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DISABILITY LAW NEWS & VIEWS 2008-2010

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July 2010

Americans with Disabilities Act marks 20 years

Ed O'Keefe, Washington Post (blog)  

07-26-10 -- And as the nation marks the 20th anniversary of the Americans with Disabilities Act, the Justice Department is exploring how the law could apply more to Web sites, movie theaters, office furniture and equipment, and 9-1-1 call centers. . . . The White House on Monday is scheduled to hold an afternoon event commemorating passage of the far-reaching measure that mandated greater access for disabled Americans to structures and public transportation and the workplace. . . . (Despite progress in the last two decades, what still needs to be done when it comes to accessibility for the disabled? We welcome your thoughts in the comments section below and will post some of the best responses later.) . . . Kareem Dale, President Obama's White House adviser on disability policy, said advances in technology make revisiting the law a necessity. . . . "When ADA was passed in 1990, the Web wasn't what it is now and technology wasn't what it is now," Dale said during an interview on Friday. "The ADA and the law have to pick up with technology." . . . Dale, who is legally blind, noted that he's unable to type in passwords or use certain authentication software on Web sites. But adding voice-recognition software might help, he said.

MISSISSIPPI

Mississippi AG warns of scam targeting diabetics

WLOX

07-26-10 -- The Attorney Generals Office is warning consumers of a recent scam targeting those with diabetes. . . . Consumers have called the Diabetes Foundation of Mississippi and the American Diabetes Association to report that they are receiving unsolicited requests from individuals purporting to be employees with those organizations. The scam artists are calling diabetes victims and requesting personal information such as social security numbers, dates of birth and credit card information. . . . The Diabetes Foundation of Mississippi and the American Diabetes Foundation reported these complaints to the Consumer Protection Division of the Mississippi Attorney Generals Office.

UNITED STATES SUPREME COURT

Under the U.S. Supreme Court: Opening prison doors for healthcare

By Michael Kirkland, UPI  

07-25-10 -- The U.S. Supreme Court says it will hear argument next term on whether federal judges can force California to release nearly 50,000 prison inmates, mainly because of problems with providing healthcare. . . . American families struggling with their own health insurance might have trouble understanding how a convicted criminal can get a free pass from prison because of inadequate healthcare. But the federal trial judges' panel in San Francisco that ordered the release said there was absolutely no other practical way to fix the constitutional problem. . . . If the prisoner plaintiffs in California win their case before the Supreme Court -- by no means a done deal -- it could encourage an explosion of such cases across the country where many U.S. states are struggling with reduced revenues and crowded prisons.

TENNESSEE  

Courtroom plight aids others with disabilities

Man helped launch legal battle that led to Supreme Court win

By Kristi L. Nelson, Knoxville News Sentinel 

07-25-10 -- One morning in 1997, George Lane found himself at the base of a staircase in the Polk County courthouse wondering how he was going to get to the courtroom on the second floor. . . . Newly sober, Lane had been up and down those stairs many times and hadn’t really considered until he arrived that he might face a new problem. He was due to appear in court on a charge of driving on a revoked license during an accident that left him with a head injury, broken pelvis and damaged legs (one of which he later had amputated). The courthouse had no elevator. . . . Finally, Lane crawled backward up the stairs, dragging his legs, while his wife and mother carried his wheelchair. It was painful, he said, and “humiliating”: During his ascent, Lane said, he looked up and saw court officials making no secret of their amusement. . . . These men knew Lane; his “lifestyle” in the rural county landed him in court more than 30 times for charges related to drinking, drugs and driving. Maybe they felt he deserved to struggle. . . . But “a person in that position, you would think that they would conduct themselves better … no matter who it was,” Lane said. . . . When Lane’s case wasn’t heard in the morning session, he refused to go back upstairs. He didn’t want to be carried by courthouse workers. He stayed downstairs, and the judge issued a bench warrant for his arrest.

CALIFORNIA  

Redlands business owners say lawyer is abusing technicalities of ADA

Chantal M. Lovell, The Sun Staff Writer

07-22-10 -- Some Redlands businesses say they are under attack from an extortionist who is taking advantage of legal technicalities. . . . Kathie Thurston, executive director of the Redlands Chamber of Commerce, said an "unscrupulous attorney" from San Diego has been targeting local businesses under the guise of being an advocate for the disabled. . . . By Tuesday morning, six businesses in the city had contacted her saying they received letters from the attorney notifying them are in violation of the Americans with Disabilities Act and demanding reparations. The form letter from Attorney James C. Mason details the infractions, instructs the business to make necessary adjustments and pay the sum of $6,500 to keep the matter out of court. . . . "The Americans with Disabilities Act and related California law requires that as a business or property owner, you make your place of business accessible to the disabled," Mason's letter to one local business states. "Failing to do so in accordance with applicable legally established standards, in particular, disabled parking spaces, is discrimination against the disabled."

National Owner of Gas Stations Resolves ADA Claims

Justice Department and QuikTrip reach comprehensive settlement

Consumer Affairs  

07-19-10 -- The Justice Department (DOJ) has reached a comprehensive settlement under the Americans with Disabilities Act (ADA) with QuikTrip Corporation, a private company that owns and operates more than 550 gas stations, convenience stores, travel centers, and truck stops in the Midwest, South and Southwestern United States. . . . Under the consent decree, which was filed along with a complaint in the U.S. District Court for the District of Nebraska, QuikTrip will create a $1.5 million compensatory damages fund for individuals who were victims of discrimination based on disability, as well as take various steps to make its stores accessible. . . . The Justice Department opened the investigation in response to complaints about inaccessible parking by two individuals with disabilities in the Omaha, Neb., area. The DOJ lawsuit says the investigation revealed a nationwide pattern and practice of discrimination on the basis of disability. QuikTrip worked with the department to amicably resolve the matter without active litigation. . . . "On July 26, 2010, we will celebrate the 20th anniversary of the ADA, a landmark civil rights law that ensures equal access and equal opportunity for individuals with disabilities," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. "Ensuring full and equal access to all businesses open to the public is a top priority, and the Justice Department is committed to vigorous enforcement of the ADA to ensure equal opportunity for individuals with disabilities."

Justice Department Reaches Settlement with Blockbuster Inc. Under the Americans with Disabilities Act

PRNewswire-USNewswire/ --

07-19-10 --  The Justice Department today announced a settlement agreement under the Americans with Disabilities Act (ADA) with Blockbuster Inc. to ensure equal access to its stores nationwide for individuals with disabilities who use service animals. . . . The settlement agreement, which resolves a complaint filed under title III of the ADA by an individual with a disability, requires, among other things, that Blockbuster provide comprehensive training to employees at more than 3,000 retail stores throughout the United States to ensure individuals with disabilities who use service animals have full and equal enjoyment of its goods, services and facilities. . . . "The Americans with Disabilities Act guarantees equal access to individuals with disabilities who are accompanied by service animals, but too often those individuals are subject to discrimination because of misperceptions or a lack of understanding of the law," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. 

20th anniversary of ADA act to be celebrated in Salem

Alan Gustafson • Statesman Journal

07-19-10 --  A 20th anniversary celebration of the Americans with Disabilities Act will be held from 11:45 a.m. to 1 p.m. Monday, July 26, on the Capitol steps in Salem. . . . Speakers will include Cindy Brown of the Northwest ADA Center and Jim Willis of the Oregon Department of Veterans Affairs. . . . Enacted by the U.S. Congress in 1990, the ADA act barred discrimination on the basis of disability. It was signed into law July 26, 190, by President George H.W. Bush.

May 2010

UNITED STATES SUPREME COURT

High Court Smooths Path to Plaintiff Fees in Disability Cases

Marcia Coyle, The National Law Journal

05-25-10 -- Workers suing over disability and other benefits under the federal law known as ERISA may win attorney fees and costs if they achieve "some degree of success on the merits," a unanimous U.S. Supreme Court ruled on Monday. In Hardt v. Reliance Standard Life Insurance Co. (pdf), the justices rejected a tougher standard imposed by the 4th U.S. Circuit Court of Appeals (pdf) on fee claimants under the Employee Retirement and Income Security Act. The lower appellate court had ruled that a claimant must be a "prevailing party" before seeking a fee award. . . . The justices' ruling came in a case brought by Bridget Hardt, who sought long-term disability benefits as a result of job-related carpal tunnel syndrome. Hardt was awarded the benefits, but in March 2006, Reliance informed her that she was ineligible for continued long-term benefits. She sued the insurance company, claiming ERISA violations.

TEXAS

Texas doctors opting out of Medicare at alarming rate

By Todd Ackerman, Houston Chronicle

05-17-10 -- Texas doctors are opting out of Medicare at alarming rates, frustrated by reimbursement cuts they say make participation in government-funded care of seniors unaffordable. . . . Two years after a survey found nearly half of Texas doctors weren't taking some new Medicare patients, new data shows 100 to 200 a year are now ending all involvement with the program. Before 2007, the number of doctors opting out averaged less than a handful a year. . . . “This new data shows the Medicare system is beginning to implode,” said Dr. Susan Bailey, president of the Texas Medical Association. “If Congress doesn't fix Medicare soon, there'll be more and more doctors dropping out and Congress' promise to provide medical care to seniors will be broken.” . . . More than 300 doctors have dropped the program in the last two years, including 50 in the first three months of 2010, according to data compiled by the Houston Chronicle. Texas Medical Association officials, who conducted the 2008 survey, said the numbers far exceeded their assumptions.

GENERAL

Advocates for the Blind Suing Law Schools Over Online Application Process

By Karen Sloan | The National Law Journal | New York Lawyer

05-14-10 -- A national advocacy group for the blind is accusing the University of Miami School of Law and others across the country of violating the rights of blind would-be law students by using the Law School Admission Council’s online application process. . . . The National Federation of the Blind filed complaints this month with the Justice Department’s civil rights division against nine law schools, claiming they violated the Americans with Disabilities Act and asking the department to compel them not to use the online application system. . . . “We’ve asked the U.S. Justice Department to act swiftly and decisively to ensure that blind law school applicants are treated the same as their sighted peers,” said federation president Marc Maurer.

INDIANA

Clash of Rights over an Allergy-Detecting Dog Leads to EEOC Complaint

By Debra Cassens Weiss, ABA Journal

05-14-10 -- The rights of an employee who uses an allergy-detection dog are at odds with those of another worker with asthma in a complaint pending with the Equal Employment Opportunity Commission. . . . Emily Kysel brought her specially trained, $10,000 golden-retriever to work at the city of Indianapolis until a co-worker reacted to the animal with an asthma attack, the New York Times reports. Kysel’s boss then gave her a choice, the story says: Report to work without the dog or go on indefinite unpaid leave. . . . Kysel has a life-threatening allergy to paprika, the story says. During her first week on the job, she suffered a severe allergy attack caused by a co-worker eating buffalo wings. Kysel’s family bought her the dog, Penny, after that and she brought the animal to work until the asthma incident. Penny is trained to jump on Kysel whenever she smells paprika.

FEDERAL COURTS

Judge to Determine if Obesity Constitutes a Disability in Karate Teacher's Suit Over Firing

Mark Hamblett, New York Law Journal

05-12-10 -- The open question of whether obesity, standing alone, can be counted as a disability under the "uniquely broad and remedial" statutory scheme of the New York City Human Rights Law has been remanded to a district judge. . . . The 2nd U.S. Circuit Court of Appeals said in Spiegel v. Schulmann, 06-5914-cv, that New York City Human Rights Law, N.Y. City Admin. Code §8-107(1)(a), casts a wider net than state and federal civil rights laws. . . . The decision gives a measure of hope to Elliot Spiegel, who claims he was fired from his job as a karate instructor at Tiger Schulmann Karate Schools because he is obese. Spiegel had lost his case on summary judgment in the Eastern District. . . . Second Circuit Judges Peter W. Hall and Debra Ann Livingston, by a per curiam opinion, vacated part of Eastern District Judge Sandra L. Townes' summary judgment ruling and instructed her to determine whether Spiegel had made out a prima facie case of discrimination under the city law.

NEW YORK  

Judge Accuses Wheelchair Bound Lawyer Of Sex Crime

Reported by Barbara Nevins Taylor, Myfoxny.Com

05-12-10 -- A man bound to a wheelchair, who can't even feed himself, is charged with sexual harassment against a judge. . . . Cheecho Mertsaris is accused of sexual abuse, although he can't control his arms, his legs, or his hands. He has cerebral palsy because his brain was damaged during his delivery at birth. . . . His father and an aide help him with almost everything, even eating. . . . The thinking park of Mertsaris' brain works fine. He moves his head to manipulate a computer. He graduated from college and earned a law degree. . . . Mertsaris works as a lawyer at the Taxi and Limousine Commission. He handles cases involving taxi drivers. . . . Last October, a TLC judge accused Mertaris of grabbing her upper thigh and buttocks while they were in the office alone. His aide had gone to file papers. . . . His arms and hands tend to flail around and that's where the trouble started. When people get too close to him, Mertsaris tends to get nervous and he has more trouble controlling his arms. . . . He says his arm moved and hit her. He says he did not intend to touch her.

NEW YORK  

Attorney who preyed on disabled sentenced to up to 15 years in prison

By Melissa Grace , Daily News Staff Writer

05-05-10 -- A corrupt Brooklyn lawyer who admitted to ripping off disabled clients to the tune of $4 million was sent to prison Tuesday for up to 15 years. . . . Steven Rondos, 45, previously pleaded guilty to grand larceny and money laundering for stealing settlement claims and other money from 23 victims beginning in 2001. . . . "The son of a b---- was a pretty vicious guy, preying on incapacitated people," former Manhattan District Attorney Robert Morgenthau said when Rondos was busted in January 2009.

NEW JERSEY  

N.J. Court Considers Hospital's Right to End Treatment for Vegetative Patient

Charles Toutant, New Jersey Law Journal

05-03-10 -- A New Jersey appeals court heard arguments Tuesday over whether a hospital can end life-sustaining treatment for a patient in a persistent vegetative state contrary to his family's wishes. . . . A year ago, a Union County, N.J., judge said no, granting an injunction requested by the comatose patient's guardian despite hospital doctors' opinion that further treatment would be futile. . . . The hospital appealed, and though the patient has since died, the state Appellate Division proceeded to invite briefs and schedule arguments in the case, Betancourt v. Trinitas Regional Medical Hospital, A-3849-08. . . . The hospital's lawyer, Gary Riveles of Dughi & Hewit in Cranford, N.J., insists judicial guidance is needed because the case's circumstances are not uncommon and a similar situation is bound to recur. . . . Equally interested are amici representing disabled patients, who fear a ruling in the hospital's favor would pave the way for caregivers to freely pull the plug in the interests of expediency and cost savings. . . . Spectators who jammed into the small New Brunswick, N.J., courtroom included half a dozen people in wheelchairs bearing orange stickers with the logo of Not Dead Yet, a disability-rights group that is among the amici.

April 2010

CALIFORNIA  

Judge allows parents of disabled woman to seek visitation rights on her behalf

Abbie Dorn, who can’t move or speak, hasn’t seen her 3-year-old triplets for 2½ years. They live in Los Angeles with their father.

By Maria L. La Ganga, Los Angeles Times

04-20-10 -- A Los Angeles County Superior Court judge ruled Tuesday that the parents of a woman who communicates largely by blinking have the legal right to fight on her behalf so that she can see her 3-year-old triplets. . . . Abbie Dorn 34, was left unable to move or speak because of a series of medical mishaps while giving birth to the children at Cedars-Sinai Medical Center in 2006. She now lives in South Carolina with her parents. . . . Abbie and her husband, Dan, eventually divorced in a proceeding that left decisions over custody, visitation, property and child support until later. A trial is set for May 13. . . . Dan Dorn has refused to allow Esti, Reuvi and Yossi to visit their mother, arguing that it would be detrimental at their age. He and the children still live in Los Angeles. Abbie has not seen them for 2½ years, and the children know nothing about her, according to court documents and testimony in the novel and acrimonious case.

PENNSYLVANIA  

Disabled Pennsylvania man's service dog not eligible for food stamp benefits, court rules

L.A. Unleashed  blog of the Los Angeles Times. 

04-06-10 -- Food stamps won't be helping a disabled man fill his service dog's food bowl. . . . James Douris lost a key court decision Tuesday in his yearlong effort to qualify his male boxer, who is fed everything Douris eats, as a dependent member of his household in calculating food stamp benefits. . . . A three-judge Commonwealth Court panel upheld an earlier Department of Public Welfare's determination that the dog was ineligible because he is not human. . . . "This court is sympathetic to [Douris'] argument that his service dog is a necessity for him due to his disability, and that he lacks the funds to properly feed his service dog," wrote Judge Renee Cohn Jubelirer. "We hope that there is some other state or federal program that might provide for the maintenance and upkeep of [the] dog." . . . Douris, 55, a resident of Newtown in the Philadelphia suburbs, is a disabled and unemployed veteran who lives alone and relies on the dog to pull his wheelchair and fetch items. Although Douris has represented himself in the legal proceedings, he said Tuesday that news of his case prompted lawyers to offer their help, and he plans to appeal the decision.

COLORADO   

Dogged by Lawsuit After Barring Service Animal From Office, Lawyer Settles for $50K

Mike Scarcella, The National Law Journal

04-01-10 -- A Colorado Springs, Colo., lawyer who refused to allow a veterinarian and her service dog to enter his law office for a scheduled deposition in a civil action has agreed to pay $50,000 to settle a federal discrimination suit. . . . The Justice Department's Civil Rights Division filed a complaint (pdf) in the U.S. District Court for the District of Colorado last November against Patric LeHouillier of LeHouillier & Associates. The suit alleged LeHouillier violated the Americans with Disabilities Act when he refused to allow the woman and her dog -- and the woman's lawyer -- to enter the LeHouillier law office in December 2006.

March 2010

COLORADO   

Justice: Lawyer fined for snubbing service dog

ohmidog! 

03-31-10 -- A Colorado Springs attorney accused of not allowing a disabled woman and her service dog into his office because he feared his new carpet might be soiled will pay $50,000 as part of a consent decree approved by a federal court today. . . . A November 2009 complaint accused Patric LeHouillier of violating the Americans with Disabilities act by barring Joan Murnane, a veterinarian with brain and other injuries that affect her balance, from entering his  law office because her service dog was with her. . . . The complaint says LeHouillier and his firm, LeHouillier & Associates, expressed concern that the Australian shepherd might soil its new carpet, according to a report in Westword. . . . That decision, under the consent decree, will cost him $50,000 –  $30,000 for Murnane, $10,000 for her husband and another $10,000 for a civil penalty.

WASHINGTON   

Claiming Panic Attacks From Workload, Legal Secretary Sues Firm Over Firing

Karen Sloan, The National Law Journal

03-25-10 -- Are law firm staff layoffs creating unmanageable workloads for so-called survivors? . . . They are at Seattle-based Davis Wright Tremaine, according to a lawsuit filed by a former secretary, who claims she was unfairly fired by the firm after suffering panic attacks brought on by unrealistic work demands following staff layoffs. . . . In a suit filed last month in Oregon state court, Nancy Topolski claims that Davis Wright Tremaine wrongfully terminated her and violated Oregon's family leave act as well as the state's disability and discrimination and retaliation laws. She is seeking nearly $1 million, according to the complaint. . . . Lawyers for Davis Wright last week petitioned to have the suit moved to federal court. . . . Topolski was hired as a legal secretary in the firm's Portland office in 2007, according to the complaint, and provided full-time support for three attorneys. The firm laid off "a significant number" of employees including 11 secretaries in the early fall 2009, and Topolski then became responsible for supporting a fourth attorney -- Greg Chaimov.

GEORGIA  

Ga. Supreme Court upholds ER statute

By Bill Rankin, The Atlanta Journal-Constitution

03-15-10 -- The Georgia Supreme Court on Monday upheld a key provision of the state's tort reform law that makes it more far more difficult for patients to win damages in cases involving emergency room care. . . . In a 4-3 decision, the court ruled in a challenge brought by a woman who went to the emergency room in Columbus complaining of serious pain behind her eyes. She said a doctor sent her away with a prescription and failed to diagnose her real, disabling illness. . . . Under the tort reform law enacted in 2005, a plaintiff must establish by "clear and convincing evidence" that an ER doctor committed "gross negligence" to prevail in a lawsuit. . . . Justice George Carley, writing for the majority, noted the law was enacted amid the medical industry's claims that medical malpractice insurance rates were soaring. . . . "Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes," Carley wrote.

DISTRICT OF COLUMBIA  

HIV Misdiagnosis Spurs D.C. Court of Appeals to Reconsider Emotional Damages Rule

Andy Jones, The National Law Journal

03-08-10 -- The D.C. Court of Appeals has granted an en banc hearing in the case of a man who is seeking the right to sue for emotional damages after he was misdiagnosed with HIV. . . . The case could give the court a chance to rethink a long-standing precedent in medical malpractice cases, which holds that courts can only grant damages for emotional distress if the plaintiff had been put in a "zone of physical danger." . . . Terry Hedgepeth spent five years believing he had HIV after he was falsely diagnosed at the Whitman Walker Clinic in Washington. He learned he never had the virus after a new test at a different clinic in 2005. . . . Between the two tests, he said he suffered severe depression which led to problems in his relationship with his daughter, the loss of his job, heavy use of illegal drugs and suicidal thoughts. He was twice committed to psychiatric wards.

NEW YORK  

Judge: Defendant Cannot Suppress Statements Made During OCD 'Brain Freeze'

Vesselin Mitev, New York Law Journal

03-02-10 -- A defendant who says he is afflicted with obsessive-compulsive disorder cannot suppress statements he made in the throes of a purported "brain freeze" triggered by his arrest that stripped him of his ability to waive his Miranda rights, a New York state judge has held. . . . "[T]he evidence fails to disclose that the Defendant's OCD affected him to such a degree" as to render him incapable of understanding the "nature and consequences of his statement," District Court Judge Andrew M. Engel in Nassau County wrote in People v. Martz, Docket No. 2008 NA 006851. . . . In March 2008, David Martz, a teacher at the Oyster Bay Boys and Girls Club, was arrested for allegedly exposing himself and masturbating in front of a 13-year-old boy in the restroom of the Roosevelt Field Mall in Garden City. . . . Martz was charged with two counts of endangering the welfare of a child and two counts of public lewdness, all misdemeanors. . . . He challenged the admissibility of a signed statement that he gave after a nearly two-hour interrogation, arguing that his OCD was "so exacerbated" by the circumstances of his arrest, that he was unable to process any information. . . . At a hearing, Martz testified that shortly after exiting the restroom he was stopped by mall security. He said he was immediately flanked by two police officers who arrested him but did not inform him of the charges. . . . The officers then led Martz, who was "very upset and nervous," to a police substation in the mall's lower level, where he was handcuffed to a bench. His cell phone rang several times, but he was not allowed to answer it. Finally, an officer shut it off, he said.

FLORIDA  

Suit: Law Firm, Medical Clinic Made Reciprocal Referrals

By Sarah Randag, ABA Journal

03-01-10 -- A Kentucky woman has filed a suit against a law firm and medical clinic that she says both deceived her and deprived her of her right to treatment by her own doctors. . . . Sharon Langford of Louisville, Ky., went to Tampa, Fla.-based Winters Yonker & Rousselle after she was injured in a car accident in 2008. She says in her suit that the firm told her that her health insurance wouldn't cover injuries suffered in car accidents, the Louisville Courier-Journal reported. She said the firm referred her to 1st Physician Rehabilitation Inc. for treatment and then later to a Florida clinic for surgery. . . . The suit says Langford later found out that both clinics had the same owner, Gary Kompothecras, who also owns the 1-800-ASK-GARY referral service, which sends callers seeking a lawyer to Winters & Yonker. Kompothecras' clinics don't accept health insurance, the Courier-Journal said. . . . Langford's lawyer, Sam Carl, said of the $200,000 settlement Winters & Yonker obtained for Langford, the firm received $70,000, the clinics received $64,518, and Langford received $62,738—which covered the medical expenses she incurred before hiring Winters & Yonker, according to the Courier-Journal.

NEW YORK  

New York Is Ordered to Move Mentally Ill Out of Group Homes

By A. G. Sulzberger, New York Times

03-01-10 -- New York State must immediately begin moving thousands of people with mental illness into their own apartments or small homes and out of large, institutional group homes that keep them segregated from society, a federal judge ordered on Monday. . . . The decision by Judge Nicholas G. Garaufis of Federal District Court in Brooklyn followed his ruling in September that the conditions at more than two-dozen privately run group homes in New York City violated the Americans With Disabilities Act by leaving the approximately 4,300 mentally-ill residents isolated from the outside world in warehouse-like conditions. . . . The remedial plan offered by Judge Garaufis, which drew from a proposal presented by advocates for the mentally ill and was backed by the Justice Department, calls on New York to develop at least 1,500 units of so-called supportive housing a year for the next three years. In supportive housing, a resident lives alone or in small groups and receives specialized services from counselors who visit as needed. . . . The judge said that only people with the most severe mental illness, including those deemed a danger to themselves or others, should be housed in group homes. He also said that residents who were eligible for supportive housing may choose to stay in group homes as long as they have been apprised of their options.

February 2010

CALIFORNIA  

Court lets blind grad use aids to take bar exam

Bob Egelko, Chronicle Staff Writer

02-25-10 -- With belated approval from a federal appeals court, a blind Bay Area law graduate is preparing to use computer-assisted reading devices on the state bar exam, despite a testing company's objections. . . . Hours after the exam began Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco issued a brief order denying a request by the National Conference of Bar Examiners to stop Stephanie Enyart from using the accommodations that a federal judge approved for her last month. . . . The conference, a nonprofit company, makes multiple-choice portions of the bar exam that most states use. Enyart is not due to start the first of those sections until Saturday. . . . Enyart, 32, a law clerk at Disability Rights Advocates in Berkeley, suffers from macular degeneration and retinal dystrophy and was declared legally blind at 15. At UCLA Law School, where she graduated last year, she took tests on a laptop with software that magnified the text and read the words into earbuds.

Proposed Changes to Psychiatric Manual Stir Lawsuit Fears

Tresa Baldas, The National Law Journal

02-12-10 -- Employment lawyers are shaking their heads over this one: The American Psychiatric Association wants binge eating and excess gambling to be considered psychiatric disorders. The group has proposed that the problems be listed in the manual that's used nationwide to diagnose and treat mental disorders. . . . The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders won't be published until 2013. The draft of the document, which was released Feb. 10, will be displayed for public comment until April 20 at www.dsm5.org. . . . Lawyers have plenty to say about the proposed disorders, which, some argue, could open up the door for yet more disability suits in the workplace.

FEDERAL COURTS

Judge Divides Up the Money in Sears' Record-Setting ADA Settlement

Lynne Marek, The National Law Journal

02-09-10 -- A federal judge in Chicago late last week gave final approval to the allocation of $6.2 million among 235 former Sears, Roebuck & Co. employees in the largest settlement ever reached by the Equal Employment Opportunity Commission in an Americans with Disabilities Act class action. . . . The former workers, who said the company fired them after they went on disability leave, will receive between $2,500 and $122,500 each, depending on their individual circumstances, according to the allocation approved by U.S. District Judge Wayne Andersen of the Northern District of Illinois on Feb. 4. The workers will receive the money in the next two months. Overall settlement of the case with a consent decree was reached and announced last September.

TEXAS  

Man Sues for Extra Time on LSAT, Claiming ADHD

Brenda Sapino Jeffreys, Texas Lawyer

02-04-10 -- A prospective law school student who alleges he has a disability filed a suit in U.S. District Court in the Western District of Texas, seeking a court order to force the Law School Admissions Council to provide him with accommodations under the Americans with Disabilities Act for the Law School Admissions Test. . . . Matthew Scott Jones of Austin, Texas, alleges he was scheduled to take the LSAT in 2009 in Austin, but he didn't take the test because the LSAC "has illegally refused and is illegally refusing to accommodate Jones' learning disability by refusing to provide Jones additional time to take the LSAT." He alleges he was diagnosed with attention deficit hyperactivity disorder and his disability impairs his reading ability and his ability to concentrate "to the point that his competence level is below that expected in comparison to most people."

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January 2010

CALIFORNIA  

Judge Sides With Blind UCLA Law Grad,
OKs Software to Read Bar Exam

By Martha Neil, ABA Journal

01-29-10 -- Stephanie Enyart isn't yet admitted in California, but the University of California-Los Angeles School of Law grad has already won what presumably is her first case. . . . A federal judge in San Francisco ruled today that Enyart, who is blind, has a right to use the screen-reader computer software she wants when taking the Multistate Bar Examination portion of the California bar exam, the Associated Press reports. . . . The National Conference of Bar Examiners, which administers the test in the state, said it had done enough to accommodate Enyart by giving her extra time on the Multistate and providing a human being to help her read her computer screen.

FEDERAL COURTS

Basketball Camp's Exclusion of HIV-Positive Boy Ruled Discrimination

Mark Hamblett, New York Law Journal

01-22-10 -- An HIV-positive 10-year-old boy was discriminated against when he was denied admission to a Rockland County, N.Y. basketball camp, a federal judge has ruled. . . . Judge Donald C. Pogue granted a motion for declaratory relief on the boy's behalf against the Deer Mountain Day Camp, finding that the camp had violated the Americans with Disabilities Act (ADA). . . . "The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection," Pogue said. "But this obligation does not excuse defendants' actions when based on unsubstantiated fears." . . . Pogue, a judge on the Court of International Trade who was sitting by designation in the Southern District of New York, made his ruling in Doe v. Deer Mountain Day Camp (pdf), 07 Civ. 5495.

CALIFORNIA  

Blind Law Grad Sues Over Bar Exam’s Human, Rather than Computer, Readers

By Debra Cassens Weiss, ABA Journal

01-06-10 -- A blind graduate of UCLA law school plans to take the bar exam in February, and she hopes she will be able to use a computer program that reads the text aloud. . . . The State Bar of California allows use of the computer assisted reader for its section of the exam, but the National Conference of Bar Examiners is requiring a human reader for its multistate portion of the test, the Los Angeles Times reports. . . . Stephanie Enyart claims in a lawsuit that the computer-assistance ban violates the Americans with Disabilities Act and California's Unruh Civil Rights Act. She told the Times that she encountered problems when a human reader provided for the Law School Admissions Test was suffering from a cold.

December 2009

CALIFORNIA

Caltrans settles lawsuit over disabled access

The agency proposes to spend $1.1 billion to ease use of sidewalks, crosswalks and park-and-ride facilities. A judge and federal officials must review the 30-year deal.

By Dan Weikel, Los Angeles Times

12-23-09 -- In a landmark court settlement proposed Tuesday, Caltrans agreed to spend $1.1 billion over the next 30 years to repair and improve state-controlled sidewalks, crosswalks and park-and-ride facilities so they are accessible for people with disabilities. . . . The settlement, filed at the federal courthouse in Oakland, was a major victory for civil rights activists, who have been battling for years with the transportation agency to provide equal access to public rights-of-way for the blind and those who use wheelchairs, canes or walkers. . . . Advocates said they hoped that the agreement would become a national model for resolving disputes between the disabled and other state and local governments. . . . The class-action lawsuit that sparked the settlement has been closely watched by local officials and powerful municipal organizations, such as the National League of Cities and the League of California Cities. The groups have long contended that such lawsuits unnecessarily burden financially strapped cities that are already struggling to comply with federal and state access requirements.

ILLINOIS

Disabled mom fighting to keep her son

Can a quadriplegic woman be a good parent? Her ex-boyfriend filed a custody suit that says no.

By Sara Olkon, Chicago Tribune reporter

12-20-09 -- Kaney O'Neill knows she has limits as a mother. . . . The 31-year-old Des Plaines woman cannot walk, move her fingers independently or feel anything from the chest down. A decade ago, O'Neill was a Navy airman apprentice when she was knocked from a balcony during Hurricane Floyd, leaving her a quadriplegic. . . . When she discovered she was pregnant last December, she felt fear and joy, a journey the Tribune chronicled in August. She quickly embraced the opportunity to raise a child, feeling she had the money and family support to make up for her paralysis. . . . David Trais, her ex-boyfriend and the 49-year-old father of their now 5-month-old son, disagreed that she was up to the challenge. . . . In September, Trais sued O'Neill for full custody, charging that his former girlfriend is "not a fit and proper person" to care for their son, Aidan James O'Neill. . . . In court documents, Trais said O'Neill's disability "greatly limits her ability to care for the minor, or even wake up if the minor is distressed." . . . O'Neill counters that she always has another able-bodied adult on hand for Aidan -- be it her full-time caretaker, live-in brother or her mother. Even before she gave birth to Aidan, O'Neill said, she never went more than a few hours by herself.

October 2009

NEW YORK

Justice for the Mentally Disabled

New York Times Editorial

10-20-09 -- After eight years of the Bush administration using the power of the Justice Department to undermine civil rights laws, it is good to see the department applying one of those laws, the Americans With Disabilities Act of 1990. It has started a timely new initiative aimed at full enforcement of that law, which forbids unjustified isolation of the mentally disabled and requires that they be integrated into the wider community where appropriate. . . . The initiative is having its coming-out party in New York, where Justice Department lawyers are seeking to intervene in a closely watched federal lawsuit involving thousands of mentally ill people being held in privately run adult homes. A federal judge recently described them as “even more restrictive or ‘institutional’ than psychiatric hospitals” that they were intended to replace. . . . In a ruling last month, the federal judge, Nicholas Garaufis, painted a dismaying picture of adult “homes” that in no way complied with federal law and that were more like jails than houses. In these places, mentally ill people who did not present a danger to themselves or to others had little of the privacy, freedom or enriching activities that would help them develop full, independent lives.

Debate grows over what defines a service animal

A service snake's days as a seizure-alert animal may end as the Department of Justice once again tries to define what animals provide a legitimate service to the disabled.

By Nancy Bartley, Seattle Times staff reporter   

10-19-09 -- When Daniel Greene has a seizure coming on, he says a hug can help stop it. . . . As he walks through the small Agate Store near Shelton, a nearly 5-foot boa constrictor coiled around his neck, even a customer walking within a foot of him doesn't notice the snake. It's a different matter, however, at Burger King. . . . Greene, 46, approaches the counter, but the manager orders him and his snake off the property before he can place his order. Redrock the boa, Greene says angrily, is a service snake who alerts him to pending seizures by giving him a hug. The snake had been seeking the dark confines of Green's coat sleeve. At that moment, Redrock pulls his head out and stiffens. . . . "He's alerting me," Greene says. "I need to sit down." But instead, he walks across the parking lot toward a pet store, speaking comforting words to the snake and kissing its head. . . . As a service snake, Redrock is protected under the Americans with Disabilities Act (ADA). But the Department of Justice (DOJ) again is trying to define service animals, and Redrock may lose his status, which at least in theory allows him to accompany Greene into stores, restaurants, theaters and other public places.

The Secret World of Deaf Prisoners

The Crime Report, Commentary, James Ridgeway, New America Media 

Editor's Note: The deaf face a nightmare when they fall into the criminal justice system, writes investigative journalist James Ridgeway. The following is a special report written for The Crime Report, a publication of the Center on Media, Crime, and Justice at John Jay College for Criminal Justice, City University of New York. It originally appeared in Ridgeway's blog.

10-14-09 -- In the 1970s, an antiwar demonstrator found himself at New York City’s Rikers Island jail facility for a couple of months on a disorderly conduct charge. The demonstrator, who happened to be a friend of mine, met a handful of young men from the Bronx in his unit who were deaf. . . . They were having trouble communicating with anyone but themselves. My friend knew a little sign language and, after a few conversations, discovered they were illiterate. With the idea of helping them improve their communication skills, he asked prison authorities for permission to order books on sign language from the publisher. The wardens refused, saying that they did not want anyone in that prison using a “language” they could not understand. . . . Things may have changed a little for the better since then. But not by much. . . . I first wrote about the deaf in the late 1960's in the New Republic and so I know something of the background which is what really informs this article. While researching stories about solitary confinement at Angola Prison for Mother Jones, I came upon an article in Prison Legal News about widespread violations against deaf prisoners. Remembering the people and culture I had caught a glimpse of in the '60s, I got in touch with the article’s author, McCay Vernon. Luckily he remember my earlier writing, and promptly agreed to help me.

FLORIDA  

Fla. Judge's Ruling Scoots Segways From Magic Kingdom

Andrew Longstreth, The American Lawyer

10-8-09 -- There's no place in the Magic Kingdom for stand-up motor scooters. . . . For the last couple of years, a class of disabled people has been dueling with Walt Disney over Disney's ban of Segway scooters at its theme parks in Florida. The two sides reached a settlement last December in which Disney agreed to acquire a small fleet of stand-up scooters. Orlando federal district court Judge Gregory Presnell gave the deal preliminary approval, but then had a change of heart. On Tuesday he voided the settlement and threw out the suit. Here's his ruling. . . . Presnell's rejection of the deal followed objections to the proposed settlement by nearly 100 individuals and disability rights groups who expressed a preference for the Segway, which riders direct via shifts in body weight, over the scooters Disney agreed to acquire, which have four wheels and are operated by hand controls.

September 2009

NEW YORK  

Defendant Asserting Zoloft Defense Found Guilty of Assault

Vesselin Mitev, New York Law Journal

9-24-09 -- A Nassau County jury Wednesday rejected a defendant's claim that withdrawal from the antidepressant Zoloft had driven him to beat up his girlfriend. . . . After deliberating for three hours, the jurors found Brandon Hampson, 39, guilty of third-degree assault, a misdemeanor. Hampson also was found guilty of third-degree attempted assault and second-degree harassment, but acquitted of menacing and unlawful imprisonment charges by the panel of three men and two women. . . . Hampson, who did not testify during the two-week trial in Nassau County, said in a courthouse interview that his then-girlfriend, Lisa Essling, had urged him to go off the prescription antidepressant before the Aug. 25, 2006 altercation.

NORTH CAROLINA  

EEOC Sees Mental Health Stereotypes at Work

Tresa Baldas, The National Law Journal

9-24-09 -- The federal government is suing a North Carolina employer for what it calls a pervasive problem in the workplace: discrimination against employees with mental illness. . . . In the federal suit filed Sept. 21 in the Eastern District of North Carolina, the Equal Employment Opportunity Commission contends that the Smith International Truck Center relied upon "myths, fears and stereotypes about mental impairments" when it unlawfully terminated an employee who took leave for a mental health issue. . . . According to the suit, the employee, Stephen Kerns, took one week off from work to obtain medical treatment and get his dosage adjusted for medicine he took for what the complaint calls a mental impairment. The man then returned to work with no restrictions, but was fired shortly thereafter, according to the EEOC.

MINNESOTA   

Abercrombie's appeal in MOA autism case thrown out on mail glitch

By James Eli Shiffer, Star Tribune

9-23-09 -- Abercrombie & Fitch's appeal of a $115,264 fine for discriminating against a disabled teenage customer was thrown out last week because the company failed to send a document by certified mail. . . . The Minnesota Department of Human Rights announced this month that it had penalized the clothing retailer after it didn't let Molly Maxson, an autistic teenager from Apple Valley, be accompanied by her sister in a fitting room at its Mall of America store in 2005. Store employees would not relent, even after Molly's sister and mother explained that, because of her disability, the 14-year-old could not be alone.

NEW YORK  

Jury Weighs Conflicting Opinions on Link of Zoloft Use to Violence

Vesselin Mitev, New York Law Journal

9-22-09 -- Jurors in the assault trial of a Long Island, N.Y., man will have to weigh the drastically different opinions of two Harvard-educated psychiatrists to determine whether the popular antidepressant Zoloft can trigger a violent episode. . . . Brandon Hampson, 39, is facing misdemeanor assault charges for allegedly beating his girlfriend and preventing her from leaving his home in August 2006 after she refused to have sex with him. Hampson claims that he was going through Zoloft withdrawal at the time and did not intend to assault the woman. . . . In a packed Hempstead, N.Y., courtroom on Friday, Dr. Douglas Jacobs, the prosecution's expert, repeated his opinion that no generally accepted scientific evidence supports the defendant's claim.

INDIANA  

Obese Employees Injured at Work Add on Weight-Loss Surgery

Tresa Baldas, The National Law Journal

9-16-09 -- Two recent court rulings have employers on edge about employees with serious weight problems because one little accident may force them to pay thousands to get the weight off. . . . That's what's happened to an Indiana pizza shop, which on Sept. 14 filed a petition for a rehearing after an appellate court ordered it to pay for a 340-pound employee's weight-loss surgery to ensure the success of a separate operation for a work-related back injury. . . . The Indiana Court of Appeals on Aug. 6 had held that The Gourmet Pizza must pay for the $20,000-plus lap-band surgery for Adam Childers, an obese cook who was hit in the back by a freezer door at work. Doctors had deemed the weight-loss surgery necessary before proceeding with the back operation. . . . The court found that the pre-existing condition of obesity combined with the accident at work to create a single injury.

INDIANA  

Pizza Shop Must Pay for Worker’s Weight-Loss Surgery, Appeals Court Says

By Martha Neil, ABA Journal

9-10-09 -- A pizza shop must pay for a worker's weight-loss surgery, an Indiana appeals court has ruled in a case that is making headlines, because an on-the-job back injury contributed to his subsequent obesity. . . . If Adam Childers doesn't have the weight-loss surgery, doctors say, the back surgery he needs as a result of a workplace injury won't be successful. Plus, he gained additional weight because the immobilizing back pain he experienced after being hit by a freezer door at Boston's Gourmet Pizza made it impossible for him to exercise, the Indiana Court of Appeals recounts in a written opinion (PDF) on the case.

FEDERAL COURTS

Brooklyn Federal Judge orders state to find new housing for thousands of mentally ill adults

BY Scott Shifrel , Daily News Staff Writer

9-9-09 -- A federal judge ordered the state Tuesday to find new homes for more than 4,000 mentally disabled New Yorkers who are being stashed in poorly run, seedy adult homes. . . . The group homes - some holding hundreds of patients - were designed to replace the city's notoriously grim mental-health institutions. . . . Instead, they did little to improve the lot of their residents, Brooklyn Federal Judge Nicholas Garaufis ruled. . . . The state has "denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs," Garaufis wrote in a 210-page decision.

August 2009

FLORIDA

Mom's Suit Claims Son Voted out of Kindergarten

Travis Reed, The Associated Press, Law.com

8-28-09 -- A woman who claims her 5-year-old was kicked out of his kindergarten class after the teacher held a "'Survivor'-style vote" among fellow students about his disruptive behavior on Thursday sued the teacher, school officials and others. . . . Melissa Barton said that on May 21, 2008, her son Alex was "forced to stand in front of his peers and be told why 'they hated him,' with such comments as (Alex) is 'disgusting' and 'annoying,' 'He eats crayons,' 'Lies on the floor,' 'He eats paper' and 'He eats his boogers.'"  . . . The boy didn't return to the class and finished the year in homeschooling. . . . The complaint in federal court in Florida's Southern District targets the St. Lucie County School Board, teacher Wendy Portillo, the principal and vice principal at Morningside Elementary in Port St. Lucie, Superintendent Michael Lannon, the local head of education for special needs and St. Lucie County Classroom Teachers Association and Classified Unit. . . . Alex Barton was diagnosed with a form of autism called Asperger's syndrome after the incident, in which classmates voted 14-2 against him. The lawsuit alleges the school caused emotional distress and neglected Alex's equal protection and Americans with Disabilities Act rights.

OHIO  

Squire Sanders Turns the Tables on Serial ADA Plaintiff

Andrew Longstreth, The American Lawyer

8-26-09 -- Bonnie Kramer has been a plaintiff in more than 100 Americans with Disabilities Act suits, but she has rarely, if ever, been subjected to the kind of extensive discovery requests that The Mid-America Management Corp.'s lawyers at Squire, Sanders & Dempsey have put her through in her case against the real estate management company. Her inexperience shows. In an opinion dated Aug. 20, Cleveland Federal District Court Judge Donald Nugent granted Midamco's motion for summary judgment and dismissed Kramer's claims, citing evidence provided by Squire Sanders that contradicted a host of statements Kramer made at her deposition. . . . The case is not over, however. In an earlier decision, Judge Nugent ruled that Midamco can proceed with a counterclaim against Kramer, her lawyers, her expert witness and an organization Kramer purported to be affiliated with called Disabled Patriots of America, which had been a co-plaintiff in the case. Midamco is alleging abuse of process, fraud, civil conspiracy to commit fraud, spoliation and Racketeer Influenced and Corrupt Organizations violations.

FEDERAL COURTS

Federal Judge Urges Deal in Suit Over Vets' Mental Health Services

California Healthline

8-13-09 -- On Wednesday, a federal appeals court judge in San Francisco urged lawyers for two military veterans' advocacy groups to reach an agreement with the Department of Justice on improvements to veterans' mental health care, the San Francisco Chronicle reports. . . . In 2007, Veterans for Common Sense and Veterans United for Truth filed a lawsuit against the Department of Veterans Affairs, saying that the agency failed to provide adequate mental health treatment to thousands of military members because of unnecessary exam requirements, referral and treatment delays, and a complicated benefits system. . . . The groups said VA has a backlog of 900,000 disability claims and it takes an average of more than four years to make decisions on veterans' appeals for benefits. The agency also does not allow veterans to hire lawyers to represent them in their initial claims, according to the groups.

July 2009

NEW JERSEY  

Judge forgets to bring conscience to work, denies MS patient proper defense

Angela Macdonald, Examiner.com

7-29-09 -- If you woke up on the wrong side of the bed this morning, this might be the time to stop reading this article. If this story doesn’t disgust you, then you clearly have a soul as black as tar. . . . A New Jersey man with Multiple Sclerosis is being charged for growing his own medicine to treat his pain and muscle spasms. John Ray Wilson, of Franklin, New Jersey is facing the charge of operating a drug manufacturing facility for growing his own medicine, and the Judge is refusing to allow any mention of the man’s medical condition at trial. . . . A lot of people might ask why this man didn’t just go to the doctor and get medications. The answer, according to Wilson’s attorney, is simple. Wilson had no health insurance and could not afford to pay for the medications to treat his condition. This is what led Wilson to seek alternative remedies like bee venom and medical cannabis. . . . Now, none of this matters, because Judge Robert Reed is refusing Wilson to admit his medical condition as an excuse for growing his own medicine. The judge states his reason being New Jersey does not currently comprehend the use of marijuana for medicinal purposes. Apparently, they also don’t comprehend the fact that one’s ability to pay or afford his/her medical care has no impact on the reality that he/she is sick.

Contact Judge Robert Reed to let him know how you feel at:
Somerset County Courthouse, P.O. Box 3000, Somerville, 08876, Phone: 908-231-7063

CALIFORNIA  

Calif. Bar Backs Down Against Quadriplegic Student

Underdog media star's legal battle got a boost in the form of a press release by Gov. Arnold Schwarzenegger

Cheryl Miller, The Recorder

7-28-09 -- In honor of the first morning of California's three-day bar exam, we offer this related question: When is an application complete? . . . The answer, it turns out, depends upon money, bureaucracy, a feisty governor and an underdog media star. And, oh yes, the state Supreme Court. . . . The justices late Monday ordered the State Bar to allow Sara Granda, a 29-year-old quadriplegic, to take the bar exam that starts today. The decision ended a tumultuous four-day legal battle for the graduate of UC-Davis School of Law. . . . Granda submitted her online exam application earlier this summer but left blank a space for credit card payment information. Granda, whose sole source of income is a monthly disability payment, doesn't have a credit card and contends that the state Department of Rehabilitation paid her $648 application fee.

INDIANA  

Lawsuit Claims Indiana Law Examiners Violate the ADA

The case mirrors actions in other states that have challenged mental health questions violating the Americans with Disabilities Act

Leigh Jones, The National Law Journal

7-9-09 -- The American Civil Liberties Union of Indiana has launched a class action against that state's board of law examiners, asserting that inquiries into the mental health of those seeking a law license violate federal disabilities law. . . . The ACLU filed the lawsuit on Tuesday on behalf of a woman licensed in Illinois who is seeking admission to the Indiana State Bar Association. Identified as "Jane Doe" in the action, the plaintiff seeks an injunction prohibiting the Indiana State Board of Law Examiners from asking certain questions about mental fitness. She also seeks a declaratory judgment that the questions on the application and the board's follow-up procedures violate the Americans with Disabilities Act. . . . The case mirrors actions in other states that have challenged certain questions regarding mental health on professional license applications. Similar challenges have resulted in the removal or modification of such questions in Maine, New Jersey and Rhode Island. . . . The Indiana application asks, among other questions, whether an applicant has been treated or diagnosed "for any mental, emotional or nervous disorders" at any time from age 16 to the present. It requires applicants who answer affirmatively to provide detailed information about the type of problem and in some cases to submit to evaluation by the Indiana Supreme Court's Judges and Lawyers Assistance Program.

June 2009

UNITED STATES SUPREME COURT

Supreme Court Sides With Student's Family in Special Ed Funding Case

Zach Lowe, The American Lawyer

6-23-09 -- Experts are already debating the impact of Monday's U.S. Supreme Court ruling in a case pitting the family of a special needs high school student (and his legal team at Bingham McCutchen) against the school district that had been ordered to pay the student's hefty private school tuition (and the district's lawyers at Sidley Austin). . . . Educators and public school officials everywhere were watching the case, and they had claimed that millions -- maybe hundreds of millions -- of public money was at stake. If that's so, public officials might be cringing today, because the Court sided, 6-3, with the student's family and Bingham. . . . The ruling upholds a decision from the 9th U.S. Circuit Court of Appeals mandating that the school district pay $65,000 for the boy's private school tuition.

MICHIGAN  

Michigan Class Action Settlement on Autism Treatment Hailed as Landmark Case

Tresa Baldas, The National Law Journal

6-23-09 -- In what plaintiffs lawyers are calling a landmark autism case, a Michigan insurance company has agreed to reimburse at least 100 families for costs involving treatments for their autistic children. . . . The $1 million class action settlement from Blue Cross Blue Shield of Michigan comes amid a legislative wave in which a growing number of a states are passing laws that require insurance companies to pay for autism treatments and screenings. To date, 13 states have such laws, the most recent being Connecticut, Colorado and Nevada. New Jersey is currently considering an autism bill, and Pennsylvania's law goes into effect July 1. . . . The June 17 Michigan settlement, meanwhile, has autism advocates hopeful that insurance companies will stop claiming that behavioral therapy for autistic children is experimental, and start paying for it.

CALIFORNIA  

ADA Damages Suits Don't Require Intent,
Calif. Supreme Court Rules

Mike McKee, The Recorder

6-12-09 -- Businesses that violate the Americans with Disabilities Act, even if unintentionally, can be sued for damages, the California Supreme Court ruled unanimously on Thursday. . . . Justice Kathryn Mickle Werdegar concluded that was a reasonable interpretation of the state Legislature's decision in 1992 to adopt Civil Code §51(f) to amend the state's Unruh Civil Rights Act to include violations of the ADA. While the ADA provides only injunctive relief whether the harm was intentional or not, Section 52 of the Unruh Act provides for damages of at least $4,000 or as much as three times the actual harm. . . . "By incorporating the ADA into the Unruh Civil Rights Act, California's own civil rights law covering public accommodations, which does provide for ... a private damages action," Werdegar wrote, "the Legislature has afforded this remedy to persons injured by a violation of the ADA."

TEXAS

269 punished last year for mistreating disabled

By Jeff Carlton, Associated Press, Chron.com

6-12-09 -- Nearly 270 employees were fired or suspended for abusing or neglecting residents of large, state-run institutions for the mentally disabled in Texas, according to records obtained by the Associated Press. . . . The revelations Friday come a day after Gov. Rick Perry signed legislation aimed at improving security and oversight at the 13 institutions, known as state schools. They are home to about 4,600 residents and more than 12,000 full-time employees. . . . Documents obtained by the AP through an open records request show that 11 of the 268 firings or suspensions were considered serious because they involved physical or sexual abuse that caused or may have caused serious physical injury. Employees may also be fired for a violation as mild as neglecting to protect a resident with mobility problems from stumbling into a wall. . . . “I think what the number of firings and suspensions say is we do not tolerate abuse or neglect in our state schools,” said Cecilia Fedorov, a spokeswoman with the Department of Aging and Disability Services, which oversees the schools. . . . It was not clear Friday whether any of those fired were prosecuted.

May 2009

FEDERAL COURTS

Judge McConnell Leaving 10th Circuit Bench

Expelled Student's ADA Claim Against Law School Can Proceed

Additional claims are based on the the Massachusetts Equal Rights Act and the federal Rehabilitation Act

Sheri Qualters, The National Law Journal

5-5-09 -- A Massachusetts federal judge recently ruled that Americans with Disabilities Act and related claims against New England Law | Boston can move forward in a lawsuit against the school for expelling a student with learning disabilities who failed two courses. . . . On April 29, District Judge Nathaniel M. Gorton of the U.S. Court for the District of Massachusetts denied the law school's motion to dismiss three claims: an ADA claim; a claim based on the federal Rehabilitation Act barring discrimination in programs receiving federal money; and a Massachusetts Equal Rights Act claim. Gorton's order also dismissed three other claims, including breach of contract; violations of the Massachusetts Constitution's Declaration of Rights; and violations of the Massachusetts Consumer Protection Act. Brodsky v. New England School of Law, No. 1:09-cv-10007 (D. Mass.)

April 2009

FEDERAL COURTS

11th Circuit: Doctors Don't Trump State on Medicaid Care for Children With Disabilities

Alyson M. Palmer, Fulton County Daily Report, Law.com

4-28-09 -- A federal appeals panel has declared that treating doctors don't have the final say in how much nursing care the state must provide children with disabilities under Medicaid. . . . Friday's ruling by the 11th U.S. Circuit Court of Appeals reversed a district judge's decision that had said the state must provide the amount of nursing care that a North Georgia girl's doctor said she needs. . . . Despite a slew of amicus briefs by state governments and Medicaid plan administrators, the panel dispatched the case in a two-page, unpublished, unsigned opinion that came out a month after oral argument. . . . Holland & Knight partner Robert S. Highsmith Jr., who represented a pro-state friend of the court that provides managed care services for Medicaid programs, said his client, WellCare of Georgia, had been concerned about language in U.S. District Judge Thomas W. Thrash Jr.'s ruling that suggested anything ordered by a treating physician is medically necessary under the law. "That one sentence just had to get reversed," said Highsmith. "We are very excited that they saw and reversed that clear error."

MARYLAND

Bill in Md. General Assembly would protect parents with disabilities

Steve Lash, Daily Record Legal Affairs Writer

4-8-09 -- Courts and social service agencies would be barred from presuming that a physical impairment disqualifies a person from serving as a parent or guardian, under a bill presented to the House Judiciary Committee on Wednesday. . . . Sen. Lisa A. Gladden, D-Baltimore City, said the courts and social services agencies “routinely and unfairly” discriminate against people with disabilities in adoption, custody, visitation and other proceedings. . . . “A person with a disability is no less entitled to the presumption of competency to provide a safe environment for a child than a person without a disability,” Gladden, the chief sponsor of SB 613, told the House committee.

Advocates for blind protest loss of Kindle's voice function

by Greg Sandoval, CNET News

4-7-09 -- The controversy regarding the text-to-speech function offered by Amazon.com's Kindle 2 digital book reader appears to be heating up again. . . . Groups advocating for the blind and reading disabled on Tuesday held a protest at the Manhattan offices of the Authors Guild. The guild was very vocal in opposing the text-to-speech technology in the Kindle. The group, which represents 4,000 authors, argued that the Kindle infringes on copyright and could hurt audio book sales. . . . The whole debate seemed to be over in February when Amazon appeared to give in. The Web's largest retailer said it had decided to enable publishers with the power to disable Kindle's text-to-speech function on a per-title basis. . . . Text-to-speech enables computers to read text in a lifelike voice.

Henry Winkler tells kids how he copes with a learning disability: 'One ... word ... at ... a ... time'

by Ben Horowitz/The Star-Ledger

4-6-09 -- In the world of special education, Henry Winkler is as big a hero today as he was on television's "Happy Days" 30 years ago, when his role as the leather-jacket-wearing, motorcycle-riding "Fonz" made him one of the nation's most popular actors. . . . Winkler had to overcome a case of severe, undiagnosed dyslexia to pursue his career. . . . "Every one of you has greatness in you," Winkler, now 63, said recently in Short Hills, at a talk sponsored by the Winston School, a private school that serves students with dyslexia and other learning disabilities. . . . "It doesn't matter if you don't get a subject," he told the audience, which included many of the school's first-grade to eighth-grade students. "How you learn has nothing to do with how great you are. Your job is to find out what your gift is, what your contribution will be."

NEW YORK  

Polio Victim's 30-Year Crusade Garners $22.5 Million Award

Mark Fass, New York Law Journal

4-2-09 -- In May 1979, Elizabeth Tenuto brought her 5-month-old daughter, Diana, to a Staten Island, N.Y., pediatrician for her second dosage of an oral polio vaccine. . . . A month later, Ms. Tenuto's husband, Dominick, contracted polio, apparently by touching Diana's stool while changing her diaper. . . . Now, three decades after becoming permanently paralyzed, Mr. Tenuto has won a $22.3 million verdict in New York state court against Lederle Laboratories, the giant pharmaceutical company he claims negligently manufactured the vaccine Orimune and failed to adequately warn doctors of its dangers. . . . The court action brought by Mr. Tenuto and his wife, Tenuto v. Lederle Laboratories, 001134/1981, finally went to trial in February before Supreme Court Justice Joseph Maltese. . . . After Mr. Tenuto's lead trial counsel, Benedict Morelli, finished summations, Lederle offered $10 million to settle.

March 2009

NEW YORK  

Woman Who Failed to Disclose Depression Cannot Collect Unemployment Benefits, Appeals Court Rules

Joel Stashenko, New York Law Journal

3-27-09 -- A woman who did not disclose that she suffered from depression to the employer that fired her for excessive absenteeism cannot collect unemployment insurance benefits, or argue that her rights were violated under the Americans with Disabilities Act, a New York appeals court has ruled. . . . The Appellate Division, 3rd Department, let stand a finding by a state administrative law judge that Mawuli Anumah's failure to inform her employer about her mental illness constituted misconduct disqualifying her from benefits. The court also upheld two affirmations of the hearing officer's decision by the Unemployment Insurance Appeal Board. . . . Anumah's appeal was supported by several mental health organizations, which argued that her failure to disclose her condition was "beyond her control."

UNITED STATES SUPREME COURT

ADA Amendments Mean Employers Need to Be More Cautious

Robert M. Behrendt, Texas Lawyer

3-6-09 -- In the ADA Amendments Act of 2008, which President George W. Bush signed into law on Sept. 25, 2008, Congress amended the Americans With Disabilities Act, 42 U.S.C. §12101, et seq. , to be consistent with its original intention of "providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and to "provide broad coverage." . . . The amendments, which became effective on Jan. 1 and apply to conduct after that date, substantially change "how employers and courts are to evaluate ADA claims," noted Judge Robert James of the U.S. District Court for the Western District of Louisiana, Monroe Division, in December 2008 in Knox v. City of Monroe . . . . By rejecting the narrow and exacting holdings in two U.S. Supreme Court cases and then expanding key definitions in the ADA, the amendments significantly broaden the protective scope of the ADA. As a result of the new law, employers should take a more cautious approach in their employment practices and decisions and should expect an increase in the number of disability discrimination claims asserted by employees.

February 2009

CALIFORNIA

Blind law student sues Law School Admissions Council over accessibility

Sheri Qualters / Staff reporter

2-20-09 --The National Federation of the Blind and a blind law school applicant filed a discrimination lawsuit against the national law school admissions test administrator, The Law School Admissions Council, in a California Superior Court. . . . The lawsuit, which was filed on Feb. 19 in Alameda County, claims that the Newtown, Pa.-based admissions council violates two California laws requiring equal access to disabled persons because its Web site and Law School Admission Test (LSAT) preparation materials are inaccessible to the blind. National Federation of the Blind v. Law School Admissions Council Inc., No. RG-09436691 (Alameda Co., Calif., Super. Ct.). . . . The lawsuit's claims include alleged violations of California's Disabled Persons Act and California's Unruh Act, which requires businesses to offer equal accommodations and facilities to disabled persons. The plaintiffs are also asking the court for a declaratory judgment stating that California laws require the admissions council to provide blind persons equal access to its Web site.

FEDERAL COURTS

Judge in autism case injects insult to Sarah Palin

By Thomas Zambito, Daily News Staff Writer

2-6-09 --A federal judge got political Wednesday, taking a swipe at Sarah Palin while powwowing with lawyers in the case of an autistic boy whose parents are fighting a ban on big dogs at their luxury upper East Side building. . . . Manhattan Federal Judge Naomi Reice Buchwald blasted the Alaska governor and former vice presidential candidate for bringing her Down syndrome child on stage after a debate. . . . "That kid was used as a prop," Buchwald told lawyers during a hearing on Wednesday. "And that to me as a parent blew my mind." . . . Buchwald, a 62-year-old Democrat appointed by former President Bill Clinton, said Palin should have put her child to bed. Such conferences are often held behind closed doors, but Buchwald held yesterday's session in open court. "Tell me who told the reporter," Buchwald demanded after realizing her words were on the record.

January 2009

NEW YORK  

2nd Circuit: Disabled Attorney Entitled to Fees for 10-Year Fight for Benefits

Left with memory loss and severe pain as a result of a car accident while on business as a Weil associate, the lawyer stopped working in '91

Mark Hamblett, New York Law Journal

1-27-09 -- Bad faith by an insurance company means that a disabled lawyer will receive attorney fees incurred during the 10 years he fought for long-term disability benefits. . . . Zbigniew Slupinski, formerly of Weil Gotshal & Manges, prevailed in his lawsuits in 2005 and 2006 against the First Unum Life Insurance Co. for long-term benefits, but he was denied fees and prejudgment interest by Southern District of New York Judge Thomas P. Griesa. . . . However, the 2nd U.S. Circuit Court of Appeals said Griesa erred and it reversed him in Slupinski v. First Unum Life Insurance Co., 05-5849 and 06-4178-cv. The appeal was decided by Judges Amalya Kearse, Guido Calabresi and Robert Katzmann, with Judge Kearse writing for the court. . . . Slupinski was working for the firm as an associate in August 1991 when, while on business in Poland, the taxi he was riding in collided with another vehicle. Slupinski was thrown from the taxi into the street, where he was run over by another car. He suffered several injuries, including what turned out to be permanent damage to his left arm.

December 2008

FEDERAL COURTS

2nd Circuit Clarifies Review Standard in Awarding Disability Benefits

Federal appeals court cites insurer's long history of 'deception and abusive tactics' in denying benefit claims

Mark Hamblett, New York Law Journal

12-30-08 -- A change in the standard of review for denying disability benefits where the plan administrator has a conflict of interest has led a federal appeals court to award payments to a tax attorney with colon cancer. . . . The 2nd U.S. Circuit Court of Appeals said new guidance from the U.S. Supreme Court means a less deferential standard of review under the Employee Retirement Income Security Act where the plan administrator is conflicted because it both evaluates eligibility and pays benefits. . . . The decision favors John E. McCauley, a long-time cancer sufferer who was denied benefits by an insurance company used by his employer, Sotheby's. Citing the First Unum Life Insurance Co.'s actions in McCauley's case as well as its long history of "deception and abusive tactics" in denying benefit claims, the court awarded disability benefits back to 1995.

Parity is Law / Justice for Americans

12-22-08 -- The passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 is a historic victory for Mental Health America and millions of Americans who have been denied treatment because of health insurance discrimination. . . . The measure, which was signed into law on October 3, will for the first time require equal insurance coverage for mental health conditions and physical illnesses. It will apply to more than one-third of all Americans. . . . “The approval of parity is a great civil rights victory that delivers justice to millions of Americans who have mental health conditions,” said David Shern, Ph.D., president and CEO of Mental Health America. “With approval of this bill, we tear down the walls of stigma and discrimination and open the doors to the power and promise of treatment and recovery.” . . . Mental Health America helped plant the seeds of parity in the 1970s and nourished its progress, marshalling resources and grassroots support and giving power to the ideas that put it front and center on the national agenda. . . . The passage of parity is another step forward in removing and eliminating artificial and unfair barriers to access, continuing the progress made when the Americans with Disabilities Act was passed and the recent Medicare legislation that reduces the unfair co-payment for mental health services in that program. . . . The new law recognizes that mental health is integral to our overall health and that mental health and substance use conditions are just as treatable as other medical conditions. . . . “Now we as a nation must build on this effort by approaching mental health with the same urgency as other health conditions,” said Dr. Shern. . . . For more information on the legislation, please visit the parity section of Mental Health America’s website.

FEDERAL COURTS

Veterans With PTSD Sue Federal Government Over Disability Benefits

Jordan Weissmann, Legal Times

12-18-08 -- A group of military veterans filed a class action against the federal government Wednesday, alleging that they were illegally denied disability benefits despite being diagnosed with severe cases of post-traumatic stress disorder that should have qualified them for free care. . . . The five soldiers, all veterans of the wars in Iraq and Afghanistan, were discharged by the Army after it determined that their damaged mental health left them unfit to serve, according to a complaint filed with the U.S. Court of Federal Claims. Once released, they were assigned disability ratings well below the 50 percent figure needed to qualify for lifetime health care benefits. . . . The complaint alleges that starting in 2002, the Army "systematically" ignored rules requiring that all servicemen diagnosed with PTSD receive an automatic 50 percent rating. Just this past October, the Defense Department ordered the Army to stop deflating PTSD victims disability ratings.

November 2008

CALIFORNIA  

After more than 400 lawsuits, disabled man can sue no more

By Carol J. Williams 

11-18-08 -- Whether Jarek Molski is a crusader for the disabled or an extortionist who abused the law for personal gain, the vexatious litigant has filed his last lawsuit. . . . The U.S. Supreme Court declined Monday to hear the case of Molski vs. Evergreen Dynasty Corp., owner of a Chinese restaurant in Solvang, Calif., in a legal Waterloo for the 38-year-old Woodland Hills man. Molski filed more than 400 suits under the Americans With Disabilities Act before a federal judge barred him from future litigation.

FOR THE RECORD:
Frequent litigant: An article in Tuesday's California section said that Jarek Molski of Woodland Hills had "filed his last lawsuit" as a result of the U.S. Supreme Court's refusal to review a federal judge's order that barred Molski from filing further lawsuits over alleged violations of the Americans With Disabilities Act. The judge's order applied only to the Central District of California, which includes Los Angeles.

ILLINOIS  

Sonnenschein Secures Pro Bono Class Action
Victory for Disabled Clients

Brian Baxter, The American Lawyer

11-18-08 --Represented by a team of lawyers from Sonnenschein Nath & Rosenthal and several nonprofits, a class of 6,600 developmentally disabled residents of state-owned facilities in Illinois will now be able to choose their own living arrangements thanks to a Nov. 13 consent decree filed in U.S. District Court in Chicago. . . . The settlement is expected to bring Illinois in line with a national movement toward improving care for developmentally disabled citizens by shifting them from large residential institutions into smaller, community-based facilities. . . . Illinois' failure to join that trend prompted seven name plaintiffs to file suit against the state in July 2005. Sonnenschein -- through litigation partners John Grossbart, Wendy Enerson, Kendra Hartman and associate Corey Shapiro -- served as pro bono co-counsel for the class and helped to push the case through three years of depositions and discovery. . . . "More than 10,000 people will clearly benefit from this [agreement]," says Grossbart, noting that in addition to those 6,600 already in state-funded facilities, many more await care. "Many parents with disabled children are forced to place them in state-financed facilities as they grow older." . . . Grossbart, who has experience with large class actions, says that he was looking for a pro bono matter to involve the firm in several years ago when the legal staff of Chicago-based Equip for Equality, a nonprofit that advocates on behalf of the disabled, approached him. . . . "They educated me on how Illinois has been terribly backward in dealing with the disabled, especially in terms of being out of compliance with federal law and the [Americans with Disabilities Act]," Grossbart says. "And because of their role as an advocacy group and legal aid organization, they knew people who might be good name plaintiffs for us."

NEW YORK  

Blind attorney proves he's made of iron

By Philip Rosenbaum and Jonathan O'Beirne, CNN

11-4-08 -- Richard Bernstein wins landmark lawsuits for the disabled. He teaches college. He runs marathons. . . . But you really get the sense there's no stopping him -- now or ever -- when you mix in the fact that Bernstein has been blind since birth. . . . "Once I appreciated why I was created and the way that I was created, it really just gave my life a true sense of meaning and that meaning really drove my energy and passion," Bernstein says. . . . A lawyer for disabled rights in Farmington Hills, Michigan, Bernstein recently scored one of his biggest personal victories outside the courtroom. . . . In the rough and tumble natural surroundings of Coeur d'Alene, Idaho, Bernstein completed the physically and psychologically grueling Ironman triathlon. . . . In 14 hours and 36 minutes, without a break, Bernstein biked 112 miles, ran a 26.2 mile marathon and swam 2.4 miles in 55 degree open water.

October 2008

Get Ready to Relearn the ADA

New amendments will change the workplace

Lawrence Lorber, Fredric C. Leffler and Samantha Morris, Legal Times

Get ready to relearn the Americans with Disabilities Act -- by Jan. 1, 2009. New legislation signed last month has defanged a common employer defense, and the changes are going to have real repercussions in the workplace. . . . On Sept. 25, 2008, with his father looking on, President George W. Bush quietly signed legislation that significantly broadened the scope of protection available under the ADA. The legislation, known as the ADA Amendments Act of 2008 (ADAAA), "carries out the ADA's objectives" to expand coverage by, among other things, expressly rejecting Supreme Court cases that narrowly construed the definition of "disability" under the ADA. . . . The critical inquiry under the amended law is no longer on whether the individual has a disability, which has been a primary battleground of past court decisions. Rather, as of Jan. 1, 2009, the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees. . . . Here, we discuss what has changed and what employers need to do in response.

NEW JERSEY  

Judge Approves Settlement of Suit Against Aetna Over Coverage for Eating Disorders

Henry Gottlieb, New Jersey Law Journal

10-23-08 -- A federal judge gave final approval Tuesday to a class action settlement that requires Aetna Insurance Co. to provide about $300,000 in back payments to 119 insureds whose benefits for eating disorders were limited. . . . The company also promised to treat future claims more liberally and make internal reforms to resolve disputes over benefits for eating disorders. . . . U.S. District Judge Faith Hochberg also approved a $350,000 payment to the plaintiffs' class counsel, Nagel Rice in Roseland, N.J. All of the fee comes from Aetna, not out of a percentage of the class members' recovery. . . . "It makes perfect sense to me," Hochberg said after ruling that the settlement in De Vito v. Aetna, 07-418, was fair, reasonable and adequate. . . . The settlement requires the company to treat some claims for anorexia and bulimia as it does claims for biologically based mental illnesses, such as schizophrenia. That makes a class of eating-disorder patients eligible for eight months of treatment, compared with 20 outpatient visits per calendar year and 30 days of inpatient benefits.

NEW JERSEY  

Jury Awards $400,000 to Deaf Patient for Denial of Interpreter Services

Mary Pat Gallagher, New Jersey Law Journal

10-17-08 -- A Hudson County jury's $400,000 verdict for a deaf patient whose doctor refused her an interpreter may be a wake-up call for all professionals -- including lawyers -- that they risk liability for disability discrimination. . . . Worse, malpractice liability insurance does not usually cover such liability, says plaintiff's attorney Clara Smit. . . . Smit's client, Irma Gerena, claimed she repeatedly asked Jersey City rheumatologist Robert Fogari to hire an American Sign Language interpreter. Fogari said that as a solo practitioner, he couldn't afford the estimated $150 to $200 per visit an interpreter would cost. . . . Fogari treated Gerena for lupus for about 20 visits, stretched out over 20 months. He would sometimes exchange written words with her civil union partner, Lourdes Torres, who had better written English skills, and he also communicated with Gerena through the couple's 9-year-old daughter.

GENERAL

A New Potential Disability: Being Male?

Taking effect next year, a new law lessens the burden on employees to prove they're disabled, making it easier for them to bring claims

Tresa Baldas, The National Law Journal

10-7-08 -- If sleep disorders and sex problems can be used as criteria for filing disability claims, as courts have held, "being male" could also be a legally recognized disability. . . . So claims Louis Solomon, a partner and co-head of the Global Litigation Department at Proskauer Rose, who believes "maleness" is on its way to becoming a new category for disability claims. . . . Men, he argues, have a greater susceptibility to certain diseases, a shorter life expectancy and a testosterone level that predisposes them to more aggressive behavior -- all factors that could be classified as a disability. . . . "A good-faith argument could be made -- and I predict it eventually will be made -- that being male would meet the broadest definition of disability," said Solomon. . . . That's quite a stretch, said management-side attorney Michael Ossip, of Philadelphia's Morgan Lewis, who believes that a new breed of disability claims is on the horizon, just not male-specific.

Apple Agrees to Make iTunes Fully Accessible to Blind

Sheri Qualters, The National Law Journal

10-01-08 -- Massachusetts Attorney General Martha Coakley and the National Federation of the Blind negotiated an agreement with Apple Inc. to make Apple's iTunes and iTunes U fully accessible to the blind. . . . Through the online iTunes service, customers can buy and download music, television shows, movies, audiobooks and podcasts. . . . According to a statement from Coakley's office, Apple has agreed to make iTunes U, which provides educational content, fully accessible by Dec. 31 using so-called screen access software that transforms on-screen computer information into Braille or speech. Apple has also agreed to make the remaining iTunes and the iTunes Store accessible by June 30, 2009, for both Macintosh and Microsoft Windows operating systems. . . . Apple also agreed to donate $250,000 to the Massachusetts Commission for the Blind to fund assistive technology for blind consumers.

September 2008

2nd Circuit Finds Alterations May Open Resort to Disabilities Act

Mark Hamblett, New York Law Journal

9-19-08 -- The scope of a property owner's obligation to make a public accommodation accessible to the disabled when alterations are made to the property was fleshed out Thursday by the 2nd U.S. Circuit Court of Appeals. . . . Reversing a lower court, the circuit said a resort in Montauk, N.Y., underwent significant enough renovations so that it might be required under the Americans With Disabilities Act to make changes to allow access to customers who use wheelchairs. . . . Judges Dennis Jacobs, Rosemary Pooler and Robert Sack reversed Eastern District of New York Judge Leonard Wexler in the case of Roberts v. Royal Atlantic Corp., 06-4730-cv. . . . Royal Atlantic North and Royal Atlantic South are residential cooperative corporations that control 137 units in two-story buildings throughout several complexes, each of which have a pool surrounded by a narrow deck, a parking lot and ramps into the buildings. The ramps are too narrow for wheelchairs.

CALIFORNIA  

Ethics Complaint Says Lawyer Used ADA Suits to Extort Settlements

By Debra Cassens Weiss, ABA Law Journal

9-12-08 -- A California lawyer who has filed hundreds of disability lawsuits against businesses has been accused in an ethics complaint of extorting quick cash settlements and making up injuries. . . . The state bar complaint against Bay-area lawyer Thomas Frankovich said he filed more than 200 lawsuits against businesses in 2004 alone that contended they were not accessible to the disabled, the Daily Journal reports (sub. req.). The plaintiff in most of the suits was Jarek Molski, who uses a wheelchair. . . . The state bar said Frankovich would wait as along as a year to file a complaint and then would seek damages of $4,000 a day for the period, the story says. After filing a complaint, he would send a letter to the defendant that “could be viewed as intimidating as well as inaccurate," the state bar says. The letter advised defendants they shouldn’t hire a lawyer, they had no defense to the complaint and they should quickly settle the case.

NEW YORK  

Mental Health Court To Celebrate Grand Opening

By Robert Rizzuto, The Post Journal

9-8-08 -- Various circumstances play into how and why a person enters the justice system, and throughout New York state, the Unified Court System has taken notice. . . . In the Eighth Judicial District, in which Chautauqua County is included, three new courts will be dedicated today, including one in Jamestown. The city's Mental Health Court will celebrate its grand opening today, although the problem-solving court has already had 30 people pass through its halls over the past nine months. . . . The mission of the mental health courts in the state is to improve public safety, court operations and the well being of people with mental illness. The premise of the court is simple, according to Catherine Newton, Jamestown's Mental Health Court project director. . . . ''Eligible clients are referred to the court, screened and based on the community safety risk, approved for the program,'' Ms. Newton said. ''Then they have the opportunity to opt for court-ordered treatment rather than incarceration.''

August 2008

CALIFORNIA

California plans to drug depressed patients to death

'Nothing in the bill prohibits this horror'

By Bob Unruh, © 2008 WorldNetDaily

8-29-08 -- Just as Democratic presidential nominee Sen. Barack Obama was in Denver preaching to a crowd of thousands of fans about the "change" he wants to see in the United States, his party compatriots in the California Legislature were making a "change," by approving a controversial plan that would allow nurses to assist terminally ill patients with suicide. . . . "AB 2747 allows a physician assistant or a nurse to opine that a patient is 'terminal,' and then push for unnatural death by 'palliative sedation,'" said Randy Thomasson, chief of the Campaign for Children and Families shortly after the vote. . . . "Depressed patients who succumb to this pressure will be drugged unconscious and die from dehydration, usually within five to 10 days. Nothing in the bill prohibits this horror," he said. . . . Forty-two Democrats in California voted in favor of the plan: 30 Republicans and two Democrats opposed the plan. . . . "AB 2747 pushes suicide through the back door at the hands of non-physicians taking advantage of depressed patients," Thomasson said. His organization has been alerting Californians to raise their concerns about the plan for sudden death with floor alerts, phone calls and e-mails.

FEDERAL COURTS

Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs

Evan Hill, The Recorder

8-28-08 -- Resolving a lawsuit that caught the attention of online retailers across the United States, Target Corp. will pay out $6 million in damages and make its Web site fully accessible to blind customers as part of a class action settlement filed on Wednesday. . . . . The National Federation of the Blind, which sued the Minneapolis-based corporation in 2006 in San Francisco federal court for maintaining a site that blind people said they couldn't use, will also be paid to oversee the changes and train the coders responsible for reprogramming the site. . . . . The case will "send a message to the entire Internet industry that access for people with disabilities is not only good business sense but an absolutely legal civil right; it's mandatory," said Laurence Paradis, a lawyer at Berkeley, Calif.-based Disability Rights Advocates who worked on the case. . . . . Target released a statement saying it was "pleased to have resolved the matter" and has made changes to its Web site "to improve the experience for guests who require assistive technology."

GENERAL

Disability Law Resource Center Released by Lawyer Central

TransWorldNews

8-18-08 -- Lawyer Central, the national attorney network, is pleased to announce the addition of a Disability Law Resource Center to its website. Disability law covers a wide array of issues, including social security disability insurance (SSDI), disability insurance benefits (DIB), employment disability, disability rights, and disability discrimination. With the Disability Law Resource Center, disabled workers and citizens can research legal information on these relevant topics and many others. . . . Frequently asked questions about employment disability and social security disability and an overview of the process of filing for social security disability benefits are among the disability resources offered by Lawyer Central. A list and explanations of the laws protecting the rights of disabled persons, most notably the Americans with Disabilities Act, and national disability and social security disability news centers are also available to provide site visitors with additional information. . . . Lawyer Central’s disability legal videos feature knowledgeable disability lawyers explaining topics such as disability insurance, disability benefits, medical disability, and short term disability versus long term disability. Elements of a disability lawsuit are also covered in the videos, including when to file a disability lawsuit, what a disability lawyer can do for you, lawyer to lawyer help in disability cases, and the fee structure for a disability lawyer. Visit the disability legal video library to learn about your legal rights to disability benefits and services, as well as the steps you should take if these rights are violated. . . . For information about disability law, visit Lawyer Central’s Disability Law Center at http://disability.lawyercentral.com/.

NEW JERSEY  

Eating-Disorder Class Actions Get Judge's Go-Ahead

Mary Pat Gallagher, New Jersey Law Journal

8-12-08 -- A federal judge says putative class actions seeking medical coverage for eating disorders can go forward, though eviscerated of some causes of action. . . . U.S. District Judge Faith Hochberg denied motions to dismiss in Beye v. Horizon Blue Cross Blue Shield, 06-Civ.-5337, and Foley v. Horizon Blue Cross Blue Shield, 06-Civ.-6219, following an earlier decision that allowed a similar suit against Aetna to go forward. . . . At issue is whether eating disorders such as anorexia and bulimia are biologically based mental illnesses, for which state law and the Horizon Blue Cross Blue Shield of New Jersey policies at issue require benefits comparable to those for physical ailments. . . . Three of the four named plaintiffs' policies echo the language of the state Mental Health Parity Law, which prohibits different co-payments, deductibles and health-care services for insureds with biologically based mental illness. The policies provide for differential treatment of purely mental conditions.

July 2008

FEDERAL COURTS

Disabilities Law Covers Sex Disorders, D.C. Circuit Rules

Federal workers are covered under 1973 Rehabilitation Act

Joe Palazzolo, Legal Times

7-29-08 -- Twice this month, the U.S. Court of Appeals for the D.C. Circuit expanded the sweep of a "major life activity" under the nation's anti-discrimination law for federal employees. . . . First, the court said sleep qualified. Now sex is on the list. . . . That is, disabilities that promote sleeplessness or the inability to have sex are covered by the 1973 Rehabilitation Act the court ruled. . . . Employment lawyers say the rulings open the door for a host of new discrimination claims and add ballast to cases that hinge on plaintiffs' ability to prove that their disabilities substantially interferes with their everyday lives. . . . "Employers will have to view the term 'disability' much more broadly," says Victoria Zellers, a partner in Cozen O'Connor's Philadelphia office. . . . Zellers says many of the cases brought under the Rehabilitation Act and the Americans with Disabilities Act, which protects private employees, wash out on summary judgment because employees fail to clear the first hurdle: proving they are disabled.

DISTRICT OF COLUMBIA

Disability protections ordered for sexually incapacitated

By Michael Doyle | McClatchy Newspapers

7-22-08 -- A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws. . . . The new appellate-court ruling gives Piedmont, S.C., resident Kathy E. Adams another potential shot at serving overseas. More broadly, the ruling cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated. . . . "I think it's a major victory for former cancer patients, and for anyone who has had their sex life disrupted," Adams' attorney David H. Shapiro said Tuesday. . . . Adams, herself a practicing lawyer, wants to compel the State Department to hire her as a foreign service officer and provide back pay. She'll now go before a jury and trial judge, unless the State Department relents first. . . . "I think their goose may be cooked," Shapiro said. . . . In its 2-1 decision, issued Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Adams has a case against the State Department. Most significantly, the influential D.C. circuit court ruled for its first time that laws that protect people with disabilities from discrimination cover "sexual relations." . . . The ruling overturns a trial judge who'd dismissed Adams' case.

Congress Aims to Expand the ADA

Bill would reverse two U.S. Supreme Court employment law cases

Marcia Coyle, The National Law Journal

7-21-08 -- For Karen Sutton, her twin sister Kimberly Hinton, and Ella Williams, the U.S. Supreme Court was a hostile environment from 1999 to 2002 because of a series of employment decisions during those years that left the three women and countless others outside the protections of the landmark Americans With Disabilities Act. . . . Nearly a decade later, Congress appears on the verge of undoing much of the high court's handiwork. . . . The names of Sutton and Williams, enshrined in Supreme Court case reports, will take on additional prominence if the Senate, as seems likely, follows the lead of the House and adopts the ADA Amendments Act of 2008. . . . The legislation, approved on June 25 by an overwhelming House vote of 402-17, explicitly rejects the standards and reasoning in Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). The culmination of a remarkable joint effort by disability advocates, business community leaders and members of Congress, the bill attempts to push federal courts off a path that has led, by one group's study, to the rejection of 97 percent of plaintiffs' ADA-related job bias claims in 2004 alone.

DELAWARE

Father: 'System' killing my disabled daughter
'If they had treated a dog this way, they would be doing jail time'

© 2008 WorldNetDaily

7-19-08 -- The father of a disabled Delaware woman who recently earned the support of state lawmakers says the system – of courts, lawyers, hospitals and disability agencies – literally is combining to bring about the death of his daughter. . . . "The court system should not have the right to impose this kind of treatment on a mentally disabled person," Randy Richardson told WND today. His daughter, Lauren Richardson, has been disabled since an apparent drug overdose nearly two years ago. . . . Judie Brown of the American Life League recently issued a call to those who are concerned about such cases to help. . . . "The governor of Delaware, Ruth Ann Minner, is being asked by pro-life Americans across this nation to intervene in this case in order to save Lauren from what many fear is an imminent court order dictating that Lauren be starved and dehydrated to death," she wrote. "I am asking you to be one of those who communicates your passionate belief that Lauren's life is sacred and deserves to be protected from those who would order her death. The governor's e-mail address is governor.minner@state.de.us." . . . Brown said "it has been a source of ongoing sadness to read of the difficulties Lauren Richardson's father has had over the course of the past several months. . . . "For those of you who are not familiar with her case, Lauren overdosed on heroin on August 28, 2006. She suffered oxygen deprivation as a result of the overdose and Lauren is now ... unable to speak out for herself. At the time of the overdose Lauren was expecting a baby. Her parents honored what they knew would have been her wish and did all they could to keep her healthy and comfortable until the child was born. Today, though Lauren may not be aware of it, she is the mother of Ember Grace, who was born in February 2007," Brown wrote.

FEDERAL COURTS

D.C. Circuit: Sleeping Is 'Major Life Activity'

Marcia Coyle, The National Law Journal

7-18-08 – The U.S. Court of Appeals for the D.C. Circuit recently ruled for the first time that sleeping is a "major life activity" under the federal Rehabilitation Act. . . .Reversing its own precedent, the court also held that a plaintiff doesn't have to show that his sleep disability affected his waking activities in order to move forward with a discrimination claim. . . . While the court's decision in Desmond v. Mukasey, No. 03-01729, answered an open question in the circuit, perhaps more importantly, it rejected Department of Justice arguments that a plaintiff must meet a "higher burden" by showing that the sleeplessness has had some effect on his day-to-day activities, said Martin Desmond's counsel, Lisa Banks of Washington's Katz, Marshall & Banks.

CALIFORNIA  

For Disability Law Group Interns, It's Personal
Petra Pasternak, The Recorder

7-16-08 -- Until she was 14, law student Rebecca Williford was a competitive swimmer and regularly lifted weights. But one morning, she woke up feeling sick and depleted. In the coming years, Williford's fatigue didn't go away, and she started having trouble walking. It took several years of doctor visits and tests to identify that she had Dysautonomia, a chronic neurological and cardiovascular disorder that affects, at different times, her blood pressure, heart rate, vision and digestion. By 17, Williford was relying on a wheelchair. . . . "For the first time, I was a part of the disability community, and I realized the tremendous need for advocacy on behalf of them -- for health care, for employment, for fathers who are breadwinners trying to figure out what they would do if they couldn't return to their job."

CALIFORNIA

Disability Activist Wins One Case, Loses Another in C.A.

Panel Rules in Latest Cases Brought by Prolific Plaintiff Molski

By Sherri M. Okamoto, Staff Writer

7-10-08 -- Controversial self-proclaimed disability rights activist Jarek Molski exposed himself to an adverse fee award by pursuing litigation to enjoin technical violations of California’s disability access statutes under Civil Code Sec. 55, this district’s court of appeal ruled yesterday. . . . Div. Six affirmed the $33,702.63 award, calling it a reasonable and necessary consequence of Molski’s “scorched earth strategy,” invoking the Unruh Civil Rights Act, Disabled Persons Act, and Sec. 55 for an alleged access barrier at the Arciero Winery. Sec. 55 authorizes a fee award to the prevaling party in an action for injunctive relief from a violation of disability access rights. . . . The paraplegic, however, won a separate case yesterday dealing with a different attorney fee issue. . . . Molski sues public accommodations for a living and has filed in excess of 400 such actions in state and federal court. Molski and his attorney Thomas Frankovich have been declared vexatious litigants in both jurisdictions. . . . Molski initially filed suit against Arciero in federal court for violation of the ADA as well as California’s accessibility laws. . . . The district court dismissed Molski’s state claims for lack of jurisdiction, leaving only Molski’s ADA claim for injunctive relief pending. Arciero later notified Molski that the alleged violations have been remediated and Molski dismissed the federal action.

FEDERAL COURTS

2nd Circuit Affirms Award Against Wal-Mart in Disability Bias Case

Mark Hamblett, New York Law Journal

7-8-08 -- An employer has a duty to reasonably accommodate an employee's disability where the disability is obvious even though the employee did not request an accommodation, a federal appeals panel has ruled. . . . Staking out an exception to the general rule that the requirement to accommodate is normally triggered by a disabled employee's request, the 2nd U.S. Circuit Court of Appeals said an employer must take action "if the employer knew or reasonably should have known that the employee was disabled." . . . The circuit made the ruling in upholding a $900,000 award for compensatory and punitive damages, plus $644,000 in attorney fees, to Patrick S. Brady on his Americans with Disabilities Act claim against Wal-Mart for the actions of its employees at a store in Centereach, Long Island, New York. . . . Judges Amalya Kearse, Guido Calbresi and Robert Katzmann decided the appeal in Brady v. Wal-Mart Stores Inc., 06-5486-cv. Calabresi wrote for the panel.

June 2008

House Overwhelmingly Passes ADA Amendments

Bazelon Center for Mental Health Law

6-26-08 -- By an extraordinary margin of 402-17, the House of Representatives passed the ADA Amendments Act yesterday to reverse Supreme Court holdings that had deprived many people with disabilities of the law's vital protections. The bill would restore the intent of Congress when it enacted the Americans with Disabilities Act . . . (ADA) in 1990 (see yesterday's news alert). . . . Please visit http://clerk.house.gov/evs/2008/roll460.xml to see how your Representative voted and say thank you by phone, postcard or email. (See How to Contect Your Lawmakers.). Members on both sides of the aisle gave speeches praising the legislation. Many stressed its value in enabling people whose disabilities are mitigated by medications to work, attend school and otherwise participate fully in society. . . . A version has been introduced in the Senate. Calls to your Senators would help, particularly to members of the Health, Education, Labor and Pensions (HELP) Committee.

FEDERAL COURTS

Judge Tentatively Approves Settlement of Eating-Disorder Class Action

Henry Gottlieb, New Jersey Law Journal

6-26-08 -- A federal judge in New Jersey granted preliminary approval Tuesday to a class action settlement that would require Aetna Insurance Co. to improve coverage for some eating-disorder patients. . . . U.S. District Judge Faith Hochberg made the decision after the plaintiffs' class action lawyer said the pact was good for the insureds and that litigating for a better deal would be risky. . . . The settlement requires the company to treat some claims for anorexia and bulimia as it does claims for biologically based mental illnesses, such as schizophrenia. BBMI claimants are eligible for months of treatment, while those with non-BBMIs are limited by Aetna to 20 outpatient visits per calendar year and 30 days for inpatient benefits, according to the complaint in DeVito v. Aetna Inc., Civ-07-418. . . . The better treatment would cover patients in "fully insured" plans, which are plans funded by employers. Enrollees in self-funded plans, such as employee welfare and state worker health benefit programs, are not covered by the suit and would not automatically benefit from the more liberal treatment. . . . Class plaintiffs lawyer Bruce Nagel told Hochberg that about half of the company's enrollees are in "fully insured" plans.

DISTRICT OF COLUMBIA  

Blindness doesn't deter law clerk from high court

By Bill Mears, CNN Supreme Court Producer

6-22-08 -- Isaac Lidsky arrives in front of the U.S. Supreme Court, stops suddenly and, upon hearing a voice, extends his hand in greeting almost instinctively. . . . Seemingly simple gestures such as a hello don't always come easily for a man who is legally blind. . . . But this hasn't deterred the ex-Justice Department prosecutor from pursuing a promising legal career, one that will take him inside the nation's highest court in a few weeks. . . . The Florida native will join 36 of the nation's top young attorneys as law clerks to Supreme Court justices for the 2008-'09 term. He will be the first legally blind law clerk in the court's history. . . . Lidsky, 28, will work with the retired Justice Sandra Day O'Connor and will be assured of long days writing and researching cases.

UNITED STATES SUPREME COURT

Supreme Court Limits Self-Representation by Mentally Ill Defendants

Lawyers are good for something, it appears.

Tony Mauro, Legal Times

6-20-08 -- The Supreme Court on Thursday said that defendants found mentally competent to stand trial are not necessarily also competent to represent themselves at the trial. As a result, the Court ruled by a 7-2 vote that states may insist that mentally ill defendants be represented by counsel when "they are not competent to conduct trial proceedings by themselves." . . . The decision was one of five issued Thursday, leaving 10 cases outstanding for the Court to hand down next week, which is expected to be the Court's final week before adjourning for the summer. The Court will sit on Monday and another day next week, as yet unspecified. . . . In the case on self-representation, Justice Stephen Breyer said the traditional test for competence to stand trial -- the ability to consult with counsel and to assist in preparing the defense -- does not weigh the additional skills needed to represent oneself. Someone competent to stand trial, Breyer wrote, may nonetheless "be unable to carry out the basic tasks needed to present his own defense without the help of counsel." . . . The ruling came in Indiana v. Edwards, in which Ahmad Edwards, accused of attempted murder in a 1999 department store robbery, seeks to represent himself at trial. Three times he was found incompetent to stand trial, but by 2005, after psychiatric help he was found competent -- and he renewed a request to represent himself. The trial judge said no, but on appeal two Indiana courts said he had a right to represent himself under Supreme Court precedents. . . . Indiana appealed to the Supreme Court, arguing for a standard that would deny self-representation to defendants who "cannot communicate coherently with the court or a jury."

Court Clarifies Standards For Denial Of Disability Benefits

In a ruling Thursday, it guides federal judges to weigh conflicts of interest by insurance companies.

By Warren Richey | Staff writer of The Christian Science Monitor

6-20-08 -- Judges must approach medical disability and health insurance disputes with a skeptical eye when they involve insurance companies that both evaluate and pay employee claims. . . . In a 6 to 3 decision announced Thursday, the US Supreme Court ruled that benefit denials by such companies must be examined with caution when circumstances suggest a high likelihood that financial considerations affected a benefits decision. . . . The court added that an apparent conflict of interest is only one of many factors that a reviewing judge must consider. . . . The ruling is important because it offers guidance to federal judges presiding over lawsuits challenging medical disability and health insurance determinations in group policies. . . . "When judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one," writes Justice Stephen Breyer in the majority opinion. . . . The decision, in Metlife v. Glenn, comes in the case of an Ohio woman diagnosed with a severe heart condition, who had her disability benefits withdrawn by the Metropolitan Life Insurance Co.

Money Everyone Can Use

The Treasury should adapt bills for the blind.

Washington Post Editorial

6-2-08 -- FOR THE blind and visually impaired, U.S. paper currency is trouble. Every bill is the same size; no palpable features distinguish one denomination from another. Without a portable money scanner or trusted companion, the blind are too often at the mercy of strangers. Some 170 countries have managed to produce paper currency more accessible to the blind, either by making each denomination a different size or by adding tactile features. One would think that if these other countries could find a way to accommodate the blind, then so could the United States. . . . But is the U.S. government a scofflaw for refusing to make its currency more user-friendly for the blind? Last month, a divided panel of the U.S. Court of Appeals for the D.C. Circuit said yes; we are not so sure. . . . The American Council of the Blind sued the Treasury in 2002 for violating the Rehabilitation Act, which the Supreme Court has said requires that no one with a disability be denied "meaningful access" to any program or service run by an executive agency or using federal funds. The court has also determined that a remedy must be "effective" and not impose an "undue burden" on the government or the private sector.

DISABILITY LAW NEWS & VIEWS ARCHIVES