Clarifying that Miller’s outer boundary has some flexibility in extreme situations, such as severe mental disability, is reasonable and practical, both with regard to Davenport and to others similarly situated.
Wednesday, October 7, 2015
U.S. Supreme Court Asked to Hear Case Challenging Mandatory Life Without Parole for Severely Disabled Teenagers
Clarifying that Miller’s outer boundary has some flexibility in extreme situations, such as severe mental disability, is reasonable and practical, both with regard to Davenport and to others similarly situated.
The Court has recognized that disabilities makes a difference when it comes to a sentence of death. Atkins v. Virginia, 526 U.S. 304 (2002). Just as children are different when it comes to life without parole, children who are severely disabled are different enough to support flexibility in defining who is a juvenile.
As Miller teaches, life without parole is an “especially harsh punishment for a juvenile” under all circumstances. It is especially cruel and harsh for a teenager with severe mental illness and psychosis.
Permitting severe disabilities to be considered for the marginally older teenager provides a safeguard against a harsh and, for these teens, cruel imprisonment until death. Individualized sentencing must include consideration of such extreme conditions as severe mental illness and psychosis when determining if a die-in-prison sentence is to be imposed.
Monday, August 17, 2015
“No Defendants, You Can’t Use HIPPA to Deny Discovery”: Practical Advice to Avoid Discovery Battles Over Medical Records (Sarah Poppy Alexander article)
The following article is not my work. It is the well-written and well-researched work of San Francisco attorney Sarah Poppy Alexander. She deserves full credit.
RBGG’s Poppy Alexander published an article in Law360 on August 14, 2015, “No Defendants, You Can’t Use HIPPA to Deny Discovery.”
One can join Law360 for free trial at its website. Allow me to suggest you check it out.
“No Defendants, You Can’t Use HIPPA to Deny Discovery”: Practical Advice to Avoid Discovery Battles Over Medical Records
By Sarah Poppy Alexander, Rosen, Bien, Galvan & Grunfeld LLP
The Health Information Portability and Accountability Act (HIPAA) accomplishes two things: It provides important protections for the privacy of patients’ sensitive medical information while simultaneously providing the means for legitimately obtaining that information. HIPAA was never intended to bar the legitimate discovery of relevant medical records in litigation. Yet a number of defendants use HIPAA to block discovery of patient medical records in institutional class action cases. Some defendants may do so out of confusion about what their obligations under HIPAA actually entail; others may do it deliberately to thwart the flow of information. Regardless of defendants’ intent, plaintiffs’ counsel need to familiarize themselves with the content of the HIPAA regulations to avoid unnecessary and costly discovery delays in large institutional class action cases. Counsel should be prepared to address HIPAA issues early in the litigation process for all cases where medical records may be relevant. Doing so will help ensure the free flow of necessary information and sidestep unnecessary discovery fights.
HIPAA Provides Guidelines for Obtaining Medical Information
HIPAA provides both protection for patients’ medical information and guidelines for how and why this information may be shared. HIPAA includes a number of provisions protecting the privacy of medical information stored by so-called “covered entities.” It also provides that this information may be disclosed pursuant to a signed records release or in limited circumstances outlined in federal regulations.
“Covered entities” often overlook the second half of what HIPAA does, choosing to see it only as protective of information and not as a guideline for information flow. This may stem from a legitimate concern about the stiff penalties covered entities can incur for violating HIPAA, or it may stem from a general reluctance to share information.
For most lawyers, the most important HIPAA guideline for the flow of information is 45 C.F.R. § 164.512(e): “Disclosures for judicial and administrative proceedings.” This subsection permits the disclosure of protected health information in three litigation-specific circumstances: (1) in response to a court order; (2) in response to a subpoena or discovery request if the requesting party provides “satisfactory assurance” that “reasonable efforts” to provide notice to the individual have occurred or (3) in response to a subpoena or discovery request if the requesting party provides “satisfactory assurance” that “reasonable efforts” to obtain a “qualified protective order” have occurred.
Generally, obtaining a qualified protective order will be the most expeditious means of obtaining protected health information. Fortunately, the regulations specify exactly what needs to be in a qualified protective order in 45 C.F.R. § 164.512(e)(v): It must “[p]rohibit the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested” and “[r]equire the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”
Practically speaking, in any litigation where medical records may be requested in discovery, counsel should ensure that a protective order with these two clauses is in place before issuing any discovery request. It may also be helpful to include a clause within the order that “this protective order is a qualified protective order pursuant to 45 C.F.R. § 164.512(e)(v).”
Covered entities may not be familiar with the idea of the qualified protective order. They are more likely to be comfortable requiring the written authorization of a patient before permitting the release of medical information. Defendants may go so far as to claim that this is the only method for releasing the records at issue. Obtaining written authorization may, in fact, be the quickest and best solution in a case where the medical care provided to only one or two individuals is at issue, such as a typical medical malpractice case. But in larger class action cases, obtaining authorizations for every individual will be impractical and expensive at best and most likely impossible. In those cases, the qualified protective order will be far more effective and expeditious.
The Interaction Between HIPAA and the Federal Right to Medical Privacy
HIPAA does not create any new federal privacy rights. The Seventh Circuit held as much in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), which is widely accepted as the correct interpretation of HIPAA’s limitations. Despite this, some defendants will claim that HIPAA creates a federal privacy right in each patients’ medical information. Defendants will then attempt to use this argument to shield discovery. That simply is a misunderstanding of the law. HIPAA cannot be used to limit legitimate discovery on the basis of privacy.
Even though HIPAA does not create new federal privacy rights, there is a general federal right to privacy in one’s medical information. This federal common law right is not absolute and will be balanced by a court against a party’s demonstrated compelling need for obtaining the information. See, e.g., Hutton v. City of Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003). The HIPAA regulations do not address this federal right to privacy at all and fail to specify precisely what a HIPAA-compliant protective order authorizes. Practically, this means that before authorizing discovery of medical records, a court may need to balance plaintiffs’ need for all of the information contained in the records. The two most important unresolved areas for most institutional class action suits will be whether redactions are mandated, allowed, or prohibited, and whether class certification shifts the federal privacy balance in favor of the plaintiffs.
Nothing in the HIPAA regulations states whether a medical record may be redacted to eliminate identifying information before production pursuant to a HIPAA-compliant protective order. Defendants may again use this issue to try to slow down discovery by claiming that the process of redacting identifying information is required, but is too burdensome and costly.
Depending on the case, redactions may not matter for proving the substance of a claim. Defendants’ need or desire to redact certain information means that there will be an argument about the burdensome and expensive nature of providing the redacted records plaintiffs seek. For this reason alone, it may be better to fight for unredacted medical records regardless of whether the patient’s information is relevant to a specific case. Unfortunately there is no good guidance in the case law about whether parties in pre-certification institutional class litigation have a right to unredacted medical information if said information is produced pursuant to a qualified protective order. The judge will ultimately weigh the need for unredacted information against the federal right of privacy—HIPAA will have nothing to do with it. Different judges have taken very different approaches to this balancing test. In at least a few cases, courts have allowed the production of unredacted medical information prior to class certification. See Gray v. Cnty. of Riverside, No. 13-00444, 2014 WL 5304915, at *15 n.6 (C.D. Cal. Sept. 2, 2014); Kallas v. Carnival Corp., No. 06-20115, 2007 WL 2819385, at *2 (S.D. Fla. Sept. 25, 2007). Other courts have presumed that only redacted information is available pre-certification. However, in many of these cases, the plaintiff did not seek unredacted information, meaning that the judge did not directly consider the redaction question. See, e.g., Allen v. Woodford, No. 05-1104, 2007 WL 309485, at *11-12 (E.D. Cal. Jan. 30, 2007).
Another unresolved question about the scope of a qualified protective order is whether class certification is an important marker in the balancing of federal privacy rights. Nothing in the HIPAA regulations speak to this. Yet courts have consistently presumed that post-class certification, the plaintiffs have a greater interest in the medical data, shifting the weight of the balance towards disclosure. See Romano v. SLS Residential Inc., 298 F.R.D. 103, 114-15 (S.D.N.Y. 2014); Ginest v. Bd. of Cnty. Comm’rs of Carbon Cnty., 306 F. Supp. 2d 1158, 1159-60 (D. Wyo. 2004). Thus, even if a court is unconvinced that plaintiffs’ need for unredacted information pre-certification is sufficient to overcome any privacy interests defendants may assert, plaintiffs should be prepared to argue that once individual class members are officially plaintiffs, it is plaintiffs’ counsel’s job—not defendants’—to protect their privacy interests.
What Privacy Rights Are Not in Play: State Privacy Laws
As just discussed, federal privacy rights do interact with HIPAA to define the scope of medical record discovery in federal cases. State privacy laws, on the other hand, are not relevant. Despite this, a favorite blocking tactic of some defendants is to claim that state medical privacy rules prevent the production of patient medical records. State privacy laws are generally more protective than the federal rules; however, they are not applicable to injunctive relief cases arising under federal law. See Delaney v. Tilton, No. 07-1219, 2008 WL 4298179, at *3 (E.D. Cal. Sept. 18, 2008). Whether defendants assert these state rights out of ignorance or to stymie discovery, such assertions should be immediately counteracted through the meet-and-confer process.
Three Steps to Obtaining Needed Discovery under HIPAA
Based on the above considerations, a recommended strategy for heading off unnecessary discovery fights would be as follows:
Get the judge on your side early.
In cases where you know that you will need medical records and that obtaining signed releases will be impracticable or impossible, alert the court to this issue early on. It may make sense, for example, to raise this issue in your initial case management statement. Make sure the judge understands the legal issues and your right to this discovery. If defendants are amenable, get their stipulation to your right to this information at the initial conference.
Draft a HIPAA compliant protective order.
Using the language in 45 C.F.R. § 164.512(e)(v) as your guide, draft a protective order in your case before any discovery has been served. Confirm it is explicitly understood by all parties that the protective order complies with HIPAA and applies to all parties, experts, and relevant third-parties.
Be prepared for a motion to compel.
If all else fails, be prepared to file a motion to compel. This means knowing the case law on HIPAA, redaction rules, federal privacy rights, applicability of state privacy law, and pre- and post-class certification rules. The cases cited herein should hopefully be a starting point for your meet and confer process.
David Ferleger thanks Michael Bien
ROSEN BIEN GALVAN & GRUNFELD LLP
315 Montgomery Street, Tenth Floor
San Francisco, CA 94104
(415) 433-6830 (telephone)
(415) 433-7104 (fax)
Sunday, August 16, 2015
Nowadays, and for years now, federal court records are created and maintained electronically. People access the records electronically. That is no surprise. But what if one cannot afford to pay the fees for electronic access? And suppose a party in a lawsuit cannot afford those fees? The law is not entirely settled on this issue.
Poor people's access to the civil judicial system depends on resolving the electronic access fee question. Fees can be waived, but what conditions might be placed on the electronic access?
A Montana federal district court a few days ago ruled that a poor person raising a claim under the Americans with Disabilities Act is entitled to access to the federal court electronic filing ("ECF") system without paying the usual fees for that access. Ashton v. De Jana, 2015 U.S. Dist. LEXIS 106794, *2 (D. Mont., August 13, 2015).
The Electronic Public Access Fee Schedule issued by the Judicial Conference of the United States provides for an exemption if the person has "demonstrated that an exemption is necessary in order to avoid unreasonable burdens and to promote public access to information."
Robin Ashton had filed on her own a federal ADA lawsuit asserting that she has multiple disabilities for which special accommodations are needed to be made at a state court facility. While the federal court ultimately did not permit her to proceed with the federal claims (which would impermissibly have interfered with state court proceedings), the court imposed some conditions on the ECF access:
1. This exemption granted is expressly limited to her access to the electronic records contained in this case, CV 15-66-M-DLC-JCL. Ashton is cautioned that her use of this exemption and the PACER system to access electronically stored data, information and documents in anything other than this case will result in the immediate revocation of this exemption.
2. Ashton shall not sell the data obtained as a result of her exemption, and she must not transfer any data obtained, unless expressly authorized by the Court,
3. Ashton's exemption shall terminate upon the entry of a final judgment in this case, CV 15-66-M-DLC-JCL, or by August 15, 2016, whichever occurs first, . . .
The above is one court's answer to the electronic access question. But other efforts have not fared as well. For example, a Mr. Emrit sued PACER (which administers the ECF system for the federal government) and, relying on the ADA, claimed that, without access, he was being discriminated against. The court threw out his claim, finding that the ADA does not apply to the federal government. Emrit v. Pub. Access to Court Elec. Record , 2014 U.S. Dist. LEXIS 155631, *5 (W.D. Tex. May 20, 2014). Emrit had earlier sought to use PACER for legal research and he was found not to have satisfied the above-quoted exemption standard. Emrit v. Central Payment Corp., 2014 U.S. Dist. LEXIS 33697, 2014 WL 1028388 (N.D. Cal. 2014).
To be sure, some courts do seek to accommodate the needs of disabled parties, though the extent of what is offered may reach the limits of what courts can do. See, for example, the examples cited by the court in Anaya v. Marin County Sheriff, 2015 U.S. Dist. LEXIS 4220, *2-3 (N.D. Cal. Jan. 9, 2015):
As noted in prior orders, the Court has provided plaintiff with reasonable accommodations; including frequent extensions of time, appearance by phone, access to PACER and electronic case filing, and personalized assistance by the Court's IT department and my Courtroom Deputy. Plaintiff's problems — her pain and concentration/cognitive issues, her need for Dragon Legal software, her "poor access to online time" — cannot otherwise be addressed by the Court.
Saturday, August 8, 2015
“You are not welcome here.”
ADA Access to Music Festivals and Other Outdoor Venues
David Ferleger, Esq.
If I love music and use a wheelchair, the concert hall should have space for me to sit. If I love sports, the ballpark or arena will have space set aside for wheelchair users. If I am an amputee or on crutches, I’ll be able to drive up close to the venue so I can enter without much inconvenience.
But suppose I have tickets to a music or other festival, or other outdoor event, where the main stage, the main action, is distant from the satellite parking lots. Suppose I want to attend a public concert in Central Park NYC or another large urban event when streets are closed to traffic for many blocks in all directions. There may be shuttles but not handicap-accessible vehicles. There may be some reserved handicap parking spaces, but not enough.
After recounting the challenge of individuals with mobility disabilities in accessing large outdoor venues, I argue that a) the Americans with Disabilities Act (ADA) requires that, if a venue offers shuttle service to the non-disabled, then people with disabilities must be provided accessible transportation from parking lots to main stage, and b) regardless of what is offered to the non-disabled, a venue must provide accessible transportation as an accommodation under the ADA.
Beyond the scope of this analysis, but subject to the same principles, is access for disabled musicians, access to multi-location events, access to beaches and parks and mountain areas, and the like. At the end of this piece, I describe how one tour producer’s expansive access practices benefits both performers and attendees.
Festival Access: The Experience
Access to outdoor venues is very much a live issue among people with disabilities. A concert goer with cerebral palsy explained it is important to her that she is provided equal access to entertainment venues because, “there’s no replacement for the unparalleled rush of emotional energy that comes from seeing an amazing concert. This enjoyment shouldn’t be something limited to those who can stay on their feet for hours on end.” Annie Zaleski, “You Are Not Welcome Here”: At Concerts and Music Festivals, Fans with Disabilities Are Too Often Shut Out, Endangered and Ignored, Salon (Jul. 1st, 2015). Available at http://www.salon.com/2015/07/01/you_are_not_welcome_here_at_concerts_and_music_festivals_fans_with_disabilities_are_too_often_shut_out_endangered_and_ignored/ .
Sean Gray, a 32 year old with cerebral palsy, explains disability discrimination at music venues to be, “no different than any other kind of oppression.” Katie Toth, A Disabled Musician Shines a Light on the Accessibility of New York’s Venues, The Village Voice (Jan. 19th, 2015). Available at http://www.villagevoice.com/news/a-disabled-musician-shines-a-light-on-the-accessibility-of-new-yorks-venues-6686981 . Gray pointedly questioned: "What if you're not allowed to go to a venue because you're gay or a person of color? That's what this feels like." Id.
‘Part of the reason show-goers don’t see people with disabilities at shows is partly due to the fact that our needs aren’t being met in terms of accessibility. It’s not because we don’t exist, it’s because how can we go somewhere that we can’t access?’ Josh Sisk, Sean Gray confronts gap in venue accessibility for people with disabilities in Baltimore and beyond, City Paper (April 8th, 2015). Available at http://www.citypaper.com/music/bcpnews-sean-gray-confronts-gap-in-venue-accessibility-for-people-with-disabilities-in-baltimore-and-beyond-20150407-story.html .
In order to combat this discrimination, Gray created a website called, Is This Venue Accessible?, which can be accessed at http://www.itvaccessible.com. The site allows users to write reviews on the accessibility of venues in cities across the country
The ADA and Large Outdoor Music and Other Venues
What access is guaranteed by the Americans with Disabilities Act to such large outside venues? There is no doubt that festival venues must comply with the ADA. 42 U.S.C. §12181(7)(C) (“concert hall, stadium, or other place of exhibition or entertainment), (D) (“convention center. . . or other place of public gathering”), (I) (“a park, zoo, amusement park, or other place of recreation”). For convenience, let’s call them ‘festival venues’ although they include non-festivals.
In many cases, festival venues provide shuttles to and from parking lots for people without disabilities. Shuttle vans and buses in this situation are typically not handicap accessible. Should wheelchair accessible transportation be provided so that people with disabilities have the same access as the non-disabled? I conclude that festival venues required to provide special transportation services for people with mobility disabilities as an accommodation under the ADA?
The general ADA Title III anti-discrimination rule applies. Under 42 U.S.C.S. § 12182 of the ADA,
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 USCS § 12182
Further, § 12182(2)(A)(ii) explains that discrimination includes,
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. § 12182(2)(A)(ii)
For individuals with disabilities to participate in the full and equal enjoyment of a festival, they must have access to the main entrance, thee stages, and festival area. It is not enough to provide handicap accessible parking if the individuals are unable to get from the parking area to the location at which the events are taking place. Satellite parking lots are by definition far from the main event; individuals with disabilities are incapable of traveling to the festival grounds due to barriers such as grass, uneven terrain, unpaved or improperly paved walkways without curb cuts, or the necessity to travel over highways. Such barriers may also exist within the event area.
Sometimes, on-site reserved nearby handicap parking is provided, but these may be few in number and filled by the time some attendees arrive. Venues which provide reserved spaces for handicap parking need to provide transportation to and from any additional areas used for ADA accessible parking if there are not enough handicap parking spaces available at the time of the event.
The solution required by the ADA, I believe, is to ensure that individuals who are mobility-disabled and those who are not disabled both have access to the festival venue and, therefore, if transportation is provided for the non-disabled, accessible transportation must be provided for people with mobility disabilities. Whether the festival venue is owned or rented by the event producer does not matter; both are responsible for ensuring access. PGA Tour, Inc. v. Martin, 532 U.S. 661, 669-670 (2001) (a private entity which stages time-limited events at a facility owned by a third party is covered by the ADA); Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 865 (9th Cir. 2004) ( “two private entities that stage the rodeo finals at a public arena “operate” the arena and must comply with ADA accessibility rules).
The ADA’s integration mandate supports the conclusion that a venue which provides shuttle transporation to the event area must also provide wheelchair accessible transportation; “a primary goal of the ADA is the equal participation of individuals with disabilities in the ‘mainstream’ of American society.” Americans with Disabilities Act, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, available at http://www.ada.gov/taman3.html. In order to achieve this goal,
1) Individuals with disabilities must be integrated to the maximum extent appropriate; 2) Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual; 3) Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits. Id.
See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128-29 (2005) (Supreme Court held cruise ships are “public accommodations” and “specified public transportation under Title III of the ADA). Relying on Spector, the court in Baughman v. Walt Disney World Co., summarized the principle: “Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.” Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012).
If an individual with disabilities is denied an accommodation, or accessible parking and transportation to the main entrance of an event is not provided, it is impossible to integrate the individual into the mainstream. Without accessible transportation from the parking areas, an individual with disabilities faces obstacles that may not be apparent to individuals who do not have a disability. For example, in one case, the plaintiff alleged he was unable to “attend programs, services, and activities hosted at the Stadium because of overly steep ramps, inaccessible restrooms, an inaccessible path from parking provided for persons with disabilities to the Stadium, and insufficient wheelchair-accessible seating.” Eames v. S. Univ. & Agric. & Mech. College, 2009 U.S. Dist. LEXIS 97452 (M.D. La.) at 3 (access at stadium including “inaccessible path from parking provided for persons with disabilities to the Stadium”).
In Cortez v. City of Porterville, the plaintiffs alleged a lack of access to a sports complex, which caused them to experience “difficulty reaching the playing field because the only way to get from the parking facility to the playing field was by traversing over grass.” Cortez v. City of Porterville, 5 F.Supp.3d 1160, 1163 (E.D. Cal. 2014) (denying motion to dismiss). The plaintiffs were attempting to get to the sports complex safely with their granddaughter who uses a wheelchair, but “the grass was too high for Mr. Cortez to push his granddaughter in her wheelchair safely so Mr. Cortez carried his granddaughter across the grassy area while his wife pushed her empty wheelchair.” Id. at 1163.
Similarly, in Daubert v. City of Lindsay, the plaintiff and his great-granddaughter were unable to travel through a park due to “sandy paths that encumbered their navigation through the Park.” Daubert v. City of Lindsay, 37 F. Supp. 3d 1168, 1176 (E.D. Cal. 2014) The Plaintiff alleged, “the Park facilities cause him and his great-granddaughter to ‘experience difficulty and feel anxious, embarrassed, conspicuous, unwelcomed and like second class citizens.’” Id. This is not the situation of an individual who is integrated into the mainstream. The court denied the City’s motion to dismiss the plaintiff’s Title II ADA claim on issues of standing.
What is provided to the non-disabled must be provided to people with disabilities. White v. NCL Am., Inc., 2006 U.S. Dist. LEXIS 24756, 3 (S.D. Fla. 2006) (cruise ship sued for several barriers to accessibility including “inadequate transportation and access to excursions which are offered to non-disabled passengers”; motion to dismiss denied); Doud v. Yellow Cab of Reno, Inc., 2015 U.S. Dist. LEXIS 26700, 3 (D. NV. 2015) (taxi transportation at airport; Yellow Cab provided services to disabled individuals, but discriminated against Doud due to her electric wheelchair); Davis v. Biggers, 2013 U.S. Dist. LEXIS 150865 (S.D. Tex. 2013) (wheelchair-using student; university provided free shuttle service for students to get around campus, but denied disabled students the same accommodation; plaintiff’s request for declaratory and injunctive relief were dismissed after university acquired a handicap-accessible van).
The so-called “intent to return” test (if it is valid at all) cannot apply to festival venue cases. Several courts have relied on an “intent to return” test which evaluates, among other things, the plaintiff’s past patronage and the definitiveness of the plaintiff's plan to return. See Harty v. Burlington Coat Factory of Pa., LLC, 2011 U.S. Dist. LEXIS 64228, 13 (E.D. Pa. 2011); See also Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013); Garner v. VIST Bank, 2013 U.S. Dist. LEXIS 179480 at 14-15. (E.D. Pa. 2013); Disabled Patriots of Am., Inc. v. City of Trenton, 2008 U.S. Dist. LEXIS 73010, 9 (D. N.J. 2008) (court allowed the Plaintiff a chance to explain any factors for why she would return to the facility in the future, and denied the motion to dismiss); Access 4 All, Inc. v. 539 Absecon Blvd, 2006 U.S. Dist. LEXIS 45499, 22 (D. N.J. 2006) (court explained the distance did not matter as much as it mattered whether the Plaintiff had “set forth a definitive intent to return.”); Dempsey v. Pistol Pete’s Beef and Beer, LLC, 2009 U.S. Dist. LEXIS 99606, 13 (D. N.J. 2009) (motion for default judgment was denied based on his inability to show a “definitive plan to return,” and a failure to address, “proximity, past patronage, and nearby travel.”) The test “is one of totality,” and not all four factors must be met in order to establish a claim. Brown v. Showboat Atl. City Propco, LLC, 2010 U.S. Dist. LEXIS 133106, at 12 (D.N.J. 2010)). However, no courts of appeals have adopted the “intent to return” test. Heinzl v. Starbucks Corp., 2015 U.S. Dist. LEXIS 28635 at 12-13 (W.D. Pa. 2015).
It is not appropriate to apply the “intent to return” test to a location of this nature because it is typically the case that the festival is not recurring and, in any event, attendees are often not expected to return. Unlike cases in which individuals are denied access to fixed structures such as stores, restaurants, movie theaters, and the like, festival attendees are often one-time visitors; festivals are often one-time or infrequent events, and prompts people to travel nationally and internationally in order to enjoy music and other activities that the festival has to offer.
Even if transportation to and from parking areas is not provided for non-disabled individuals, it is still necessary to accommodate each individual’s disability on a case by case basis in order to determine what accommodations should be provided for each individual. This individualized process should allow the disabled individual full and equal access to the venue. The Supreme Court in PGA Tour, Inc. v. Martin explained, “the ADA’s basic requirement that the need of a disabled person be evaluated on an individual basis.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001).
Luckily, some festivals are taking initiative on their own in order to make music venues more accessible for individuals with disabilities. Kevin Lyman, the founder of Warped Tour explains that it is not that complicated for venues and festivals to comply with the ADA’s access regulations. Lyman explained,
When you’re at a big festival for three days, you have time to build it. Warped is on the move all the time. Some of the venues are really great; those amphitheaters work really well. But if we’re in a field, we’re going to put more plywood down so a wheelchair can roll on it. We’ll have a list of access to more things if we need them; we rent them locally.
James Cassar, Disability in Music: How Warped Tour Can Be Accessible for Everyone, Alternative Press (June 26, 2015). Available at http://www.altpress.com/features/entry/disability_in_music_how_warped_tour_can_be_accessible_for_everyone.
That festival producer has added new accessibility features this year including,
private accessible bathrooms to keep those with physical challenges clean and comfortable. This new addition is one that may usher in others, given the tour’s constant need to accommodate varying locations and vendors. Id.
The woman with cerebral palsy quoted at the beginning of this article encountered a concert venue parking attendant who challenged her, “Do you need to use the spot?” In general, the disabled concert goer describes the process of attending an event receives the “subtly non-inclusive message: You are not welcome here.” Annie Zaleski, “You Are Not Welcome Here”: At Concerts and Music Festivals, Fans with Disabilities Are Too Often Shut Out, Endangered and Ignored, Salon (Jul. 1st, 2015). Available at http://www.salon.com/2015/07/01/you_are_not_welcome_here_at_concerts_and_music_festivals_fans_with_disabilities_are_too_often_shut_out_endangered_and_ignored/
The ADA was adopted twenty-five years ago. Its message is that all are welcome here.
Texas attorney Richard Hunt posted a piece in 2013 on this question, opening with this statement, "It is universally agreed that the ADA does not create a private cause of action for damages, but that doesn’t mean an ADA violation won’t result in a judgment for damages." Damages and the ADA Mr. Hunt's site is Accessibility Defense
Thursday, August 6, 2015
Is the Starbucks experience having a customer face a wall? The ADA says no.
A Starbucks in California had indoor tables but those accessible to wheelchair users faced the wall, not the interior bustling premises. How can one people watch and be part of the Starbucks community if one has to sit facing the wall?
A federal district court (Hon. Lucy H. Koh) recently held that Starbucks Corporation violated the ADA by denying Robert Kalani the welcoming coffeehouse environment in which he can enjoy the sense of community offered to nondisabled customers. Mr. Kalani is a social guy, he likes to strike up conversations with strangers and watch the goings-on.
It does not matter that Starbucks fully complies with all the architectural and design requirements under the ADA, or that there is no statute or regulation which addresses the issue.
In sum, “the Court finds that Defendant's operational use of the interior accessible tables in the Store, which forces disabled patrons to sit with their backs to the Store, constitute discrimination under 42 U.S.C. §§ 12182(b)(1)(A)(iii) and 2182(b)(1)(B).
Kalani v. Starbucks Corp., 2015 U.S. Dist. LEXIS 98543, *28 (N.D. Cal. July 28, 2015)