DOT adds protections for airline passengers with disabilities

The U.S. Department of Transportation adopted new regulations promulgated under the Air Carrier Access Act, 49 USC § 41705, on May 7. The new regulations include revised rules for using assistive breathing devices in aircraft cabins, accommodating passengers with hearing impairments, and requiring foreign airlines that use U.S. airports to meet certain accessibility criteria. The new rules mark the 10th amendment to the regulations since the DOT issued them in 1990. The revised regulations also implement the 2000 ACAA amendment that expanded the act’s coverage to foreign carriers.

The new regulations allow passengers to use four types of portable electronic breathing devices, including ventilators, respirators, continuous positive airway pressure machines, and portable oxygen generators, which meet the Federal Aviation Administration’s safety, security and hazardous materials requirements. This will permit passengers to use their own breathing devices aboard an aircraft instead of switching to oxygen supplied by the airlines.

Prior to the new rules, these devices were included in airlines’ ban on the use of electronic devices during takeoff and landing. Airlines can require passengers who use the devices to give 48 hours notice so airlines can ensure that devices will not interfere with communication or navigation systems.

Accommodate hearing impairments

The regulations specify that airlines must provide TTY service during the same hours and with the same level of service as publicly available telephone reservation and information service. Airlines must provide passengers with hearing and vision impairments the same information they provide other passengers in airport terminals or on the aircraft — such as information on boarding, flight delays, schedule changes, weather conditions at the flight’s destination, connecting gate assignments, checking and claiming of baggage, and emergencies.

Airlines cannot require a passenger who can understand the safety briefing and assist with his own evacuation to travel with a safety assistant. The regulations suggested but did not require that airlines send copies of the safety briefing to passengers with communications prior to their departure date.

The new rule requires airlines to give passengers with disabilities the benefits of updated technology. If a passenger with disabilities cannot readily use an airline’s automated kiosks, the airlines must provide the passenger with equivalent service by providing assistance using the kiosk or allowing the passenger to come to the front of the line at the check-in counter. All new audiovisual displays played on aircraft for informational purposes must have high-contrast captions in the predominant language used to communicate with passengers.

Airlines must also train employees to recognize requests for communication accommodations from travelers with hearing or vision impairments and to use the most common methods for communicating with them, such as writing notes or taking care to enunciate clearly, using available Braille cards, reading information sheets or communicating through an interpreter. The rules do not require employees to use sign language.

Cover foreign airlines

The new regulations also extend the requirements of the ACAA to foreign airlines that begin or end flights at U.S. airports. However, airlines can apply for a conflict of law waiver, if a provision of the ACAA or its implementing regulations conflict with the law of an international destination.

The waiver provision covers only foreign laws not a foreign carrier’s or foreign government’s policy, authorized practice, recommendation, or preference. The rule recommends that airlines file for waivers involving existing laws within 120 days to allow the DOT to respond before the regulations take effect on May 7, 2009.

For a copy of the final rule, visit www.regulations.gov, docket number DOT-OST-2004-19482.   

Section 504 requires agency to provide effective communication

Case name: American Council of the Blind, et al. v. Social Security Administration, 37 NDLR 13 (N.D. Cal. 2008).

Ruling: The U.S. District Court, Northern District of California denied dismissal of a Section 504 suit against the Social Security Administration by eight visually impaired Social Security benefit recipients and the American Council of the Blind.

What it means: Section 504 of the Rehabilitation Act requires recipients of federal funds to communicate with all potential and existing program participants in an accessible format. Sending written notices to individuals with visual disabilities that prevent them from being able to read the contents may not fulfill the service provider’s duty under Section 504.

Summary: A group of eight visually impaired Social Security benefit recipients and the American Council of the Blind launched a class action suit against the Social Security Administration under Section 504 for failing to communicate with class members in an accessible format. The District Court denied dismissal of the suit. The court held that the recipients’ claims did not arise under the Social Security Act and so they did not have to meet the act’s requirements for judicial review.

Distinguishing several cases found to arise under the Social Security Act, the court noted that the recipients’ communications complaint was not tied to present or future claims for benefits. They were not appealing a denial of benefits, and they were not disputing the standards for determining benefits of sanctions under the act. Their interests were in avoiding having to find a sighted person to read SSA notices to them and in protecting their private information.

Additionally, the court noted that denying the recipients the right to proceed under the Rehabilitation Act risked depriving them of any judicial review of their claims. The Social Security Act did not provide for the appeal of notice procedures, and if recipients were barred from applying Section 504 or another law, then they could not get redress.

The court ruled that the suit should proceed under the Rehabilitation Act rather than the Administrative Procedure Act. The benefit recipients were seeking equitable relief, not money damages. Further, the court indicated that the APA was not appropriate when the issues at hand were outside the expertise of the agency. Accessible communications were usually the province of the SSA. The court declared that the SSA had a continuing duty under Section 504 to “provide meaningful access to all visually disabled recipients of and applicants to Social Security programs.”

With the applicable law clarified, the court requested briefs from the parties recommending the best way to proceed with the litigation.

The SSA notifies individuals receiving benefits based on their blindness of decisions or determinations affecting their benefits using the beneficiaries’ choice of three methods: 1) a mailed notice with a follow-up call; 2) certified mail; or 3) notification by some alternative procedure established by the commissioner and agreed upon by the individual. Individuals who are blind but receive benefits based on other factors, such as their age; do not have the option of a follow-up phone call. 

Class action settlement creates community care for brain injury survivors

The commonwealth of Massachusetts and the Brain Injury Association of Massachusetts now share a common goal: No one with a brain injury should be forced to live in a nursing home if they can successfully live in a community setting.

Arlene Korab, the executive director of the Brain Injury Association of Massachusetts, said the parties reached common ground after a year of litigation in Hutchinson, et al. v. Patrick, et al., No. 07-30084 (D. Mass. complaint filed 05/17/07), by applying lessons learned in the seven-year dispute over the settlement agreement in Rolland, et al. v. Patrick, et al., No. 98-30208 (D. Mass. settlement proposed 03/28/08) (see April 10, 2008 issue, p. 6). The same attorneys litigated both cases.

Rolland was a class action involving more than 1,500 adults with mental retardation who alleged the Commonwealth denied them treatment in community-based services and failed to provide the training, habilitation and support services needed to prepare for life outside of a nursing home. The case settled in 2001 with an agreement by the Commonwealth to provide community services and transition services. However, the parties disputed the implementation of the settlement until they reached a second settlement in March 2008.

The Hutchinson complaint included a class of Medicaid-eligible brain injury nursing home residents who alleged Massachusetts failed to fund community-based programs, and refused to place them on the waiting list for community services. The suit alleged that the commonwealth failed to provide the rehabilitative services necessary for them to live in the community.

Followed Rolland model

As in the Rolland settlement, the Commonwealth agreed to provide the necessary supports for class members to live in the community. The Commonwealth agreed to spend up to $15 million over the next eight years to fund the settlement. The Commonwealth will expand its current 200-person brain injury waiver program to serve 300 more people, including individuals with acquired brain injuries such as strokes. The program currently serves only individuals with traumatic brain injuries.

The Commonwealth will also provide transitional services and community placements for 1,700 individuals with brain injuries who live in nursing facilities and wish to live in a community setting. as part of a larger program to move 10,000 people with disabilities out of nursing homes and into community settings.  

The 2,000 class members covered by the settlement represent about 25 % of the brain injury patients currently residing in an institutional setting in Massachusetts. The parties expect that 200 to 250 class members will leave nursing homes each year for the next eight years. The parties negotiated timetables, monitoring provisions, and dispute resolution provisions to avoid the problems that occurred in the Rolland settlement.

Change discharge procedures

The Commonwealth also agreed to change the procedures used when hospitals discharge Medicaid-eligible brain injury patients. Under the settlement, Massachusetts will offer patients the choice to receive services in their own homes or shared living arrangements, in addition to nursing homes. The Commonwealth agreed to establish an education and outreach program to inform people with brain injuries and their families about the waiver programs and community-based service options.

The programs will operate as Medicaid waivers. The federal government will share half of the proposed costs of the waiver programs. Because of the cost sharing, the U.S. Department of Health and Human Services must also approve the settlement.

The parties have scheduled a preliminary hearing on the settlement this month and a final fairness hearing for July 25.

Few court decisions address reliance on strangers

Jeffrey Lovitky, the Washington, D.C., attorney who represents the American Council of the Blind and individual plaintiffs in American Council of the Blind, et al. v. Department of the Treasury, 37 NDLR 27 (D.C. Cir. 2008), said his clients just “want to be able to use currency without relying on the kindness of strangers.” Currently, many blind individuals must ask strangers to verify the denominations of the bills they are using.

The U.S. Court of Appeals, District of Columbia Circuit noted “only a few courts have considered whether the visually impaired have meaningful access to programs and services where information is exclusively provided in a format readable only by the sighted.”

In one such case, Brookhart v. Illinois State Board of Education, 697 F.2d 179 (7th Cir. 1983), the 7th U.S. Circuit Court of Appeals held that a public school’s failure to provide examinations in an accessible format violated the Rehabilitation Act.

However, the D.C. Circuit in American Council of the Blind cited a general pattern of meaningful access cases that establishes a Rehabilitation Act violation when an obstacle impedes an individuals independent access to a government program, including lack of access to public transportation in Ability Center of Greater Toledo v. City of Sandusky, 29 NDLR 29 (6th Cir. 2004); the absence of no cost interpreters and auxiliary aids in United States v. Board of Trustees for the University of Alabama, 1 NDLR 64 (11th Cir. 1990); and inaccessible entrances in Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982). 

The D.C. Circuit found that the plaintiffs in American Council of the Blind sought only to remove an obstacle that people with visual impairments confront in using paper currency, not an expansion of program benefits that was denied in Alexander v. Choate, 469 U.S. 287 (1985) or the free parking unsuccessfully sought in Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003).

The D.C. Circuit also said that requiring blind individuals to use coping mechanisms such as having others identify currency, and employing unique folding patterns to differentiate between bills was analogous to Tennessee’s requiring mobility impaired individuals to crawl up courthouse steps in Tennessee v. Lane, 28 NDLR 65 (U.S. 2004). The D.C. Circuit added, “Such dependence is an anathema to the state purpose of the Rehabilitation Act.”   

Accessibility features could foil counterfeiters

The U.S. Court of Appeals, District of Columbia Circuit, in rejecting the Department of Treasury’s undue burden defense, noted that Section 504 is no less of a statutory command than the requirement to combat counterfeiting. But the two goals do not conflict, said plaintiffs’ counsel Jeffrey Lovitky of Washington, D.C.

The design of U.S. paper currency must change regardless of the decision in American Council of the Blind, et al. v. Department of the Treasury, 37 NDLR 27 (D.C. Cir. 2008), said the attorney representing the plaintiffs. Why? Because U.S. paper currency is the most frequently counterfeited currency in the world.

Lovitky said the Treasury has increased the frequency of its currency redesigns in response to counterfeiting. He added that as counterfeiters grow more sophisticated, the need for currency redesigns arises more frequently and the design changes become more radical.

Complying with his clients’ demands for tactile features that allow people with visual impairments to identify currency by touch, the Treasury would also frustrate several common counterfeiting techniques, said Lovitky.

Many counterfeiters use sophisticated digital printers to create the fake bills, explained Lovitky. However, digital scanners and printers cannot duplicate features that make currency recognizable by touch, such as micro perforations, raised dots or foil embossing. While these features cannot eliminate counterfeiting, they make it more difficult.

Lovitky said that tactile features not only make it harder to create counterfeit currency, they make it harder to pass. The same features that allow a blind shopper to identify a bill’s denomination, allow a merchant to identify a suspect bill, he added. 

Massachusetts settles community placement lawsuit, again

In 2001, the U.S. District Court, District of Massachusetts approved a settlement in a community placement suit Rolland v. Cellucci, 17 NDLR 161 (D. Mass. 2001). In 2008, litigants hope to conclude the case, now known as Rolland v. Patrick, with a second agreement. The period between the two proceedings serves as a reminder of the difficulties of implementing settlements in community placement cases.

The initial lawsuit alleged that the Commonwealth of Massachusetts failed to accommodate adults with mental retardation by denying them treatment in community-based settings and failing to provide the training, habilitation, and support services they needed to prepare for life outside of a nursing home. The initial class of 1,500 grew as the litigation proceeded.

“It’s good if you can get an agreement but implementing the agreement is another thing,” said Cathy Costanzo, with the Center for Public Representation in Northampton, Mass., who represents the plaintiff class.

Under the 2001 settlement, the Massachusetts Office of Health and Human Services moved more than 1,000 class members from nursing home to community-based treatment at a cost that exceeded $85 million. Much of the cost came from developing the capacity of community treatment centers. Costanzo said that the commonwealth did a good job of developing community placements, and in recent years has succeeded in preventing unnecessary admission of class members to nursing homes.

However, the commonwealth and class representatives disagreed on providing specialized services, known as active services, needed to prepare the remaining 700 class members for community living. In April 2007, the court found the commonwealth had not complied with the settlement and ordered it to provide additional services to class members still residing in nursing homes.

Under the new agreement, 640 class members will receive additional transition services, such as case management and help finding appropriate housing, to help them prepare for community-based treatment. The organizations that will serve the residents in the community will provide these services at the nursing homes. Community-based service providers can prepare residents for the changes they will face after many years in a nursing home, said Costanzo. Establishing the relationships with providers before residents move should make the transition easier on the class members and their parents. 

Backing out of interactive process ends accommodation claim

Case name: Jones v. Georgia Department of Corrections, 36 NDLR 188 (N.D. Ga. 2008).

Ruling: The U.S. District Court, Northern District of Georgia granted summary judgment to the Georgia Department of Corrections in a former employee’s ADA Title I and Rehabilitation Act suit.

What it means: When an employee abandons the interactive process after she doesn’t get her choice of accommodation, even though the employer has suggested another accommodation and has expressed a willingness to consider other possibilities, the employee will not be able to claim that the employer failed to accommodate her.

Summary: A newly hired prison counselor who uses prosthetic legs complained that the Georgia Department of Corrections refused to accommodate her disability. When the prison warden rejected her initial accommodation request and offered an alternate that she found unacceptable, she resigned and sued under ADA Title I and the Rehabilitation Act.

The District Court granted summary judgment to the department. The court held that the counselor was responsible for the failure of the interactive process. Although the warden refused to grant the accommodation the counselor initially requested, he offered an alternative and left the door open for other possibilities. The counselor even admitted that the process stopped because of what she did. The court pointed out that the counselor had the responsibility for identifying an accommodation and persuading the department that it was reasonable.

The court denied the counselor’s claim for constructive discharge. She resigned voluntarily during the orientation process, before she had started work. The department had engaged in the interactive process in good faith, and there was no evidence of any events that would suggest constructive discharge.

The District Court determined that the state did not have 11th Amendment immunity. The state disability discrimination law expressly waived immunity from comparable actions brought under state law. The court concluded that the state had thus abrogated immunity for federal disability discrimination claims brought in state court. Had the case been brought in federal court, however, the waiver would not apply. Moreover, the state removed the case to federal court. This affirmative litigation conduct prevented it from trying to assert immunity.

During orientation, the counselor learned that her position would require extensive walking around the prison facilities. When she experienced bruising and bleeding on her legs after the facility tour, she requested the accommodation of using a golf cart to get around. Due to security and practical concerns, the warden rejected her request, but offered to assign her to the closest housing unit instead. He asked her to think about it and let him know if it would not be acceptable. He was also willing to allow her to use a motorized scooter or wheelchair, but that idea was never fully discussed. She resigned without giving him a chance to try another accommodation.    

Polling place accessibility suit rolls forward to trial

Case name: Kerrigan, et al. v. Philadelphia Board of Elections, 36 NDLR 134 (E.D. Pa. 2008).

Ruling: The U.S. District Court, Eastern District of Pennsylvania denied dismissal to the Philadelphia Board of Elections and individual officials in an ADA Title II and Rehabilitation Act class action suit by a class of registered voters with mobility impairments.

What it means: The failure of government entities to make all polling places accessible to qualified voters with disabilities may create a discrimination claim under ADA Title II and the Rehabilitation Act. Even if the entities provide alternative voting procedures that comply with other federal laws, there may still be a violation if the other methods are not truly equivalent to traditional voting options.

Summary: A group of registered voters who have mobility impairments sued the Philadelphia Board of Elections and individual officers for violations of ADA Title II and the Rehabilitation Act because more than 400 of the 1,600 polling places in the city were inaccessible. The polling places had steps but no ramps or elevators. The District Court denied dismissal of the suit.

The board argued that it provided alternative voting procedures, including mail-in ballots, as a means of providing equivalent access to persons with disabilities. The voters insisted that the alternative methods were not as effective or equivalent to voting in neighborhood polling places on Election Day. The alternatives required provision of private medical information and sending in applications and ballots well ahead of the election. The court found the voters stated cognizable claims for violations of disability discrimination laws.

Further, the court rejected the board’s assertion that the Voting Accessibility for the Elderly and Handicapped Act and the Help America Vote Act preempted the voters’ claims. The court determined there was no conflict between those laws and the requirements of the ADA and Rehabilitation Act. It found evidence that Congress intended for the ADA to encompass voting and that it could provide for broader protections than other federal laws. The VAEHA permits elections boards to rely on alternative voting procedures to address accessibility issues. The HAVA requires voting machines to be accessible but does not expressly mandate that polling places be accessible. However, the court deferred to the Department of Justice’s written interpretation of the HAVA as requiring accessible polling places.

House, Senate pass different mental health parity bills

The House and Senate passed separate bills that require employers who provide medical and surgical benefits to provide equivalent mental health benefits. Federal law currently allows insurers to discriminate by setting higher co-payments or stricter limits on mental health benefits.

The Paul Wellstone Mental Health and Addiction Equity Act, H.R. 1424, prohibits health insurance providers from setting lower limits on treatment or charging higher co-payments for mental health services than for other medical care. The measure passed the House by a 268 to 148 margin.

The House legislation requires employers who provide medical benefits to cover all mental health or substance abuse disorders included in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. This equals the coverage provided by the federal employee health plan used by members of Congress. The House bill does not apply to health plans sponsored by an employer with 50 or fewer employees, or individually purchased insurance plans.

Section 101 of the House bill prohibits insurers from adjusting premiums of group health insurance policies on the basis of genetic information. The bill also prohibits insurers and public health providers from requiring genetic tests or collecting the results of such tests, unless the information is used for research and has no effect on the insurer’s underwriting practices. 

Section 201 of the House bill prohibits employers and labor organizations from taking adverse employment actions on the basis of genetic information.

Senate bill less expansive

The Senate passed its mental health parity bill, S. 558, last September. The Senate bill requires equivalent coverage for mental and physical ailments. It does not mention specific diagnoses or treatments, and allows employers with high compliance costs to phase in equivalent mental health coverage.

The Bush administration supports the Senate’s mental health parity legislation but expressed concerns with the House version. The Bush administration said the House bill would have “a negative effect on the accessibility and affordability of employer-provided health benefits” because it expands benefits and remedies beyond what is included in the Senate bill. The administration also said it was concerned about the methods the House used to offset costs associated with its bill.

ADA Restoration Act hearing highlights common concerns, deep divisions

On Jan. 29, the House Education and Labor Committee held a hearing on the ADA Restoration Act of 2007. Committee members agreed that U.S. Supreme Court decisions went too far in limiting the ADA’s application of employees with disabilities. However, they could not agree on the best way to resolve the issue. But, as the hearing highlighted the concerns of the disability and business communities, there were some areas of agreement.

David Fram, director of ADA & EEO services for the National Employment Law Institute, said bluntly, “Mitigating measures should not be considered” in determining whether an employee has a disability. The Department of Justice, in written testimony, agreed and said it would support an amendment that would eliminate the consideration of mitigating measures.

Fram, who formerly served as a policy attorney in the EEOC’s ADA division, also testified that courts have excluded many people Congress intended to protect. However, he said the proposed legislation would entitle every employee to an accommodation because almost everyone has some type of impairment.

Rep. John Kline, R-Minn., ranking member of the committee, said, “There is widespread agreement on both sides of the aisle that we need to change the law.” However, Kline said the proposed legislation needed “tweaking.” He is concerned that significantly increasing the number of people covered under the ADA could dilute the protection for those who need it the most.

University of the District of Columbia law professor Robert L. Burgdorf, who wrote the original draft of the ADA, also testified. He said, “Courts have made a royal mess of the definition of disability in ADA cases.” He noted that states with an expansive definition of disability, such as California, New Jersey, Maine and Washington, have not experienced a deluge of disability discrimination lawsuits. Burgdorf added that the percentage of disability claims in California courts did not change when the state adopted its expansive definition of disability.

 House Majority Leader Steny Hoyer, D-Md., agreed when he testified before the committee. “When we wrote the ADA, we intentionally used a definition of disability that was broad, borrowing from an existing definition in the Rehabilitation Act of 1973. We did this because the courts had generously interpreted this definition in the Rehabilitation Act.”

Will the ADA Restoration Act create double standard for disability cases?

The text of the ADA Restoration Act, H.R. 3195, states that the original ADA authors intentionally copied the definition of disability found in Section 504 of the Rehabilitation Act. However, even some supporters of the ADA Restoration Act worry that the proposed amendments would create a double standard for those involved in disability discrimination claims filed under Section 504.

Brian East of Advocacy Inc. in Austin, Texas, is one of them. Currently, the Rehabilitation Act and the ADA are considered largely the same in substance, he said. When the U.S. Supreme Court narrowed the definition of disability in a series of ADA cases, federal courts ruled that the decisions had the same effect on the definition of disability used in Section 504 of the Rehabilitation Act.

But the ADA Restoration Act does not expressly amend the Rehabilitation Act. Therefore, the restrictive definition of disability that sparked the ADA Restoration Act would remain in effect for Section 504 cases.

East also co chairs the Disability Rights Committee of the National Employment Lawyers Association. He explained that if the ADA Restoration Act passed without a corresponding Rehabilitation Act amendment, courts may end up applying very different standards depending on whether a claim is brought under the ADA or the Rehabilitation Act.

Although the debate surrounding the ADA Restoration Act has centered on employment issues, the legislation also amends Titles II and III of the ADA, which cover state and local governments and public accommodations. The proposed amendments instruct the DOJ and the U.S. Department of Transportation to promulgate regulations applying the new definition of disability to Titles II and III.

Those facing a potential double standard include federal contractors, educational institutions, medical facilities that accept federal funds, and state and local governments.

Although most plaintiffs would file lawsuits under the expanded ADA, East said, there would still be reasons to file Section 504 claims. Section 504 does not require employees to meet the exhaustion requirements found in Title I of the ADA. Section 504 also follows state law for determining the applicable statute of limitations. In some states, this gives plaintiffs a longer time to file a lawsuit.

ADA Restoration Act would increase deference to agency regulations

The focus of the debate over the ADA Restoration Act, H.R. 3195, centers on the proposed changes to the definition of disability. The legislation also requires courts to grant increased deference to ADA regulations and guidance promulgated by several federal agencies, including the EEOC, the DOJ, the U.S. Department of Education, and the U.S. Department of Transportation. However, conflicts exist between the current regulations and guidance from the different agencies that interpret the ADA.

Section 7(f) of the ADA Restoration Act states “duly issued Federal regulations and guidance for the implementation of this Act, including provisions implementing and interpreting the definition of disability, shall be entitled to deference by administrative bodies or officers and courts hearing any action brought under this Act.”

The EEOC and the DOJ have contradictory regulations on whether Title II of the ADA covers allegations of disability employment discrimination by state and local government employers. The EEOC regulations, 29 CFR § 1640.6, state that disability discrimination in employment claims fall under Title I, which it enforces. The DOJ regulations, 28 CFR § 35, state that employees alleging disability employment discrimination by state or local governments can file a claim under Title II.

Circuit Courts have split over the issue with the 4th and 11th U.S. Circuit Courts of Appeals allowing Title II claims by public employees and the 9th U.S. Circuit Court of Appeals refusing to consider such claims.

The EEOC and the DOJ also have different interpretations on how the retaliation provisions of Title V apply to individuals. In Albra v. Advan, Inc. et al., 35 NDLR 36 (11th Cir. 2007), the 11th U.S. Circuit Court of Appeals followed EEOC regulations and interpretive guidance and refused to allow an ADA claim for individual liability. The 11th Circuit distinguished Albra from its ruling in Shotz v. City of Plantation, Fla., 26 NDLR 210 (11th Cir. 2003), that gave deference to DOJ regulations permitting individual liability in ADA retaliation cases. 

Lack force of law 

The U.S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), stated that the interpretations contained in EEOC enforcement guidances lack the force of law and do not warrant the deference accorded regulations under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron stated, “If Congress has not spoken in unambiguous terms, then the court must defer to the administrative regulation interpreting the statute unless the agency’s interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’

Courts split over deference

 Circuit Courts have split over the deference accorded to the DOJ’s Title III technical assistance manual. In Paralyzed Veterans of America v. D.C. Arena, L.P., 10 NDLR 118 (D.C. Cir. 1997) cert. denied, 523 U.S. 1003 (1998), the U.S. Court of Appeals, D.C. Circuit found that the standards were entitled to deference. In Caruso v. Blockbuster-Sony Music Entertainment Centre at the Waterfront, 15 NDLR 33 (3d Cir. 1999), the 3d U.S. Circuit Court of Appeals found the same standards were not entitled to deference.

FMLA hearing highlights divisions over proposed regulations

For almost 15 years, the FMLA remained untouched by statutory or regulatory changes. That ended last month when Congress amended the FMLA statute and the Department of Labor proposed regulatory changes. However, the bipartisanship that marked the expansion of benefits to families of military service members seemed in short supply at a Feb. 13 Senate hearing on proposed changes to the FMLA regulations. Proposed changes include revising notice requirements for both employers and employees, allowing employers to contact doctors about medical certifications but requiring them to specify their need for additional information in writing, and reiterating that parties may settle FMLA claims without DOL approval (see Feb. 28, 2008 issue, p. 1).

Sen. Orrin Hatch, R-Utah, said, “In my opinion, the DOL has a well-considered, sensible proposal, one that is certainly needed to reflect the lessons learned since 1993.”

Many Democratic leaders condemned the proposed changes as favoring employers at the expense of employees. The rules would “tilt the balance of power toward corporations instead of hardworking Americans,” said Sen. Hillary Rodham Clinton, D-N.Y. Sen. Edward M. Kennedy, D-Mass., said the new rules would undermine worker protections. Kennedy and Sen. Christopher Dodd, D-Conn., argued the DOL changes raise privacy concerns and “throw up another bureaucratic roadblock” for employees taking FMLA leave.

Senators also expressed different views on specific provisions. Hatch said, “I was pleased to see that the DOL is taking a step in the right direction by proposing a rule that would encourage workers to follow their employer’s call-in procedures if they want to use FMLA leave.”

Kennedy disagreed. “The regulations place stricter requirements on when employees can request leave in advance, and shorten the window in which they can claim their rights after an emergency. As a result, many workers entitled to this leave are likely to have their requests unfairly denied,” he said.

Dodd challenged the requirement for semiannual documenting of chronic conditions. “The potential regulations could also throw up another bureaucratic roadblock by requiring workers to show proof of their medical conditions at least twice a year, even if those conditions are lifetime and permanent,” he said. “That is especially difficult for workers who may not have health insurance.”

House Education and Labor Committee Chairman George Miller, D-Calif., agreed with his Senate counterparts that, “This proposal clearly benefits employers at the expense of workers.” Miller suggested Congress might try to delay or block the regulations. “Our committee intends to review these regulations with extreme care,” he said.

Corrie Fischel Conway, an attorney with Morgan Lewis in Washington, D.C., noted that a similar battle occurred in 2004 when the DOL changed overtime regulations under the Fair Labor Standards Act. “There were about seven votes in Congress — some of them pretty close — to try and stop the DOL from moving forward with the regulations,” she said. Conway guessed that final rules would not be issued until the end of this year.

A complete copy of the proposed rules can be found at:

DOL proposes first regulation changes in FMLA’s 15-year history

On Feb.11, the U.S. Department of Labor published the first proposed revision to its FMLA regulations since the law was enacted in 1993. The 477 Federal Register pages included responses to decisions by the U.S. Supreme Court and several U.S. Circuit Courts of Appeals as well as a synthesis of more than 15,000 responses to the DOL’s request for information. The results cover everything from call-in procedures to coordination with ADA reasonable accommodation requests. The DOL will accept comments on the proposed regulations until April 11. 

Highlights of the proposed regulations include: 

l. Section 825.303 – Employee Notice Requirements. An employee must follow his employer’s usual procedures for calling in and requesting unforeseeable leave. An exception applies when extraordinary circumstances exist, such as an emergency hospital admission. Employers may discipline employees for not following normal absence reporting procedures in non-emergency situations.  

2. Section 825.305 – Employer Notice Requirements. An employer could take up to five days, instead of two days, to designate a leave as FMLA leave. If the employer finds the employee eligible for FMLA leave, it must inform him of his rights and responsibilities, such as any requirement to provide sufficient medical certification, pay premiums for continuing benefits, and job restoration rights upon expiration of the FMLA leave. The employer can provide one eligibility notice every six months unless the specific information in the notice changes. The employer must provide employees with an annual notice of their FMLA rights and responsibilities. 

3. Section 825.11 – Definition of serious health condition. The regulations would require that someone with a serious health condition receive two or more treatments within a 30-day period. Individuals with chronic conditions would need to see a physician for the condition at least twice a year to retain eligibility for FMLA leave relating to that condition. 

4. Section 825.110 – Employee eligibility requirements. The 12-month service rule for eligibility excludes prior service if the employee has a break in service of more than five years. The proposal provides exceptions for military service, authorized educational or childrearing leaves, or an intent to rehire covered by a collective bargaining agreement. 

5. Section 825.306 – Interaction with ADA. The proposed regulations addressed inconsistencies between the prior FMLA regulations and ADA rules for obtaining medical information. When a serious health condition may also be a disability, employers can follow the procedures under the ADA for requesting medical information.

6. Section 825.305 – Incomplete medical certifications. If an employee provides an incomplete or insufficient medical certification, the employers must identify any problems in writing and specify what additional information is necessary. If the employee fails to correct the deficiencies in the resubmitted certification, the employer may deny FMLA leave. The proposed regulations also allow employers to contact medical providers directly, instead of through their own health care provider.

In December, the National Council on Disability made five recommendations to the U.S. Commission on Civil Rights concerning projects to conduct in 2010. The recommendations include: 1) evaluating the long-term effects of, and effective alternatives to, the use of electric shock as a form of behavior modification; 2) identifying effective ways to reduce the dropout rates of high school students with disabilities; 3) evaluating the accessibility of Workforce Investment Act One-Stop centers; 4) identifying best practices of faith-based initiatives serving people with disabilities; and 5) identifying effective community treatment alternatives to involuntary institutionalization of people with mental illness.

The council also voted in November to support requiring equal access to American currency. The board sent a letter to President Bush, asking that he direct the U.S. Department of the Treasury to withdraw its appeal in American Council of the Blind v. Paulson, 33 NDLR 177 (D.D.C. 2006), and ensure that currency becomes accessible.

En banc panel of 9th Circuit retools standard for evaluating business necessity defense

The ADA protects only “qualified” employees but also prohibits employers from using qualification standards that discriminate on the basis of disability. So who decides what qualified means? The 9th U.S. Circuit Court of Appeals in a unanimous en banc decision, Bates, et al. v. United Parcel Service, Inc., No. 04-17295 (9th Cir. 12/28/07), clarified the issue by retooling the business necessity defense. The decision provides guidance on how employers can establish the defense and how an employee can overcome it.

Larry Paradis of Disability Rights Advocates in Berkeley, Calif., represents the plaintiff class. He said that the decision resolves the question of which party has the burden of proof in business necessity cases and keeps the burden on the employer.

In its prior decision, Bates, et al. v. United Parcel Service, Inc., 33 NDLR 152 (9th Cir. 2006), the 9th Circuit affirmed the District Court’s injunction that prohibited the company from requiring all drivers to pass the Department of Transportation’s hearing test. The DOT only requires the test for drivers of trucks over 10,000 pounds. The company claimed that the hearing requirement was a business necessity for all drivers.

The vacated decision held that employers seeking to use the business necessity defense must show that either: 1) substantially all deaf drivers present a higher accident risk than non-deaf drivers; or 2) there were no practical criteria to determine which deaf drivers presented a heightened risk.

The en banc decision remanded the case and instructed the District Court to apply the business necessity standard found in 42 USC §12113(a). This standard requires employers to show that the disputed requirement is job-related and consistent with business necessity and that performance cannot be accomplished by reasonable accommodation. The en banc decision emphasized that “there is no bona fide occupational qualification defense as such in the ADA.”

Standard set high

Paradis said, “The court verified that the business necessity standard is a high burden not mere expediency.” The 9th Circuit told lower courts to consider “the magnitude of the possible harm as well as the probability of its occurrence” when they evaluate safety-related criteria.

However, the 9th Circuit also stated that employers set qualifications that exceed the minimum requirements of safety standards if they otherwise meet the business necessity standards. It added that employers do not need to meet the more stringent “direct threat” standard when a business necessity defense raises safety issues.

Employee’s burden also increased

Landlords feel the heat after removing accessible parking

Case name: Heinemann, et al. v. Copperhill Apartments, et al., 36 NDLR 23 (E.D. Cal. 2007).

Ruling: The U.S. District Court, Eastern District of California denied dismissal of an ADA Title III and state law accessibility suit by tenants against the owners of an apartment complex.

What it means: A landlord or business owner who provides disabled parking spaces that create dangers for users or do not otherwise meet ADAAG standards may end up in court defending against a discrimination suit for denying equal access to persons with mobility impairments.

Summary: A tenant with mobility impairments and his wife/cotenant sued the owners of their apartment complex under ADA Title III and state law. They alleged that the owners moved the complex’s disabled parking spaces to an unsafe location at the top of a steep hill. The District Court denied dismissal of the suit, declaring that the owners had been provided sufficient notice of the nature of the claims against them.

The court held that the tenants had sufficiently alleged that the new parking spaces violated ADA Accessibility Guidelines due to the grade of the hill on which they were located and the resulting denial of equal access for drivers using the spaces. Further, the tenants also provided evidence that the husband sustained injury from a fall caused by the steep grade. The court also ruled that the tenants had met the requirements for a damage claim under state discrimination laws. They alleged that the owners had intentionally discriminated against persons with disabilities by refusing to remedy the hazards of the new disabled parking location.

When the parking spaces were moved, the husband complained to the owners. The owners erroneously told him they had building department approval. He consulted the building department and was told the owners had not even notified the department about the repaving and relocation. When confronted about this, the owners said they did not care if they were in compliance.

The court also permitted the tenants to move forward with additional claims involving health and safety laws and building code violations.    

ADA covers access to medical treatment, not medical decisions

The ADA protects the access of people with disabilities to medical care. It requires accessibility features in hospitals and medical offices. It covers effective communication with patients and even the presence of their service animals. But when the time comes to make a medical treatment decision, the ADA coverage stops. McElroy v. Patient Selection Committee of the Nebraska Medical Center, et al., 36 NDLR 24 (D. Neb. 2007), illustrates this doctrine and applies it to Title III cases.

Arthur McElroy, a kidney failure patient with a history of unstable mental illness, applied for a kidney transplant. The patient selection committee denied his request because of his psychiatric condition. The transplant protocols list an ongoing, major psychiatric illness as an absolute reason to refuse a transplant because of the level of patient cooperation needed for a successful transplant recovery.

Title III coverage denied

When the patient challenged the decision, the U.S. District Court, District of Nebraska dismissed the Title III action. It found that Title III does not cover the selection committee or individual defendants because they are not a place of accommodation. The court dismissed the Title III claims against the hospital, finding the ADA does not cover medical treatment decisions.

The McElroy court noted that the 8th U.S. Circuit Court of Appeals in Burger v. Bloomberg, 418 F. 3d 882 (8th Cir. 2005), and the two other Circuit Courts that have considered whether Title III coverage includes treatment decisions, found that “a medical decision cannot provide the basis for an ADA claim.”

Schiavo v. Schiavo, 30 NDLR 30 (11th Cir. 2005), applied its exemption for a medical treatment decision to the Rehabilitation Act. The 2d U.S. Circuit Court of Appeals in a Rehabilitation Act case, U.S. v. University Hospital, 729 F2d 144 (2d Cir. 1984), noted the “absence of any indication that Congress intended section 504 to apply to treatment decisions.”

Under confinement

With the exception of Schiavo, which involved a comatose patient, the cases have involved the application of Title II to patients under some degree of state confinement. In Burger and Fitzgerald v. Correction Corp. of America, 30 NDLR 76 (10th Cir. 2005), two Circuit Courts refused to review medical treatment decisions regarding prisoners. Although McElroy involved Title III, the patient was confined to a psychiatric institution.

Fitzgerald also noted that several Circuit Courts have ruled that litigants cannot use the ADA and Rehabilitation Act as a federal remedy for medical malpractice.   

Senate panel joins House in looking to restore ADA

Interest in corrective legislation to restore congressional intent under the ADA is picking up. The Senate Health, Education, Labor and Pensions Committee recently sponsored a hearing on S. 1881, the ADA Restoration Act.

Sen. Tom Harkin, D-Iowa, a cosponsor of the bill, wants Congress to broaden protections and opportunities for individuals with disabilities after a series of Supreme Court rulings limited the scope of the ADA. The ADA Restoration Act would redefine “disability” to protect people who mitigate their disabilities.

Employees with disabilities are being denied protection even in cases where the employer openly admitted to firing someone because of their disability, Harkin said. “This has created an odd, catch-22 situation. An employer can fire someone for being disabled and then turn around and argue that it can’t be sued because the person isn’t disabled enough to be protected under the ADA.”

Sens. Edward Kennedy, D-Mass, and Arlen Specter, R-Pa., also sponsored the legislation.

On the House side, H.R. 3195 was introduced by majority leader Steny Hoyer, D-Md., and has 235 cosponsors.

Redefines disability

The bill would redefine “disability” as “a physical or mental impairment, a record of physical or mental impairment, and being regarded as having a physical or mental impairment.” The bill would prohibit courts from considering the impact of mitigating measures, or whether the impairment is episodic, latent or in remission.

Opponents of the bill said it could lead to a flood of disability discrimination cases. Camille Olson, an attorney with Seyfarth & Shaw in Chicago, testified that the legislation goes far beyond clarifying the original intent of the ADA by broadening the definition of disability and prohibiting consideration of mitigating measures.

Removes mitigation standard

The bill states that one of its purposes is to remove the mitigating measures standard established by a series of Supreme Court rulings in 1999: Sutton v. United Air Lines, Inc., 527 U.S. 471 (U.S. 1999), Murphy v. United Parcel Service, Inc. 15 NDLR 128 (U.S. 1999), and Albertsons, Inc. v. Kirkingburg, 15 NDLR 129 (U.S. 1999).

Olson is concerned that the bill could open up discrimination cases concerning conditions such as the common cold, poison ivy or a toothache.

Under the ADA Restoration Act, individuals would only have to show a mental or physical impairment — not that they are also “substantially limited” by it, she said.

However, proponents of the legislation countered that the ADA must be updated because it punishes the very people the original legislation specifically intended to protect — those who can effectively manage their disabilities.

Chai Feldblum, a Georgetown University law professor who worked on the ADA in the late 1980s, used the example of veterans returning from the conflicts in Iraq and Afghanistan. “If you come back from Iraq with an amputated limb but don’t adapt well to the artificial limb, you are substantially limited, and therefore, covered under the ADA,” she said. “God forbid if you’re lucky enough to adapt to the limb and walk and run just fine, but you’re not hired because someone doesn’t want someone with a prosthetic limb in the workplace, you would not be covered under the ADA.”

Harkin agreed. He said the court seems to be taking a stance that disability means a person is hardly capable of anything, which is the wrong message to send. He said the fear that increased protections would provide coverage to those who are not truly disabled is overstated because employees must still be suited to the position. “It’s not just proving you’re disabled — you also have to be qualified for the job,” he said. “A lot of times people forget that. There’s nothing in the law that says you have to hire someone because they’re disabled.”

Olson is against the passage of S. 1881 because nobody has listed conditions that would be covered under the measure. Harkin said he and other lawmakers tried to do that the first time and found they were innumerable.

He ended the hearing with a positive outlook on the bill’s passage. “This hasn’t been a partisan thing,” he said. “I think we can do it. We did it in 1988, when no one thought it would happen.”    

Location, location, location. The old real estate adage now applies to the statute of limitations for FHA design and construction lawsuits. In Garcia v. Brockway, 35 NDLR 178 (9th Cir. 2007), the 9th U.S. Circuit Court of Appeals split with the 6th U.S. Circuit Court of Appeals over when the FHA’s two-year statute of limitation for private actions begins to run. 

The majority in Garcia held that the failure to design and construct covered multifamily housing is “a single instance of unlawful conduct” that “concludes when the last certificate of occupancy issues.” The court rejected the 6th Circuit’s approach in Fair Housing Council, Inc., et al. v. Village of Olde St. Andrews, Inc., 33 NDLR 245 (6th Cir. 2006, unpublished). The 6th Circuit applied the equitable tolling doctrine and held that the statute of limitations does not begin to run “until the last non-compliant unit is sold.”

The Garcia majority found that equitable tolling “would render the clear language of the statute meaningless and superfluous.” The court noted that it might accept an equitable tolling argument in cases where the plaintiff was not able to determine the parties responsible for the inaccessible housing.

The effect of this case is profound,” said Richard F. Armknecht III of Armknecht & Cowdell PC, in Lindon, Utah, who represents the plaintiffs in one of the two cases consolidated for appeal. “A huge amount of inaccessible housing has been built since the effective date of the design and construction requirements in 1991. This effectively prevents it from being fixed,” he added.

Rejects continuing violation theory

The plaintiffs had urged the 9th Circuit to employ the continuing violation theory found in the Department of Housing and Urban Development’s Fair Housing Act Design Manual and used by the U.S. District Court, District of Maryland in Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 14 NDLR 228 (D. Md. 1999). The 9th Circuit refused to find continuing violations, citing the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (U.S. 2007). The court said Ledbetter differentiated between the continuing ill effect of a discrete accessibility violation and the continuous unlawful acts that create a continuing violation, such as the racial steering in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).

Dissent embraces encounter theory

The 9th Circuit also rejected the “encounter theory” championed by U.S. Circuit Judge Raymond C. Fisher in the dissent and applied by the U.S. District Court, District of Montana in Montana Fair Housing, Inc. v. American Capital Development, Inc., 81 F. Supp. 2d 1057 (D. Mont. 1999). Judge Fisher noted that the FHA allows only “aggrieved persons” to privately sue for failure to design and construct accessible housing.

Armknecht agreed with this analysis, noting that in Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004), the 9th Circuit held that “the language of § 3604(f)(2) makes plain that the injury to the tester must arise from something more than merely observing a discriminatory architectural feature.”

The dissent argued that the statute of limitations should begin when a person with a disability attempts to buy or rent noncompliant housing, or alternatively when a tester encounters the barriers while visiting the property. Judge Fisher argued that Ledbetter actually supports the “encounter theory” because the Supreme Court ruled that a discriminatory act does not occur until “an individual actually experiences the discrimination herself.”    

Case name: Garcia, et al. v. Brockway, et al., 35 NDLR 178 (9th Cir. 2007).

Ruling: The 9th U.S. Circuit Court of Appeals affirmed dismissal of two consolidated cases by a home buyer and a tester who both use wheelchairs against the contractors and architects who designed and built housing complexes that did not conform to ADA-accessibility guidelines. Circuit Judge Fisher dissented.

What it means: Designers and builders of multifamily housing units that do not comply with ADA guidelines face liability under the FHA for two years following the issuance of the last certificate of occupation. After that, the statute of limitations precludes suit, even if the defects are not discovered by persons with disabilities until a later date.

Summary: The 9th Circuit consolidated cases of a home buyer who purchased an inaccessible residential unit and a tester who viewed an inaccessible unit in another complex against the contractors and architects responsible for designing and building the complexes. In affirming the dismissal of the cases, the court determined that an aggrieved party must bring a private civil action for failure to properly design and construct under the FHA within two years of the date the last certificate of occupancy was issued. Citing 42 USC 3604(f)(3)(C), which sets forth the two-year statute of limitations, the court rejected the homeowner’s three arguments for extending the limitations period.

The homeowner argued: 1) an FHA design-and-construction violation is continuing until the building defects are cured; 2) the statute of limitations should not begin to run until the design defect is encountered by the plaintiff; and 3) the limitations period should begin when the plaintiff discovers the defect. The court differentiated the continuing effects of a violation from the actions causing them and applied Ledbetter v. Goodyear Tire & Rubber Co.’s discrete discriminatory practice theory to the case.

Additionally, the court noted the final action of the design-build process is the issuance of certificates of occupancy, thus the clock started with the issuance of the final certificate. Another consideration was that tolling the statute of limitations until defects are encountered or discovered by an aggrieved party runs contrary to Congress’ intent in articulating a statute of limitations for FHA design-build claims.

Circuit Judge Fisher dissented, stating that the statute of limitations should begin when a person with a disability first experiences discrimination, as specified under 42 USC 3604(f)(1) or 3604(f)(2) because that is when the plaintiff’s cause of action accrues.    

Pa. sidewalk, curb-ramp suit not blocked by statute of limitations

Case name: Voices of Independence, et al. v. Commonwealth of Pennsylvania, Department of Transportation, et al., 35 NDLR 199 (W.D. Pa. 2007).

Ruling: The U.S. District Court, Western District of Pennsylvania denied summary judgment to the Pennsylvania Department of Transportation, the City of Meadville, Pa., and the City of Erie, Pa., in a class action Title II suit by several individuals who use wheelchairs and their disability rights organization.

What it means: In the Western District of Pennsylvania, ADA Title II plaintiffs seeking injunctive relief for accessibility violations should file their lawsuits within two years of encountering or being harmed by the violations. To exclude suits, government entities must show that the harm was experienced more than two years prior to commencement of the lawsuit.

Summary: Several residents who use wheelchairs and their disability rights organization sued the Pennsylvania Department of Transportation, the City of Meadville, Pa., and the City of Erie, Pa., in a class action alleging that the defendants’ failure to install, maintain and repair curb ramps at intersections and sidewalks throughout Erie and Meadville was a violation of ADA Title II. The District Court denied summary judgment to the defendants, rejecting their argument that the residents’ claims were barred by the statute of limitations.

The court applied the two year statute of limitations for personal injury actions under Pennsylvania law. The defendants stated that the statute of limitations had passed on the violations because the streets had been constructed or altered more than two years before the suit was filed. The residents argued that the curb-cut violations were a continuing violation for which the statute of limitations was tolled. The court held that the continuing violation doctrine did not apply in this case. However, the statute of limitations did not begin when the noncompliant curb cuts were altered or constructed, but rather when the residents first encountered them or suffered an injury. Moreover, the court stated that statutes of limitations are not strictly applied when plaintiffs seek only injunctive relief. Because the defendants did not prove that the residents encountered or were harmed by the curb cuts more than two years before their suit — and also provided no evidence supporting the defense of laches —the court allowed the case to proceed.

In its decision, the court held that National Railroad Passenger Corp. v. Morgan’s application of a continuing violation exception to statutes of limitations for hostile workplace claims did not only apply to employment claims. The court also determined that Morgan did not change 3d Circuit law relative to the continuing violations doctrine. Finally, the court reversed its previous decision finding the continuing violation doctrine applicable to Title II accessibility claims such as the instant case.    

Prisoner must meet exhaustion requirement for disability claims

Case name: O’Guinn v. Lovelock Correctional Center, et al., 35 NDLR 161 (9th Cir. 2007).

 Ruling: The 9th U.S. Circuit Court of Appeals affirmed dismissal of a prisoner’s ADA Title II and Rehabilitation Act suit against Lovelock (Nev.) Correctional Facility and related state agencies.

 What it means: A prisoner must exhaust administrative remedies within the prison system before filing a claim for disability discrimination under the ADA or the Rehabilitation Act.

 Summary: A prisoner sued the Lovelock (Nev.) Correctional Center and related state agencies for violations of ADA Title II and the Rehabilitation Act for denial of accommodation and treatment for his mental illness. The 9th Circuit affirmed dismissal of the suit, deciding that the Prison Litigation Reform Act requires prisoners to exhaust administrative remedies within the prison system before bringing claims under federal disability laws. The prisoner argued that the District Court mistakenly decided the case on the assumption that he had raised 42 USC 1983 claims rather than ADA and Rehabilitation Act Claims.

 The court acknowledged the District Court’s error, noting that the prisoner’s claims of denial of accommodation and medical care applied to disability discrimination law. However, it said, “The plain language of the PLRA, as well as Supreme Court and Ninth Circuit precedent, lead us to conclude that the exhaustion of remedies is required for ADA and Rehabilitation Act claims.” Although Title II and Section 504 generally do not require exhaustion, they also do not include language exempting their claims from the PLRA’s exhaustion mandate.    

Department of Justice

Design, construction violations net large penalties in DOJ consent decrees

Since 2001, the DOJ has negotiated 42 complaints and 51 consent decrees relating to design and construction accessibility requirements. Those settlements included more than $17 million in retrofitting costs. The most recent settlements are United States v. Palazzo and Lombardo, No. 4:07-cv-12838 (E.D. Mich. consent decree filed 07/09/07), and United States v. Gambone Brothers Development Co., et al., No. 2:06-cv-01386 (E.D. Pa., consent decree filed 07/19/07).

In Palazzo, the DOJ filed the complaint alleging inaccessible common areas, routes through units, environmental controls, kitchens and bathrooms, together with a proposed consent decree. The proposed consent decree requires the builder to retrofit the apartments and common areas of the condominiums in Sterling Heights, Mich. The developer agreed to pay $96,000 to retrofit the condominiums that have already been sold to pay up to $25,000 to aggrieved persons and to pay $50,000 as a civil penalty.

The Gambone consent decree settled claims by the DOJ against 10 defendants involved in the design and construction of five apartment complexes in King of Prussia, Pa., Royerstown, Pa., and Limerick, Pa. The U.S. District Court, Eastern District of Pennsylvania will retain jurisdiction to consider cross claims among the 10 defendants. The complexes have a total of 300 ground floor apartments covered by FHA requirements. The defendants agreed to modify all public and common use areas of the complexes to bring them into compliance with Title III of the ADA within one year. The defendants must retrofit all ground floor units even if they are not vacant. Landlords will reimburse tenants for any dislocation that lasts longer than 24 hours at federal government per diem rates.

The DOJ will monitor compliance with the Gambone decree for four years. During that time, the defendants must notify the DOJ of any covered dwelling that any of them purchase, develop, build, design or engineer and show compliance with the FHA or ADA requirements. The defendants also agreed to create a settlement fund of $307,000 and to notify tenants and other prospective claimants how to make claims against the fund.  

3rd Circuit finds spacing requirement on methadone clinics violates ADA

In a case it described as “the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-back-yard,” the 3d U.S. Circuit Court of Appeals struck down a Pennsylvania statute adding stringent requirements on proposed methadone clinics within 500 feet of schools, playgrounds parks, housing, child care facilities, and places of worship. The case is New Directions Treatment Services, et al. v. City of Reading, et al., 35 NDLR 1 (3d Cir. 2007).  

The 3d Circuit joins the 6th and 9th U.S. Circuit Courts of Appeals in holding that spacing restriction on methadone clinics that are not applied to other medical clinics are facially discriminatory and violate Title II of the ADA. The three Circuit Courts agree that providers do not need to seek accommodations before challenging these facially discriminatory restrictions. 

Michael Churchill, an attorney with the Public Interest Law Center of Philadelphia, said that this case shows that local governments can’t subject groups serving individuals with disabilities to requirements that are different from other providers. He added that governments particularly can’t single out addiction treatment providers for separate treatment. “Distance requirements can be just as discriminatory as an outright ban on treatment facilities,” and they also violate Title II, he said. 

New Directions Treatment Services sought to establish an outpatient methadone clinic in a busy commercial district of Reading, Pa., at the site of an existing addiction and mental health treatment center. The existing center had operated without significant problems for 26 years. County and state agencies supported the program.  

The public hearings required by the overturned statute generated significant public opposition to the proposed center. City zoning officials denied the permit, citing heavy traffic in the neighborhood and loitering and noise problems at one of the provider’s other facilities.  

The provider and several anonymous clinic patients filed a complaint alleging that the permit denial and the spacing requirement violated the ADA, Section 504, and the Equal Protection Clause of the 14th Amendment.  

The U.S. District Court, Eastern District of Pennsylvania upheld the zoning restrictions stating that the city did not base its decision solely on the basis of the disabilities of the clinic’s patients. The 3d Circuit found that the city violated Title II if the patient’s disabilities played any role in the decision-making process.  

The decision noted that this is one area where the ADA provides greater protection than Section 504, which only prohibits discrimination based solely on disability. Because the court found that the statute violated the ADA, it did not consider the constitutional claims. 

Churchill said that as a result of this decision, “addiction treatment providers have considerable bargaining power,” and that “they should be aware of this and not be bashful when trying to find sites that work for them and their clients.” They now have better options for dealing with the almost inevitable community opposition, he added. 

The court held that localities attempting to restrict treatment facilities could consider whether the facilities and their clients pose a significant risk to the community. However, the court warned that localities may not base their direct-threat analysis on “subjective judgments of the people purportedly at risk,” but “must look to objective evidence” and arguably expert evidence of any dangers. “Plaintiffs are not required to show that they pose no risk at all,” the court added. 

Churchill said this standard does not mean that sporadic relapses into drug abuse by patients prove a significant risk to the communities.  

The case was remanded to the District Court to determine what standards will show a “serious risk” of relapse into substance abuse that might pose a danger to the community. 42 USC §12210(a) exempts current users of illegal drugs from the ADA’s definition of disability.  

For this reason the 3d Circuit also remanded the damages portion of the case to the lower court, with instructions to consider whether the individual plaintiffs’ drug use prevented them from being qualified individuals with disabilities at the time the zoning permit was denied, and whether the city acted on the basis on any individual plaintiff’s addictions.    

Disability groups declare Oakland emergency planning a disaster 

Two disability advocacy groups and a taxpayer with disabilities claim that the City of Oakland in California has failed to sufficiently plan for the needs of residents with disabilities during natural and man-made disasters which violates Section 504 of the Rehabilitation Act, the California Disabled Persons Act, and California Government Code § 11135. The case is California Foundation for Independent Living Centers, et al. v. City of Oakland, et al., No. 07339865 (Cal. Super. Ct. complaint filed 08/09/07). 

According to the California Foundation for Independent Living Centers and Californians for Disability Rights Inc., both in Sacramento, Calif., the city’s 2002 emergency plan requires that all potential shelter sites be surveyed and meet ADA access requirements. However, the complaint alleges that many potential shelter sites are physically inaccessible.  

Even worse, said Jennifer Weiser Bezoza, an attorney with Disability Rights Advocates, a nonprofit law firm in Berkeley, Calif., the city does not even know which sites are accessible or what barriers exist. The lawsuit seeks an injunction compelling the city to maintain a database of all shelters and their accessibility features so that people with disabilities are not stranded at inaccessible locations. “We are not trying to make the city build new shelters or even retrofit existing ones,” Bezoza said. “We just want to make sure that the city steers people to locations that meet their needs.” 

Bezoza said the groups want the city to train employees on the needs of people with disabilities in emergency situations and to make sure that emergency service providers understand their ADA obligations. The complaint noted that in previous disasters, emergency shelters refused to accept service animals, refused to communicate with deaf evacuees, assumed that evacuees with cerebral palsy were drunk, or located services on upper floors without elevators.  

The complaint calls for the city to update its mass care and shelter plan to fully address special needs populations. Areas of concern include: 1) providing accessible transportation; 2) placing key services such as infirmatries in accessible areas of shelters; 3) permitting service animals in shelters; and 4) providing information in accessible formats.  Bezoza said that providers must be sensitive and responsive to the needs of people with disabilities.  She cited situations where cities unnecessarily segregated people with disability in shelters for medically fragile evacuees. 

The groups said the city should arrange to provide replacement prescriptions, medical supplies and equipment, and accessible transportation to people with disabilities in an emergency.  Bezoza said at a minimum the city needs an inventor of available prescription medication sources and medical equipment as people with disabilities may not have access to their normal supplies.  Ideally, these supplies would be stockpiled at shelter sites. 

Bezoza pointed out the complaint seeks only injunctive relief.  “The relief sought requires relatively little money,” she said.  Although the city has taken preliminary steps, there is still no comprehensive plan.  Bezoza said one reason for the delay is that emergency management requires coordination between several state and local departmens.  However, the city remains eligible for state and federal financial assistance for emergency planning, she added.  But, she added, “This must be done before the next disaster hits.  People with disabilities shouldn’t have to face a bureaucratic disaster in the midst of a natural disaster.” 

Sid Wolinsky and Mary-Lee Kimber of Disability Rights Advocates also represent the plaintiffs. 

 For a full copy of the complaint, visit www.dralegal.org.

Department of Justice

DOJ, local governments rebuild Project Civic Access agreements to reflect post-Katrina realities

When Hurricane Katrina destroyed much of the Gulf Coast in New Orleans and Mississippi, many inaccessible buildings were demolished. In an effort to prevent the rebuilding of architectural barriers, DOJ announced substantial revisions to two of its 155 Project Civic Access agreements. The new agreements with the City of New Orleans and Harrison County, Miss., seek to ensure that rebuilt and renovated buildings meet appropriate accessibility guidelines, and that programs and services remain or become accessible to people with disabilities.

While prior Project Civic Access agreements focused on bringing buildings and services into compliance with Title II of the ADA, the new agreements concentrate almost exclusively on the process of rebuilding. The two localities agreed to include accessibility features in any new construction and renovations. They also promised to remove accessibility barriers when they reintroduced programs and services into facilities closed by the hurricane. This may include removing architectural barriers, reassigning services to accessible locations, or using alternate methods to deliver services.

The local governments consented to redesign and construct their facilities consistent with the consultant’s and the DOJ’s ADA findings and recommendations. The DOJ, under the authority granted in 42 USC § 12206, will provide an architectural consultant to review accessibility features in design plans for rebuilt and rehabilitated facilities. The DOJ will present training on Title II and Title III accessibility requirements to public and private employees involved in the rebuilding process. The DOJ will staff an “Ask the ADA Architect” desk to provide live ADA consultation for private business owners, landlords, and contractors involved in rebuilding the area’s private sector. Local governments must provide office space and support for the DOJ consultants.

The agreements call for both governments to submit their emergency operations plans to the DOJ for review. The DOJ will give technical assistance to ensure that the plans include persons with disabilities. Each government agreed to incorporate any technical assistance provisions unless it would result in an undue financial or administrative burden.

The DOJ also released each local government from its obligations to retrofit destroyed buildings. It extended the time limits on retrofitting surviving buildings that have architectural barriers. Each government will submit annual monitoring reports to the DOJ for the next four years.  

For full copies of the agreements, visit www.ada.gov/civicac.htm.