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Wednesday, November 29, 2006

Blind Money

Close your eyes. Reach into your pocket, wallet or purse and pull out a dollar bill. Can't do it? Have to look?

United States paper money is not accessible to people who are blind, a federal court ruled in a headline-making decision. American Council of the Blind v Paulson, No. 02-0864 (D.D.C. Nov. 28, 2006).

Our paper cash is all the same size and same texture. So one cannot tell a $10 from a $50 by touch. And, interestingly, the United States is an international exception here, with many other countries having differentiated bills by size and touch. The Euro: larger denominations are longer!

The court found that the Rehabilitation Act’s Section 504 requires the U.S. Treasury to make paper currency accessible to person who are blind.

This case reminds us that the last 30 years have transformed the participation in our society of people with so-called handicaps. Invisibility and non-participation are still present, but have decreased markedly. “Non-handicapped” (or “temporarily able-bodied people”) are much more conscious of the needs of others in this regard.

The court waxed eloquent here: “There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, . . .”

Like so many other changes required by the ADA and the Rehabilitation Act, a revamped paper money set will benefit ALL of society. I will be able to tell a $1 from a $5 just on reaching into my pocket, or in the dark. Sorting bills will be speeded up for cash businesses. Forgers will have a harder time. And more.

We may have been blind to this issue as a society. Now, that’s over.

Wednesday, November 15, 2006

Inmate's Death in Restraints. Judge: "Torture"

This is from today's New York Times, November 15, 2006. The message is virtually timeless. The use of restraints (in prisons, mental institutions, schools) is a complex issue and one with which many are grappling. This court came to some conclusions.

Judge Says Inmate Death Was ‘Torture’

Published: November 15, 2006
CHICAGO, Nov. 14 — Shackled to a concrete slab, Timothy Joe Souders spent the final days of his life naked and lying in his own urine, sweating through temperatures over 100 degrees in an isolated prison cell.

Mr. Souders, a 21-year-old with a history of severe mental illness, died Aug. 6 after spending four days in a segregation cell at the Southern Michigan Correctional Facility in Jackson. His death prompted state prison officials to revise their restraint policies for unruly prisoners, limiting the use of “top of the bed” restraints to a maximum of six hours.

But this week, a federal judge in Kalamazoo said those revisions were not sufficient. Scolding corrections officials for failing to provide adequate treatment to mentally ill inmates, the judge said on Monday that the conditions leading to Mr. Souders’s death constituted “torture.”

“You are not coat racks who collect government paychecks while your work is taken to the sexton for burial,” wrote Richard A. Enslen, a senior federal district judge. “If a patient does not receive necessary medical or psychological services, including medicines and specialty care, it is not his problem, it is your problem.”

Medical experts cited in Monday’s ruling have speculated that Mr. Souders died of dehydration, though an autopsy report has not been completed.

Judge Enslen ordered an immediate ban on punitive restraints in three Jackson prison facilities holding roughly 4,500 inmates. The court has been monitoring those facilities as part of a 1985 consent decree.

Russell L. Marlan, a spokesman for the Michigan Department of Corrections, said the department disagreed with the ruling and planned to appeal. Top of the bed restraints, he said, are “nationally accepted, effective practices in correctional populations. We think the changes we’ve made in regard to these restraints are what is necessary.”

Mr. Souders, who suffered from depression and psychosis and had previously tried to hang himself at a county jail, was serving a sentence for shoplifting, said Paul W. Broschay, who is representing Mr. Souders’s estate in a federal wrongful death lawsuit against the Department of Corrections. At the time of his death, he was taking at least six medications for mental disorders.

On July 31, Mr. Souders was transferred to the segregated cell for disobeying orders. Three days later, after slipping out of soft restraints, Mr. Souders was restrained atop the concrete bed slab. Though Mr. Souders had been scheduled for a transfer to a mental health facility after a social worker found him “floridly psychotic,” the transfer never happened, and on Aug. 6, he was pronounced dead. A court-appointed doctor visiting the prison on Aug. 7 learned of Mr. Souders’s death. The doctor, Robert L. Cohen, wrote in an Aug. 14 letter to Judge Enslen: “No psychiatrist was consulted. No emergency psychiatric evaluation was obtained.” He concluded that Mr. Souders’s death “was predictable and preventable.”

Monday’s ruling is believed to be the first ban on punitive restraints in state prisons, said Elizabeth Alexander, director of the National Prison Project of the American Civil Liberties Union.

“This really is a precedent-setting decision,” Ms. Alexander said.

Monday, November 13, 2006

ADA Litigation: Too Much? Too Many? Giving Suits a Bad Name?

A California newspaper has reviewed ADA litigation in the state, with an emphasis on multiple suits by the same individuals or law firms, and cases which might prompt the public to look askance at the litigation. The article reports a six month investigation.

Titled, "STATE A MAGNET FOR SUITS BY DISABLED: Out-of-state lawyers have been lured to California by its laws," the article by Marje Lundstrom and Sam Stanton, of The Sacramento Bee, says that the ADA has made California "a magnet for lawyers and plaintiffs and for aggressive, sometimes questionable practices." Monterey County Herald (CA), November 13, 2006

Among the examples provided:

"A disabled teenager was offered $1,000 by a San Diego attorney for every business he could visit to "find" ADA violations the attorney had already identified.

Another disabled man who sued more than 50 businesses in Los Angeles later accused his lawyer of failing to ensure that the violations were fixed.

One Southern California man who issued a string of letters demanding payment for ADA violations turned out not to be a lawyer, but a self-described "nutritionist," better known to authorities for his Internet business arranging body-parts transplants overseas.

A woman is facing prosecution on insurance fraud charges after allegedly faking a disability and filing access claims against several California cities. When confronted by police, the supposedly wheelchair-dependent woman tried to run away."
A businessman is quoted calling the litigation "a big shakedown," and people with disabilities and advocates are quoted to support the need for the litigation. "If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled.

The article concludes: "As it turns out, both sides may be right."

COMMENT: It is inevitable that the recognition of new rights, especially for people with relative political powerlessness, and those vulnerable to others, would prompt new varieties (and quantities) of litigation. This occurred after the 1960s civil rights movement, the women's rights movement, and the 1970s litigation on "mental patient" rights. It is probably also inevitable that the public would notice excesses and abuses in such litigation, while advocates would rightly emphasize its necessity.

I have no doubt that soon things will come to a balance. Meanwhile, we should not take for granted the immense benefit which the ADA has brought to millions of people with disabilities, and to those of us who are not disabled. It is easy to forget the pre-ADA sad state of affairs.

Olmstead Community Services Placements: Progress Slows

Comparing the 3 years before the Olmstead Supreme Court decision to the 3 years after it, researchers have found an 8% DECREASE in the decline in psychiatric institutionalization in state mental hospitals.

"Twenty years of national state hospital census data (1984-2003) were used to assess trends in the rate of declines from pre-to post-Olmstead periods. Data were organized into five four-year periods. Steady declines in the hospital census nationally were found over all periods, with especially large decreases in the 1990s. However, when the percent change in hospital census in the two periods immediately before the Olmstead decision (between 1992-1995 and 1996-1999) were compared with the percent change in the periods immediately before and immediately after the Olmstead decision (between 1996-1999 and 2000-2003), an 8 percent decrease in the magnitude of decline was seen. State hospital census continues to decline but has slowed significantly during the post-Olmstead period," wrote M.S. Salzer and colleagues, University of Pennsylvania, Center for Mental Health Policy and Services Research.

The researchers concluded: "More study of the factors associated with this decline is needed." 

Salzer and colleagues published their study in Psychiatric Services (State psychiatric hospital census after the 1999 Olmstead Decision: evidence of decelerating deinstitutionalization. Psychiatric Services, 2006;57(10):1501-4). Also in 11/13/06 Mental Health Wkly. Dig. 183, 2006 WLNR 19492161.

COMMENT: This may be coincidence. Or perhaps the Olmstead case prompted state officials to regroup and take some time to consider the effect of Olmstead. Another possibility is that states began to construct Olmstead plans at the departmental level, with a consequent reduction in top-directed placement efforts at the facility level.

I would speculate that these statistics have little practical significance. However, I would be concerned that it might be interpreted by advocates or administrators to have deep meaning, meaning beyond the merits of the findings.

Sunday, November 12, 2006



When is the ADA irrelevant (or a bad authority) to a testing discrimination claim? In California, at least in this case. Here, state law shines, and the ADA runs a dismal second.

In an illustration of how one can read the same texts, and see its meaning differently, those involved in the Turner case issued contrasting descriptions of it. My reading is yet a third view (see my thoughts at paragraph 7 below).

1. Oakland-based Disability Rights Advocates, long known for significant landmark litigation, won a decision in a recent class action that thee Medical School Admissions Test (MCAT) does not comply with state civil rights laws; the MCAT accommodations process is too stringent. The exam's administrator was ordered to revamp its accommodation review procedure. DRA has stated that, because the MCAT is similar to other standardized tests, such as the SAT and Law School Admission Test (LSAT), "the decision is expected to have a ripple effect across the testing industry." DRA Release,

2. The Association of American Medical College issued a response to the decision. AAMC disagreed with the decision but minimized its scope, stating that the court "merely decided whether California's two general disability laws applied to the MCAT." AAMC "believes that the AMericans with Disabilities Act (ADA) provides an appropriate national standard for evaluating accommodation requests on national tests such as the MCAT examination." AAMC Release,

3. The case involved plaintiffs with learning disabilities and or ADHD and was filed under STATE LAW only. There was NO CLAIM under the Americans with DIsabilities Act. This choice of state law was key to the plaintiffs' victory. State law requires "full and equal access." The state Superior Court found -- and apparently both sides in the case agree -- that state law's standard is LESS STRINGENT than that under the federal ADA.

4. AAMC applies the federal ADA standard on who is disabled. Since state law establishes an easier-to-satisfy test, one might fail to obtain accommodations under the ADA but win them under California law. As the court put it, "AAMC admits that there are individuals in California who might be given testing accommodations if the Unruh Act or Disabled Persons Act standards governed their requests for testing accommodations, but who would be denied such accommodations if the ADA standards governed."

5. The court did not rule on the individual plaintiff's claims, and made it clear it would not address the indvidual claims of class members. "The Court will not retain jurisdiction to act as a centralized administrative body for reviewing how the AAMC handles individual applications."

6. DRA appears to have done a masterful job in educating the court on disabilities generally, and on learning disabilities in particular. The record was full and complete. This sort of presentation is a model for similar cases.

7. MY THOUGHTS. I would expect this case to a) encourage other filings under state laws which may be similar to California's, b) have little effect on federal ADA litigation, but c) encourage efforts to amend or clarify the ADA's standard. Also, the education provided the court on testing and learning disabilities can be a model for others in similar efforts.

For text of decision, see the PDF/TEXT links in the DRA release above at Par. 1.

Saturday, November 11, 2006

Disability Law, the ADA and the Courts

Welcome. This blog has multiple purposes:

1. I plan to note recent decisions under the Americans with Disabilities Act (ADA) and related laws, and constitutional provisions, to keep advocates and individuals informed and up on the news.

2. I'll comment on these and other developments.

3. I will communicate and share news and needs from readers, as well as reader's comments on disability law issues.

4. This will be an entree to a new list of disability resources I am creating.

Come say hi!