In one of my most popular blog entries, ADA compliance auditing: higher education version, I mention technical standards in a comment to that entry. Many training programs as a condition of accreditation have developed technical standards that people in the program must meet in order to get into the program and stay into the program. My experience is that the standards are frequently written and/or interpreted in a way that screens out persons with disabilities in possible violation of the screen out provisions of the ADA. For those programs that have such technical standards, those standards can be rewritten, with expert help of an attorney knowledgeable in the area, so that the technical standards do not unnecessarily screen out persons with disabilities. Getting to that point means the attorney interfacing with the subject matter experts to make sure that the essential eligibility requirements of what the program is trying to accomplish are satisfied while simultaneously crafting the technical standards so that they do not unnecessarily screen out persons with disabilities. One of the approaches that the attorney may take is to make sure that the technical standards focus on the requirements meant to be accomplished and not on the various ways that the requirement could be accomplished.

All this said, what happens if you do have a technical standard that screens out persons with disabilities and it is challenged? A case that answers this question is McCulley v. The University of Kansas School of Medicine, an unpublished decision from the 10th Circuit. As is my usual practice, I have divided the blog entry into different categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to concentrate on any or all of the sections.

I
Facts:

In this case, the plaintiff suffered from type III spinal muscular atrophy, which necessitated the use of a wheelchair for mobility and limited her arm strength. In 2011, she was admitted to the medical school. One of the technical standards for the medical school was that a student must be physically able to carry out diagnostic procedures and provide general care and emergency treatment to patients including CPR, opening affected airways and obstetrical maneuvers. Shortly after being admitted to the medical school, the medical school sent the plaintiff a form asking her to describe the accommodations she might need. That led to a period of discussion between the plaintiff and the school. In July of 2012, she completed the form indicating that she would need a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support. After reviewing the requested accommodation, the interim dean of the medical school concluded that the plaintiff could not meet the motor technical standard and rescinded her admission. She of course sued alleging violations of the ADA and the Rehabilitation Act. When the District Court granted summary judgment to the medical school, she appealed to the 10th Circuit, which affirmed the District Court’s grant of summary judgment.

II
Court’s Reasoning

1. Having a staff member interact with patients on the plaintiff’s behalf would fundamentally alter the nature of her medical education, which trains her to engage with patients, often in emergency situations where assistance is unavailable. To my mind, the analogy would be to title I of the ADA where it is not a reasonable accommodation to hire someone to do the essential functions of the job of another.

2. The motor technical standards are related to the medical school’s accreditation.

3. Although the plaintiff does not intend to pursue a physically demanding specialty, she must nevertheless meet the motor technical standards because the medical school uses a broad, undifferentiated medical curriculum that prepares students to serve as physicians in a wide range of practice areas.

4. The critical procedures that the plaintiff seeks to have staff members perform on her behalf are required as part of the United States medical licensure examination.

III
Takeaways:

1. The decision is unpublished and so it’s precedential value may be debatable. Check your local rules on that.

2. In the final section of the opinion, the 10th Circuit states that the disposition should not be read as holding the medical school cannot reasonably admit the plaintiff or other students with similar disabilities. If this unpublished decision is adopted across the Circuits, it may lead to precisely that. The critical question is whether the purpose of a medical curriculum is to prepare students to serve as physicians in a wide range of practice areas. Or, is it more accurate to say that the purpose of a medical curriculum is to enable the student to truly understand what it means to serve as physicians in a wide range of practice areas. Certainly, if you are on the plaintiff’s side, that is the approach you would have to take. On the other hand, if you on the defense side, you certainly want to argue that a medical curriculum’s purpose is to prepare students to serve as physicians in a wide range of practice areas.

3. Look for the technical standards even where they screen out persons with disabilities and are written to do so when they don’t have to be, to be defended on the grounds that the technical standards are related to accreditation. The response to that argument is that the technical standards may be related to accreditation, but that does not mean the technical standards have to be written in such a way so as to unnecessarily screen out persons with disabilities. As a preventive measure, a knowledgeable attorney should work with the program to determine precisely what are the essential eligibility requirements of the program and what are the specific purposes that the program is trying to accomplish with that particular technical standard. Staying away from how the task is being accomplished and focusing on what should be accomplished, will go a long way towards making that technical standard one likely to be successfully defended against a challenge. After doing all that, it is possible that the standard will still discriminate against some people with disabilities, but at least then the school can be fairly confident that the technical standard as written is essential to the fundamental nature of the program. Certainly, from the school’s perspective, if a particular technical standard is required so as to be able to accomplish the United States medical licensure examination, that would suggest that the standard may be fundamental.

4. The risk of this decision is that it may lead to confusion that a professional school should be thinking about whether that particular student can actually perform the essential functions of a doctor, lawyer, nurse, etc. upon graduation while ignoring the fact that it is their medical school or professional training school that has independent obligation to persons with disabilities under either title II or title III. Whether the person can perform the essential functions of the job that he or she is training for, is a question for that person’s employer and falls under title I of the ADA. Also, it is entirely possible that the student had no intention of practicing that profession at all, but rather wants to use that knowledge in a related way. Certainly, this decision supports some blurring of the lines, but I would suggest being careful about completely blurring the lines between the educational curriculum and the job that the person training for.

This particular blog entry deals with three different topics all contained within the same case. The case is Powell v. Valdosta City School District, 2014 U.S. Dist. LEXIS 157158 (M.D. GA November 6, 2014). As is my usual, I have divided the blog entries into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.
I
Facts

In this particular case, the facts are relatively straightforward. In essence, the plaintiff was a special education teacher and reported abuse and neglect of several students. She was retaliated against for doing so and continued to make those reports for which she suffered further retaliation. Eventually, her contract was not renewed and she brought retaliation claim alleging violation of title II of the ADA, § 504 the Rehabilitation Act, and violation of the Georgia Whistleblower Act. As part of her suit, she sought to bring in expert testimony to explain that the school did not engage in proper practices with respect to evaluating her prior to the nonrenewal of her contract. Also, at no time prior to the nonrenewal determination, did the superintendent conduct his own investigation regarding whether the contract should be not renewed.

II
Issues

1. Does the plaintiff have a suit under title II of the ADA rather than title I of the ADA?

2. Is the expert testimony something that can come in under Daubert?

3. Can the school district be liable for the retaliation as a result of applying the cats paw theory?

III
Holdings:

1. Plaintiff does have a title II suit.

2. Yes

3. Yes

IV
Court’s Reasoning

1. Since the plaintiff alleged that she suffered retaliation for demanding that equal access to public services be afforded to her students with disabilities (that is, she reported suspected abuse and neglect to protect their welfare), the plaintiff’s claim falls under title II of the ADA. This statement has two important ramifications. First, in the 11th Circuit, individual defendants may be liable for retaliation. Second, a person bringing a title II of the ADA suit is not required to exhaust administrative remedies before filing suit.

I find this very interesting. In essence, what this means is that whether a title I or title II suit is the proper title to sue under depends upon the subject and not upon the context. That is, this particular plaintiff was an employee and was retaliated against because of actions she took while an employee. However, the subject matter of the suit involved title II matters. Therefore, if this case holds up, an employee working for a public entity that is retaliated against may be able to forgo a title I suit and proceed under title II instead depending upon the subject matter of the suit. It is going to be very interesting to see whether this kind of reasoning holds up on appeal, assuming case is appealed, or is adopted by other courts.

2. The superintendent had the ultimate authority for deciding whether to submit plaintiff’s name for approval by the Board of Education, which was a precondition for renewing her contract. The records showed that the superintendent did nothing to verify the information provided to him by the administrators at the elementary school. He never undertook an observation of the plaintiff in the classroom nor did he speak with her about her reports of child abuse or her interaction with administrators. Since the superintendent did not independently investigate and confirm the criticisms of the plaintiff, the nonrenewal decision was tainted by the people who recommended the nonrenewal action and therefore, the jury could reasonably conclude that the superintendent was nothing more than a cats paw (the cats paw theory comes from title VII cases where an employer can be held liable for retaliation even where the ultimate decision-maker had no retaliatory motives if the decision-maker was only following the biased recommendation without independently investigating the complaint against the employee).

3. The expert testimony comes in because the expert satisfied the standards of Daubert v. Merrell Dow Pharmaceuticals Inc.
 Under that case, whether expert testimony can come in depends upon: 1) whether the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) the testimony is based upon sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert has reliably applied the principles and methods to the facts of the case. In particular:

A. The expert would have testified: 1) the distinct demands of special education dictated how plaintiff taught her students, who varied in their abilities and ages; 2) the elementary school administrators did not properly administer observations of the plaintiff because they were not familiar with the students IEP or challenges created by their particular needs. That is, a special education teacher needs to be evaluated in terms of the progress of her students with respect to their IEP’s and the plaintiff’s students demonstrated progress; 3) the needs improvement ratings assigned to the plaintiff were based upon expectation for how a class with nondisabled students functioned, rather than a special education class like the plaintiff’s; 4) plaintiff seemed to understand her job duties and the needs of her students, that they made progress under her teaching, and that she was a strong advocate for the needs of her students.

B. The expert was qualified to offer the opinions. In particular, she had an undergraduate, Masters, and doctorate degrees in education. She also for over 20 years had served as a private educational consultant providing training and evaluation to teachers and administrators on various topics including differentiated instruction, instructional modification for general classroom teachers, special education, teaching and learning strategy, special education transition services, and IEP development. She also taught courses in special education at multiple universities and spent 10 years as a consultant for the Georgia Department of Education in areas such as policy development and implementation, state and federal regulation, monitoring, and creation of training manuals. Finally, she was responsible for developing the IEP resource guide for the Georgia Department of Education and had published and given presentations on teacher assessment, teacher training, and special education.

C. The court found her opinion to be reliable as they were based upon internal inconsistencies in how the elementary school administrators assessed the teacher’s strength and weaknesses, testimony of what was actually occurring in the classroom during the observations, testimony from the administrators, and documents in the record.

D. With respect to scientific method, expert testimony may be reliable if it is based upon education, experience, or training. If an expert witness primarily basis her opinions on experience, then she must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, how the experience is reliably applied to the facts. This portion of the Daubert standard is satisfied because her opinions were similar in content, approach and scope with opinions or training or consulting that she would give to school districts or in instruction when teaching classes or workshops.

E. The testimony would assist the jury in trying the facts of the case. While it is true that the ultimate question is whether retaliation occurred, that does not mean it is irrelevant as to how the evaluation tools were implemented, how the defendant may have ignored the clear guidelines of the school district’s evaluation policy and whether plaintiff’s students showed progress in their IEP’s. That kind of testimony would not establish that retaliation occurred, but would go a ways towards showing that the defendants created incompetence to cover their retaliation. Further, the particular topics do not come within the average layperson’s knowledge. Finally, the concern that the jury might be misled into thinking that plaintiff has proven a case simply by convincing the jury that her conclusions are true does not win out because the jury’s own common sense and clear instruction from the court should dispel that threat.

V
Takeaways:

1. In the 11th circuit, an individual can be liable for retaliation. While it is perfectly true, that there are numerous cases out there saying that an individual cannot be held liable for violations of title I or title II of the ADA, that is not the same as saying that an individual cannot be held liable for retaliation. It is also true, as we have discussed here, that a person may not be able to get legal remedies with respect to a retaliation claim arising under the ADA, but that is not the same thing, as the 11th Circuit notes, as to who the remedies apply to.

2. Whenever an ultimate decision-maker gets ready to take adverse action, it is important to have the facts independently confirmed before doing so unless you want to run the risk of cats paw liability.

3. This case is a very interesting use of a compliance expert in an ADA matter. Considering how complicated the ADA is, I have always been surprised at to why it doesn’t happen more often (full disclosure: I have served in the past as a compliance expert witness and or consulting ADA compliance expert in ADA cases). In this particular case, the expert wasn’t testifying as to whether the retaliation occurred, but rather was testifying as to whether the incompetence was created by the employer. It is a subtle but significant difference. Also, the scientific part of Daubert can be circumvented if the expert opinion is based upon their experience stemming from their considerable body of work. Finally, this court puts a fair amount of stock in the common sense of the jury and in the benefits of clear instructions from the court with respect to any confusion that may arise from the subtle distinction mentioned above. In short, this case is rather innovative in the way it used expert testimony, and it wouldn’t surprise me to see more of this in the future. Such use of experts would most certainly increase the cost of litigating ADA matters, but one wonders if it would not also make for better accuracy with respect to resolution of ADA matters.

In a previous blog entry, I discussed how a company could do an excellent job of defending litigation over what are essential functions of the job. This particular blog entry deals with the opposite scenario, where the company does not do a very good job at all of accomplishing that task. The case is Kauffman v. Peterson Healthcare VII, LLC As is my typical practice, I have divided the blog entries into categories: facts; majority opinion; concurring opinion; and takeaways. The reader is free to concentrate on any and/or all of the blog entry.

I
Facts

Plaintiff worked for a large nursing home in the town of Sullivan located in south central Illinois as a hairdresser. Two days a week she had to wheel clients in the nursing home to the salon. With respect to the other two days a week that she worked, the clients whose hair she did were able to come to the salon on their own. The residents of the nursing home weighed anywhere from 75 to 400 pounds with an average weight of 120 pounds. It usually took her no more than two or 2 1/2 minutes to wheel resident to the beauty parlor even from the farthest building, but that figure could actually be a longer figure. In December 2010, the plaintiff had a hysterectomy. As part of the operation, the bladder was reconstructed and a mesh lighting installed in her abdomen to keep the whole the bladder in place. The doctor gave her written permission to return to work eight weeks after the operation with the notation that she could not push over 20 pounds until released to do so. He later raised the limit to 50 pounds five months later. However, the doctor did not know that she was pushing wheelchairs as part of her job, rather he thought her just a hairdresser. When he found out that she had to push wheelchairs, the doctor told her that she should not be doing that because over repetitive time that would cause her mesh lining to be torn loose and she would be back in for bladder repair again. Most doctors recommend not lifting more than 50 pounds ever after the type of surgery the plaintiff had. As a result of the doctor’s warning, the plaintiff advised the nursing home’s administrator that she could not push residents in wheelchairs anymore. The response she received was that so long as she had restrictions, the nursing home would not be able to employ her. She did ask him whether someone else might be able to help with transporting residents to and from the beauty parlor for her, and the nursing home administrator testified at his deposition that it would be an undue hardship to hire somebody to transport patients to and from the beauty shop. She then quit. Until she was replaced, the remaining hairdressers received assistance from other staff in wheeling the resident to and from the beauty parlor. Further, no suggestion was made that the diversion of staff from the normal duties was costly to the nursing home or impaired the care provided to the residents.

II
Majority Opinion (Judge Posner)

1. After the plaintiff left, the nursing home accommodated the other hairdressers by having other people wheel the client to the salon until the plaintiff was replaced.

2. The court thought it possible without disrupting the operation of the nursing home, to assign one member of the staff to push the wheelchairs for the plaintiff on Mondays and another to do the same on Tuesdays.

3. The amount of time that the plaintiff spent pushing patients to the salon is not appropriate for a decision on a motion for summary judgment.

4. An element of the job is not essential if it is so small a part that it can be reassigned to other employees at a negligible cost to the employer. Whether that was the case was a genuine factual dispute not appropriate to be resolved without a trial.

5. A policy that does not allow people with restrictions to work is a violation of the ADA.

6. A 100% healed policy before being able to return to work reads the concept of reasonable accommodation completely out of the ADA and is a violation of same.

7. If a minor adjustment in the work duties of a couple of other employees would have enabled the plaintiff despite her disability to perform the essential duties of her job is a hairdresser, the nursing home’s refusal to consider making such an adjustment was unlawful.

8. If an accommodation to an employee’s disability is reasonable, the burden shifts to the employer to demonstrate that the accommodation would be an undue hardship on the operation of the employer’s business and the employer made no such demonstration.

9. The plaintiff had no alternative, considering the employer made clear that she would not be accommodated, but to quit.

10. The supervisor made a big mistake by not asking the plaintiff how much of her time at work was spent pushing wheelchairs and then on the basis of that answer as well as an investigation, coming up with a decision as to whether her disability could be accommodated without undue hardship to the nursing home.

III
Concurring Opinion (Judge Manion)

1. Question of fact existed concerning whether transporting residents to and from the beauty parlor is an essential job function for hairdressers working at this nursing home.

2. With respect to whether a task is an essential job function, the percentage of time spent on the task and the cost to the employer if the task is reassigned are not necessarily deciding factors.

3. An employer is under no obligation under the ADA to reassign essential job functions to another employee, though it must (emphasis mine) provide reasonable accommodation to allow a qualified individual with a disability to perform essential functions.

4. An employer is free to determine job responsibilities of its employees, and it should not be the court’s duty to second-guess that judgment so long as the employer’s reasons are not pretextual.

5. Once a new hairdresser was hired, the hairdressers did resume transporting clients to the hair salon.

6. The employer could have considered a battery-operated attendant controlled wheelchair that would allow the plaintiff to safely operate and traverse a short trip each way without any extra exertion that would violate her physician’s limitations. That might be an added expense, but it would meet the nursing home’s goal in rendering high quality service to the residents and allow the plaintiff to continue important relationships that she had developed over the years. A random pushing assignment from the orderly pool is a poor substitute for the resident’s special relationship with the hairdresser.

IV
Takeaways:

1. 100% healed policies are a no-no under the ADA.

2. What are the essential functions of the particular job is a fact intensive inquiry.

3. The amount of time a person spends in doing a particular task is at least some evidence of whether that particular function is essential.

4. Once an accommodation is made, there is the danger of the accommodation becoming permanent. Even so, the better part of valor is to see if that accommodation is really working for both the plaintiff and the employer and if so, not worry about the precedent. Instead, the employer should see whether the operations of the business are better off as a result of the accommodations. This is a principle called universal design. What might work for a person with disabilities might make things better for everyone.

5. A job function may also not be essential if reassigning that job function to other employee could be done at a negligible cost to the employer.

6. The burden to demonstrate undue hardship is on the employer.

7. Failure to engage in the interactive process, even if not an independent cause of action, is a big no-no. Also, an employer should take full advantage of the job accommodation network with respect to getting ideas as to how a particular essential function of the job might be accommodated (I am my no means saying that the Seventh Circuit did contact the job accommodation network, but the opinion reads as if it is something they could have done. This is something the employer should do as a matter of course. In that way, you don’t set up a situation where the court itself might be brainstorming as to possible accommodations. It also becomes easier to show that reasonable accommodations are simply not possible).

8. While the employer need not reassign essential function to another employee, the employer does have to provide reasonable accommodations to allow a qualified individual with a disability to perform the essential functions. In other words, just because a function of the job’s essential, does not mean you can forget about reasonable accommodations.

9. While it is true that an employer is free to determine job responsibilities of its employees, a court is not necessarily going to take that on face value.

10. Interacting with clients and the relationship that is formed as a result of same may be an essential function of the job.

In the last quarter, my most popular blog entry was the one dealing with ADA Compliance Auditing: Higher Education Version, and so I thought I would turn to education again. In this particular blog entry, the United States Department of Education Office for Civil Rights issued a Dear Colleague letter on October 21, 2014, talking about how the Office of Civil Rights would not tolerate bullying on the basis of disability. Here are the salient points:

1. The Dear Colleague letter cites to virtually no case law. With respect to disability-based harassment, the Office of Civil Rights says that the standard is the one for administrative enforcement of § 504 and in court cases where plaintiffs are seeking injunctive relief. They note that it is a different standard than the one contained in private lawsuit for money damages, which, according to the Office of Civil Rights, often requires proof of the school’s actual knowledge and deliberate indifference.

2. Just what is the standard for disability-based harassment? Standard adopted in this letter is a showing of: 1) a student is bullied based on disability; 2) bullying is sufficiently serious to create a hostile environment; 3) school officials know or should know about the bullying; and 4) the school does not respond appropriately.

3. Just what is a hostile environment? According to the letter, the conduct must be sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. This is a different standard than what I have seen, for example, from at least one place of higher education, which talks about harassment based on a protected characteristic in terms of whether it is so severe, persistent, or pervasive….

4. When investigating disability-based harassment, the Office of Civil Rights considers the factors laid out in paragraph 2 above, but does not limit itself to those factors. Also, if it does find that all of paragraph 2 above is met, then the Office of Civil Rights find a disability-based harassment violation under § 504. Further, if the student is also receiving services under IDEA or § 504, then the Office of Civil Rights also has a basis for investigating whether there was also a denial of a free appropriate public education under § 504. Obviously, the free appropriate public education piece does not apply to places of higher education. Finally, even if the answer to one or more of the elements in paragraph 2 above is no, if the student is receiving services under IDEA or § 504, the Office of Civil Rights may still consider whether the bullying resulted in a denial of a free appropriate public education that must be remedied.

5. If Office of Civil Rights goes on to investigate whether the student was denied a free appropriate public education as a result of the bullying based on disability, the Office of Civil Rights will also consider whether the school knew or should have known that the effects of the bullying may have affected the student receipt of free appropriate public education services under IDEA or § 504.

6. If the answer to paragraph 5 is no, then there is no free appropriate public education violation. If the answer on the other hand is yes, then the Office of Civil Rights goes on the consider whether the school met its ongoing obligation to ensure a free appropriate public education by promptly determining whether the student’s educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or § 504 plan.

7. If the answer to paragraph 6 is no, then there is a bit of a conundrum. The Dear Colleague letter quite literally says that only if the student is not receiving free appropriate public education services, would the school then be in violation of its obligation to provide a free appropriate public education services. That of course makes absolutely no sense. There must be a typographical error here. That is, the only fair conclusion is that if a student is receiving services under IDEA or § 504, and the school does not meet its ongoing obligation to ensure a free appropriate public education as described in paragraph 6 above, then in that case, there would be a violation of its obligation to provide a free appropriate public education.

Takeaways:

1. The Office of Civil Rights is letting k-12 schools know that bullying on the basis of disability is very much on their radar.

2. You do not see a lot of case law talking about hostile environment with respect to disability discrimination. You do see it with respect to harassment based on other protected characteristics. Hostile environment under this Dear Colleague letter may not match up with case law in your jurisdiction or with your school’s or University’s policies on hostile environment. It is possible that this particular letter has a lower standard for hostile environment (“sufficiently serious,” v. for example: so severe, persistent, or pervasive), than what case law in your jurisdiction might specify. Legal research by legal counsel may be in order to clarify this situation.

3. The Office of Civil Rights Dear Colleague letter is clearly focused on public elementary and secondary schools. However, they also get involved with places of higher education that receive federal funds. The question is whether the Office of Civil Rights will also adopt the hostile environment standard contained in this letter for higher education as well and whether courts will follow along.

In a previous blog entry entitled help-wanted ASL practitioners, I discussed the case of Belton v. Georgia. On October 3, 2014 that case settled with a consent decree. I thought it would be helpful to cover some of the salient points of the consent decree. They are as follows:

Definitional Terms:

1. A deaf class member is a deaf individual eligible for or receiving state-funded services for mental illness, including in state hospitals or a deaf individual awarded comprehensive support waiver program funding.

2. A deaf mental illness class member is a deaf individual eligible for or receiving state-funded services for mental illness, including the state hospitals, who needs non-crisis related therapy or counseling services provided by ASL fluent therapist or counselors or through the use of interpreters.

3. A deaf individual is a person whose hearing is totally impaired or hearing is so seriously impaired as to prohibit the individual from understanding oral communications spoken in a normal conversational tone. This can be a self identified classification regardless of the severity of the hearing loss or mode of manual communication preferred.

What is interesting about the definition of deaf individual that it doesn’t talk about mitigating measures, such as hearing aids or cochlear implants. As such, depending upon how the Georgia Department of Behavioral Health and Developmental Disabilities wants to play it, it is possible you may see arguments over whether a person who otherwise meets the requirements for this consent decree but uses hearing aids and/or cochlear implants, would be qualified to be served under this consent decree. The counter argument would be that the Americans with Disabilities Act as amended prohibits considering mitigating measures in the determination of whether a person has a disability. However, the counter argument to that counter argument is that the consent decree is not dealing with whether a person has a disability, rather they are dealing with whether a person is qualified to receive services under the specific terms of a consent decree. The counter argument to that is that the effective communication regulations of the Department of Justice require that individual preferences be considered. The issue of being culturally deaf v. cochlear implants is an issue that has been raging in the Deaf community for some time with cochlear implants winning out for the most part. Accordingly, the possibility of the use of mitigating measures being a problem as the consent decree is phrased is a real one and not just an academic discussion.

Terms of the consent decree:
1. The Georgia Department of Behavioral Health and Developmental Disabilities must maintain a deaf services office with responsibility for statewide monitoring and management of the provision of services to deaf individuals.

2. The Georgia Department of Behavioral Health and Developmental Disabilities must employ a full-time deaf services director reporting to a director or executive level position with responsibility for disability program services. The director must be ASL fluent, have a working knowledge of deaf culture, and have at least four years of administrative experience in human services, healthcare administration, or related field, or a PhD in any of these fields in lieu of such experience.

Here is what I find interesting about this requirement. I get that there is Deaf and deaf and no I am not being repetitive. I consider myself deaf proud but not Deaf. While I am deaf, I am not Deaf. Deaf refers to someone who is culturally deaf. That means ASL, oftentimes state schools for the deaf, in addition to being deaf in the medical sense (genetically or otherwise). Here is my concern. What if you have a person who otherwise meets the criteria to be a deaf services director even though he or she is not ASL fluent and joint issues prevent that person from becoming ASL fluent. Wouldn’t this criteria be then screening out a person with a disability in violation of the ADA? The answer to that question would then turn on whether ASL fluency is a bona fide occupational qualification of this position. That is, is ASL fluency so critical to the position that you could ignore the possibility that a person could perform the essential functions of this job with or without reasonable accommodations if that person was not ASL fluent?

3. The Georgia Department of behavioral health and developmental disabilities must also employ a full-time community service coordinator to work under the direct supervision of the Director. That person has the responsibility for statewide coordination of all services provided to deaf class members by the department directly or through its provider network. The qualifications for that position are a Masters degree in human services field and at least two years of experience in deaf services delivery. That person also has to be ASL fluent and have a working knowledge of deaf culture and, preferably, system theory. The person should ideally also hold a clinical license and be trained to assist with clinical supervision.

There is also the issue of ASL fluency here and whether it screens out a person with a disability. Again, whether such a claim would fly would depend upon whether ASL fluency is a bona fide occupational qualification for this position. To my mind, that argument is stronger for this position than it was be for the director’s position.

4. The Georgia Department of Behavioral Health and Developmental Disabilities also must hire a full-time interpreter coordinator to coordinate interpreter services for deaf individuals covered by the consent decree.

5. Deaf services will provide monitoring of the provision of services to deaf individuals covered by the consent decree and how they do that is laid out in the decree.

6. Communication assessments performed by qualified communication assessors (qualifications are set forth in the consent decree), must be completed for deaf class members.

7. Within one year of the date of the consent decree, providers of crisis services must have developed plans for the provision of crisis services to deaf class members. Those plans must comply with the Georgia Department of Behavioral Health and Developmental Disabilities policy, as approved by a monitor. Further, the department must require providers to comply with those plans and policies.

8. With respect to state hospital, all deaf class members are to receive services, such as counseling and therapy among other things, consistent with the communication assessment recommendations as set forth in their individual service plan.

9. The support coordinator is responsible for monitoring and advocating for the class member and department staff is responsible for monitoring providers for compliance with implementation of the individual service plan. Further, within six months of the effective date of the order, providers providing services to class members whose individual service plan requires sign language communication must have staff sufficient to meet the requirements of the individual service plan.

10. Within 30 days from the date of the consent decree the Georgia Department of Behavioral Health and Developmental Disabilities, through its provider network, must begin providing services to the class members using ASL fluent therapist for counselors, case managers, or interpreters as demanded by the class member’s individual service plan.

11. Non-crisis related outpatient therapy or counseling services to class members must be provided by ASL fluent therapist or counselors. Telemedicine is okay if it is in accordance with the individual’s preference.

12. With respect to non-crisis related outpatient mental health therapy or counseling services provided to class members, 25% of those services must be performed by ASL fluent therapist for counselors. That figure rises to 45% in the third year and 60% in the fourth year.

13. Case management services for class members must be provided by ASL fluent case managers.

14. The Georgia Department of Behavioral Health and Developmental Disabilities is responsible for contracting with designated providers to pay the cost of employing a contracting with ASL fluent therapist, counselors, and case managers.

15. Within three years the department and/or providers have to have as many qualified interpreters (the consent decree sets forth what is meant by qualified interpreter), on the contract or employed to provide the sign language interpreting services as necessary to fill the requests made to disability services for interpreting for counseling or therapy services. Within three years the number of qualified interpreters has to be at least 12 in number.

16. The consent decree is to be incorporated into the service standards of the respective provided manuals of the department within 12 months of the effective date of the order or sooner if practicable, whichever is shorter.

17. A monitor is responsible for overseeing implementation and compliance of the consent decree and the monitor is given the authority to seek judicial intervention, direction, and modification of the order as necessary.

18. Reasonable attorneys fees to be awarded to plaintiff’s counsel (Parks, Chesin of Atlanta)

The bloggosphere reports that the City of Lomita California has asked the full Ninth Circuit to rehear the ruling in this case. As is traditional with me, the blog entry is divided into parts: facts, court’s reasoning, and chances en banc/takeaways. The reader is free to focus on any or all of the parts.

I
Facts:

Here’s what happened: a mobility impaired plaintiff sues because the City of Lomita California has no diagonal stall parking on its streets. Therefore, the streets are devoid of accessible parking. The city defends on the ground that it is off the hook because of the absence of regulatory design specification for on street parking facilities. The 10th circuit, as noted by my friend and colleague Richard Hunt here, has said that architectural guidelines can be a safe harbor for a defendant, but of course that assumes that an architectural guideline exist.

II
Court’s Reasoning

The Ninth Circuit (panel of Paez, Nguyen, and Motz with Paez writing the opinion), held that the absence of architectural guidelines does not give the defendant a get out of jail free card and here is how they got there:

1. The ADA was enacted to remedy widespread discrimination against persons with disabilities by providing a comprehensive broad mandate to eliminate discrimination against persons with disabilities through addressing both outright intentional exclusion as well as the failure to make modifications to existing facilities and practices.

2. The Rehabilitation Act defines a program or activity as all of the operations of the Department, agency, special purpose district or other instrumentality of a State or local government. The ADA has been interpreted in much the same way so that the term services, program, or activities includes anything a public entity does.

3. Whether a particular public function is covered by the ADA, depends upon whether that function as a normal function of a governmental entity.

4. The Ninth Circuit has previously recognized that public entities have to maintain accessible public sidewalks even though the implementing regulations do not address sidewalks.

5. The lack of a specific regulation cannot eliminate a statutory obligation.

6. The regulations pertaining to existing and new facilities applied to all normal governmental functions, including the provision of on street public parking.

7. Nothing in the Department of Justice implementing regulations suggests that when technical specifications do not exist for a particular type of facility, public entities are off the hook. In fact, that interpretation made no sense to the court because it would entirely circumvent the regulations requiring newly constructed or altered facilities to be readily accessible.

8. Back in 1994, the Department of Justice in a supplement to their technical assistance manual said that if no standard exists for particular features, those features need not comply with the particular design standard. However the facility must still be designed and operated to meet other title II requirements, including program accessibility. Further, this interpretation must be deferred to by the court because the Department of Justice interpretation of this regulation is not plainly erroneous or inconsistent with the regulation.

9. The Americans with Disabilities Act Architectural Guidelines say that when there are no provisions in the guideline for facility type, element, or feature, those facilities are still subject to other ADA requirements, including the duty to provide equal opportunity. Therefore, the Access Board also intended to impose general accessibility requirements on public entities even where the technical specification for a particular facility are absent.

10. The City can’t complain that it had no notice since the Department of Justice in 1994 clearly broadcasted that independent obligations exist under title II of the ADA even where there are no technical specifications.

III
Chances en banc/Takeaways:

1. In my opinion, much of this ruling is very hard to argue with. It is absolutely true that there are many many cases out there saying that the ADA brings within its scope anything a public entity does. It is also compelling that a lack of specific regulation cannot eliminate a statutory obligation. Finally, the Department of Justice and the architectural accessibility board both make it clear that the ADA creates obligations even where technical specifications do not exist.

2. So where is the weak point in this decision? The weak point to my mind is the court’s discussion of facility and how the existing facility and new facility regulations apply to the situation. The court said that the new facility and existing facility regulations apply because the regulations define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property. 28 C.F.R. § 35.104. The court said that while they will not specifically address the question of whether on street parking areas are facilities because they constitute parking lot to portions of the road as argued by the Department of Justice, it still was the case that on street parking areas qualify as other real property. The counterargument is that the plain meaning of facility is being stretched here to perhaps beyond the breaking point.

3. So here’s the problem. Let’s assume that title II of the ADA applies even though there are no technical specifications dealing with diagonal stall on street parking. The analysis, as mentioned above, for that persuades me at any rate. Let’s also assume that the definition of facility is being stretched to the breaking point and so those regulations do not apply. Accordingly, just what is a governmental entity or place of public accommodation supposed to do in the absence of guidelines. Preventive law suggests two possibilities. First, acting as if the existing facilities and new facilities regulations apply even though they might not. Second, looking to the Americans with Disabilities Act Architectural Accessibility technical bulletin, which says that in new construction and alteration, a reasonable number, but at least one of the type of element should be designed to be accessible. Thus, this preventive law approach would mean ensuring that a reasonable number of a particular design elements would be made to be accessible. Of course, we don’t know what a reasonable number would be and how that number would be determined. Preventive law would suggest that reasonable number would be governed by an objective standard based upon objective evidence.

This week’s blog entry is a twofer. In the first case, we will discuss whether magic words are necessary for getting a reasonable accommodation. In the second case, we will discuss what I believe is the long-term folly of not going the extra mile when it comes to making a place of public accommodation accessible. In each case, I have divided the discussion into different categories: facts, court’s reasoning, and takeaways. As usual, the reader is free to focus on any or all of the categories with respect to each case discussed.

A. Magic Words

I
Facts
In Cole v. Cobb County School District, a teacher basically lost it one day. As a result, the school district asked the plaintiff to meet with a prevention specialist. This led to confirmation that the plaintiff was exhibiting paranoid and irrational behavior. This then led to a fitness for duty exam that found the plaintiff was consistently harboring delusional beliefs and appeared to be confused and agitated. Further, the fitness for duty exam found she was not able to concentrate on her teaching duties and should take a medical leave to receive treatment. As a result, the plaintiff was placed on leave under the family medical leave act that day. The following day, she sent an email to the office saying that, “I need paperwork and what I need to do to move schools.” She subsequently received treatment from two doctorsfor depression and substance abuse, among other things. After being on leave for some time, she submitted a reasonable accommodation request form asking for a transfer to a new position in a different school. That request was granted and she was offered a position as a school counselor at a different school. She then underwent another fit for duty examination and eventually was confirmed as being fit for duty. She returned to work at the beginning of the 2013-2014 academic year. Her claim was that the school district should have acted sooner than it did i.e. after they received the email.

II
Court’s Reasoning

1. It is absolutely true that a plaintiff seeking a reasonable accommodation under title I of the ADA does not have to use magic words. On the other hand, the plaintiff does have to provide enough information about his or her limitations and desires so as to suggest at least the possibility that reasonable accommodation may be found (in this case with reassignment within the school district).

2. The email request was not a specific demand for reasonable accommodations. Rather, it was simply an information request asking how to go about transferring to a different school.

3. Nothing in the email request indicated that the plaintiff decided to transfer due to her disability nor did it mention a particular position she believed would be more suitable.

4. There are many reasons why a teacher may want to transfer schools aside from reasonably accommodating a disability.

III
Takeaway:

Magic words are not required by the ADA when it comes to requesting a reasonable accommodation, but they sure help. So, if you are not going to use terms such as “reasonable accommodations,” and “disability,” at least use words indicating that there is something going on related to a disability (either expressly or implicitly), and that a change in the situation is needed.

B. Winning the Battle and Setting Yourself up to Lose Later

I
Facts
In Ramirez v. Golden Creme Donuts, the plaintiffs went after the donut shop for architectural accessibility. Once they were sued, the defendant moved to make the litigation go away by remediating the problems except for the bathroom. With respect to the bathroom, they walled off the corridor to the bathroom so that the bathroom could not be accessed by the public. The defendant then filed a motion to get rid of the claim because the plaintiffs claims had been mooted.

II
Court’s Reasoning

Since the restroom is now for employees only (a permanent wall put in place of the corridor so that no one could enter the corridor from the dining area), the restroom is no longer a place of public accommodation and therefore is not subject to the ADA.

III
Takeaways:

1. An argument can be made that while the donut shop won, it will eventually lose and have to make the restroom accessible anyway because:

A. The defendants are still subject to title I of the ADA with respect to their employees.

B. Not having an accessible bathroom may mean that the defendant is violating the screen out provisions of title I of the ADA, assuming a person with a disability in need of modification to the bathroom applies.

C. should they have an employee with a disability that needs bathroom modifications, they may have to modify the bathroom anyway.

In short, a strong argument can be made that the defendant here just kicked the can down the road.

Robin Shea, the blogger of one of the blogs in my blogroll, talked about the case for this week in a recent blog of hers. The case is Herx v. Diocese of Fort Wayne South Bend. Robin’s perspective is always great and fun to read, but I wanted to offer my own perspective as it is slightly different.

I
Here are the facts:

Plaintiff was hired in 2003 to teach junior high language arts at St. Vincent school in Fort Wayne, Indiana, and she served in that capacity until her termination in June 2011. At the time of hiring she signed a statement agreeing to conduct herself at all times professionally and personally in accordance with the episcopal teaching authority, law and governance of the church in the diocese. Charges for conduct in violation of the teaching of the church would be ultimately resolved exclusively by the Bishop. Further, there was an educational policy that said that a person had to have knowledge and respect for the Catholic faith and abide by its tenets. In 2008, the plaintiff learned that she suffered from a medical condition that causes infertility, and she and her husband began fertility treatments, which included artificial insemination and in vitro fertilization. The first treatment she underwent there wasn’t any issue, but when she informed the school that she was undergoing a second treatment (it isn’t unusual for an individual to go through multiple treatments before this works), the Monsignor told her that IVF violated church teaching (plaintiff was not aware of that previously), and that plaintiff would have been better off if she had not mentioned the treatment to anyone. At any rate, she was then terminated. Some other facts are important to know. They include that the plaintiff was not required to have any religious instruction or training to be a teacher at the school and had never held herself out as a priest or minister. She was considered by the principal to be a lay teacher. Further, the religion teachers for the diocese schools have different contracts than lay teachers and religion teachers are required to have religious education and training. Also, the diocese has never terminated any man or participation in IVF or any other infertility treatment. The plaintiff wound up suing on the grounds of sex and disability discrimination.

II
Court’s reasoning

The court threw out the disability discrimination claim the but kept the sex discrimination claim, and here is how they did it:

1. The ministerial exception didn’t apply because, as mentioned above, there was no requirement for teachers such as the plaintiff to have any religious instruction or training to teach secular subjects at the school. She had never held herself out as a priest or minister and was considered by the principal to be a lay teacher. Finally, religion teachers had a different contract man teachers of secular subjects, and religion teachers were required to have religious training.

2. Infertility is most definitely a disability.

3. The ADA provides a safe harbor for religious organizations so that a religious organization can require its employees to conform to an organization’s religious tenets.

4. All the evidence in the record indicated that the diocese acted because of the plaintiff’s choice of infertility treatment and not because of any animus against infertility.

5. Sex discrimination claim proceeds because a triable issue of fact was created as a result of the diocese never terminating any man for participating in IVF or any other infertility treatment. It is certainly true that the burden of IVF treatment falls upon the woman, but is also certainly true that the man participates in that treatment by providing the materiel.

III
Takeaways:

1. Infertility is a disability under the ADA, assuming the woman is of childbearing age. Interesting question as to whether an age limit would be upon the man with respect to whether infertility would be a disability under the ADA.

2. How infertility is treated is a different kettle of fish than whether a disability exists.

3. If it is an employment matter and the person works for a religious organization, nothing wrong under the ADA for the employer to insist on that employee following the faith. It certainly helps if there is a contract and policies indicating as much.

4. If you are going to go after employees for not following the faith, make sure you treat men and women equally regardless of whether the burdens are at all the same between the sexes.

In a comment to a previous blog entry, I discussed the case of Gipson v. Popeye’s Chicken and Biscuits. In that case, the Northern District of Georgia said that considering what police have to do, it wasn’t right to impose ADA liability on the police since the police are not lawyers and have to deal with things in real time.

Now comes this case, Van Velzor v. City of Burleson (I have actually been to this quaint town. It is about 45 minutes to an hour south of Fort Worth Texas, and it is also the hometown of Kelly Clarkson), from the Northern District of Texas, Dallas division. As is my usual practice, I have divided the entry into separate categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the separate categories of the blog entry.

I
Facts

In this case, the plaintiff was a mobility impaired individual who frequently uses a wheelchair and has disability plates and placards issued by the Texas Department of Motor Vehicles. When he visited a Walmart supercenter store in Burleson, he found a note on occupied accessible parking spots or spots reserved for those with disabilities. Further, some of those occupied accessible parking spots were taken by vehicles lacking required accessible parking placards and license plates in violation of Texas law. He called the Burleson Police Department about the violations and informed the dispatcher that the illegally parked cars were preventing him from being able to park and enter the store. The dispatcher told him that she would send an officer to address the situation, but no such officer arrived and the dispatcher allegedly did not speak to anyone about the call. He subsequently learned that the store manager had called the police department to request enforcement but as with what happened to him, no officers ever arrived. It turns out that the city of Burleson had a special program known as citizens on patrol to handle violations of accessible parking laws. In essence, the police department outsourced enforcement of the law to a group of volunteer citizens. The plaintiff alleged that this outsourcing was restricted to the accessible parking law and that the city retained its authority to enforce non-disability related parking laws within the regular operations of the police department. Further, the plaintiff alleged that the police dispatcher does not actually refer calls related to accessible parking violations to that program and that people with disabilities are not able to contact the program directly since it does not have a separate dispatch line. In other words, the plaintiff claimed that the program did not provide persons with disabilities the actual means of getting the accessible parking law enforced. In a separate matter, the plaintiff claimed that the city of Burleson refused to provide him relief when he was denied assistance with respect to pumping gas in violation of Texas law. In fact, when he called the police regarding that violation, he was told by the dispatcher that the police would be of no help. After getting the runaround from various parts of the bureaucracy, the plaintiff sued alleging that the refusal to enforce disability related traffic laws violated title II of the ADA.

II
Court’s Reasoning

1. There was no dispute that the plaintiff was a person with a disability.

2. When it comes to title II matters, any accommodation must be sufficient to provide a person with a disability meaningful access to the benefit or service offered by a public entity.

3. A benefit or service under the ADA means the performance of work commanded or paid for by another for an act done for the benefit or at the command of another. That means discrete portions of law enforcement activities can be considered separate services or benefits for purposes of the ADA.

4. One such discrete portion of law enforcement activity is the enforcement of traffic and parking laws, which is a service or benefit separate and apart from police enforcement as a whole, and therefore, reversing what this court had said in an earlier decision, the critical question was did the city deny the plaintiff the benefits of meaningful access to police enforcement of traffic and parking laws and not whether he was denied meaningful access to police enforcement as a whole.

5. Courts have found that a public entity is not only prohibited from affording persons with disability services not equal to that afforded to others that are not as effective in affording equal opportunity, but also that public entities cannot prevent a qualified individual with a disability from enjoying any aid, benefit, or service, regardless of whether other individuals are granted access. Therefore, a plaintiff is not required to identify a comparison class of similarly situated individuals given preferential treatment.

6. While cases exists giving deference to police enforcement decisions, those cases predate the ADA. The ADA is a game changer because it imposes upon public entities and affirmative obligation to make reasonable accommodations for persons with disabilities to avoid discrimination and where a defendant fails to meet that affirmative obligation, the cause of that failure is irrelevant.

7. A policy that denies persons with disabilities a state law of right, law enforcement services available to citizens generally, is against the letter and spirit of federal law.

8. While it is true that the Fifth Circuit has specifically carved out an exception to the ADA coverage with respect to police enforcement, that exception only applies in the context of an officer’s on the street responses to reported disturbances or other similar incidents and occurring prior to the officer’s securing the scene and ensuring that there is no threat to human life. That is, this particular exception only applies in situations that legitimately present a threat of imminent danger and call for instantaneous decision-making.

The italicized phrase is intentional on my part. That is, this case is specifically saying that the exception for police enforcement with respect to the ADA is narrowly focused to the situation where the officer is securing the scene and ensuring that there is no threat to human life. Once that condition precedent is satisfied, the ADA obligations kick in.

9. The text of the ADA provides no basis for distinguishing Police Department program, services and activities from those provided by public entities that are not police departments.

10. Plaintiff’s allegations show that the benefit he received from the city were not equal to that afforded others since his ability to travel due to the lack of traffic law enforcement was impeded in such a way that he could hardly be said to receive an equal benefit from the department’s enforcement of traffic and parking laws.

11. The police department did not provide an effective alternative to standard enforcement through the program, with they had outsourced. Not only that, the plaintiff alleged that he had never seen a volunteer actually enforcing the accessible parking law.

12. The plaintiff states a claim under the ADA when he alleges that the city failed to make reasonable accommodation to his needs as a person with a disability because they denied him access to police officers who could decide whether to enforce disability related laws in the same way they decide whether to enforce other laws and that the city failed to accommodate persons with disabilities by refusing to train its police officers to properly handle violations of disability related laws. The court said that requiring disability related training is generally reasonable under the ADA and that at this stage of the proceedings there was no evidence that such an accommodation would cause an undue burden because the plaintiff was simply asking for his call to be referred to officers for ordinary enforcement in the same way that calls regarding non-disability related violations are referred. The city did not establish that either of those accommodations would cause an undue burden on the city.

III
Takeaways

1. If this case is the law, then Gipson would have been decided completely differently. Thus, what this means is that under this case police are at a real risk of liability for violating title II of the ADA if they lack knowledge of what the ADA requires and then make erroneous decisions with respect to whether ADA violations have occurred where those decisions occur after the need for securing the premises and the need for instantaneous decision-making has passed.

2. Police need training on the ADA in terms of what the law requires. That training has to include both title II and title III of the ADA.

3. Police need to be cautious about outsourcing their enforcement activities. If they do, they need to ensure that such enforcement and any alternatives are accessible to persons with disabilities. Also, they should be cautious about outsourcing enforcement activities anyway, because, as we have discussed before, complying with the ADA is a non-delegable duty.

4. With respect to a person with a disability accessing governmental services, the critical question is going to be whether with or without reasonable modifications that person has meaningful access to the governmental entity’s programs, activities, or services.

5. This case is another nail in the coffin of requiring comparables when it comes to disability discrimination. See also this blog entry.

One of my favorite movies of all time is Stripes with Bill Murray and Harold Ramis and John Candy and others. There is a scene in that movie where the Sergeant is on a platform and that platform gets destroyed by mortar fire because the commanding officer, John Larroquette, who is absolutely incompetent, demands that a mortar round be fired. That means Bill Murray’s basic training group has to finish the training on their own. They do so with spectacular colors being selected to go abroad as an elite unit as a result of what they did at the graduation activities. During the graduation activities, a General ask Bill Murray where is the basic training Sergeant? Bill Murray responds “blown up sir!” I was reminded of that scene when I read the case of Clinton L v. Wos. If this case prevails, the ability of people to challenge budget cuts leading to an increased risk of institutionalization being a violation of the ADA, just became incredibly difficult, i.e. “blown up.”

As is my usual practice, I have the blog entry divided into three categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

This case involved a reduction in funding by the State of North Carolina with respect to community services offered to people with intellectual disabilities and/or mental illness. As a result of that reduction in funding, one of the local management entities (local management entities manage, funds and plan, develop, implement and monitor mental health and developmental disability services within the catchment area), reduced the reimbursement rate it pays to its service providers for supervised living services from what it was paying for one and two person placements to the same level that it paid for supervised living services provided in three-person placements. Plaintiff sued saying that this decision made as a result of the state funding cuts, meant that they were at an increased risk of institutionalization and therefore, the ADA was violated. There was a 39 day trial and what the court did is discussed below:

II
Court’s Reasoning

The court said not so fast to litigation of this kind and here is why:

1. It is absolutely true that unjustified institutionalization of individuals with disabilities is a form of discrimination under the ADA per Olmstead.

2. But that doesn’t answer the question because: 1) what is meant by an institution?; 2) what is meant by institutionalization; and 3) when can you say that the budget cuts cause the increased risk of institutionalization?

3. With respect to what is an institution or what is institutionalization, neither Olmstead nor title II define the terms. Therefore, the court was left to fashion its own definition.

4. In determining what is an institution, a proper focus would be on size of the facility, isolation it generates, segregation, and lack of choice common to those institutions. Also, the court cited to proposed rules offered by the Centers for Medicare and Medicaid services that said institutions also include but are not limited to settings that are isolated from the larger community, do not allow individual to choose whether or with whom they share a room, limit the freedom of individuals with respect to choices pertaining to daily living experiences such as meals, visitors, and activities, or limit individuals opportunity to pursue community activities. In short, the court decided that an institution is a large, congregate facility for the treatment of those with mental illness or intellectual disabilities that exhibit qualities such as isolation, segregation and lack of personal choice as exemplified by the large, congregate facilities run by the state of North Carolina as well as by ICFMR (intermediate care facilities for those with mental retardation), facilities. (The court actually uses the term mental retardation and developmental disabilities. Those terms are out of date, and so I am using intellectual disabilities).

5. Even where a person would be admitted to an institution as defined in paragraph 4 above, that doesn’t mean that being admitted into such an institution means they are being institutionalized. To determine whether they are being institutionalized, the court said one has to look at the length of the admission and the reasons for the institutional placement.

6. For a person to be able to use Olmstead in this way, that person must be at serious risk of institutionalization or segregation. While it must be a serious risk, that risk does not have to be imminent. If the risk is not imminent, then the public entity’s failure to provide community services due to its cuts to such services must be shown that it will likely cause a decline in health, safety, or welfare leading to the individual’s eventual placement in in institutions. That is, the significant risk of institutionalization has to be found to be causally related to the budget cuts or reduction in reimbursement rates. Causation is governed by a substantially related test (think substantial factor in tort law), because in this kind of situation, there is invariably more than one cause involved in whether a person winds up in an institution.

Takaways:

1. Until this case, it wasn’t all that hard to argue that the ADA may be violated if there is a reduction in budget cuts with respect to having a plaintiff get to first base. Whether the ADA would even apply to budget cuts at all is a separate question and one which I have discussed previously here.

2. This case sets an incredibly high bar for plaintiffs being able to succeed with respect to a case alleging ADA violations creating a risk of institutionalization due to budget cuts because the plaintiff will now have to show a serious risk that they would be placed in an institution; 2) that even though they were placed in an institution, they were also being institutionalized; and 3) that being institutionalized will be substantially related to the budget cuts.

3. Will this case extend throughout the country? It’s unclear. From a plaintiff point of view, this case makes things incredibly difficult and extremely expensive (this case had dueling experts and a 39 day trial and plaintiffs lost). On the other hand, it doesn’t make it impossible, and as mentioned in the blog entry that I linked to in paragraph 1 of this section, it is possible that United States Supreme Court could say that the ADA does not apply in this situation at all. Therefore, if you are a plaintiff, a slim chance is better than no chance. The other reason this case may prove attractive to courts throughout the country, is because courts may be reluctant to say that there is no chance for such a claim to succeed, though they could be within their rights to make that claim, as just mentioned, and instead opt for a situation that would be narrowly tailored to deal with clear cut situations where unnecessary institutionalization is going on.