Update on Kansas Waiting List Investigation

See this story from the Kansas Health Institute.  It begins:

Four civil rights enforcers from the U.S. Department of Health and Human Services met privately today with Gov. Sam Brownback and top Kansas welfare officials to discuss the state's long waiting list for services to the disabled. 

Federal officials for several months have been reviewing complaints filed against the state by disabled persons and their advocates and now seem poised to take some sort of legal action, if Kansas doesn't move to remedy the problem. 

Federal courts have found states in violation of the Americans with Disabilities Act for not providing adequate services to the disabled and federal officials have warned for months that they would act if the state didn't move to shorten the lists.

Coverage of DOJ Intervention in New Hampshire Olmstead Suit

See this article from the Concord Monitor.

Waterstone, Stein, and Wilkins on Disability Cause Lawyers

Just out:  Michael E. Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 Wm. & Mary L. Rev. 1287 (2012).  The abstract:

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law's ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA's revolutionary civil rights aspects and the manner in which the Supreme Court's interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases. 

This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation's leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements, but also complicates, the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers and in other ways have a unique perspective and mode of operation. The Article also forces a reconsideration of academic critiques of the efficacy and transformative potential of the ADA because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court's restrictive jurisprudence.

DOJ Moves to Intervene in New Hampshire Mental Health Olmstead Suit

Almost two months ago, I blogged about the Olmstead lawsuit filed by private plaintiffs in New Hampshire to challenge unnecessary institutionalization at the state psychiatric hospital and a state-operated nursing home.  Yesterday, the United States Department of Justice moved to intervene as a plaintiff in that suit.  See this press release, which contains a link to the intervention papers.  The press release begins:

The Justice Department today moved to intervene in Lynn E. v. Lynch, a recently-filed lawsuit alleging that the state of New Hampshire fails to provide mental health services to people with disabilities in community settings in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. As a result of the state’s failures, people with mental illness who need state mental health services are forced to go to segregated institutions like the New Hampshire Hospital in Concord, N.H ., and the Glencliff Home in Benton, N.H.

Under the ADA, a state cannot require people with disabilities to enter segregated facilities unnecessarily in order to get services. In April of last year, the Department of Justice notified the state that it is violating the ADA by unnecessarily institutionalizing persons with mental illness and by failing to provide necessary community-based services and supports, like crisis services and housing supports. Leadership within the state of New Hampshire has recognized that the state’s mental health system is deficient. According to a top state official, “NH’s mental health system is failing, and the consequence of these failures is being realized across the community. The impacts of the broken system are seen in the stress it is putting on local law enforcement, hospital emergency rooms, the court system and county jails, and, most importantly, in the harm under-treated mental health conditions cause NH citizens and their families.”

The state adopted a 10-year plan for improving its system, however, the state failed to implement important pieces of its plan and to put in place needed reforms to meet the needs of people with mental illness. The New Hampshire Community Mental Health Centers association recently concluded that the state had failed to meet important benchmarks within its 10-year plan and informed federal officials that the New Hampshire community system “has less capacity in January of 2012 than it had in August of 2008 when the ‘Ten-Year Plan’ called for additional investment.”

Johnston on Mental Health Courts

Just out: E. Lea Johnston, Theorizing Mental Health Courts, 89 Wash. U. L. Rev. 519 (2012).  The abstract:

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.

This looks to be a very important piece on a topic of great significance in the mental-health-law world.

Sen. Feinstein Opposes Serial Disability-Access Litigation in California

See this article, which begins:

U.S. Senator Dianne Feinstein says if California lawmakers don't act to clamp down on "predatory" disability access lawsuits she may author federal legislation to do just that. 

In a March 8 letter to fellow Democrat and Senate President Pro Tem Darrell Steinberg, Feinstein accused plaintiffs lawyers of coercing business owners into paying five-figure settlements by threatening potentially costlier lawsuits targeting minor violations under the state's access and civil rights laws. 

"It appears these suits and demand letters are driven by a unique California law that, unlike the federal [Americans with Disabilities Act], permits the recovery of damages for noncompliance," Feinstein wrote. "As a result, I respectfully ask that you use your leadership position in the California State Senate to help advance legislation that will address this problem."

Progress on DOJ-Oregon Olmstead Matter

See this article, which begins:

The U.S. Department of Justice says it has reached agreement with Oregon officials on a yearslong strategy for reforming the state’s community mental-health system, correspondence obtained by the Statesman Journal shows. 

Federal officials said in a recent letter to the state Department of Justice that the agreement paves the way for changes that will “improve the lives of thousands of Oregonians living with mental illness.” 

If envisioned reforms materialize, that will resolve an ongoing federal investigation of Oregon’s mental-health system, without legal action against the state, wrote Jonathan Smith, chief of the Special Litigation Section of the federal Justice Department, and S. Amanda Marshall, the U.S. Attorney for Oregon.

Lederman on the ACA's Medicaid Expansion

Check out this comprehensive and very useful analysis by Marty Lederman of the constitutional challenge to the Affordable Care Act's expansion of Medicaid.  The Supreme Court will hear that aspect of the ACA case tomorrow afternoon.

State Faults Care for the Disabled

See this story by that title in the New York Times.  It begins:

Nearly 300,000 disabled and mentally ill New Yorkers face a “needless risk of harm” because of conflicting regulations, a lack of oversight and even disagreements over what constitutes abuse, according to a draft state report obtained by The New York Times. 

In 2010, the number of abuse accusations at large institutions overseen by the State Office for People With Developmental Disabilities outnumbered the beds in those facilities — a sign of trouble in buildings where many of the state’s most vulnerable residents are housed, and where the state has repeatedly had trouble with abusive employees and unexplained injuries and deaths among residents, according to the report. 

The report was commissioned by Gov. Andrew M. Cuomoin response to a Times investigation last year into problems of abuse, neglect and fraud in state homes and institutions for the developmentally disabled. A draft of the report began circulating in October, but has not yet been released to the public; people frustrated by the delay separately provided to The Times an executive summary and a bound copy drafted in December.

News on the DOJ-Virginia Olmstead Agreement

See this AP dispatch, which begins:

Virginia and the U.S. Department of Justice say their proposed settlement over the care of intellectually disabled people doesn't necessarily order the shutdown of state-run residential facilities, a move that parents and guardians of people who live in the centers fear would harm their loved ones. 

Families who oppose the agreement argue that closure is the settlement's ultimate goal because the deal requires that Virginia add more than 4,000 Medicaid-funded slots for people waiting to receive community-based services. Such a mandate makes it unlikely that Virginia could afford to operate both systems, and the agreement proposes that four of Virginia's five regional training centers close by 2020.

Second Circuit Stays NY Taxi Order

See this story, which begins:

A U.S. appeals court on Wednesday granted a New York City request to temporarily freeze a controversial order holding that the city's taxi authority was in violation of the Americans with Disabilities Act. 

The city had asked the 2nd U.S. Circuit Court of Appeals in New York to issue a stay of the December ruling, by Manhattan federal court judge George Daniels, while the city pursues its appeal.

Light Blogging This Week

Due to my travel schedule for the rest of the week, I'm unlikely to do a lot of blogging.  But if you're in Berkeley tomorrow, come say hi at this great conference, and if you're in New Haven on Friday, come say hi at this other great conference.

Questionable Stay-Put Decision from DDC

Last Friday, Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia issued an opinion reflecting what I might call a non-obvious interpretation of the IDEA's stay-put provision.  The case is Johnson v. District of Columbia, --- F.Supp.2d ----, 2012 WL 883125 (D.D.C., Mar. 16, 2012).  The plaintiff's son, M.J., is a sixth grader in the D.C. Public Schools.  M.J. had an IEP throughout elementary school.  When he entered sixth grade this past fall, he began attending his neighborhood middle school, Deal Middle School, with his classmates.  The school district formulated a new IEP in October to reflect his attendance in middle school, and M.J.'s father challenged the IEP in a due process proceeding.

The hearing officer agreed that the IEP failed to provide a free appropriate public education.  The hearing officer "found that rather than transfer M.J. to a school that could provide the services outlined in his IEP, the District had simply revised M.J.'s IEP to match the lower level of services available at Deal."  The hearing officer also "found that Deal could only provide the specialized instruction in a 'resource setting with [intellectually disabled] students or a co-taught setting in general education classrooms only, neither of which is appropriate for [M.J.],'" and that, "therefore, 'the location of services offered by [the District] pursuant to this decision must be something other than [M.J.'s] current DCPS middle school.'"  Following that decision, the school district and M.J.'s father formulated a new IEP in February 2012.  Although the new IEP apparently did not identify the particular school to which M.J. would be assigned, it did indicate that he would be assigned to a school other than Deal.  The district assigned M.J. to the McFarland Middle School.  The district court's opinion describes what happened next:

Plaintiffs allege they asked for an opportunity to visit the school before consenting to M.J. attending MacFarland.  After visiting the school, the Plaintiffs objected, but the District moved forward with transferring M.J. to MacFarland, including by un-enrolling M.J. from Deal.  On February 6, 2012, Plaintiffs filed a second due process complaint, alleging MacFarland could not provide the specialized instruction required by M.J.'s new IEP.  Three days later, Plaintiffs filed a motion with the Hearing Officer invoking the stay-put provision and requesting that M.J. be placed at a private school while the second due process complaint is adjudicated.  The Hearing Officer denied Plaintiffs' motion, finding that “on 2/1/12, the revised IEP became [M.J.'s] current educational program and MacFarland [Middle School] became [M.J.'s] current placement.” Plaintiffs subsequently filed the present action, seeking an injunction requiring M.J. to attend Deal or a private school of his parent's choice pending resolution of the second due process complaint.

The plaintiffs moved for summary judgment.  They argued that Deal was M.J.'s "then-current educational placement" pursuant to the IDEA's stay-put provision, 20 U.S.C. 1415(j), and that the district was accordingly prohibited from transferring M.J. out of Deal during the pendency of due process proceedings. The district court rejected that argument.  Because, in the district court's view, M.J.'s parents had agreed to the substance of the February 1 IEP -- just not the school to which M.J. was assigned under it -- the court concluded that the February 1 IEP was the "then-current educational placement" when they filed their second due process complaint five days later.  The court also concluded that the plaintiffs' argument was "based on the flawed premise that M.J.'s physical placement and 'educational placement' are synonymous."  The court held that "[s]ince there is no challenge to the IEP itself, until the Hearing Officer indicates otherwise, the District is free to place M .J. at any facility that it determines can provide the services required by the February 2012 IEP."

This is not, I reiterate, an obvious reading of the stay-put provision.  I will be interested to follow further proceedings in this case.

Miami Herald Column on Florida Kids' Nursing Home Suit

See this column, which begins:

They’re children. They don’t belong in geriatric institutions. 

They’re medically fragile kids who with nursing assistance could be cared for, and even thrive, in family homes or in the state’s network of medical care foster homes. Instead, Florida keeps them in nursing homes designed for the elderly. 

It’s certainly unconscionable; probably illegal. Two lawsuits filed in federal court in Fort Lauderdale last week lay out a strong legal case that the Florida Agency for Health Care Administration has been flouting both the federal Americans with Disabilities Act and state law by warehousing disabled kids in old-folk nursing homes.

The Latest Maneuverings on North Carolina's Adult Homes

I missed this story from last week in North Carolina Health News, but it provides a good update of where things stand on the North Carolina adult homes matter.

"Ashley Treatment" on the Rise Amid Concerns from Disability Rights Groups

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

A controversial procedure to limit the growth of severely disabledchildren to keep them forever small – which ignited a fiery debate about the limits of medical intervention when it was first revealed five years ago – has begun to spread among families in America, Europe and beyond. 

The Guardian has learned that at least 12 other families have carried out or are in the process of undergoing such medical therapies. The total number of children who have been administered with hormones to keep them small may have reached more than 100 and interest among families extended into the thousands. 

The Guardian is in contact with two of the new families, both involving severely disabled children who were adopted. They include the world's first known example of a boy who has been given hormone therapy that keep him child-sized for the rest of his life.

Disturbing stuff.

DOJ Extends Deadline for Compliance with Pool Lift Standards

Late yesterday, on the day the new pool lift standards were to go into effect, the Department of Justice issued a final rule pushing back the compliance date for applying those standards to existing pools for 60 days.  At the same time, the Department issued a notice of proposed rulemaking, which proposes to push back the compliance date for six months.  The public comment period on the notice of proposed rulemaking is a very short 15 days.  These steps are obviously a response to the massive lobbying campaign the hotel industry mounted in the last several weeks, and there can be no doubt that the industry will continue to push aggressively for a delay during and after the 15-day comment period on the new proposed rule.  The question is whether the disability community is prepared to push just as aggressively for the rule to go into effect, and how the Department and the Administration will respond.

USA Today has coverage here.

Fifth Circuit Issues Lengthy, Unpublished Opinion on Program Accessibility

It is hornbook ADA law that newly constructed and renovated facilities of state and local governments must be fully accessible under the ADA Standards for Accessible Design (formerly the ADAAG), while pre-existing facilities need satisfy only the lesser standard of "program accessibility."  Under the program accessibility standard, the program as a whole, and not every aspect of every facility, must be accessible.  Sometimes, compliance with the program accessibility standard will require structural alterations of the government entity's facilities, but not always.  If the program can be made accessible to people with disabilities without making structural changes, the government entity doesn't have to make those changes.

Yesterday, in a case entitled Greer v. Richardson Independent School District, the Fifth Circuit issued an unpublished opinion that contains an instructive discussion of the differences between the full-access standard that applies to new public facilities and the program-access standard that applies to existing public facilities.  The plaintiff, who uses a wheelchair, went to the defendant's football field (built in 1968, well before the ADA) to watch her son's football game.  The bleachers weren't accessible, so she found a space to watch the game behind a chain-link fence, where she could see only 15 percent of the game.  She sued under Title II of the ADA, and the parties cross-moved for summary judgment.  The district court denied the plaintiff's summary judgment motion but granted summary judgment to the defendant.

Affirming, the court of appeals concluded that the record conclusively demonstrated that defendants offered accessible seating at its football field that was "either immediately adjacent to or in front of the bleacher seating for the general public."  The court relied on photographs of the area, in addition to sworn statements from two wheelchair users who testified that they have not had problems attending and viewing games at defendant's football field.  Although the plaintiff had introduced an expert report about the accessibility problems at the football field, the court found that report irrelevant to the program accessibility question:

Like the district court, we note that much of Greer’s argument focuses on “the actual state of ADAAG compliance at the facility” and conflates these observations about facility deviations from ADAAG standards, which are applicable to newly constructed or modified facilities, with RISD’s obligation to provide program access at an existing facility.

In making these arguments, Greer attempts to completely nullify the “program access” standard of review by asserting that, based on RISD’s admission that the bleachers are not accessible and therefore wheelchair-bound visitors to Berkner B are provided alternate seating areas, RISD must prove that modifying the stadium seating would constitute an undue financial burden in order for RISD to avoid summary judgment. This however is not an accurate interpretation of the law. As an operator of an existing facility, RISD need only show that the program offered at Berkner B, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.150(a). Thus, despite Greer’s protests that RISD’s repeated statements that it “is not legally obligated to provide bleacher access for a mobility-impaired individual who has designated accessible seating available in an alternate area” are incorrect, RISD’s statement is a valid interpretation of the law. As an existing facility, RISD’s duty is to provide program access to events at Berkner B, which may be achieved without providing access to the bleachers.

* * * 

Many of the observations in the expert report do not relate to whether RISD provides program access to disabled individuals attending events at Berkner B and others are inapposite because Greer failed to offer evidence that the allegedly non-compliant structures in or around the Berkner B stadium have been modified since the ADA was enacted in 1992 and thus may be required to comply with the ADAAG requirements. Additionally, Greer has failed to demonstrate how minor deviations from the ADAAG requirements in various parts of the stadium identified by her expert, such as a quarter-inch variance in “maximum beveled slope” on one designated wheelchair viewing area or bathroom mirrors that are mounted seven inches too high, prevent her or other disabled individuals from accessing the program at Berkner B, i.e., watching a football game.

I have my quarrels with some aspects of the Fifth Circuit's opinion here -- it contains a footnote that seems unjustifiably to downplay the importance of integration for people with disabilities, and its application of the summary judgment standard is debatable -- but the discussion of the difference between the full-access and program-access requirements is important.

Olmstead Case Filed in Florida Regarding Kids in Nursing Homes

See this article, which begins:

Florida needlessly and illegally warehouses about 250 severely sick and disabled children in nursing homes rather than pay to help them live at home or in the community, families said in a lawsuit filed this week. 

The denial of home nursing care and other services has left the children living for months or years in institutions even after doctors have cleared them to go home with their families, according to the suit, filed in federal court in Fort Lauderdale. 

A second group of families filed a separate suit saying about 3,300 at-risk children still living at home fear the lack of services by Florida Medicaid will force them into nursing homes in the future.

Alabama Slowing Down Closure of Mental Hospitals?

See this article, which begins:

The timeline for closing most of the state’s mental hospitals is being reconsidered and construction put on hold on a new hospital in Tuscaloosa, officials said today.

Dispelling the Myths About Pool Lifts

Walter Olson has a post on Cato @ Liberty about the pool lifts controversy.  Olson repeats the line being pushed by the hotel industry that any hotel with a swimming pool that doesn't have a permanent lift by this Sunday will have to either close the pool or face possible civil penalties or cash settlements.  He blames me for this result, so let me just say this:  Owners of existing pools won't have to face the choice of installing expensive lifts or paying civil penalties or cash settlements.  The hotel industry's suggestion that they will rests on an alarmist misreading of the statute and regulations.

A couple of points are important to keep in mind here.  First, the ADA and the new regs make clear that existing pools have to satisfy the new pool lift standards only if doing so is "readily achievable" -- a term the statute defines as "easily accomplishable and able to be carried out without much difficulty or expense."  In other words, if it is too hard or to expensive to put a lift in an existing pool, the law doesn't require it -- which means that there is no possibility of civil penalties.  And the statute explicitly requires courts to take account of the size and financial resources of the business in determining what is readily achievable -- which means that small, family-owned hotels are especially unlikely to have to install new lifts in their existing pools.

Moreover, there is essentially no chance that the Justice Department -- which is the only plaintiff that can recover civil penalties or money damages in an ADA suit against a place of public accommodations -- will bring suits to challenge the failure to install lifts in existing pools in the near future.  The primary focus of DOJ's enforcement of new ADA standards has always been education and technical assistance to promote voluntary compliance.  It is only when this process has failed that the Department has brought lawsuits against businesses.

Walter brings up the possibility of private lawsuits.  But private plaintiffs are not entitled to money damages in lawsuits challenging inaccessible public accommodations -- so the idea that, as Walter says, "budget hostelries are expected to simply shutter their pools until further notice rather than take the risk that entrepreneurial fast-buck artists will begin filing complaints against them for cash settlements," makes little sense.  You never know what cases individual private plaintiffs will file, but it sure wouldn't make sense for them to file ADA lawsuits challenging the failure to install expensive lifts in existing pools, because those cases are unlikely to prevail -- especially against small "budget hostelries" -- and private plaintiffs can't recover money damages in these cases even if they do prevail.  You can expect the hotel industry will fight any such lawsuits vigorously, and small hotels will have little incentive to pay cash settlements just to make the cases go away.

Finally, I should note that this is not something that the Obama Administration just rammed through.  The hotel industry has known about this issue for a decade.  The Access Board first issued pool lift standards in its accessibility guidelines for recreation facilities issued in 2002 -- i.e., during the Bush Administration.  Also during the Bush Administration, the Access Board incorporated those standards into its 2004 ADA Accessibility Guidelines.  The pool lift standards of the 2010 ADA regulations come directly from those 2004 guidelines.  And the hotel industry has had 18 months since the promulgation of the 2010 regulations to prepare for the pool lift standards to go into effect this month.

If it's cheap and easy for a hotel owner to install a lift in an existing pool, the owner should do so -- and has had 18 months to get ready to do so.  But if it's not readily achievable -- because the lift is too expensive, the construction task is too difficult, or the business is too small and cash-strapped -- then the hotel doesn't have to install a pool lift.  And there's simply no reason why a hotel should close its pools out of the fear of paying penalties or cash settlements under the ADA.

Fourth Circuit Holds ADA Applies to Police Interrogation During Arrest, But Law-Enforcement Exigencies Guide Interpretation of Statute's Requirements

On Monday, the United States Court of Appeals for the Fourth Circuit issued an opinion in a case entitled Seremeth v. Board of County Commissioners.  Seremeth is deaf.  Sheriff's deputies responded to a report of domestic violence at his house one night.  Although they knew Seremeth was deaf, the deputies followed their normal protocol for domestic violence calls and cuffed his hands behind his back, thus preventing him from communicating by signing or passing notes.  About 45 minutes into the encounter, a local police officer who was studying American Sign Language arrived, but she was not sufficiently fluent to communicate with Seremeth.  A while later, about an hour into the encounter, with the interpretive help of Seremeth's father, the deputies determined that no abuse had occurred, uncuffed Seremeth, and left.  Seremeth sued under Title II of the ADA, contending that the deputies did not provide effective means of communicating with him during his handcuffing and questioning.

Affirming the district court's grant of summary judgment to the defendants, the court of appeals first held that the ADA's requirements apply to on-scene police questioning. In so holding, the court rejected broad dicta in its 1997 decision in Rosen v. Montgomery County. There, the court had described it as difficult to "fit[] an arrest into the ADA at all." And the court had said that "[i]f we assume, however, that the police were required to provide auxiliary aids at some point in the process, that point certainly cannot be placed before the arrival at the stationhouse."  Many had read these statements as saying that arrests and on-scene questioning were exempt from the ADA, but the Seremeth court concluded that they were dicta and that, in light of the Supreme Court's "expansive interpretation" of the ADA in the Yeskey case, "the ADA applied once the deputies attempted to question and obtain information from Seremeth." But the court of appeals nonetheless held that the defendants were entitled to judgment. The court concluded that "due to the exigencies inherent in responding to a domestic violence situation, no further accommodations were required than the ones made by the deputies."

Notwithstanding the bottom-line ruling for the defendants in this case, the Seremeth opinion is likely to serve ADA plaintiffs well in future cases.  The Rosen dicta really was inconsistent with Yeskey's broad understanding of the ADA's coverage, and it is nice to have the Fourth Circuit disavowing it.

More on Connecticut and the Nurse Practice Act

See this story, which begins:

Connecticut, like every state trying to reduce health care spending, is looking closely at how it cares for people with chronic conditions. Gov. Dannel Malloy has promised to move more than 5,000 poor and disabled patients out of nursing homes in five years. But the Democratic governor says there's an expensive obstacle in the way -- Connecticut law says nurses have to give medications to people in the Medicaid system living at home, and that costs a lot of money.

Meanwhile, on the Hotel Pool Front . . .

See this article from USA Today saying that some hotels may close their pools rather than purchase lifts.

Kansas State Fair Board Moves to Comply with New ADA Regulations

See this story.  They're going to allow people with disabilities to use Segways as mobility devices, and they're revising their ticketing policies.

Light Blogging Next Few Days

Thanks to a poorly-thought-out travel schedule, don't expect to see much if any blogging from me until Tuesday.

Why We Need (Something Like) the CLASS Act

See this important post from Don Taylor on the Incidental Economist blog, which discusses Prudential's decision no longer to write new long-term care contracts.

Wichita Eagle Editorial on Federal Olmstead Investigation in Kansas

See this editorial, which begins:

Will the U.S. Department of Justice put the hammer down on Kansas? That’s the question after a meeting last week about Kansas’ long waiting lists for services for people with disabilities. If the Justice Department does take action, it will be for good reason. 

More than 5,000 Kansans with developmental or physical disabilities have qualified for services but are on waiting lists. Many of them have been on the lists for years.

Seventh Circuit Panel Invites En Banc Petition Regarding Reassignment

As ADA mavens know, there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position.  The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position.  The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant.  The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled.  (Disclosure: I was one of Huber's counsel in the Supreme Court.)

Today, a panel of the Seventh Circuit issued an opinion that invited an en banc petition asking it to change its position on this issue.  Here's the key language, from a case entitled EEOC v. United Air Lines, Inc.:

In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston-Keeling.

* * *

For its part, United argues that this court should not abandon Humiston-Keeling, in part because the Eighth Circuit explicitly adopted the reasoning of Humiston- Keeling in Huber v. Wal-Mart Stores, 486 F.3d 480, 483-84 (8th Cir. 2007). The Eighth Circuit’s wholesale adoption of Humiston-Keeling has little import. The opinion adopts Humiston-Keeling without analysis, much less an analysis of Humiston-Keeling in the context of Barnett. A circuit split will remain even if this court adopts the position of the Tenth and D.C. Circuits. However, there is no harm in lessening this split if, in fact, Barnett undermines Humiston-Keeling. In that respect, the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett.

Stay tuned, folks.  (Thanks to Ken Shiotani for the pointer.)

National Federation of the Blind Obtains Substantial Settlement with Florida State University

See this press release:

Florida State University and two students who are blind—Christopher Shane Toth and Jamie Ann Principato—have resolved a lawsuit brought by the two students with the assistance of the National Federation of the Blind last summer.

The students claimed that they experienced discrimination in violation of state and federal disability laws, including failure to reasonably accommodate their disability and lack of accessible technology. As a result, they claimed, they were unable to complete courses related to their academic majors.

Without admitting liability or wrongdoing, the university has agreed to pay each of the students $75,000 in settlement of their claims and to continue its efforts to make courses accessible to all students. Specifically, the university will examine technology-based instructional materials currently in use for accessibility compliance, and ensure accessibility in future software and hardware procurements.

“We are extremely pleased with this settlement agreement, which will benefit all current and future blind students at Florida State,” said Dr. Marc Maurer, president of the National Federation of the Blind. “We commend the university for showing leadership and commitment to treating students with disabilities equally and hope that other institutions of higher learning will follow the example set by Florida State.”

“I am greatly relieved and pleased that this litigation has been resolved and look forward to continuing my academic career at Florida State on an equal basis with my sighted peers,” Principato said.

“We are committed to the success of all of our students, including those with disabilities,” said Garnett S. Stokes, provost and executive vice president for academic affairs at Florida State. “We will continue our efforts to make our institution a welcoming and rewarding environment for students with disabilities.”

New NDRN Report on Seclusion and Restraint

See this report, which calls on the Department of Education (ED) to take action.  The Executive Summary:

Many schools are regularly using restraint and seclusion to control student behavior. Students are suffering, especially very young students. Congress has failed to act. Some states enacted laws and regulations to protect school children, but the progress is slow and the laws are often inconsistent and incomplete.

ED is in the unique position to issue strong national guidance to state education agencies and local school districts about when the use of restraint and seclusion might violate anti-discrimination and education laws, similar to the guidance that the Office of Civil Rights has already issued on bullying and harassment. The guidance at a minimum must also limit the use of physical restraint or seclusion to circumstances when necessary to protect a child or others from imminent physical danger and not weaken existing protections in the states.

ED is also in the unique position to pull together a national summit of researchers, educators, mental health professionals and others to discuss whether restraint and seclusion has any therapeutic value and to develop evidence-based best practices to prevent and reduce the use of restraint and seclusion. ED should collaborate with the Substance Abuse and Mental Health Services Administration (SAMHSA) in this effort because SAMHSA has successfully supported efforts over the last decade to reduce the use of restraint and seclusion in mental health facilities. ED should fund demonstration projects to test what works.

ED can prevent future injuries and deaths by investigating restraint and seclusion (even where there is no individual complaint) and requiring school districts to take appropriate corrective action.

Finally, ED can define the scope of the problem and how to address it by immediately issuing data it has collected for the 2009-2010 school year about the use of restraint and seclusion. Whenever ED issues such data, it should promptly analyze it to determine which school districts and schools have unusually high numbers of restraint and seclusion incidents, analyze what might be causing this and then fund demonstration and research projects to reduce – and eventually eliminate − restraint and seclusion in those schools.

  

Interesting Guardianship Decision

Last Friday, the Alaska Supreme Court issued an interesting decision in a case entitled In re Tammy J.  Tammy J. is an adult woman with a developmental disability for whom the state court decided to appoint a guardian.  (The decision to appoint a guardian was not challenged by the parties to the proceeding.)  The court appointed a public guardian, instead of Tammy's parents.  The parents argued, among other things, that the decision to appoint a public guardian violated their parental rights as protected by the Fourteenth Amendment.  They argued, in particular, that the court "should recognize that overcoming the parental priority in guardianship proceedings constitutionally requires clear and convincing evidence that the parents are unfit to serve as guardians, or that parental guardianship would be detrimental to the child."

The Alaska Supreme Court rejected this argument.  It held that the parental rights principles that apply to minor children do not apply to adults with developmental disabilities:

It is inappropriate to refer to care for a developmentally disabled adult offspring as a form of “child rearing.” The risk to the passing on of a family’s heritage also seems substantially less when the state interferes in the care and custody of an adult developmentally disabled child than when the state interferes in decisions about the upbringing of a non-disabled minor.

But there is a far more significant factor we weigh against extending substantive due process protection to parents’ care for a developmentally disabled adult child: the interests of the developmentally disabled adult herself. Even in the context of minor children, when a child’s preferences and interests conflict with the choices of parents, protection of the parents’ rights may come at the expense of the rights of the child. In Wisconsin v. Yoder, the Court protected the rights of parents to direct the education of their children against a compulsory education law, but made clear that its analysis might not apply in a case “in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” An even stronger case can be made that the fundamental liberty interests of developmentally disabled adults “must . . . be balanced in the equation.” The general trend over the previous decades has been to recognize that developmentally disabled individuals “are not, and should not be, viewed or treated as ‘eternal children.’ ” This trend is reflected in the Americans with Disabilities Act, which states that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency . . . .” The present case illustrates the essential tension between protecting the parental interest in maintaining control over the care and custody of an adult developmentally disabled child, and that child’s interest in maximal participation in society and the development of maximum self-sufficiency. The probate master and the superior court concluded that appointing Tammy’s parents as her guardians could limit her potential by constraining her access to life skills training and to her extended family. We cannot conclude that the United States Constitution requires us to overturn the Alaska Legislature’s decision to value Tammy’s interest in obtaining the greatest possible self-sufficiency and independence above her parents’ interests.

Of course, there are a couple of crucial questions the court didn't really discuss (perhaps because they weren't presented -- I don't know):  (1) whether Tammy should have had a guardian at all; and (2) who Tammy wanted to serve as her guardian.

Bill Frezza Doesn't Like DOL's Proposed Affirmative Action Regulations

See this rather conspiratorial column from Forbes.

My New Paper on Deinstitutionalization Litigation

New on SSRN: My new paper, The Past and Future of Deinstitutionalization Litigation.  The abstract:

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified institutionalization can violate the Americans with Disabilities Act, was followed by a wave of new lawsuits challenging institutionalization of people with psychiatric, developmental, and/or physical disabilities. And the Obama Administration’s Community Living Initiative has led the United States Department of Justice to move aggressively into this field as well. The question naturally arises whether this new round of deinstitutionalization litigation will end in the same place as the litigation of the 1970s and 1980s. 

This article contends that things will be different this time — though not necessarily better. The outcomes of the first wave of deinstitutionalization litigation resulted from the interaction between the political dynamics into which advocates inserted themselves and the legal claims they employed. But, as this article shows, both the political dynamics and the legal claims have changed significantly. Precisely because the first wave of deinstitutionalization litigation was so successful in moving residents out of large state institutions for people with psychiatric and developmental disabilities, the efforts of deinstitutionalization advocates have turned to ensuring the availability of adequate services in the community. This has shifted the fiscal politics of the field in ways that destabilize old political alliances but create the potential for new ones. At the same time, deinstitutionalization advocates have moved from the due process theories on which they relied in the 1970s and 1980s to an antidiscrimination theory relying on the ADA and Olmstead. That theory focuses directly on state resource-allocation decisions and affords states a powerful incentive to create and fund adequate community services. All of which leaves the future of deinstitutionalization uncertain. Deinstitutionalization advocates are focused to a greater extent than ever on the goal of building up a robust community-based treatment system. And they are employing the most powerful legal tool they have ever possessed to achieve that goal. But the political partners who helped them achieve their great success in the first wave of deinstitutionalization will likely be the biggest obstacle to success in the next wave.

Feldman on GINA

New on SSRN: Eric A. Feldman, The Genetic Information Nondiscrimination Act (GINA): Public Policy and Medical Practice in the Age of Personalized Medicine, J. General Internal Med. (forthcoming 2012).  The abstract:

Survey data suggest that many people fear genetic discrimination by health insurers or employers. In fact, such discrimination has not yet been a significant problem. This article examines the fear and reality of genetic discrimination in the United States, describes how Congress sought to prohibit such discrimination by passing the Genetic Information Nondiscrimination Act of 2008 (GINA), and explores the implications of GINA for general internists and their institutions. It concludes that medical providers and health care institutions must be familiar with the general intent and specific terms of GINA, and should continue to collect genetic information that can contribute to the high quality provision of medical treatment. Not doing so violates their medical mission and diminishes the quality of care patients deserve.

Olson on DOL's Proposed Affirmative Action Rules

Walter Olson has a critical take in the Daily Caller on the Department of Labor's proposed affirmative action rules for disability.  His article begins:

One of the Obama administration’s most ambitious and far-reaching regulatory initiatives has thus far received very little notice in the press. In December the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) proposed expanding the government’s affirmative action program for federal contractors (a category that includes most of the nation’s biggest companies) to include various new obligations regarding disabled employees. The most notable of these is a new quota (they deny that it is such, of course, and call it merely a “required … hiring goal”) under which disabled employees are to make up at least 7 percent of a contractor’s workforce. A public comments period expired February 21.