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DISABILITY LAW NEWS & VIEWS 2009-2011

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May 2011

ADMINISTRATIVE COURT

Disability Judge Put on Leave From Post

By Damian Paletta, Wall Street Journal

05-27-11 -- The Social Security Administration placed on leave an administrative law judge who has approved an unusually high number of applications for disability benefits, one week after a page one article in The Wall Street Journal detailed his decisions. . . . David B. Daugherty, based in Huntington, W. Va., awarded benefits in each of the 729 disability cases he decided in the first six months of fiscal 2011, according to government data. In fiscal 2010, Mr. Daugherty denied benefits in just four of the 1,284 cases he decided. . . . On May 19, the day the Journal story ran, a team from the agency's inspector general's office seized computers and interviewed employees from the West Virginia office. . . . Mr. Daugherty, who joined the agency as a judge in 1990, was escorted out of his office Thursday. In a phone interview several hours later, he said he had "no idea" why he was placed on leave, but said it would probably last until the investigation was complete. He said he would continue to be paid while on leave, which he said would be temporary. He said he didn't know whether he would ultimately be given his job back.

MICHIGAN  

Blind Law School Applicant’s Suit Contends ABA Violates ADA by Promoting LSAT

By Martha Neil, ABA Journal

05-25-11 -- A federal lawsuit filed in Michigan yesterday by a legally blind law school applicant contends that the American Bar Association is discriminating against the blind and visually impaired in the manner in which it accredits law schools. . . . By pushing law schools to use the Law School Admission Test administered by the Law School Admission Council, the ABA, though its law school accreditation rules, imposes a discriminatory test requiring "spatial reasoning and the ability to diagram," alleges the complaint (PDF) filed by Angelo Binno in the Eastern District of Michigan.

ADMINISTRATIVE COURTS

Disability Judge Spurs Benefits Investigation

By Damian Paletta, Wall Street Journal

05-20-11 -- Investigators from the Social Security Administration's inspector general's office descended on Huntington, W.Va., on Thursday, the same day a Wall Street Journal front-page article detailed the high award rate of administrative law judge David B. Daugherty. . . . Investigators interviewed a number of staff members in the Huntington Social Security Administration office and removed at least one computer, people familiar with the matter said. . . . At least two congressional probes are being launched or expanded as a result of the article, congressional aides said. Utah Sen. Orrin Hatch, the top Republican on the Senate Finance Committee, said he planned to look at how the agency grants disability claims. And the House Ways and Means Committee plans to broaden an existing investigation into how Social Security disability programs are administered. . . . "Taxpayers fund this essential safety net, and they have every right to be outraged," a committee spokeswoman said. . . . In addition to paying for senior retirement benefits, the Social Security Administration also administers two federal disability programs.

ILLINOIS  

The Grandma Ruse

Legal Profession Blog 

05-18-11 -- An Assistant Attorney General in Illinois is the subject of bar disciplinary charges for alleged conduct in the course of an investigation into compliance with state law. . . . The defendant in the underlying matter(who was represented by counsel) has the interesting biblical last name of Onan. The investigation involved a condo for seniors (Onan Senior Suites) that was charged with violations of the Illinois Environmental Barriers Act. The AAG sought to establish that the condo had four stories, which would bring it under the requirements of the Act. . . . The allegations:

Because the Illinois Environmental Barriers Act required that buildings be at least four stories for the Act to apply, on or about March 18, 2008, Respondent developed a plan to visit Onan Senior Suites to determine whether the garage level of Onan Senior Suites could be viewed as a storey, thereby bringing the building within the scope of the Illinois Environmental Barriers Act. . . . On or about March 18, 2008, Respondent, Ipjian [another attorney with the AG's office], and Jamie Frankic-Berkett, a Disability Specialist for the Disability Rights Bureau, visited Onan Senior Suites, to determine whether the building was accessible to people with disabilities and to determine whether the garage was finished or unfinished. Prior to arriving on March 18, 2008, Respondent had informed Ipjian that they would only view areas of the building that were open to members of the public. Although Respondent and Ipjian had appeared in court in relation to case number 04 CH 1630 on March 18, 2008, and Respondent knew that Mr. Nordigian represented the defendants in that matter, Respondent did not give Mr. Nordigian notice of his intention to visit Onan Super Suites that day, nor did he otherwise inform Mr. Nordigian of his plan to view the garage for purposes of determining whether it could be considered a storey for purposes of the Illinois Environmental Barriers Act.

CALIFORNIA  

Dyslexia No Bar to Legal Career for Advocate and Inventor

By Debra Cassens Weiss, ABA Journal

05-16-11 -- A disability advocate who is severely dyslexic says he’s not the only JD who has the reading disorder. . . . Ben Foss is the new executive director of Disability Rights Advocates, a nonprofit that litigates on behalf of the disabled, according to a press release. He has a joint JD and MBA from Stanford University, yet as a child he was in special education classes.

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April 2011

NEW YORK  

Suit Alleges Bias in Disability Denials by Queens Judges

By Sam Dolnick, New York Times  

04-12-11 -- The Queens office that hears appeals of Social Security disability cases is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits. . . . It has had the 10th-highest rejection rate among 166 offices across the country this fiscal year. Lawyers say many applicants have been reduced to tears by harsh questioning from the administrative law judges who hear the appeals; some lawyers have advised their clients to rent apartments or move to homeless shelters in other boroughs so they can plead their cases elsewhere. . . . And federal judges have rejected scores of the Queens rulings in recent years, complaining of legal errors, “combative” hearings and a tone that one court called “brusque, intemperate and unhelpful.” . . . Now, a class-action lawsuit filed on Tuesday in Federal District Court in Brooklyn says that five of the eight Queens judges are not just difficult, but also biased against the applicants — many of whom are poor or immigrants — and have systematically denied benefits to the disabled by making legal and factual errors.

March 2011

New ADA Regs Could Lead to More Disability Class Actions

By Debra Cassens Weiss, ABA Journal

03-29-11 -- Workers would get more expansive protections for disabilities under final regulations released Friday that interpret 2008 amendments to the Americans with Disabilities Act. . . . One byproduct of the new regulations could be more ADA class actions, according to a Lexology article by Seyfarth Shaw. The reason: The regulations include a list of impairments that will “virtually always” meet the definition of disability. . . . Conditions on the list include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.

UNITED STATES SUPREME COURT

Supreme Court to Decide Whether Lutheran School Teacher Can Sue for Retaliation

By Debra Cassens Weiss, ABA Journal

03-28-11 -- The U.S. Supreme Court has agreed to decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who wanted to return to work after a disability leave. . . . The religious school in Redford, Mich., fired teacher Cheryl Perich for insubordination after she reported for work even though administrators said they would not rehire her in the middle of the school year, according to the petition for certiorari (PDF posted by SCOTUSblog). The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled that the school district was not protected from suit, despite First Amendment protection as a religious organization, because Perich spent most of her time on secular duties. . . . The Becket Fund for Religious Liberty, which represents the school, has more information at its website.

Who’s Disabled? Feds Expand the Definition

By Nathan Koppel, Wall Street Journal (blog) 

03-25-11 -- Labor and employment lawyers are busy Friday reading, parsing,  fretting, lecturing and a few other present participles after the EEOC yesterday issued new regulations governing when employees qualify as disabled. . . . The immediate question that springs to mind is who are the winners under the new regs: employees or employers? It’s not so easy to say. . . . The regulations cite particular impairments, including HIV infection, diabetes, epilepsy, and bipolar disorder, that “should easily be concluded to be disabilities.” . . . The regulations, Bloomberg reports, will make it easier for employees to win workplace accommodations. . . . And that, of course, is a win for employees, right?  Law firm Seyfarth Shaw, which specializes in defending employment cases, thinks so.  “More disability lawsuits can be expected to be filed, and importantly, those lawsuits will become much harder to defend against at an early pleading stage,” Seyfarth attorney Condon McGlothlen said in a statement. . . . Disability claims already were on the rise last year, Bloomberg reports, noting that there were about 25,000 disability discrimination claims in fiscal year 2010, up from 21,400 the previous year.

CALIFORNIA  

Severely disabled mother wins visitation rights with triplets

LA NOW

03-25-11 -- A Los Angeles County Superior Court judge ruled Friday that a paraplegic woman who communicates by blinking has the right to see her 4-year-old triplets. . . . In a tentative 10-page ruling, Judge Frederick C. Shaller said that Abbie Dorn, 34, can see her daughter, Esti, and sons Reuvi and Yossi, for a five-day visit each year pending a trial in the acrimonious custody case. She also entitled to a monthly online Skype visit. A trial date has yet to be set. . . . “We are thrilled,” said Felicia Meyers, one of Dorn’s attorneys. . . . Although “there is no compelling evidence that the visitations by the children will have any benefit to Abby,” Shaller wrote, “…there is no compelling evidence that visitation with Abby will be detrimental to the children.” . . . Dorn was healthy until June 20, 2006, when she gave birth to the children at Cedars-Sinai Medical Center. During delivery, a string of medical errors starved her brain of oxygen, and she is in a minimally conscious state, according to the neurologist who examined her during legal proceedings.

February 2011

CALIFORNIA  

Diabetic's discrimination lawsuit against restaurant is hard to swallow

A Studio City sushi restaurant is taken to court by an all-you-can-eat customer.

By David Lazarus, Los Angeles Times

02-17-11 -- David Martin was in the mood for raw fish, and he liked the deal offered by a Studio City sushi restaurant: all you can eat for $28. . . . He took a seat at the counter and started ordering. But it turned out that Martin didn't really want sushi, which includes rice; he wanted all-you-can-eat sashimi, which is just fish. He began picking the seafood off the top and leaving the rice. . . . Restaurant owner Jay Oh told Martin that if he wanted the all-you-can-eat price, he'd have to eat the rice too and not just fill up on fish. Martin replied that he has diabetes and that he can't eat rice. . . . Oh said he offered to prepare sashimi for Martin. Two orders of sashimi cost $25, or $3 less than the all-you-can-eat sushi deal. But Oh said Martin declined the offer. . . . Martin left the restaurant after being charged a la carte prices for the sushi he'd already ordered plus $1 for a cup of green tea. . . . Two weeks later, Martin filed suit in Los Angeles County Superior Court. It seeks at least $4,000 in damages for the "humiliation, embarrassment and mental anguish" Martin says he suffered after being discriminated against "on the basis of his disability." . . . Discrimination, or shakedown?

FEDERAL COURTS

Federal Judge Orders Disaster Plan for L.A. Disabled

Associated Press,  Fox News    

02-12-11 -- The city of Los Angeles discriminates against disabled people because it lacks specific plans to meet their needs in the event of a natural disaster or other emergency, a federal court ruled Friday, the first such decision in the country. . . . "Because of the city's failure to address their unique needs, individuals with disabilities are disproportionately vulnerable to harm in the event of an emergency or disaster," U.S. District Court Judge Consuelo Marshall said. . . . Marshall ordered the city to meet with the plaintiffs, Audrey Harthorn, a Los Angeles resident who uses a wheelchair, and Communities Actively Living Independent and Free, a Los Angeles nonprofit independent living center, in the next three weeks to come up with a disaster plan for disabled people.

January 2011

PENNSYLVANIA  

Defendant with no language proves difficult to prosecute

By Jeremy Roebuck, Philadelphia Inquirer Staff Writer 

01-11-11 -- With a flick of his wrist, the interpreter at the front of the courtroom mimed the bang of a judge's gavel, his other hand pointing to the ceiling. . . . The crude gestures were meant to convey that the case against Juan Jose Gonzalez Luna would be heard in a higher-level court. . . . Gonzalez's face, however, remained vacant. . . . Did the 42-year-old - who is deaf, mute, and illiterate, including no known knowledge of sign language - understand what had just happened? . . . As Gonzalez has next to no language skills, his case has baffled Montgomery County courts since his arrest on drug trafficking charges late last year. While courts have come a long way in providing access to interpreters in a host of exotic languages, no one is sure how to translate for a man who knows no language at all.

CALIFORNIA  

Bar Examiners Ordered to Adapt for Blind Law Grad

By Tim Hull, Courthouse News Service    

01-05-11 --- A testing company must let a legally blind law school graduate take the bar examination using assistive software, the 9th Circuit ruled Tuesday, upholding a lower court's preliminary injunction. . . . The National Conference of Bar Examiners (NCBE) and ACT testing company refused Stephanie Enyart's requests to use assistive technology software on the Multistate Professional Responsibility Exam and the Multistate Bar Exam three times before she sought the injunctions. . . . Enyart, a 2009 graduate of the University of California at Los Angeles School of Law, has been legally blind since age 15. She has Stargardt's disease, a kind of macular degeneration that causes blind spots and sensitivity to light, all of which are gradually getting worse, according to the ruling. . . . In 2009 Enyart asked the NCBE three times for permission to take the two tests using assistive screen reader and magnification software known as JAWS (Job Access With Speech) and ZoomText. . . .      The NCBE and ACT refused Enyart's requests, however, noting that the test was not available in an electronic format. NCBE instead offered to accommodate Enyart with a live reader or an audio CD of the exam and closed-circuit television. 

November 2010

OREGON  

Justice Department Slow To Act On Service Dog Issue

By Michelle Diament, Disability Scoop

11-15-10 -- An Oregon family is at a loss after waiting more than a year for the Justice Department to look into why their son’s autism service dog can’t accompany him to school. . . . The issue began two years ago when Scooter Givens’ school said he could not bring his trained German shepherd, Madison, to class. The boy’s mom, Wendy Givens, insists the dog helps Scooter, 10, remain calm so that he can learn, but school district officials say the animal is unnecessary. . . . Now, Scooter is getting older and growing bigger, making his behaviors harder to control and modify, his family says. Recently, he ran across his school classroom to punch a fellow student. Had his service animal been there, Wendy Givens says Scooter would have been wearing a harness attached to the dog who is trained to lie still to prevent the boy from bolting in an aggressive manner.

October 2010

NEW YORK  

NY Lawyer Disbarred for Overcharging Brain-Damaged Client

By Noeleen G. Walder | New York Law Journal | New York Lawyer

10-25-10 -- A state court has disbarred an attorney it said overcharged a brain-damaged client $508,230 in a medical malpractice action and then "tried to disguise" his acceptance of a fee that violated the statutory maximum. . . . Norman Leonard Cousins argued that he had used what he insisted was a gift from Kevin Veneski to settle a lawsuit brought against Mr. Veneski in federal court by a company that had helped fund the malpractice litigation. . . . But the Appellate Division, First Department, concluded that Mr. Cousins, of Manhattan, had "deceived his client" to secure his assistance in what the court described as a "charade." . . . "Respondent's claim that the gift was requested by Mr. Veneski to resolve the Core Funding litigation is belied by the fact that respondent contradictorily stated that Mr. Veneski never even knew that he had been sued, and by the fact that the…litigation was brought three years after Mr. Veneski signed the affidavit granting" Mr. Cousins one-third of his net recovery from the malpractice suit, the panel wrote in the per curiam opinion of Matter of Cousins, M-288.

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.

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.

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. 

May 2010

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.

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.

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.

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.

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.

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.

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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.

September 2009

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.

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

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.

April 2009

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."

March 2009

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

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.

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