End-of-Life Care for People with Intellectual Disabilities

A recent book chapter of interest is titled "End-of-life care for patients with intellectual disabilities," by Irene Tuffrey-Wijne, Annemieke Wagemans, and Leopold Curfs.

The chapter is in the new book, A Public health Perspective on End of Life Care, by Joachim Cohen and Luc Deliens (Oxford University Press, April 1, 2012).

Noting the vulnerability of this group, and that this is an aging population, the authors discuss the challenges of providing palliative and end-of-life care services to people with intellectual disabilities.

Bank of America Charged by United States with Disability Discrimination

Does someone receiving social security disability benefits have to prove that he or she is disabled in order to obtain a home loan?  Can the lender force the person with disabilities to prove that benefits will continue?

The federal government today charged the Bank of America with discrimination for doing just those things.

From today's news (URL below):

HUD charges Bank of America with Discriminating against Homebuyers with Disabilities

The U.S. Department of Housing and Urban Development (HUD) today announced that it is charging Bank of America with discriminating against homebuyers with disabilities.  HUD alleges that Bank of America imposed unnecessary and burdensome requirements on borrowers who relied on disability income to qualify for their home loans and required some disabled borrowers to provide physician statements to qualify for home mortgage loans.http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/yourrights ] makes it illegal to discriminate in the terms and conditions of a loan to an individual based on a disability, including imposing different application or qualification criteria, and makes it illegal to inquire about the nature or severity of a disability except in limited circumstances not applicable here.

 "Holding homebuyers with disabilities to a higher standard just because they rely on disability payments as a source of income is against the law," said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity.  "Mortgage companies may verify income and have eligibility standards but they may not single out homebuyers with disabilities to delay or deny financing when they are otherwise eligible."

 HUD's charge is based on a "Secretary-initiated investigation," and the investigation of complaints filed by two individual borrowers in Michigan and one borrower in Wisconsin who claimed that Bank of America required them to provide personal medical information and documentation regarding their disability and proof of continuance of their Social Security payment in order to qualify for a home mortgage loan.  The charge is also being issued as part of the work being conducted by the Federal Financial Fraud Enforcement Task Force's non-discrimination working group. 

According to HUD's charge, Bank of America allegedly asked some borrowers for proof of their disabilities and sought evidence of the continuation of their Social Security income before approving loans, after first denying them. The matter will now be handled by the Department of Justice.

FHEO and its partners in the Fair Housing Assistance Program investigate approximately 10,000 housing discrimination complaints annually. People who believe they are the victims of housing discrimination should contact HUD at 800-669-9777 (voice), 800-927-9275 (TTY).


 This is from http://www.disaboom.com/disability-rights-and-advocacy-general/hud-charges-bank-of-america-with-discriminating-against-homebuyers-with-disabilities

A Disability Is Not a Disability - Advice on Litigation and Specific Data on Disabilities Under ADA/ ADAAA

A disability is not a disability is not a disability. There are condition-specific and disease-specific medical and other information which distinguish one disability from another. And these differences cane very important for framing litigation, and for considering needed ADA / ADAAA accommodations.

Dan Kohrman, at AARP, has some great advice in this regard. Here it is:

This is a message to all disability rights trial lawyers, including but not limited to employment lawyers.

Several recent messages on this listserv are very encouraging, in the sense that folks are reaching out to disability-specific organizations (like the American Diabetes Association) to assure that they have an understanding of disabling conditions in order to craft effective briefs, pleadings, and legal arguments under the ADAAA.

But these messages also cause me some anxiety to the extent they may represent things that could be handled perhaps differently, and possibly a lot more effectively.

For instance, it makes sense to contact staff and/or the website of disease- or disability-specific organizations EARLY ON in INVESTIGATING a potential litigation, and at very least early on in litigation itself, to assure that plaintiffs’ counsel master the science and medicine of the condition(s) at issue. 

Looking for such help any time is obviously better than not, but waiting until late in the litigation (e.g., near to the time of trial) (and I do not know enough about the messages I have seen recently to judge the relevance of this admonition to such messages) is definitely not optimal.

Also, it may be dangerous to draw on materials created in the context of ADA claims regarding one disability and apply them to another case involving a very different disability.

I only say these things because the ADAAA has given all of us a great opportunity – to get it right this time – by taking full advantage of a revamped and restored definition of disability and thereby to create a favorable body of law for our clients unlike the cramped interpretations of the ADA that have flourished in the courts based on pre-ADAAA law.

To do this in the most effective way, however, requires taking the time to learn the relevant science and medicine relevant to disabling conditions at issue from the very outset of a case.  We cannot stress this often enough in our work with colleagues.

So keep up the good work and best of luck to all!

Dan Kohrman | Sr Attorney-Litigation

601 E St NW, Washington, DC, 20049

Office: (202) 434-2064 | Email: dkohrman@aarp.org | Web: http://www.aarp.org

Sidewalks to Nowhere: The Supreme Court Lets Stand Landmark Texas ADA Case

Sidewalks to Nowhere:

The Supreme Court Lets Stand Landmark Texas ADA Case

David Ferleger & Richard Frame

The United State Supreme Court on Monday let stand a landmark sidewalk access decision in favor of Richard Frame and several other wheelchair users who won a ruling against Arlington, Texas on sidewalk access under the Americans with Disabilities Act.

The National League of Cities, and the U.S. Conference of Mayors had claimed that the challenged decision will impose a “crushing burden” on cities nationwide.

The case come to the high court from the court of appeals which voted 8 to 7 last year that, when a city constructs a new sidewalk or alters an existing one, the city must take reasonable measures to ensure that accessibility to individuals with disabilities.

The landmark ruling rejected Arlington’s argument that cities across the country may pick and choose when and where to provide accessible sidewalks.

An engineer in the aerospace and defense industry, lead plaintiff Richard Frame became quadriplegic after a devastating auto accident twelve years ago. His body is paralyzed except for his head and shoulders,. He controls his power wheelchair with delicate head movements. Like most of the 3.4 million wheelchair users in the United States, Rick Frame actively participates in the life of his community.

When he leaves his home, however, Mr. Frame is excluded from his own community.  When he takes to the streets of Arlington, Texas, he finds sidewalks to nowhere. Sidewalks with a curb cut at one end and no way to leave the sidewalk at the other end. Utility poles smack in the middle of a sidewalk.  When he tried to go from his doctor’s office to a restaurant across the street, he discovered there was no way to get there.  If his attendant parks Mr. Frame’s van in the municipal parking lot on a game day, he cannot get by wheelchair to the billion dollar Cowboys Stadium, built with $325 million in Arlington city funds.

Joined by other cities and national organizations, the City of Arlington, Texas asked the nine justices to free Arlington and other cities from any obligation to remedy their failure to make new and altered sidewalks accessible to people who use wheelchairs, a discriminatory violation of the 1990 Americans with Disabilities Act. The court refused to heed their plea.

A decision in favor of Arlington would have denied access to beneficiaries of technologies such as the Segway, the two-wheeled self-balancing device which hundreds of veterans disabled in Iraq and Afghanistan now use to go to work, walk their dogs and run with their children.

In addition to the law, there are several moral, public policy and economic reasons why the Supreme Court should refuse to hear Arlington’s appeal. This form of discrimination is unfair, expensive and harmful to our national economy. It has extremely negative consequences for people without disabilities as well.

Excluding a class of people from the same sidewalks which “walking people” use is simply unfair.  When a great city like Arlington builds and helps pay for monumental stadiums, that town ought to ensure that all of its residents can get to those stadiums, as well as to stores, hospitals, downtown restaurants, and their children’s schools.

The National League of Cities protested to the court that, “sidewalk improvement programs can cost a single city hundreds of millions of dollars.” The appeals court disagreed. It explained that Congress looked at the question quite differently. Congress found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”

Our national economy will benefit when cities are compelled to connect the dots and provide pathways in the community for people with mobility impairments. The ADA itself states that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.”

Discrimination is a “totally unnecessary contributor to public deficits” and costs literally billions of dollars annually in support payments and lost income tax revenues,” the Congress concluded.

Cities need to do it right the first time. When it comes to sidewalk accessibility, Congress recognized that the additional cost of making a new sidewalk readily accessible is “often nonexistent or negligible.” When Arlington chose to build or alter inaccessible sidewalks after the 1992 ADA effective date, the city wasted taxpayers’ money and broke the law.

Inaccessible sidewalks harm everyone. Simply put, what works for people with disabilities works for everyone. We have all used curb ramps where sidewalks meet the street. They are useful when we are pushing a baby stroller or a shopping cart, lugging a suitcase, moving furniture, walking with crutches, or helping an elder cross a street. Bicyclists use curb ramps all the time.

Just as the invention of the typewriter, Jacuzzi and even email originated as efforts to benefit people with disabilities, so has the development of curb cuts, first implemented in 1945 in Kalamazoo, Michigan, as an accommodation for soldiers returning from World War II.

At a July 1990 ceremony, President George Herbert Walker Bush declared that with his “signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Now, 22 years later, it is past time for all those who pass through those doors to be able to join one another, co-workers and their neighbors.  

_______________________

David Ferleger is an attorney near Philadelphia, PA and represents the plaintiffs in the litigation in the Supreme Court. Richard Frame lives in Arlington, TX, is a retired Registered Accessibility Specialist, and is one of the plaintiffs before the Supreme Court.

Human Services Restraint: Its Past and Future

The TITLE above is a link to this published article. Click on the link to get to the article.

This piece is a history of the use of restraints and seclusion on people in mental institutions and institutions for people with intellectual and developmental disabilities. The history of such restraints is reviewed, there is a literature review, and well as a legal and policy analysis.

EXCERPT from beginning of the article:

Restraints and seclusion are used on people in institutions, children in schools, nursing home res- idents, general hospital patients, and other loca- tions, but most often with people who have dis- abilities. Questions regarding legality, morality, and efficacy abound. These questions, compounded by the serious possible adverse consequences of re- straints and seclusion, have commanded wide-rang- ing attention from legislatures, government agen- cies, human service professionals, direct care staff, advocates, clients and families, and the public. This article addresses the use of physical restraints and seclusion. It does not address the use of drugs as a behavior restraint, although much of the discussion applies in that context as well.

Is the use of human services restraint therapeu- tic? Can restraint use be reduced or replaced with alternatives? Is it time to relinquish these practices, at least when incorporated in a treatment or habil- itation plan?

In this article I begin with a look at the early institutional use of restraints and seclusion and, as a reminder of what may ultimately be at stake, I note some worst-case results in the United States. I then consider efficacy and risks of ‘‘human services restraint.’’ I review efforts to reform and reduce the use of restraint and address legal liability questions that impact on agency policy and professional be- havior. I conclude with some thoughts on the cur- rent state of knowledge, policies, and practices re- garding human services restraint and on the future of these techniques.

Restraints in the Early Institutions

Dr. John Conolly accepted the judgment of Dr. Robert Hill, who had experimented with nonres- traint at the Lincoln asylum. Dr. Hill had stated, ‘‘In a properly constructed building with [enough attendants], restraint is never necessary, never jus- tifiable, and always injurious’’ (Ozarin, 2001, p. 27). That was 170 years ago.

Disabilities & the Law: The Evolution of Independence

The TITLE above is a link to the article in THE FEDERAL LAWYER journal, a special issue on disability rights. Click the link to obtain the PDF.

Disabilities in history.

Louis Brandeis and people with disabilities.

Disability statistics.

United States law and principles on disability rights

The ADA

Judicial roles

TOOLS FOR TODAY’S EXPERT WITNESS: A VIEW FROM THE BENCH

The TITLE above is a link to the full document. Click to obtain the PDF. Note that the address in the document is my old address. Current is: David Ferleger, 413 Johnson Street, Jenkintown, PA 19046. david@ferleger.com http://www.ferleger.com

EXCERPT:

Professionals in the psychiatry, psychology, social work, and the developmental and intellectual disabilities field may be called upon to testify as experts in court in both individual and class action cases. Professionals often come to this task with many questions. Legal standards for acceptance of expert opinions must be met.

Counsel calling upon experts may desire many types of assistance and may, in some cases, be unaware of the extent of assistance an expert is able to provide. When a case moves to the courtroom, the expert wants to understand both the process and the substance: “What will happen? And how can I make the most skilled and relevant presentation?”

There are related practical questions as well. How does one prepare for testimony? What sort of site visit, interviews and record review, and other activities are most – or least – useful in this context? How does one write effective reports which meet both professional and legal standards? What should an expert expect from the lawyer who seeks the testimony, and what input should an expert require from the retaining attorney? What happens in a deposition or in cross-examination? What should the expert expect in court? And how does the court or other judicial officer hear and consider the testimony? What sort of presentation affects how the testimony is received?

This outline addresses the above and related matters. It is informed by the author’s experience as a litigator who has retained and confronted experts in these fields, and also by his experience as a court-appointed special master and as a court monitor.

“The Supreme Court’s ‘Douglas’ California Medicaid Cases, the Economic Crisis & the Promise of Community Services”

The TITLE above is a link to a PDF. See the PDF link for my speech/article on the U.S. Supreme Court Douglas Medicaid cases, and an analysis of relationships among the economic crisis, Medicaid, and institutionalization.

Here is a short excerpt from the piece: (without footnotes)

So is it illegal, then, to unnecessarily institutionalize someone? Yes. The Supreme Court held in 1999 that illegal discrimination exists when a person with disabilities is unnecessarily institutionalized. The case is called Olmstead v. L.C. The Court based its decision that unnecessary institutionalization is a form of discrimination on two rationales. First, placing people with disabilities who are capable of living in the community in institutions perpetuates the stereotypes that such individuals are unworthy or incapable of participating in community life. Second, confinement in an institution deprives the individual of participation in a broad spectrum of important activities, such as “family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” The Court recognized that institutionalization implies discrimination: “[T]o receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.”

The next step in using the Olmstead decision to argue against service cutbacks is to apply it to someone already in the community, and served by the state based, for example, on a Medicaid Waiver decision that otherwise the person would be in an institution. Surely, institutionalizing this person would be unnecessary. We know that already. Just as surely, it would make no sense for the person to be compelled to enter the institution simply to invoke his or her Olmstead rights to leave.

Courts have agreed with this line of reasoning to forbid community services reductions that would result in needless institutionalization.

Sidewalks to Nowhere: Texas, Wheelchairs & the Supreme Court

2/14/12

Sidewalks to Nowhere: The Supreme Court and the ADA

David Ferleger & Richard Frame

An engineer in the aerospace and defense industry, Richard Frame became quadriplegic after a devastating auto accident twelve years ago. His body is paralyzed except for his head and shoulders,. He controls his power wheelchair with delicate head movements. Like most of the 3.4 million wheelchair users in the United States, Rick Frame actively participates in the life of his community.

When he leaves his home, however, Mr. Frame is excluded from his own community. When he takes to the streets of Arlington, Texas, he finds sidewalks to nowhere. Sidewalks with a curb cut at one end and no way to leave the sidewalk at the other end. Utility poles smack in the middle of a sidewalk. When he tried to go from his doctor’s office to a restaurant across the street, he discovered there was no way to get there. If his attendant parks Mr. Frame’s van in the municipal parking lot on a game day, he cannot get by wheelchair to the billion dollar Cowboys Stadium, built with $325 million in Arlington city funds.

The United State Supreme Court is poised to decide this month whether to review a sidewalk access decision in favor of Mr. Frame and several other wheelchair users which the National League of Cities, and the U.S. Conference of Mayors claim proclaim will impose a “crushing burden” on cities nationwide.

Joined by other cities and national organizations, the City of Arlington, Texas is asking the nine justices to free Arlington and other cities from any obligation to remedy their failure to make new and altered sidewalks accessible to people who use wheelchairs, a discriminatory violation of the 1990 Americans with Disabilities Act

A decision in favor of Arlington would also deny access to beneficiaries of technologies such as the Segway, the two-wheeled self-balancing device which hundreds of veterans disabled in Iraq and Afghanistan now use to go to work, walk their dogs and run with their children.

The case comes to the high court from the court of appeals, sitting unusually as a full court, which voted 8 to 7 last year that, “when a city chooses to construct a new sidewalk or alter an existing one, the city must take reasonable measures to ensure that those sidewalks are readily accessible to individuals with disabilities.” The court rejected Arlington’s argument that cities across the country may pick and choose when and where to provide accessible sidewalks.

In addition to the law, there are several moral, public policy and economic reasons why the Supreme Court should refuse to hear Arlington’s appeal. This form of discrimination is unfair, expensive and harmful to our national economy. It has extremely negative consequences for people without disabilities as well.

Excluding a class of people from the same sidewalks which “walking people” use is simply unfair. When a great city like Arlington builds and helps pay for monumental stadiums, that town ought to ensure that all of its residents can get to those stadiums, as well as to stores, hospitals, downtown restaurants, and their children’s schools.

The National League of Cities protests that, “sidewalk improvement programs can cost a single city hundreds of millions of dollars.” The appeals court explained that Congress looked at the question quite differently. Congress found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”

Our national economy will benefit when cities are compelled to connect the dots and provide pathways in the community for people with mobility impairments. The ADA itself states that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.”

Discrimination is a “totally unnecessary contributor to public deficits” and costs literally billions of dollars annually in support payments and lost income tax revenues,” the Congress concluded.

Cities need to do it right the first time. When it comes to sidewalk accessibility, Congress recognized that the additional cost of making a new sidewalk readily accessible is “often nonexistent or negligible.” When Arlington chose to build or alter inaccessible sidewalks after the 1992 ADA effective date, the city wasted taxpayers’ money and broke the law.

Inaccessible sidewalks harm everyone. Simply put, what works for people with disabilities works for everyone. We have all used curb ramps where sidewalks meet the street. They are useful when we are pushing a baby stroller or a shopping cart, lugging a suitcase, moving furniture, walking with crutches, or helping an elder cross a street. Bicyclists use curb ramps all the time.

Just as the invention of the typewriter, Jacuzzi and even email originated as efforts to benefit people with disabilities, so has the development of curb cuts, first implemented in 1945 in Kalamazoo, Michigan, as an accommodation for soldiers returning from World War II.

At a July 1990 ceremony, President George Herbert Walker Bush declared that with his “signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Now, 22 years later, it is past time for all those who pass through those doors to be able to join one another, co-workers and their neighbors.

_______________________

David Ferleger is an attorney near Philadelphia, PA and represents the plaintiffs in the litigation in the Supreme Court. Richard Frame lives in Arlington, TX, is a retired Registered Accessibility Specialist, and is one of the plaintiffs before the Supreme Court.