Light Blogging

Due to a number of pressing commitments (including my kids' awesome Bar/Bat Mitzvah extravaganza), expect light blogging for the next three weeks.  You can always follow me on Twitter (@sbagen), where I may share articles or cases that I don't have time to write up or blog about.

Pew's Stateline on Mental Health Funding and Medicaid Expansion

See this interesting article, which begins:

The recent mass killings in Tucson, Aurora and Newtown have sparked public conversations about the deficiencies in state-run mental health systems across the United States. But few states are poised to spend their own money to reverse as much as a decade of budget cutbacks in those areas. 

Instead, many of them are counting on an infusion of federal mental-health dollars. Because Medicaid includes mental-health benefits, those states that opt into the Medicaid expansion included in President Obama’s Affordable Care Act will be able to make mental health coverage available to thousands of their citizens who do not now have it. 

For the first three years that additional coverage would cost the states nothing: Under terms of the Affordable Care Act, the federal government will cover 100 percent of the costs of new Medicaid enrollees for the first three years and 90 percent after 2020.

So far, 20 governors, some of them Republicans who opposed the health care law, have committed their states to the Medicaid expansion. Ten Republican governors have announced they will not participate. If all states opted into the expansion, an estimated 13 million more Americans would receive mental health benefits through Medicaid next year, according to a report by the Congressional Budget Office. The number would rise to 17 million in 2022.

Black on Civil Rights and Charter Schools

New on SSRN: Derek W. Black, Civil Rights, Charter Schools, and Lessons to Be Learned, 64 Fla. L. Rev. 1723 (2012).  The abstract:

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community has misinterpreted both its own decline and the rise of charter schools. Rather than look for external explanations, civil rights advocates should turn their scrutiny inward. And, rather than attack charter schools, they should learn from them.

Bazelon Center Analysis of Psychiatric Hospital Bed Availability and Gun Homicides

See this press release, with attached report:

Over the past several years, homicides involving the use of firearms — notably, mass murders that generate significant media attention — have raised questions about the adequacy of mental health services in this country. Some have argued that the disability rights movement, deinstitutionalization, and the closure of state hospital beds have significantly contributed to many of the tragic gun-related murders across the country. Such arguments tend to overlook the impact of the nation’s failure to fund the comprehensive community mental health systems that were intended to replace outmoded state institutions. Nevertheless, arguments to expand the availability of psychiatric hospital beds have ready appeal, particularly in the wake of tragic mass homicides; increasing the number of psychiatric hospital beds appears to be a straightforward response. 

A new analysis conducted by the Bazelon Center for Mental Health Law examines the relationships between states’ rates of murder by firearms, incarceration, and the availability of psychiatric hospital beds. If expanding the number of psychiatric beds is a meaningful remedy to firearm related murders in this country, one would expect a clear association between these factors, showing that states with fewer psychiatric hospital beds have higher rates of firearm-related homicides or incarceration. 

The Bazelon Center’s analysis found, however, that correlations among these factors are strikingly low. The analysis suggests that, to the extent that unaddressed needs of people with serious mental illness contribute to the nation’s homicide rate, the public policy answers lie not in increasing the number of psychiatric hospital beds, but elsewhere.

Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:

In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.

The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):

In Title III of the ADA and § 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.

This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

NYT on Accommodating Scholastic Athletes with Disabilities

See this story, which begins:

Some disabled students are experiencing their own Oscar Pistorius moments — not by breaking barriers in the Olympic Games, but by battling sports officials over whether and how disabled athletes should be accommodated in competitions with able-bodied athletes.

* * *

High schools and youth sports organizations throughout the country are grappling with similarly unusual challenges in finding ways to accommodate students with disabilities.
Should a starting light be used rather than a starting gun for a deaf athlete? Should a swimmer with one arm be allowed to touch the wall with his head instead of his hand? Should a track athlete in a wheelchair be allowed to use arm strength rather than leg muscles to propel toward the finish line? 

Federal laws have long provided guidance on what students with disabilities are legally entitled to during the school day. But what constitutes reasonable accommodation or equal opportunity under the law has become widely debated when it comes to after-school sports.

Franken, Harkin Urge Administration to Issue Final Mental Health Parity Rule as Response to Gun Violence

You can see the letter sent by Senators Franken and Harkin to the Vice President here.

Stephen Drake on Assisted Suicide of Deaf-Blind Twins in Belgium

Read this story, which includes a powerful response from a deaf-blind blogger.

Sixth Circuit Issues Strong Opinion on Accommodation of Deaf Lifeguard

Yesterday, the United States Court of Appeals for the Sixth Circuit issued an opinion in Keith v. County of Oakland, ___ F.3d ___, 2013 WL 115647 (6th Cir., Jan. 10, 2013).  Keith, the plaintiff, applied to work as a lifeguard at a wave pool operated by Oakland County, Michigan (an excellent wave pool, by the way -- my kids and I enjoy it very much!).  Keith has been deaf since birth.  Although he can detect noises through a cochlear implant, he principally communicates by using American Sign Language.  Keith completed lifeguard training (using an ASL interpreter to relay verbal instructions to him, but not to assist him with lifesaving tasks) and was certified as a lifeguard.  He applied for a lifeguard position at the wave pool.  The County extended him an offer of employment conditioned on passing a medical examination.  The examining doctor approved Keith for employment, but only "if his deafness was 'constantly accommodated.'"  

The County's recreation specialist, Katherine Stavale, contacted a risk management consultant, Wayne Crokus, to discuss whether Keith's deafness could be safely accommodated.  The court's opinion describes what happened next:

After these discussions, Stavale prepared a six-page outline setting forth the accommodations that she believed could successfully integrate Keith, and she sent it to Crokus for feedback. Stavale explained:

1. Keith will carry laminated note cards in the pocket of his swim trunks to communicate with guests in non-emergency situations.
2. Keith does not need to hear to recognize and rescue a distressed swimmer; experience reveals that distressed swimmers do not cry out for help.
3. Keith will use his whistle and shake his head “no” to enforce pool rules.
4. Keith will briefly look at other lifeguards on duty when scanning his zone to see if they enter the pool for a save.
5. Because Keith cannot use the megaphone or radio, another lifeguard will have this responsibility when Keith is working.
6. Keith will not work the slide rotation, which should not be a problem because this is one of the favorite rotations and many lifeguards like to work more than one slide rotation.
7. The Emergency Action Plan (“EAP”) will be modified, regardless of whether Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a fist in the air, opening and closing it like a siren. This will accommodate Keith and improve the effectiveness of the EAP for the entire team.

Crokus questioned Stavale on several of these accommodations and remained concerned about Keith’s ability to function effectively as a lifeguard. He stated, “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Ultimately, Stavale and her supervisors decided to revoke the offer of employment.

Keith sued under the ADA and the Rehabilitation Act.  Although Keith offered an impressive array of expert evidence tending to demonstrate that his deafness would not impair his ability to perform the duties of a lifeguard, the district court granted the County's motion for summary judgment.

The Sixth Circuit reversed.  The appellate court first concluded that neither the County's doctor nor its risk consultant made an individualized inquiry into the nature of Keith's particular limitations and the possibility of accommodation.  It therefore questioned the district court's conclusion that the County had itself made a sufficiently individualized inquiry:  "Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider these questions on remand."

Next, in the most significant part of its opinion, the court of appeals concluded that Keith had presented sufficient evidence to create a triable issue regarding whether he could perform the essential functions of the lifeguard position.  I'll quote it extensively to show what a good job the plaintiff's lawyer did here:

With regard to supervising water activities and lifesaving, Keith has presented evidence from which a jury could reasonably find that he can communicate effectively despite his deafness. Like other lifeguards, Keith can adhere to the “10/20 standard of zone protection,” a scanning technique taught to lifeguards in which they must scan their entire zone every ten seconds and be able to reach any part of their zone within twenty seconds. This method is purely visual. Further, by passing Oakland County’s lifeguard training program and earning his lifeguard certification, Keith demonstrated his ability to detect distressed swimmers, which several experts testified is almost completely visually based.

In addition to communicating with distressed swimmers, there is evidence that Keith can effectively communicate with other lifeguards during lifesaving. Because he cannot hear another lifeguard’s whistle blow before going in for a save, as a modest modification, he could briefly look at the other lifeguards when scanning his zone.

Likewise, Keith has presented evidence that he can enforce safety rules. Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head “no” for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for “one person per tube.” Keith can use these same methods of enforcement.

Keith has also presented evidence that he can communicate effectively during emergencies with a modification to the EAP. To activate the EAP, lifeguards would signal with a fist in the air, opening and closing their fist in repetition. According to Stavale, this would improve the EAP for everyone, not just Keith. It would allow other lifeguards and staff to see the EAP visually if they are not in a position to hear it. Once activated, other lifeguards who are required to maintain their position would put their fist in the air and make the same signal.

Further, Keith has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point. In addition, staff members are required to respond whenever a whistle is blown to signal a save.

Perhaps the most compelling evidence that Keith is “otherwise qualified” comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards. They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.

Finally, the court of appeals concluded that Keith had presented sufficient evidence that a reasonable accommodation was possible, and it directed the district court to consider on remand whether the County had properly engaged in an interactive process with him.

It's not easy to win a case on behalf of a plaintiff with a disability seeking a public safety job.  This is a very significant victory for a deaf plaintiff against what seems to have been a reflexive and stereotype-infused exclusion.  

Iowa Appellate Court: ADAAA Covers Severe Allergies

See this story, which begins:

Iowa residents who suffer from occasional medical attacks such as those those from severe allergies and epilepsy are protected from discrimination by the federal Americans With Disabilities Act, the Iowa Court of Appeals ruled Wednesday. 

The case involved Shannon Knudsen, 30, a mother who in May 2011 sued Tiger Tots Community Child Care Center in Madrid, Iowa, after the facility declined to accept her child because of the child's tree nut allergy. 

A district court had ruled that the Iowa Civil Rights Act does not protect the child. The appeals court, however, said the lower court erred in not considering a 2008 amendment to the Americans With Disabilities Act that may protect the child from discrimination.

The opinion in Knudsen v. Tiger Tots Community Child Care Center Corporation can be found here.  What's interesting about the case is that the Iowa legislature did not amend its Civil Rights Act after Congress passed the ADA Amendments Act to explicitly incorporate the new federal definition of disability.  But the court held nonetheless "that federal law" -- including the ADAAA -- "establishes the framework for an analysis of 'disability' under state law."  Judge Gayle Nelson Vogel, dissenting, argued that the court was usurping the legislative function by reading the state statute as incorporating the ADAAA.

Law School Admissions Council Sues California to Challenge Test-Flagging Law

See this article, which begins:

The Law School Admission Council has sued the state of California over a new law that bars the organization from alerting law schools when applicants get extra time to complete the Law School Admission Test.

The California Legislature approved the legislation in September, with supporters arguing that the practice—also known as "flagging"—discriminates against disabled test takers who need the extra time. The law took effect on January 1 and will apply to scores earned during the February 9 LSAT sitting.

The council filed suit on January 4 in Sacramento County, Calif., Superior Court, seeking to block its enforcement. The council contends that the law is unconstitutional because it violates its freedom of speech and does not apply to other testing entities. Attorneys for the parties are due in court for a hearing on January 9.

NPR on DOJ Settlement with Lesley University Over Meal Plans for Students with Food Allergies

See this story, which begins:

Many a college student lives off of microwavable meals – but some do it not by choice but because they're worried school food might make them sick. 

They may have celiac disease, a digestive ailment caused by gluten, or life-threatening allergies to foods like peanuts — both are on the rise. But even as more people become aware of the issues, schools and institutions may lag behind. 

Now some food allergy advocates are celebrating what they see as a shifting legal trend: schools and other institutions required to treat food allergies as a disability. They've found an ally in the Department of Justice. 

DOJ's Civil Rights Division announced last month that the Americans With Disabilities Act applies to students at Lesley University in Cambridge, Ma., who claimed that the school's food services and meal plans were inadequate for their needs. It was the first food allergy-related settlement under ADA in higher education, says a DOJ spokeswoman.

As the story notes, this sort of settlement likely wouldn't have been possible before the ADA Amendments Act.

Seventh Circuit Applies Continuing Violation Theory in ADA Public Accommodations Suit

Yesterday, the United States Court of Appeals for the Seventh Circuit issued an opinion in Scherr v. Marriott International, Inc., ___ F.3d ___, 2013 WL 57857 (7th Cir., Jan. 7, 2013).  The case was a rather straightforward hotel-accessibility case.  In a renovation in 2004, the defendant had added a spring-hinged door closer to the bathroom doors in a number of its Courtyard by Marriott hotels.  Scherr uses a walker for mobility.  She visited one of defendant's renovated hotels, in Overland Park, Kansas, in 2006, and was injured when the spring-assisted door closed too quickly on her.  In this lawsuit, filed in 2010, Scherr sought injunctive relief under Title III of the ADA to remove the spring-hinged door closers in all of defendants' hotels that have them.  The district court concluded that Scherr had standing to challenge accessibility at the Overland Park hotel (as she has lots of family in the Overland Park area who live near the Courtyard hotel, and she often visits) but not at the other hotels (as she made no similar showing that she would ever visit them).  The district court also concluded that Scherr's suit was not barred by the statute of limitations.  But the district court held that the spring-hinged door closer, while not compliant with the Attorney General's 1991 ADA regulations, did comply with the Attorney General's 2010 ADA regulations.  Accordingly, the court granted judgment to the defendant.

The Seventh Circuit affirmed in all respects.  The most legally significant aspect of the Seventh Circuit's opinion is its discussion of the statute of limitations.  The court concluded that Illinois's two-year personal-injury statute of limitations applied to Scherr's claim.  But even though Scherr filed her suit more than two years after she encountered the barrier she challenged, the court nonetheless held that the statute of limitations did not bar the suit.  Because Title III authorizes plaintiffs to seek injunctive relief for actual or threatened violations of the statute, the court concluded that the existence of unlawful barriers to access is a continuing violation of the statute that continues to impose a fresh injury.

Although there is no clear circuit split (because the appellate cases involve different accessibility statutes), the courts of appeals have employed a number of different statute-of-limitations analyses to disability-access claims involving construction or renovation.  The Seventh Circuit's decision in Scherr is consistent with the Ninth Circuit's 2002 decision in Pickern v. Holiday Quality Foods Inc., which also applied a continuing violation theory to an ADA Title III accessibility claim.  Last year, the en banc Fifth Circuit decided Frame v. City of Arlington (blogged about here), which held that the statute of limitations in an accessibility suit under Title II of the ADA does not begin to run until the plaintiff knew or should have known of the inaccessibility of the facilities at issue.  In 2008, the en banc Ninth Circuit decided Garcia v. Brockway, which refused to apply a discovery rule or continuing violation theory to a case challenging inaccessible design and construction under the Fair Housing Act.  The Garcia court held that the statute of limitations begins to run at the end of the design and construction phase.  Also in 2008, the Third Circuit held that the statute of limitations on a challenge to inaccessible alterations to a facility under the public-transportation provisions of ADA Title II begins to run no earlier than the completion of the alterations -- though the court left open the possibility that the statute would begin to run even later if the plaintiff did not discover the violation by the time the alteration was completed.  That case was Disabled in Action v. Southeastern Pennsylvania Transportation Authority.