1,500 new yellow cab medallions, with 569 of those cabs being accessible to disabled riders.

Wexler on Lawyers and Clients with Mental Illness

New on SSRN: David B. Wexler, That's What Friends Are For: Mentors, LAP Lawyers, Therapeutic Jurisprudence, and Clients with Mental Illness.  The abstract:

This essay has been prepared for a University of Nebraska-Lincoln Law-Psychology conference on "Justice, Conflict, and Well-Being." It draws on and extends an earlier paper, "Lawyer-Assistance-Program Attorneys and the Practice of Therapeutic Jurisprudence," which dealt primarily with how lawyers themselves in long-term substance abuse recovery possess knowledge, insights, and other strengths that can be profitably used in counseling and representing clients with substance abuse issues. The present paper, inspired largely by some recent stories from the legal academy penned by law professors who have had their own struggles with serious mental illness, extends the proposal to lawyers with mental health struggles and to the counseling and representation of clients with mental health issues. The paper suggests several different practice and pro bono settings (civil commitment cases, mental health court, veterans court, post-traumatice stress disorder issues) and opens a discussion of logistical steps that should be taken to bring this idea to fruition.

Schools Ask for Easier Access to Medicaid for Special Education Services

See this post by that title from Ed Week's On Special Education Blog.

Disability Rights California Obtains TRO Against Cuts to In-Home Support Services

See this article from California Healthline.  It begins:

A federal judge in Oakland issued a temporary restraining order last week, suspending the state's planned reduction of 20% to In-Home Supportive Services to 370,000 Californians. 

Judge Claudia Wilken scheduled a hearing Dec. 15 to decide whether a preliminary injunction should be granted. The state has the option to move that court date, if it desires.

Extension of Federal Oversight Sought for Two California Mental Hospitals

See this article by that title in the LA Times.  It begins:

The U.S. Department of Justice has asked a judge to extend federal oversight of two state mental hospitals, saying the facilities have failed to comply with critical provisions of a sweeping consent judgment imposed 5 1/2 years ago. 

In a filing late Friday night, federal officials detailed key failings at Napa State Hospital and Norwalk's Metropolitan State Hospital: preventable suicides, nursing errors leading to unnecessary suffering, improper use of some restraints and a failure to adequately analyze and prevent violence.

New Jersey Spent $355K on Outside Lawyers Fighting Disability Lawsuits

See this from the Bergen Record.

Two Commentaries on the Hershey School HIV Discrimination Case

See this editorial from the Delaware County Daily Times, headed "School's Rejection of HIV-Positive Boy is Misguided," and this commentary on Politics 365, headed "Is School Rejection of Black HIV Student an Omen of What's to Come?"

Zirkel on Functional Behavioral Assessments and Behavior Intervention Plans

Just out:  Perry A. Zirkel, Case Law for Functional Behavioral Assessments and Behavior Intervention Plans: An Empirical Analysis, 35 Seattle U. L. Rev. 175 (2011).

My Op-Ed on the Subminimum Wage

In the Des Moines Register, here.

Hershey School Stands Behind Rejecting Student with HIV

See this article, which continues the Patriot-News's wall-to-wall coverage of this story.

EEOC Sues Butterball for Harassment, Firing of HIV-Positive Employee

See this press release, which begins:

The U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today that Butterball, LLC, a Garner, N.C.-based turkey processing company, violated federal law by subjecting an employee to a hostile work environment based on the fact that she has Human Immunodeficiency Virus (HIV), and firing her because of that disability. 

According to the lawsuit, Butterball subjected Tracy Montgomery to harassment throughout her employment in October and November 2009. Specifically, three of Montgomery’s co-workers expressed to her on a daily basis that they did not want to touch her or work with her because she is HIV-positive. The three employees also referred to Montgomery using derogatory names to describe her HIV status. The EEOC further alleges that Montgomery complained to her supervisor about the harassment on a daily or near-daily basis, but the harassment persisted. Butterball’s plant manager was also aware of the harassment after conducting a meeting with Montgomery and one of her co-workers to address an altercation that the co-worker provoked. However, the next day, the plant manager fired Montgomery.

Muller on Disability and Ambivalence

Just out: John F. Muller, Disability, Ambivalence, and the Law, 37 Am. J.L. & Med. 469 (2011).  The abstract:

In this Article, I advance a new frame through which to organize discourse on disability and the law: the notion of ambivalence. I make two claims, one descriptive and one normative. Descriptively, I argue that ambivalence pervades encounters with disability. Disability attracts because it is a force that makes us human and disability repels because it is a force that threatens our humanity. The tension between these sentiments is not easily tolerated and tends to prompt denials of ambivalence; we embrace a conscious view of disability that belies our mixed sentiments and we suppress reactions to disability that conflict with this conscious view. Normatively, I argue that the law should express and expose ambivalence about disability. When we deny ambivalence, I argue, we cannot account for our genuine sentiments and we cannot prevent suppressed sentiments from emerging, intensified, in harmful and unanticipated forms. To avoid these dangers, the law should prevent the embrace of unequivocal views of disability as valued, devalued, or neutral, and seek to expose ambivalence about disability to the public. This prescription calls into question the prevailing orthodoxies of disability law.

In Which I Anger My Friends

I applaud the intellectual disability community for their remarkably successful (but still sadly incomplete) efforts to raise consciousness that the word "retarded" and its derivatives carry, in our culture and society, a legacy of dehumanization and exclusion.  I, for one, am now much more attuned to the way people use the slur in their day-to-day speech and how harmful that is.  I know this is true of lots of people outside the disability community as well, and I think we need to continue to work so that the word is understood to be the kind of group-based slur, like the n-word and similar expressions, that is by consensus understood as inappropriate in everyday speech.  We, alas, still have too long a way to go.

But every so often, I worry that people who are engaged in these incredibly important efforts at consciousness raising want to prevent all use of the r-word even in artistic expression.  This post, objecting to the use of the word by two characters in a brief scene in the new George Clooney movie The Descendants, comes uncomfortably close to the line for me.  Although it's the point of some movies and literature to present us an idealized version of ourselves, perhaps as a way of calling us to act up to those ideals, movies and literature would be incredibly impoverished -- if not stultifying and oppressive -- if that was the point of all of them.  People use the r-word in real life, just like they use slurs against other groups (and just like they do other harmful and wrongful things), and it would be wrong to say that movies and literature can't depict that.  (And I think it's a cheat to say that the use of the word can be depicted but only if the character who uses it "learns the lesson" that it's wrong or is otherwise shown to be a bad and unsympathetic character.  That's not any different than requiring purely idealized depictions of people.)

Now, one can argue about whether the use of the word in the movie or book at issue works as literature, and, particularly if it doesn't, whether the use of the word bespeaks a more general prejudice of the author or the story.  The reference in the blog post I linked above to the "gratuitous" use of the word hints at those questions.  I haven't seen The Descendants or read the book on which it's based, so I am not equipped to have an opinion on that issue here.  I also think that it's great to use an occasion like this -- the use of the r-word in a major motion picture vehicle involving one of our biggest movie stars -- as a teaching and organizing moment.  I think it's totally in bounds to criticize a movie or book, or its creators, for demonstrating or feeding bias (though I think those criticisms raise complex issues about how to read literature and what it's for).  I thought that at least one of the writers of Tropic Thunder could be criticized on that ground, based on the way he defended the treatment of people with intellectual disabilities in that movie, though criticism is different than a boycott.   To the extent that the blog post I linked simply seeks to provoke a teaching and organizing moment, I'm all for it.

But I worry that some of the language in the blog post I link to above -- e.g., wondering just how George Clooney and Alexander Payne, who seem to be such good people, could use such a hurtful word in a movie; applauding Fox Searchlight for overdubbing and removing the word from the DVD release of Miss March (another movie I haven't seen); and suggesting that Clooney, Payne, and Fox Searchlight "should . . . be held accountable" here -- suggests that the r-word should never be used in a film, at least without trying to extract a moral from it.  That just seems wrong to me.  (I think it's different when a person like LeBron James, speaking in his own voice and not as an author or actor, uses the word as an actual slur.)  The intellectual disability community has demonstrated beyond doubt that the r-word is, in this society at this time, as harmful and hurtful a word as the n-word or the small handful of other slurs like it are.  But I wouldn't say that movies that use any of those words should be boycott.

West Virginia Caps In-Home Waiver

See this article.  Another example of tight budget times harming community services.

U.S. Urges Supreme Court Not to Hear Special Education Case

See this post by that title from Mark Walsh's terrific School Law Blog.  It begins:

The Obama administration is urging the U.S. Supreme Court not to take up an appeal from a school district ordered to provide compensatory tutoring because it failed to identify a student's disability. 

The justices had asked the U.S. solicitor general's office for its views last April on a question under the federal Individuals with Disabilities Education Act: whether a parent may bring a claim in a due-process hearing that a district violated the law's "child-find" provision.

The brief is here.

Foster Kids More Likely to be Given Psychotropic Drugs

See this post by that title from the KHN blog.

More on the Hershey School HIV Suit

See this from Businessweek, and this from DigitalJournal.

A couple of points. First of all, the school's direct threat defense is extremely weak under the governing law. The school seems to be saying that any 13-year-old with HIV is inherently risky in a boarding-school environment, because you never can tell whether a kid is going to do something irresponsible. But the law, as articulated by the Supreme Court in the Arline, Bragdon, and Echazabal cases, and as articulated by many lower federal courts, requires an individualized and objective analysis of the risk based on the best available professional evidence. The law does not permit the defendant to rely on what the Echazabal court called "untested and pretextual stereotypes."  There were actually a lot of kid-with-HIV-in-school cases under the Rehabilitation Act in the 1980s, at the height of the fear of AIDS, and they typically ruled in favor of the kids and prohibited school districts from excluding or segregating them.

Second, this statement by the school seems to me the height of arrogance:

School officials said they were preparing seek a declaratory judgment from the U.S. District Court for the Middle District of Pennsylvania on legal issues surrounding the case when the AIDS Law Project "took the adversarial action of filing a lawsuit."

So let me get this straight: You were preparing to file a lawsuit against the kid whom you admittedly discriminated against, but he got to court first, so he's the one being adversarial?

Milton Hershey School Sued by Teen with HIV Who Was Denied Admission

See this article from the Harrisburg Patriot-News.  As the following quote indicates, the school is apparently admitting the discrimination but asserting a direct threat defense:

In a statement, the school said it was a difficult decision not to admit the student, but it was made to safeguard the school’s 1,850 students. 

“In order to protect our children in this unique environment, we cannot accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others,” the school said. “The reason is simple. We are serving children, and no child can be assumed to always make responsible decisions which protect the well-being of others.”

Read the whole article for more on the school's thinking.  The direct threat defense seems like a very difficult one for the school to make out in this context.

Second Circuit Holds No Private Right of Action Under the Air Carrier Access Act

See Lopez v. Jet Blue Airways, decided today.

MD Announces Corrective Steps After Returning $25 Million in DD Waiver Funds

See this article.  What a mess -- and what a waste.

Inspector Highlights Psych Drug Use Among Elderly

See this AP dispatch by that title.  It begins:

Government inspectors told lawmakers Wednesday that Medicare officials need to do more to stop doctors from prescribing powerful psychiatric drugs to nursing home patients with dementia, an unapproved practice that has flourished despite repeated government warnings. 

So-called antipsychotic drugs are designed to help control hallucinations, delusions and other abnormal behavior in people suffering from schizophrenia and bipolar disorder, but they're also given to hundreds of thousands of elderly nursing home patients in the U.S. to pacify aggressive behavior related to dementia. Drugs like AstraZeneca's Seroquel and Eli Lilly's Zyprexa are known for their sedative effect, often putting patients to sleep. 

But the drugs can also increase the risk of death in seniors, prompting the Food and Drug Administration to issue multiple warnings against prescribing the drugs for dementia. Antipsychotics raise blood sugar and cholesterol, often resulting in weight gain.

Interesting But Sad Article on HIV Stigma in Israel

Here.

A Book Recommendation

Over the Thanksgiving weekend, I had the chance to read Alexander Somek's terrific new book, Engineering Equality: An Essay on European Anti-Discrimination Law.  Although the book has some interesting discussion of the jurisprudence of the European Court of Justice, it's mostly a work of antidiscrimination theory with many applications to and citations of debates in the United States -- including debates regarding the role of accommodation in antidiscrimination law.  The book essentially critiques antidiscrimination law from the left.  While I don't agree with everything in the book -- something I hope to make clear in a more scholarly forum soon -- its argument is one to which anyone who is interested in using antidiscrimination law to further social justice must respond.

Cedars-Sinai to Close Most Psychiatric Services

See this article by that title in the LA Times.