05-27-11 -- The Social Security Administration placed on leave an administrative law judge who has approved an unusually high number of applications for disability benefits, one week after a page one article in The Wall Street Journal detailed his decisions. . . . David B. Daugherty, based in Huntington, W. Va., awarded benefits in each of the 729 disability cases he decided in the first six months of fiscal 2011, according to government data. In fiscal 2010, Mr. Daugherty denied benefits in just four of the 1,284 cases he decided. . . . On May 19, the day the Journal story ran, a team from the agency's inspector general's office seized computers and interviewed employees from the West Virginia office. . . . Mr. Daugherty, who joined the agency as a judge in 1990, was escorted out of his office Thursday. In a phone interview several hours later, he said he had "no idea" why he was placed on leave, but said it would probably last until the investigation was complete. He said he would continue to be paid while on leave, which he said would be temporary. He said he didn't know whether he would ultimately be given his job back.

MICHIGAN

Blind Law School Applicant’s Suit Contends ABA Violates ADA by Promoting LSAT

By Martha Neil, ABA Journal

05-25-11 -- A federal lawsuit filed in Michigan yesterday by a legally blind law school applicant contends that the American Bar Association is discriminating against the blind and visually impaired in the manner in which it accredits law schools. . . . By pushing law schools to use the Law School Admission Test administered by the Law School Admission Council, the ABA, though its law school accreditation rules, imposes a discriminatory test requiring "spatial reasoning and the ability to diagram," alleges the complaint (PDF) filed by Angelo Binno in the Eastern District of Michigan.

ADMINISTRATIVE COURTS

Disability Judge Spurs Benefits Investigation

By Damian Paletta, Wall Street Journal

05-20-11 -- Investigators from the Social Security Administration's inspector general's office descended on Huntington, W.Va., on Thursday, the same day a Wall Street Journal front-page article detailed the high award rate of administrative law judge David B. Daugherty. . . . Investigators interviewed a number of staff members in the Huntington Social Security Administration office and removed at least one computer, people familiar with the matter said. . . . At least two congressional probes are being launched or expanded as a result of the article, congressional aides said. Utah Sen. Orrin Hatch, the top Republican on the Senate Finance Committee, said he planned to look at how the agency grants disability claims. And the House Ways and Means Committee plans to broaden an existing investigation into how Social Security disability programs are administered. . . . "Taxpayers fund this essential safety net, and they have every right to be outraged," a committee spokeswoman said. . . . In addition to paying for senior retirement benefits, the Social Security Administration also administers two federal disability programs.

ILLINOIS

The Grandma Ruse

Legal Profession Blog

05-18-11 -- An Assistant Attorney General in Illinois is the subject of bar disciplinary charges for alleged conduct in the course of an investigation into compliance with state law. . . . The defendant in the underlying matter(who was represented by counsel) has the interesting biblical last name of Onan. The investigation involved a condo for seniors (Onan Senior Suites) that was charged with violations of the Illinois Environmental Barriers Act. The AAG sought to establish that the condo had four stories, which would bring it under the requirements of the Act. . . . The allegations:

Because the Illinois Environmental Barriers Act required that buildings be at least four stories for the Act to apply, on or about March 18, 2008, Respondent developed a plan to visit Onan Senior Suites to determine whether the garage level of Onan Senior Suites could be viewed as a storey, thereby bringing the building within the scope of the Illinois Environmental Barriers Act. . . . On or about March 18, 2008, Respondent, Ipjian [another attorney with the AG's office], and Jamie Frankic-Berkett, a Disability Specialist for the Disability Rights Bureau, visited Onan Senior Suites, to determine whether the building was accessible to people with disabilities and to determine whether the garage was finished or unfinished. Prior to arriving on March 18, 2008, Respondent had informed Ipjian that they would only view areas of the building that were open to members of the public. Although Respondent and Ipjian had appeared in court in relation to case number 04 CH 1630 on March 18, 2008, and Respondent knew that Mr. Nordigian represented the defendants in that matter, Respondent did not give Mr. Nordigian notice of his intention to visit Onan Super Suites that day, nor did he otherwise inform Mr. Nordigian of his plan to view the garage for purposes of determining whether it could be considered a storey for purposes of the Illinois Environmental Barriers Act.

CALIFORNIA

Dyslexia No Bar to Legal Career for Advocate and Inventor

By Debra Cassens Weiss, ABA Journal

05-16-11 -- A disability advocate who is severely dyslexic says he’s not the only JD who has the reading disorder. . . . Ben Foss is the new executive director of Disability Rights Advocates, a nonprofit that litigates on behalf of the disabled, according to a press release. He has a joint JD and MBA from Stanford University, yet as a child he was in special education classes.

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April 2011

NEW YORK

Suit Alleges Bias in Disability Denials by Queens Judges

By Sam Dolnick, New York Times

04-12-11 -- The Queens office that hears appeals of Social Security disability cases is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits. . . . It has had the 10th-highest rejection rate among 166 offices across the country this fiscal year. Lawyers say many applicants have been reduced to tears by harsh questioning from the administrative law judges who hear the appeals; some lawyers have advised their clients to rent apartments or move to homeless shelters in other boroughs so they can plead their cases elsewhere. . . . And federal judges have rejected scores of the Queens rulings in recent years, complaining of legal errors, “combative” hearings and a tone that one court called “brusque, intemperate and unhelpful.” . . . Now, a class-action lawsuit filed on Tuesday in Federal District Court in Brooklyn says that five of the eight Queens judges are not just difficult, but also biased against the applicants — many of whom are poor or immigrants — and have systematically denied benefits to the disabled by making legal and factual errors.

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A Victims-of-Law Associate

March 2011

CALIFORNIA

Prison for unneeded wheelchair Medicare scam

The Associated Press, San Jose Mercury News

03-30-11 -- The owner of a Southern California medical supply company has been sentenced to nearly five years in prison for Medicare fraud in an unneeded electric wheelchair scam. . . . A Los Angeles federal judge sentenced 40-year-old Marlon Oslvaldo Palma late Tuesday for fraudulently collecting nearly $2 million from Medicare for $5,000 power wheelchairs and other unneeded medical equipment.

New ADA Regs Could Lead to More Disability Class Actions

By Debra Cassens Weiss, ABA Journal

03-29-11 -- Workers would get more expansive protections for disabilities under final regulations released Friday that interpret 2008 amendments to the Americans with Disabilities Act. . . . One byproduct of the new regulations could be more ADA class actions, according to a Lexology article by Seyfarth Shaw. The reason: The regulations include a list of impairments that will “virtually always” meet the definition of disability. . . . Conditions on the list include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.

UNITED STATES SUPREME COURT

Supreme Court to Decide Whether Lutheran School Teacher Can Sue for Retaliation

By Debra Cassens Weiss, ABA Journal

03-28-11 -- The U.S. Supreme Court has agreed to decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who wanted to return to work after a disability leave. . . . The religious school in Redford, Mich., fired teacher Cheryl Perich for insubordination after she reported for work even though administrators said they would not rehire her in the middle of the school year, according to the petition for certiorari (PDF posted by SCOTUSblog). The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled that the school district was not protected from suit, despite First Amendment protection as a religious organization, because Perich spent most of her time on secular duties. . . . The Becket Fund for Religious Liberty, which represents the school, has more information at its website.

Who’s Disabled? Feds Expand the Definition

By Nathan Koppel, Wall Street Journal (blog)

03-25-11 -- Labor and employment lawyers are busy Friday reading, parsing, fretting, lecturing and a few other present participles after the EEOC yesterday issued new regulations governing when employees qualify as disabled. . . . The immediate question that springs to mind is who are the winners under the new regs: employees or employers? It’s not so easy to say. . . . The regulations cite particular impairments, including HIV infection, diabetes, epilepsy, and bipolar disorder, that “should easily be concluded to be disabilities.” . . . The regulations, Bloomberg reports, will make it easier for employees to win workplace accommodations. . . . And that, of course, is a win for employees, right? Law firm Seyfarth Shaw, which specializes in defending employment cases, thinks so. “More disability lawsuits can be expected to be filed, and importantly, those lawsuits will become much harder to defend against at an early pleading stage,” Seyfarth attorney Condon McGlothlen said in a statement. . . . Disability claims already were on the rise last year, Bloomberg reports, noting that there were about 25,000 disability discrimination claims in fiscal year 2010, up from 21,400 the previous year.

CALIFORNIA

Severely disabled mother wins visitation rights with triplets

LA NOW

03-25-11 -- A Los Angeles County Superior Court judge ruled Friday that a paraplegic woman who communicates by blinking has the right to see her 4-year-old triplets. . . . In a tentative 10-page ruling, Judge Frederick C. Shaller said that Abbie Dorn, 34, can see her daughter, Esti, and sons Reuvi and Yossi, for a five-day visit each year pending a trial in the acrimonious custody case. She also entitled to a monthly online Skype visit. A trial date has yet to be set. . . . “We are thrilled,” said Felicia Meyers, one of Dorn’s attorneys. . . . Although “there is no compelling evidence that the visitations by the children will have any benefit to Abby,” Shaller wrote, “…there is no compelling evidence that visitation with Abby will be detrimental to the children.” . . . Dorn was healthy until June 20, 2006, when she gave birth to the children at Cedars-Sinai Medical Center. During delivery, a string of medical errors starved her brain of oxygen, and she is in a minimally conscious state, according to the neurologist who examined her during legal proceedings.

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February 2011

CALIFORNIA

Diabetic's discrimination lawsuit against restaurant is hard to swallow

A Studio City sushi restaurant is taken to court by an all-you-can-eat customer.

By David Lazarus, Los Angeles Times

02-17-11 -- David Martin was in the mood for raw fish, and he liked the deal offered by a Studio City sushi restaurant: all you can eat for $28. . . . He took a seat at the counter and started ordering. But it turned out that Martin didn't really want sushi, which includes rice; he wanted all-you-can-eat sashimi, which is just fish. He began picking the seafood off the top and leaving the rice. . . . Restaurant owner Jay Oh told Martin that if he wanted the all-you-can-eat price, he'd have to eat the rice too and not just fill up on fish. Martin replied that he has diabetes and that he can't eat rice. . . . Oh said he offered to prepare sashimi for Martin. Two orders of sashimi cost $25, or $3 less than the all-you-can-eat sushi deal. But Oh said Martin declined the offer. . . . Martin left the restaurant after being charged a la carte prices for the sushi he'd already ordered plus $1 for a cup of green tea. . . . Two weeks later, Martin filed suit in Los Angeles County Superior Court. It seeks at least $4,000 in damages for the "humiliation, embarrassment and mental anguish" Martin says he suffered after being discriminated against "on the basis of his disability." . . . Discrimination, or shakedown?

FEDERAL COURTS

Federal Judge Orders Disaster Plan for L.A. Disabled

Associated Press, Fox News

02-12-11 -- The city of Los Angeles discriminates against disabled people because it lacks specific plans to meet their needs in the event of a natural disaster or other emergency, a federal court ruled Friday, the first such decision in the country. . . . "Because of the city's failure to address their unique needs, individuals with disabilities are disproportionately vulnerable to harm in the event of an emergency or disaster," U.S. District Court Judge Consuelo Marshall said. . . . Marshall ordered the city to meet with the plaintiffs, Audrey Harthorn, a Los Angeles resident who uses a wheelchair, and Communities Actively Living Independent and Free, a Los Angeles nonprofit independent living center, in the next three weeks to come up with a disaster plan for disabled people.

ADA doesn't cover woman's immune deficiency condition

Nate Raymond, The National Law Journal

02-11-11 -- A federal judge in New York granted summary judgment for a defunct hedge fund in one of the few decisions addressing whether a type of immune deficiency qualifies as a disability under the Americans with Disabilities Act. . . . U.S. District Court Judge George Daniels in New York City on Feb. 9 dismissed a breach-of-contract and discrimination suit against Arience Capital Management L.P. brought by Rebecca Bar-Tur, a former senior analyst and limited partner who suffered from common variable immunodeficiency. . . . The condition is characterized by a reduction in antibodies, making it more likely for someone diagnosed with it to get sick than the average person. The National Institutes for Health reports that one in 30,000 people suffers from the condition.

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January 2011

PENNSYLVANIA

Defendant with no language proves difficult to prosecute

By Jeremy Roebuck, Philadelphia Inquirer Staff Writer

01-11-11 -- With a flick of his wrist, the interpreter at the front of the courtroom mimed the bang of a judge's gavel, his other hand pointing to the ceiling. . . . The crude gestures were meant to convey that the case against Juan Jose Gonzalez Luna would be heard in a higher-level court. . . . Gonzalez's face, however, remained vacant. . . . Did the 42-year-old - who is deaf, mute, and illiterate, including no known knowledge of sign language - understand what had just happened? . . . As Gonzalez has next to no language skills, his case has baffled Montgomery County courts since his arrest on drug trafficking charges late last year. While courts have come a long way in providing access to interpreters in a host of exotic languages, no one is sure how to translate for a man who knows no language at all.

CALIFORNIA

Bar Examiners Ordered to Adapt for Blind Law Grad

By Tim Hull, Courthouse News Service

01-05-11 --- A testing company must let a legally blind law school graduate take the bar examination using assistive software, the 9th Circuit ruled Tuesday, upholding a lower court's preliminary injunction. . . . The National Conference of Bar Examiners (NCBE) and ACT testing company refused Stephanie Enyart's requests to use assistive technology software on the Multistate Professional Responsibility Exam and the Multistate Bar Exam three times before she sought the injunctions. . . . Enyart, a 2009 graduate of the University of California at Los Angeles School of Law, has been legally blind since age 15. She has Stargardt's disease, a kind of macular degeneration that causes blind spots and sensitivity to light, all of which are gradually getting worse, according to the ruling. . . . In 2009 Enyart asked the NCBE three times for permission to take the two tests using assistive screen reader and magnification software known as JAWS (Job Access With Speech) and ZoomText. . . . The NCBE and ACT refused Enyart's requests, however, noting that the test was not available in an electronic format. NCBE instead offered to accommodate Enyart with a live reader or an audio CD of the exam and closed-circuit television.

INDIANA

Would-Be Ind. Lawyers Who Sued over Mental Health Questions Protected in Discovery

By Debra Cassens Weiss, ABA Journal

01-05-11 --- A judge has prohibited Indiana bar examiners from conducting further discovery about the mental health of would-be lawyers who filed a class-action suit over treatment questions in applications for a law license. . . . U.S. District Judge Tanya Pratt upheld a magistrate’s order barring the line of discovery, the National Law Journal reports.

MASSACHUSETTS

A lift for justice, disabled at court

By Tony Dobrowolski, Berkshire Eagle Staff

01-02-11 -- Covered in plastic, the shaft for the new elevator on the west side of the historic Berkshire County Courthouse resembles a giant Christmas present. To a segment of the Berkshire population, that new elevator is a gift. But it's a present that took over a decade to arrive. . . . Ten years after advocates for the physically disabled held the first of two courthouse protests calling for improved accessibility for the handicapped to the 140-year-old building that houses the Berkshire Superior Court, the $2.9 million state project to achieve that goal is almost finished. . . . "It's basically 75 to 80 percent complete at this point," said Kevin Flanagan, a spokesman for the state Division of Capital and Asset Management, which is overseeing the project. David J. Tierney Jr. of Pittsfield, is the local contractor. "It's scheduled to be completed in the spring." . . . The project also includes moving the building's main entrance from East Street to Wendell Avenue so it's more easily accessible for those with disabilities, the lowering of transaction counters inside the building, the addition of a handicapped accessible bathroom, and roof, drainage and parking improvements, Flanagan said. Improvements to the adjacent Central Berkshire District Court building are part of the initiative.

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November 2010

OREGON

Justice Department Slow To Act On Service Dog Issue

By Michelle Diament, Disability Scoop

11-15-10 -- An Oregon family is at a loss after waiting more than a year for the Justice Department to look into why their son’s autism service dog can’t accompany him to school. . . . The issue began two years ago when Scooter Givens’ school said he could not bring his trained German shepherd, Madison, to class. The boy’s mom, Wendy Givens, insists the dog helps Scooter, 10, remain calm so that he can learn, but school district officials say the animal is unnecessary. . . . Now, Scooter is getting older and growing bigger, making his behaviors harder to control and modify, his family says. Recently, he ran across his school classroom to punch a fellow student. Had his service animal been there, Wendy Givens says Scooter would have been wearing a harness attached to the dog who is trained to lie still to prevent the boy from bolting in an aggressive manner.

VIRGINIA

Hilton, Justice Reach Deal Over Disabled Guests

Hilton to improve accessibility at all 900 of its hotels in agreement with Justice Department

The Associated Press, ABC News

11-09-10 -- Hilton Worldwide Inc. will improve accessibility for the disabled at all 900 of its hotels in the United States under an agreement with the Justice Department. . . . The agreement, if approved by a judge, would resolve a lawsuit alleging that the McLean, Va.-based Hilton failed to comply with the Americans With Disabilities Act in hotels built over the past 17 years.

October 2010

GENERAL

Some Disabled Lawyers Find Going Solo Works Best

Sheri Qualters, The National Law Journal

10-27-10 -- When George (Bill) Walls Jr. of Houston was paralyzed from the shoulders down at the age of 23, he settled on a legal career as a way to earn enough money to live independently. . . . But after working as an associate for another lawyer and then as associate in-house counsel at SFX Entertainment Inc., a venue operator and promoter, he realized that going solo was the best fit. . . . Walls found that he earned too little as an associate after splitting fees and administrative expenses with the partner. Working for SFX offered a better income and interesting opportunities, such as speaking at the U.S. Access Board in Washington, D.C., about legal issues related to structural changes in the design of public venues. But ultimately, the travel and long hours of the SFX job proved too taxing.

NEW YORK

NY Lawyer Disbarred for Overcharging Brain-Damaged Client

By Noeleen G. Walder | New York Law Journal | New York Lawyer

10-25-10 -- A state court has disbarred an attorney it said overcharged a brain-damaged client $508,230 in a medical malpractice action and then "tried to disguise" his acceptance of a fee that violated the statutory maximum. . . . Norman Leonard Cousins argued that he had used what he insisted was a gift from Kevin Veneski to settle a lawsuit brought against Mr. Veneski in federal court by a company that had helped fund the malpractice litigation. . . . But the Appellate Division, First Department, concluded that Mr. Cousins, of Manhattan, had "deceived his client" to secure his assistance in what the court described as a "charade." . . . "Respondent's claim that the gift was requested by Mr. Veneski to resolve the Core Funding litigation is belied by the fact that respondent contradictorily stated that Mr. Veneski never even knew that he had been sued, and by the fact that the…litigation was brought three years after Mr. Veneski signed the affidavit granting" Mr. Cousins one-third of his net recovery from the malpractice suit, the panel wrote in the per curiam opinion of Matter of Cousins, M-288.

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July 2010

Americans with Disabilities Act marks 20 years

Ed O'Keefe, Washington Post (blog)

07-26-10 -- And as the nation marks the 20th anniversary of the Americans with Disabilities Act, the Justice Department is exploring how the law could apply more to Web sites, movie theaters, office furniture and equipment, and 9-1-1 call centers. . . . The White House on Monday is scheduled to hold an afternoon event commemorating passage of the far-reaching measure that mandated greater access for disabled Americans to structures and public transportation and the workplace. . . . (Despite progress in the last two decades, what still needs to be done when it comes to accessibility for the disabled? We welcome your thoughts in the comments section below and will post some of the best responses later.) . . . Kareem Dale, President Obama's White House adviser on disability policy, said advances in technology make revisiting the law a necessity. . . . "When ADA was passed in 1990, the Web wasn't what it is now and technology wasn't what it is now," Dale said during an interview on Friday. "The ADA and the law have to pick up with technology." . . . Dale, who is legally blind, noted that he's unable to type in passwords or use certain authentication software on Web sites. But adding voice-recognition software might help, he said.

MISSISSIPPI

Mississippi AG warns of scam targeting diabetics

WLOX

07-26-10 -- The Attorney Generals Office is warning consumers of a recent scam targeting those with diabetes. . . . Consumers have called the Diabetes Foundation of Mississippi and the American Diabetes Association to report that they are receiving unsolicited requests from individuals purporting to be employees with those organizations. The scam artists are calling diabetes victims and requesting personal information such as social security numbers, dates of birth and credit card information. . . . The Diabetes Foundation of Mississippi and the American Diabetes Foundation reported these complaints to the Consumer Protection Division of the Mississippi Attorney Generals Office.

TENNESSEE

Courtroom plight aids others with disabilities

Man helped launch legal battle that led to Supreme Court win

By Kristi L. Nelson, Knoxville News Sentinel

07-25-10 -- One morning in 1997, George Lane found himself at the base of a staircase in the Polk County courthouse wondering how he was going to get to the courtroom on the second floor. . . . Newly sober, Lane had been up and down those stairs many times and hadn’t really considered until he arrived that he might face a new problem. He was due to appear in court on a charge of driving on a revoked license during an accident that left him with a head injury, broken pelvis and damaged legs (one of which he later had amputated). The courthouse had no elevator. . . . Finally, Lane crawled backward up the stairs, dragging his legs, while his wife and mother carried his wheelchair. It was painful, he said, and “humiliating”: During his ascent, Lane said, he looked up and saw court officials making no secret of their amusement. . . . These men knew Lane; his “lifestyle” in the rural county landed him in court more than 30 times for charges related to drinking, drugs and driving. Maybe they felt he deserved to struggle. . . . But “a person in that position, you would think that they would conduct themselves better … no matter who it was,” Lane said. . . . When Lane’s case wasn’t heard in the morning session, he refused to go back upstairs. He didn’t want to be carried by courthouse workers. He stayed downstairs, and the judge issued a bench warrant for his arrest.

National Owner of Gas Stations Resolves ADA Claims

Justice Department and QuikTrip reach comprehensive settlement

Consumer Affairs

07-19-10 -- The Justice Department (DOJ) has reached a comprehensive settlement under the Americans with Disabilities Act (ADA) with QuikTrip Corporation, a private company that owns and operates more than 550 gas stations, convenience stores, travel centers, and truck stops in the Midwest, South and Southwestern United States. . . . Under the consent decree, which was filed along with a complaint in the U.S. District Court for the District of Nebraska, QuikTrip will create a $1.5 million compensatory damages fund for individuals who were victims of discrimination based on disability, as well as take various steps to make its stores accessible. . . . The Justice Department opened the investigation in response to complaints about inaccessible parking by two individuals with disabilities in the Omaha, Neb., area. The DOJ lawsuit says the investigation revealed a nationwide pattern and practice of discrimination on the basis of disability. QuikTrip worked with the department to amicably resolve the matter without active litigation. . . . "On July 26, 2010, we will celebrate the 20th anniversary of the ADA, a landmark civil rights law that ensures equal access and equal opportunity for individuals with disabilities," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. "Ensuring full and equal access to all businesses open to the public is a top priority, and the Justice Department is committed to vigorous enforcement of the ADA to ensure equal opportunity for individuals with disabilities."

Justice Department Reaches Settlement with Blockbuster Inc. Under the Americans with Disabilities Act

PRNewswire-USNewswire/ --

07-19-10 -- The Justice Department today announced a settlement agreement under the Americans with Disabilities Act (ADA) with Blockbuster Inc. to ensure equal access to its stores nationwide for individuals with disabilities who use service animals. . . . The settlement agreement, which resolves a complaint filed under title III of the ADA by an individual with a disability, requires, among other things, that Blockbuster provide comprehensive training to employees at more than 3,000 retail stores throughout the United States to ensure individuals with disabilities who use service animals have full and equal enjoyment of its goods, services and facilities. . . . "The Americans with Disabilities Act guarantees equal access to individuals with disabilities who are accompanied by service animals, but too often those individuals are subject to discrimination because of misperceptions or a lack of understanding of the law," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.

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May 2010

UNITED STATES SUPREME COURT

High Court Smooths Path to Plaintiff Fees in Disability Cases

Marcia Coyle, The National Law Journal

05-25-10 -- Workers suing over disability and other benefits under the federal law known as ERISA may win attorney fees and costs if they achieve "some degree of success on the merits," a unanimous U.S. Supreme Court ruled on Monday. In Hardt v. Reliance Standard Life Insurance Co. (pdf), the justices rejected a tougher standard imposed by the 4th U.S. Circuit Court of Appeals (pdf) on fee claimants under the Employee Retirement and Income Security Act. The lower appellate court had ruled that a claimant must be a "prevailing party" before seeking a fee award. . . . The justices' ruling came in a case brought by Bridget Hardt, who sought long-term disability benefits as a result of job-related carpal tunnel syndrome. Hardt was awarded the benefits, but in March 2006, Reliance informed her that she was ineligible for continued long-term benefits. She sued the insurance company, claiming ERISA violations.

TEXAS

Texas doctors opting out of Medicare at alarming rate

By Todd Ackerman, Houston Chronicle

05-17-10 -- Texas doctors are opting out of Medicare at alarming rates, frustrated by reimbursement cuts they say make participation in government-funded care of seniors unaffordable. . . . Two years after a survey found nearly half of Texas doctors weren't taking some new Medicare patients, new data shows 100 to 200 a year are now ending all involvement with the program. Before 2007, the number of doctors opting out averaged less than a handful a year. . . . “This new data shows the Medicare system is beginning to implode,” said Dr. Susan Bailey, president of the Texas Medical Association. “If Congress doesn't fix Medicare soon, there'll be more and more doctors dropping out and Congress' promise to provide medical care to seniors will be broken.” . . . More than 300 doctors have dropped the program in the last two years, including 50 in the first three months of 2010, according to data compiled by the Houston Chronicle. Texas Medical Association officials, who conducted the 2008 survey, said the numbers far exceeded their assumptions.

GENERAL

Advocates for the Blind Suing Law Schools Over Online Application Process

By Karen Sloan | The National Law Journal | New York Lawyer

05-14-10 -- A national advocacy group for the blind is accusing the University of Miami School of Law and others across the country of violating the rights of blind would-be law students by using the Law School Admission Council’s online application process. . . . The National Federation of the Blind filed complaints this month with the Justice Department’s civil rights division against nine law schools, claiming they violated the Americans with Disabilities Act and asking the department to compel them not to use the online application system. . . . “We’ve asked the U.S. Justice Department to act swiftly and decisively to ensure that blind law school applicants are treated the same as their sighted peers,” said federation president Marc Maurer.

INDIANA

Clash of Rights over an Allergy-Detecting Dog Leads to EEOC Complaint

By Debra Cassens Weiss, ABA Journal

05-14-10 -- The rights of an employee who uses an allergy-detection dog are at odds with those of another worker with asthma in a complaint pending with the Equal Employment Opportunity Commission. . . . Emily Kysel brought her specially trained, $10,000 golden-retriever to work at the city of Indianapolis until a co-worker reacted to the animal with an asthma attack, the New York Times reports. Kysel’s boss then gave her a choice, the story says: Report to work without the dog or go on indefinite unpaid leave. . . . Kysel has a life-threatening allergy to paprika, the story says. During her first week on the job, she suffered a severe allergy attack caused by a co-worker eating buffalo wings. Kysel’s family bought her the dog, Penny, after that and she brought the animal to work until the asthma incident. Penny is trained to jump on Kysel whenever she smells paprika.

FEDERAL COURTS

Judge to Determine if Obesity Constitutes a Disability in Karate Teacher's Suit Over Firing

Mark Hamblett, New York Law Journal

05-12-10 -- The open question of whether obesity, standing alone, can be counted as a disability under the "uniquely broad and remedial" statutory scheme of the New York City Human Rights Law has been remanded to a district judge. . . . The 2nd U.S. Circuit Court of Appeals said in Spiegel v. Schulmann, 06-5914-cv, that New York City Human Rights Law, N.Y. City Admin. Code §8-107(1)(a), casts a wider net than state and federal civil rights laws. . . . The decision gives a measure of hope to Elliot Spiegel, who claims he was fired from his job as a karate instructor at Tiger Schulmann Karate Schools because he is obese. Spiegel had lost his case on summary judgment in the Eastern District. . . . Second Circuit Judges Peter W. Hall and Debra Ann Livingston, by a per curiam opinion, vacated part of Eastern District Judge Sandra L. Townes' summary judgment ruling and instructed her to determine whether Spiegel had made out a prima facie case of discrimination under the city law.

NEW YORK

Attorney who preyed on disabled sentenced to up to 15 years in prison

By Melissa Grace , Daily News Staff Writer

05-05-10 -- A corrupt Brooklyn lawyer who admitted to ripping off disabled clients to the tune of $4 million was sent to prison Tuesday for up to 15 years. . . . Steven Rondos, 45, previously pleaded guilty to grand larceny and money laundering for stealing settlement claims and other money from 23 victims beginning in 2001. . . . "The son of a b---- was a pretty vicious guy, preying on incapacitated people," former Manhattan District Attorney Robert Morgenthau said when Rondos was busted in January 2009.

NEW JERSEY

N.J. Court Considers Hospital's Right to End Treatment for Vegetative Patient

Charles Toutant, New Jersey Law Journal

05-03-10 -- A New Jersey appeals court heard arguments Tuesday over whether a hospital can end life-sustaining treatment for a patient in a persistent vegetative state contrary to his family's wishes. . . . A year ago, a Union County, N.J., judge said no, granting an injunction requested by the comatose patient's guardian despite hospital doctors' opinion that further treatment would be futile. . . . The hospital appealed, and though the patient has since died, the state Appellate Division proceeded to invite briefs and schedule arguments in the case, Betancourt v. Trinitas Regional Medical Hospital, A-3849-08. . . . The hospital's lawyer, Gary Riveles of Dughi & Hewit in Cranford, N.J., insists judicial guidance is needed because the case's circumstances are not uncommon and a similar situation is bound to recur. . . . Equally interested are amici representing disabled patients, who fear a ruling in the hospital's favor would pave the way for caregivers to freely pull the plug in the interests of expediency and cost savings. . . . Spectators who jammed into the small New Brunswick, N.J., courtroom included half a dozen people in wheelchairs bearing orange stickers with the logo of Not Dead Yet, a disability-rights group that is among the amici.

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A Victims-of-Law Associate

April 2010

CALIFORNIA

Judge allows parents of disabled woman to seek visitation rights on her behalf

Abbie Dorn, who can’t move or speak, hasn’t seen her 3-year-old triplets for 2½ years. They live in Los Angeles with their father.

By Maria L. La Ganga, Los Angeles Times

04-20-10 -- A Los Angeles County Superior Court judge ruled Tuesday that the parents of a woman who communicates largely by blinking have the legal right to fight on her behalf so that she can see her 3-year-old triplets. . . . Abbie Dorn 34, was left unable to move or speak because of a series of medical mishaps while giving birth to the children at Cedars-Sinai Medical Center in 2006. She now lives in South Carolina with her parents. . . . Abbie and her husband, Dan, eventually divorced in a proceeding that left decisions over custody, visitation, property and child support until later. A trial is set for May 13. . . . Dan Dorn has refused to allow Esti, Reuvi and Yossi to visit their mother, arguing that it would be detrimental at their age. He and the children still live in Los Angeles. Abbie has not seen them for 2½ years, and the children know nothing about her, according to court documents and testimony in the novel and acrimonious case.

PENNSYLVANIA

Disabled Pennsylvania man's service dog not eligible for food stamp benefits, court rules

L.A. Unleashed blog of the Los Angeles Times.

04-06-10 -- Food stamps won't be helping a disabled man fill his service dog's food bowl. . . . James Douris lost a key court decision Tuesday in his yearlong effort to qualify his male boxer, who is fed everything Douris eats, as a dependent member of his household in calculating food stamp benefits. . . . A three-judge Commonwealth Court panel upheld an earlier Department of Public Welfare's determination that the dog was ineligible because he is not human. . . . "This court is sympathetic to [Douris'] argument that his service dog is a necessity for him due to his disability, and that he lacks the funds to properly feed his service dog," wrote Judge Renee Cohn Jubelirer. "We hope that there is some other state or federal program that might provide for the maintenance and upkeep of [the] dog." . . . Douris, 55, a resident of Newtown in the Philadelphia suburbs, is a disabled and unemployed veteran who lives alone and relies on the dog to pull his wheelchair and fetch items. Although Douris has represented himself in the legal proceedings, he said Tuesday that news of his case prompted lawyers to offer their help, and he plans to appeal the decision.

COLORADO

Dogged by Lawsuit After Barring Service Animal From Office, Lawyer Settles for $50K

Mike Scarcella, The National Law Journal

04-01-10 -- A Colorado Springs, Colo., lawyer who refused to allow a veterinarian and her service dog to enter his law office for a scheduled deposition in a civil action has agreed to pay $50,000 to settle a federal discrimination suit. . . . The Justice Department's Civil Rights Division filed a complaint (pdf) in the U.S. District Court for the District of Colorado last November against Patric LeHouillier of LeHouillier & Associates. The suit alleged LeHouillier violated the Americans with Disabilities Act when he refused to allow the woman and her dog -- and the woman's lawyer -- to enter the LeHouillier law office in December 2006.

A Victims-of-Law Associate

March 2010

COLORADO

Justice: Lawyer fined for snubbing service dog

ohmidog!

03-31-10 -- A Colorado Springs attorney accused of not allowing a disabled woman and her service dog into his office because he feared his new carpet might be soiled will pay $50,000 as part of a consent decree approved by a federal court today. . . . A November 2009 complaint accused Patric LeHouillier of violating the Americans with Disabilities act by barring Joan Murnane, a veterinarian with brain and other injuries that affect her balance, from entering his law office because her service dog was with her. . . . The complaint says LeHouillier and his firm, LeHouillier & Associates, expressed concern that the Australian shepherd might soil its new carpet, according to a report in Westword. . . . That decision, under the consent decree, will cost him $50,000 – $30,000 for Murnane, $10,000 for her husband and another $10,000 for a civil penalty.

WASHINGTON

Claiming Panic Attacks From Workload, Legal Secretary Sues Firm Over Firing

Karen Sloan, The National Law Journal

03-25-10 -- Are law firm staff layoffs creating unmanageable workloads for so-called survivors? . . . They are at Seattle-based Davis Wright Tremaine, according to a lawsuit filed by a former secretary, who claims she was unfairly fired by the firm after suffering panic attacks brought on by unrealistic work demands following staff layoffs. . . . In a suit filed last month in Oregon state court, Nancy Topolski claims that Davis Wright Tremaine wrongfully terminated her and violated Oregon's family leave act as well as the state's disability and discrimination and retaliation laws. She is seeking nearly $1 million, according to the complaint. . . . Lawyers for Davis Wright last week petitioned to have the suit moved to federal court. . . . Topolski was hired as a legal secretary in the firm's Portland office in 2007, according to the complaint, and provided full-time support for three attorneys. The firm laid off "a significant number" of employees including 11 secretaries in the early fall 2009, and Topolski then became responsible for supporting a fourth attorney -- Greg Chaimov.

GEORGIA

Ga. Supreme Court upholds ER statute

By Bill Rankin, The Atlanta Journal-Constitution

03-15-10 -- The Georgia Supreme Court on Monday upheld a key provision of the state's tort reform law that makes it more far more difficult for patients to win damages in cases involving emergency room care. . . . In a 4-3 decision, the court ruled in a challenge brought by a woman who went to the emergency room in Columbus complaining of serious pain behind her eyes. She said a doctor sent her away with a prescription and failed to diagnose her real, disabling illness. . . . Under the tort reform law enacted in 2005, a plaintiff must establish by "clear and convincing evidence" that an ER doctor committed "gross negligence" to prevail in a lawsuit. . . . Justice George Carley, writing for the majority, noted the law was enacted amid the medical industry's claims that medical malpractice insurance rates were soaring. . . . "Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes," Carley wrote.

DISTRICT OF COLUMBIA

HIV Misdiagnosis Spurs D.C. Court of Appeals to Reconsider Emotional Damages Rule

Andy Jones, The National Law Journal

03-08-10 -- The D.C. Court of Appeals has granted an en banc hearing in the case of a man who is seeking the right to sue for emotional damages after he was misdiagnosed with HIV. . . . The case could give the court a chance to rethink a long-standing precedent in medical malpractice cases, which holds that courts can only grant damages for emotional distress if the plaintiff had been put in a "zone of physical danger." . . . Terry Hedgepeth spent five years believing he had HIV after he was falsely diagnosed at the Whitman Walker Clinic in Washington. He learned he never had the virus after a new test at a different clinic in 2005. . . . Between the two tests, he said he suffered severe depression which led to problems in his relationship with his daughter, the loss of his job, heavy use of illegal drugs and suicidal thoughts. He was twice committed to psychiatric wards.

NEW YORK

Judge: Defendant Cannot Suppress Statements Made During OCD 'Brain Freeze'

Vesselin Mitev, New York Law Journal

03-02-10 -- A defendant who says he is afflicted with obsessive-compulsive disorder cannot suppress statements he made in the throes of a purported "brain freeze" triggered by his arrest that stripped him of his ability to waive his Miranda rights, a New York state judge has held. . . . "[T]he evidence fails to disclose that the Defendant's OCD affected him to such a degree" as to render him incapable of understanding the "nature and consequences of his statement," District Court Judge Andrew M. Engel in Nassau County wrote in People v. Martz, Docket No. 2008 NA 006851. . . . In March 2008, David Martz, a teacher at the Oyster Bay Boys and Girls Club, was arrested for allegedly exposing himself and masturbating in front of a 13-year-old boy in the restroom of the Roosevelt Field Mall in Garden City. . . . Martz was charged with two counts of endangering the welfare of a child and two counts of public lewdness, all misdemeanors. . . . He challenged the admissibility of a signed statement that he gave after a nearly two-hour interrogation, arguing that his OCD was "so exacerbated" by the circumstances of his arrest, that he was unable to process any information. . . . At a hearing, Martz testified that shortly after exiting the restroom he was stopped by mall security. He said he was immediately flanked by two police officers who arrested him but did not inform him of the charges. . . . The officers then led Martz, who was "very upset and nervous," to a police substation in the mall's lower level, where he was handcuffed to a bench. His cell phone rang several times, but he was not allowed to answer it. Finally, an officer shut it off, he said.

FLORIDA

Suit: Law Firm, Medical Clinic Made Reciprocal Referrals

By Sarah Randag, ABA Journal

03-01-10 -- A Kentucky woman has filed a suit against a law firm and medical clinic that she says both deceived her and deprived her of her right to treatment by her own doctors. . . . Sharon Langford of Louisville, Ky., went to Tampa, Fla.-based Winters Yonker & Rousselle after she was injured in a car accident in 2008. She says in her suit that the firm told her that her health insurance wouldn't cover injuries suffered in car accidents, the Louisville Courier-Journal reported. She said the firm referred her to 1st Physician Rehabilitation Inc. for treatment and then later to a Florida clinic for surgery. . . . The suit says Langford later found out that both clinics had the same owner, Gary Kompothecras, who also owns the 1-800-ASK-GARY referral service, which sends callers seeking a lawyer to Winters & Yonker. Kompothecras' clinics don't accept health insurance, the Courier-Journal said. . . . Langford's lawyer, Sam Carl, said of the $200,000 settlement Winters & Yonker obtained for Langford, the firm received $70,000, the clinics received $64,518, and Langford received $62,738—which covered the medical expenses she incurred before hiring Winters & Yonker, according to the Courier-Journal.

NEW YORK

New York Is Ordered to Move Mentally Ill Out of Group Homes

By A. G. Sulzberger, New York Times

03-01-10 -- New York State must immediately begin moving thousands of people with mental illness into their own apartments or small homes and out of large, institutional group homes that keep them segregated from society, a federal judge ordered on Monday. . . . The decision by Judge Nicholas G. Garaufis of Federal District Court in Brooklyn followed his ruling in September that the conditions at more than two-dozen privately run group homes in New York City violated the Americans With Disabilities Act by leaving the approximately 4,300 mentally-ill residents isolated from the outside world in warehouse-like conditions. . . . The remedial plan offered by Judge Garaufis, which drew from a proposal presented by advocates for the mentally ill and was backed by the Justice Department, calls on New York to develop at least 1,500 units of so-called supportive housing a year for the next three years. In supportive housing, a resident lives alone or in small groups and receives specialized services from counselors who visit as needed. . . . The judge said that only people with the most severe mental illness, including those deemed a danger to themselves or others, should be housed in group homes. He also said that residents who were eligible for supportive housing may choose to stay in group homes as long as they have been apprised of their options.

February 2010

CALIFORNIA

Court lets blind grad use aids to take bar exam

Bob Egelko, Chronicle Staff Writer

02-25-10 -- With belated approval from a federal appeals court, a blind Bay Area law graduate is preparing to use computer-assisted reading devices on the state bar exam, despite a testing company's objections. . . . Hours after the exam began Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco issued a brief order denying a request by the National Conference of Bar Examiners to stop Stephanie Enyart from using the accommodations that a federal judge approved for her last month. . . . The conference, a nonprofit company, makes multiple-choice portions of the bar exam that most states use. Enyart is not due to start the first of those sections until Saturday. . . . Enyart, 32, a law clerk at Disability Rights Advocates in Berkeley, suffers from macular degeneration and retinal dystrophy and was declared legally blind at 15. At UCLA Law School, where she graduated last year, she took tests on a laptop with software that magnified the text and read the words into earbuds.

Proposed Changes to Psychiatric Manual Stir Lawsuit Fears

Tresa Baldas, The National Law Journal

02-12-10 -- Employment lawyers are shaking their heads over this one: The American Psychiatric Association wants binge eating and excess gambling to be considered psychiatric disorders. The group has proposed that the problems be listed in the manual that's used nationwide to diagnose and treat mental disorders. . . . The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders won't be published until 2013. The draft of the document, which was released Feb. 10, will be displayed for public comment until April 20 at www.dsm5.org. . . . Lawyers have plenty to say about the proposed disorders, which, some argue, could open up the door for yet more disability suits in the workplace.

FEDERAL COURTS

Judge Divides Up the Money in Sears' Record-Setting ADA Settlement

Lynne Marek, The National Law Journal

02-09-10 -- A federal judge in Chicago late last week gave final approval to the allocation of $6.2 million among 235 former Sears, Roebuck & Co. employees in the largest settlement ever reached by the Equal Employment Opportunity Commission in an Americans with Disabilities Act class action. . . . The former workers, who said the company fired them after they went on disability leave, will receive between $2,500 and $122,500 each, depending on their individual circumstances, according to the allocation approved by U.S. District Judge Wayne Andersen of the Northern District of Illinois on Feb. 4. The workers will receive the money in the next two months. Overall settlement of the case with a consent decree was reached and announced last September.

TEXAS

Man Sues for Extra Time on LSAT, Claiming ADHD

Brenda Sapino Jeffreys, Texas Lawyer

02-04-10 -- A prospective law school student who alleges he has a disability filed a suit in U.S. District Court in the Western District of Texas, seeking a court order to force the Law School Admissions Council to provide him with accommodations under the Americans with Disabilities Act for the Law School Admissions Test. . . . Matthew Scott Jones of Austin, Texas, alleges he was scheduled to take the LSAT in 2009 in Austin, but he didn't take the test because the LSAC "has illegally refused and is illegally refusing to accommodate Jones' learning disability by refusing to provide Jones additional time to take the LSAT." He alleges he was diagnosed with attention deficit hyperactivity disorder and his disability impairs his reading ability and his ability to concentrate "to the point that his competence level is below that expected in comparison to most people."

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January 2010

CALIFORNIA

Judge Sides With Blind UCLA Law Grad,
OKs Software to Read Bar Exam

By Martha Neil, ABA Journal

01-29-10 -- Stephanie Enyart isn't yet admitted in California, but the University of California-Los Angeles School of Law grad has already won what presumably is her first case. . . . A federal judge in San Francisco ruled today that Enyart, who is blind, has a right to use the screen-reader computer software she wants when taking the Multistate Bar Examination portion of the California bar exam, the Associated Press reports. . . . The National Conference of Bar Examiners, which administers the test in the state, said it had done enough to accommodate Enyart by giving her extra time on the Multistate and providing a human being to help her read her computer screen.

FEDERAL COURTS

Basketball Camp's Exclusion of HIV-Positive Boy Ruled Discrimination

Mark Hamblett, New York Law Journal

01-22-10 -- An HIV-positive 10-year-old boy was discriminated against when he was denied admission to a Rockland County, N.Y. basketball camp, a federal judge has ruled. . . . Judge Donald C. Pogue granted a motion for declaratory relief on the boy's behalf against the Deer Mountain Day Camp, finding that the camp had violated the Americans with Disabilities Act (ADA). . . . "The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection," Pogue said. "But this obligation does not excuse defendants' actions when based on unsubstantiated fears." . . . Pogue, a judge on the Court of International Trade who was sitting by designation in the Southern District of New York, made his ruling in Doe v. Deer Mountain Day Camp (pdf), 07 Civ. 5495.

CALIFORNIA

Blind Law Grad Sues Over Bar Exam’s Human, Rather than Computer, Readers

By Debra Cassens Weiss, ABA Journal

01-06-10 -- A blind graduate of UCLA law school plans to take the bar exam in February, and she hopes she will be able to use a computer program that reads the text aloud. . . . The State Bar of California allows use of the computer assisted reader for its section of the exam, but the National Conference of Bar Examiners is requiring a human reader for its multistate portion of the test, the Los Angeles Times reports. . . . Stephanie Enyart claims in a lawsuit that the computer-assistance ban violates the Americans with Disabilities Act and California's Unruh Civil Rights Act. She told the Times that she encountered problems when a human reader provided for the Law School Admissions Test was suffering from a cold.

A Victims-of-Law Advertiser

December 2009

CALIFORNIA

Caltrans settles lawsuit over disabled access

The agency proposes to spend $1.1 billion to ease use of sidewalks, crosswalks and park-and-ride facilities. A judge and federal officials must review the 30-year deal.

By Dan Weikel, Los Angeles Times

12-23-09 -- In a landmark court settlement proposed Tuesday, Caltrans agreed to spend $1.1 billion over the next 30 years to repair and improve state-controlled sidewalks, crosswalks and park-and-ride facilities so they are accessible for people with disabilities. . . . The settlement, filed at the federal courthouse in Oakland, was a major victory for civil rights activists, who have been battling for years with the transportation agency to provide equal access to public rights-of-way for the blind and those who use wheelchairs, canes or walkers. . . . Advocates said they hoped that the agreement would become a national model for resolving disputes between the disabled and other state and local governments. . . . The class-action lawsuit that sparked the settlement has been closely watched by local officials and powerful municipal organizations, such as the National League of Cities and the League of California Cities. The groups have long contended that such lawsuits unnecessarily burden financially strapped cities that are already struggling to comply with federal and state access requirements.

ILLINOIS

Disabled mom fighting to keep her son

Can a quadriplegic woman be a good parent? Her ex-boyfriend filed a custody suit that says no.

By Sara Olkon, Chicago Tribune reporter

12-20-09 -- Kaney O'Neill knows she has limits as a mother. . . . The 31-year-old Des Plaines woman cannot walk, move her fingers independently or feel anything from the chest down. A decade ago, O'Neill was a Navy airman apprentice when she was knocked from a balcony during Hurricane Floyd, leaving her a quadriplegic. . . . When she discovered she was pregnant last December, she felt fear and joy, a journey the Tribune chronicled in August. She quickly embraced the opportunity to raise a child, feeling she had the money and family support to make up for her paralysis. . . . David Trais, her ex-boyfriend and the 49-year-old father of their now 5-month-old son, disagreed that she was up to the challenge. . . . In September, Trais sued O'Neill for full custody, charging that his former girlfriend is "not a fit and proper person" to care for their son, Aidan James O'Neill. . . . In court documents, Trais said O'Neill's disability "greatly limits her ability to care for the minor, or even wake up if the minor is distressed." . . . O'Neill counters that she always has another able-bodied adult on hand for Aidan -- be it her full-time caretaker, live-in brother or her mother. Even before she gave birth to Aidan, O'Neill said, she never went more than a few hours by herself.

October 2009

NEW YORK

Justice for the Mentally Disabled

New York Times Editorial

10-20-09 -- After eight years of the Bush administration using the power of the Justice Department to undermine civil rights laws, it is good to see the department applying one of those laws, the Americans With Disabilities Act of 1990. It has started a timely new initiative aimed at full enforcement of that law, which forbids unjustified isolation of the mentally disabled and requires that they be integrated into the wider community where appropriate. . . . The initiative is having its coming-out party in New York, where Justice Department lawyers are seeking to intervene in a closely watched federal lawsuit involving thousands of mentally ill people being held in privately run adult homes. A federal judge recently described them as “even more restrictive or ‘institutional’ than psychiatric hospitals” that they were intended to replace. . . . In a ruling last month, the federal judge, Nicholas Garaufis, painted a dismaying picture of adult “homes” that in no way complied with federal law and that were more like jails than houses. In these places, mentally ill people who did not present a danger to themselves or to others had little of the privacy, freedom or enriching activities that would help them develop full, independent lives.

Debate grows over what defines a service animal

A service snake's days as a seizure-alert animal may end as the Department of Justice once again tries to define what animals provide a legitimate service to the disabled.

By Nancy Bartley, Seattle Times staff reporter

10-19-09 -- When Daniel Greene has a seizure coming on, he says a hug can help stop it. . . . As he walks through the small Agate Store near Shelton, a nearly 5-foot boa constrictor coiled around his neck, even a customer walking within a foot of him doesn't notice the snake. It's a different matter, however, at Burger King. . . . Greene, 46, approaches the counter, but the manager orders him and his snake off the property before he can place his order. Redrock the boa, Greene says angrily, is a service snake who alerts him to pending seizures by giving him a hug. The snake had been seeking the dark confines of Green's coat sleeve. At that moment, Redrock pulls his head out and stiffens. . . . "He's alerting me," Greene says. "I need to sit down." But instead, he walks across the parking lot toward a pet store, speaking comforting words to the snake and kissing its head. . . . As a service snake, Redrock is protected under the Americans with Disabilities Act (ADA). But the Department of Justice (DOJ) again is trying to define service animals, and Redrock may lose his status, which at least in theory allows him to accompany Greene into stores, restaurants, theaters and other public places.

The Secret World of Deaf Prisoners

The Crime Report, Commentary, James Ridgeway, New America Media

Editor's Note: The deaf face a nightmare when they fall into the criminal justice system, writes investigative journalist James Ridgeway. The following is a special report written for The Crime Report, a publication of the Center on Media, Crime, and Justice at John Jay College for Criminal Justice, City University of New York. It originally appeared in Ridgeway's blog.

10-14-09 -- In the 1970s, an antiwar demonstrator found himself at New York City’s Rikers Island jail facility for a couple of months on a disorderly conduct charge. The demonstrator, who happened to be a friend of mine, met a handful of young men from the Bronx in his unit who were deaf. . . . They were having trouble communicating with anyone but themselves. My friend knew a little sign language and, after a few conversations, discovered they were illiterate. With the idea of helping them improve their communication skills, he asked prison authorities for permission to order books on sign language from the publisher. The wardens refused, saying that they did not want anyone in that prison using a “language” they could not understand. . . . Things may have changed a little for the better since then. But not by much. . . . I first wrote about the deaf in the late 1960's in the New Republic and so I know something of the background which is what really informs this article. While researching stories about solitary confinement at Angola Prison for Mother Jones, I came upon an article in Prison Legal News about widespread violations against deaf prisoners. Remembering the people and culture I had caught a glimpse of in the '60s, I got in touch with the article’s author, McCay Vernon. Luckily he remember my earlier writing, and promptly agreed to help me.

FLORIDA

Fla. Judge's Ruling Scoots Segways From Magic Kingdom

Andrew Longstreth, The American Lawyer

10-8-09 -- There's no place in the Magic Kingdom for stand-up motor scooters. . . . For the last couple of years, a class of disabled people has been dueling with Walt Disney over Disney's ban of Segway scooters at its theme parks in Florida. The two sides reached a settlement last December in which Disney agreed to acquire a small fleet of stand-up scooters. Orlando federal district court Judge Gregory Presnell gave the deal preliminary approval, but then had a change of heart. On Tuesday he voided the settlement and threw out the suit. Here's his ruling. . . . Presnell's rejection of the deal followed objections to the proposed settlement by nearly 100 individuals and disability rights groups who expressed a preference for the Segway, which riders direct via shifts in body weight, over the scooters Disney agreed to acquire, which have four wheels and are operated by hand controls.

September 2009

NEW YORK

Defendant Asserting Zoloft Defense Found Guilty of Assault

Vesselin Mitev, New York Law Journal

9-24-09 -- A Nassau County jury Wednesday rejected a defendant's claim that withdrawal from the antidepressant Zoloft had driven him to beat up his girlfriend. . . . After deliberating for three hours, the jurors found Brandon Hampson, 39, guilty of third-degree assault, a misdemeanor. Hampson also was found guilty of third-degree attempted assault and second-degree harassment, but acquitted of menacing and unlawful imprisonment charges by the panel of three men and two women. . . . Hampson, who did not testify during the two-week trial in Nassau County, said in a courthouse interview that his then-girlfriend, Lisa Essling, had urged him to go off the prescription antidepressant before the Aug. 25, 2006 altercation.

NORTH CAROLINA

EEOC Sees Mental Health Stereotypes at Work

Tresa Baldas, The National Law Journal

9-24-09 -- The federal government is suing a North Carolina employer for what it calls a pervasive problem in the workplace: discrimination against employees with mental illness. . . . In the federal suit filed Sept. 21 in the Eastern District of North Carolina, the Equal Employment Opportunity Commission contends that the Smith International Truck Center relied upon "myths, fears and stereotypes about mental impairments" when it unlawfully terminated an employee who took leave for a mental health issue. . . . According to the suit, the employee, Stephen Kerns, took one week off from work to obtain medical treatment and get his dosage adjusted for medicine he took for what the complaint calls a mental impairment. The man then returned to work with no restrictions, but was fired shortly thereafter, according to the EEOC.

MINNESOTA

Abercrombie's appeal in MOA autism case thrown out on mail glitch

By James Eli Shiffer, Star Tribune

9-23-09 -- Abercrombie & Fitch's appeal of a $115,264 fine for discriminating against a disabled teenage customer was thrown out last week because the company failed to send a document by certified mail. . . . The Minnesota Department of Human Rights announced this month that it had penalized the clothing retailer after it didn't let Molly Maxson, an autistic teenager from Apple Valley, be accompanied by her sister in a fitting room at its Mall of America store in 2005. Store employees would not relent, even after Molly's sister and mother explained that, because of her disability, the 14-year-old could not be alone.

NEW YORK

Jury Weighs Conflicting Opinions on Link of Zoloft Use to Violence

Vesselin Mitev, New York Law Journal

9-22-09 -- Jurors in the assault trial of a Long Island, N.Y., man will have to weigh the drastically different opinions of two Harvard-educated psychiatrists to determine whether the popular antidepressant Zoloft can trigger a violent episode. . . . Brandon Hampson, 39, is facing misdemeanor assault charges for allegedly beating his girlfriend and preventing her from leaving his home in August 2006 after she refused to have sex with him. Hampson claims that he was going through Zoloft withdrawal at the time and did not intend to assault the woman. . . . In a packed Hempstead, N.Y., courtroom on Friday, Dr. Douglas Jacobs, the prosecution's expert, repeated his opinion that no generally accepted scientific evidence supports the defendant's claim.

INDIANA

Obese Employees Injured at Work Add on Weight-Loss Surgery

Tresa Baldas, The National Law Journal

9-16-09 -- Two recent court rulings have employers on edge about employees with serious weight problems because one little accident may force them to pay thousands to get the weight off. . . . That's what's happened to an Indiana pizza shop, which on Sept. 14 filed a petition for a rehearing after an appellate court ordered it to pay for a 340-pound employee's weight-loss surgery to ensure the success of a separate operation for a work-related back injury. . . . The Indiana Court of Appeals on Aug. 6 had held that The Gourmet Pizza must pay for the $20,000-plus lap-band surgery for Adam Childers, an obese cook who was hit in the back by a freezer door at work. Doctors had deemed the weight-loss surgery necessary before proceeding with the back operation. . . . The court found that the pre-existing condition of obesity combined with the accident at work to create a single injury.

INDIANA

Pizza Shop Must Pay for Worker’s Weight-Loss Surgery, Appeals Court Says

By Martha Neil, ABA Journal

9-10-09 -- A pizza shop must pay for a worker's weight-loss surgery, an Indiana appeals court has ruled in a case that is making headlines, because an on-the-job back injury contributed to his subsequent obesity. . . . If Adam Childers doesn't have the weight-loss surgery, doctors say, the back surgery he needs as a result of a workplace injury won't be successful. Plus, he gained additional weight because the immobilizing back pain he experienced after being hit by a freezer door at Boston's Gourmet Pizza made it impossible for him to exercise, the Indiana Court of Appeals recounts in a written opinion (PDF) on the case.

FEDERAL COURTS

Brooklyn Federal Judge orders state to find new housing for thousands of mentally ill adults

BY Scott Shifrel , Daily News Staff Writer

9-9-09 -- A federal judge ordered the state Tuesday to find new homes for more than 4,000 mentally disabled New Yorkers who are being stashed in poorly run, seedy adult homes. . . . The group homes - some holding hundreds of patients - were designed to replace the city's notoriously grim mental-health institutions. . . . Instead, they did little to improve the lot of their residents, Brooklyn Federal Judge Nicholas Garaufis ruled. . . . The state has "denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs," Garaufis wrote in a 210-page decision.

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August 2009

FLORIDA

Mom's Suit Claims Son Voted out of Kindergarten

Travis Reed, The Associated Press, Law.com

8-28-09 -- A woman who claims her 5-year-old was kicked out of his kindergarten class after the teacher held a "'Survivor'-style vote" among fellow students about his disruptive behavior on Thursday sued the teacher, school officials and others. . . . Melissa Barton said that on May 21, 2008, her son Alex was "forced to stand in front of his peers and be told why 'they hated him,' with such comments as (Alex) is 'disgusting' and 'annoying,' 'He eats crayons,' 'Lies on the floor,' 'He eats paper' and 'He eats his boogers.'" . . . The boy didn't return to the class and finished the year in homeschooling. . . . The complaint in federal court in Florida's Southern District targets the St. Lucie County School Board, teacher Wendy Portillo, the principal and vice principal at Morningside Elementary in Port St. Lucie, Superintendent Michael Lannon, the local head of education for special needs and St. Lucie County Classroom Teachers Association and Classified Unit. . . . Alex Barton was diagnosed with a form of autism called Asperger's syndrome after the incident, in which classmates voted 14-2 against him. The lawsuit alleges the school caused emotional distress and neglected Alex's equal protection and Americans with Disabilities Act rights.

OHIO

Squire Sanders Turns the Tables on Serial ADA Plaintiff

Andrew Longstreth, The American Lawyer

8-26-09 -- Bonnie Kramer has been a plaintiff in more than 100 Americans with Disabilities Act suits, but she has rarely, if ever, been subjected to the kind of extensive discovery requests that The Mid-America Management Corp.'s lawyers at Squire, Sanders & Dempsey have put her through in her case against the real estate management company. Her inexperience shows. In an opinion dated Aug. 20, Cleveland Federal District Court Judge Donald Nugent granted Midamco's motion for summary judgment and dismissed Kramer's claims, citing evidence provided by Squire Sanders that contradicted a host of statements Kramer made at her deposition. . . . The case is not over, however. In an earlier decision, Judge Nugent ruled that Midamco can proceed with a counterclaim against Kramer, her lawyers, her expert witness and an organization Kramer purported to be affiliated with called Disabled Patriots of America, which had been a co-plaintiff in the case. Midamco is alleging abuse of process, fraud, civil conspiracy to commit fraud, spoliation and Racketeer Influenced and Corrupt Organizations violations.

FEDERAL COURTS

Federal Judge Urges Deal in Suit Over Vets' Mental Health Services

California Healthline

8-13-09 -- On Wednesday, a federal appeals court judge in San Francisco urged lawyers for two military veterans' advocacy groups to reach an agreement with the Department of Justice on improvements to veterans' mental health care, the San Francisco Chronicle reports. . . . In 2007, Veterans for Common Sense and Veterans United for Truth filed a lawsuit against the Department of Veterans Affairs, saying that the agency failed to provide adequate mental health treatment to thousands of military members because of unnecessary exam requirements, referral and treatment delays, and a complicated benefits system. . . . The groups said VA has a backlog of 900,000 disability claims and it takes an average of more than four years to make decisions on veterans' appeals for benefits. The agency also does not allow veterans to hire lawyers to represent them in their initial claims, according to the groups.

July 2009

CALIFORNIA

Calif. Bar Backs Down Against Quadriplegic Student

Underdog media star's legal battle got a boost in the form of a press release by Gov. Arnold Schwarzenegger

Cheryl Miller, The Recorder

7-28-09 -- In honor of the first morning of California's three-day bar exam, we offer this related question: When is an application complete? . . . The answer, it turns out, depends upon money, bureaucracy, a feisty governor and an underdog media star. And, oh yes, the state Supreme Court. . . . The justices late Monday ordered the State Bar to allow Sara Granda, a 29-year-old quadriplegic, to take the bar exam that starts today. The decision ended a tumultuous four-day legal battle for the graduate of UC-Davis School of Law. . . . Granda submitted her online exam application earlier this summer but left blank a space for credit card payment information. Granda, whose sole source of income is a monthly disability payment, doesn't have a credit card and contends that the state Department of Rehabilitation paid her $648 application fee.

INDIANA

Lawsuit Claims Indiana Law Examiners Violate the ADA

The case mirrors actions in other states that have challenged mental health questions violating the Americans with Disabilities Act

Leigh Jones, The National Law Journal

7-9-09 -- The American Civil Liberties Union of Indiana has launched a class action against that state's board of law examiners, asserting that inquiries into the mental health of those seeking a law license violate federal disabilities law. . . . The ACLU filed the lawsuit on Tuesday on behalf of a woman licensed in Illinois who is seeking admission to the Indiana State Bar Association. Identified as "Jane Doe" in the action, the plaintiff seeks an injunction prohibiting the Indiana State Board of Law Examiners from asking certain questions about mental fitness. She also seeks a declaratory judgment that the questions on the application and the board's follow-up procedures violate the Americans with Disabilities Act. . . . The case mirrors actions in other states that have challenged certain questions regarding mental health on professional license applications. Similar challenges have resulted in the removal or modification of such questions in Maine, New Jersey and Rhode Island. . . . The Indiana application asks, among other questions, whether an applicant has been treated or diagnosed "for any mental, emotional or nervous disorders" at any time from age 16 to the present. It requires applicants who answer affirmatively to provide detailed information about the type of problem and in some cases to submit to evaluation by the Indiana Supreme Court's Judges and Lawyers Assistance Program.

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June 2009

UNITED STATES SUPREME COURT

Supreme Court Sides With Student's Family in Special Ed Funding Case

Zach Lowe, The American Lawyer

6-23-09 -- Experts are already debating the impact of Monday's U.S. Supreme Court ruling in a case pitting the family of a special needs high school student (and his legal team at Bingham McCutchen) against the school district that had been ordered to pay the student's hefty private school tuition (and the district's lawyers at Sidley Austin). . . . Educators and public school officials everywhere were watching the case, and they had claimed that millions -- maybe hundreds of millions -- of public money was at stake. If that's so, public officials might be cringing today, because the Court sided, 6-3, with the student's family and Bingham. . . . The ruling upholds a decision from the 9th U.S. Circuit Court of Appeals mandating that the school district pay $65,000 for the boy's private school tuition.

MICHIGAN

Michigan Class Action Settlement on Autism Treatment Hailed as Landmark Case

Tresa Baldas, The National Law Journal

6-23-09 -- In what plaintiffs lawyers are calling a landmark autism case, a Michigan insurance company has agreed to reimburse at least 100 families for costs involving treatments for their autistic children. . . . The $1 million class action settlement from Blue Cross Blue Shield of Michigan comes amid a legislative wave in which a growing number of a states are passing laws that require insurance companies to pay for autism treatments and screenings. To date, 13 states have such laws, the most recent being Connecticut, Colorado and Nevada. New Jersey is currently considering an autism bill, and Pennsylvania's law goes into effect July 1. . . . The June 17 Michigan settlement, meanwhile, has autism advocates hopeful that insurance companies will stop claiming that behavioral therapy for autistic children is experimental, and start paying for it.

CALIFORNIA

ADA Damages Suits Don't Require Intent,
Calif. Supreme Court Rules

Mike McKee, The Recorder

6-12-09 -- Businesses that violate the Americans with Disabilities Act, even if unintentionally, can be sued for damages, the California Supreme Court ruled unanimously on Thursday. . . . Justice Kathryn Mickle Werdegar concluded that was a reasonable interpretation of the state Legislature's decision in 1992 to adopt Civil Code §51(f) to amend the state's Unruh Civil Rights Act to include violations of the ADA. While the ADA provides only injunctive relief whether the harm was intentional or not, Section 52 of the Unruh Act provides for damages of at least $4,000 or as much as three times the actual harm. . . . "By incorporating the ADA into the Unruh Civil Rights Act, California's own civil rights law covering public accommodations, which does provide for ... a private damages action," Werdegar wrote, "the Legislature has afforded this remedy to persons injured by a violation of the ADA."

TEXAS

269 punished last year for mistreating disabled

By Jeff Carlton, Associated Press, Chron.com

6-12-09 -- Nearly 270 employees were fired or suspended for abusing or neglecting residents of large, state-run institutions for the mentally disabled in Texas, according to records obtained by the Associated Press. . . . The revelations Friday come a day after Gov. Rick Perry signed legislation aimed at improving security and oversight at the 13 institutions, known as state schools. They are home to about 4,600 residents and more than 12,000 full-time employees. . . . Documents obtained by the AP through an open records request show that 11 of the 268 firings or suspensions were considered serious because they involved physical or sexual abuse that caused or may have caused serious physical injury. Employees may also be fired for a violation as mild as neglecting to protect a resident with mobility problems from stumbling into a wall. . . . “I think what the number of firings and suspensions say is we do not tolerate abuse or neglect in our state schools,” said Cecilia Fedorov, a spokeswoman with the Department of Aging and Disability Services, which oversees the schools. . . . It was not clear Friday whether any of those fired were prosecuted.

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May 2009

FEDERAL COURTS

Judge McConnell Leaving 10th Circuit Bench

Expelled Student's ADA Claim Against Law School Can Proceed

Additional claims are based on the the Massachusetts Equal Rights Act and the federal Rehabilitation Act

Sheri Qualters, The National Law Journal

5-5-09 -- A Massachusetts federal judge recently ruled that Americans with Disabilities Act and related claims against New England Law | Boston can move forward in a lawsuit against the school for expelling a student with learning disabilities who failed two courses. . . . On April 29, District Judge Nathaniel M. Gorton of the U.S. Court for the District of Massachusetts denied the law school's motion to dismiss three claims: an ADA claim; a claim based on the federal Rehabilitation Act barring discrimination in programs receiving federal money; and a Massachusetts Equal Rights Act claim. Gorton's order also dismissed three other claims, including breach of contract; violations of the Massachusetts Constitution's Declaration of Rights; and violations of the Massachusetts Consumer Protection Act. Brodsky v. New England School of Law, No. 1:09-cv-10007 (D. Mass.)

April 2009

FEDERAL COURTS

11th Circuit: Doctors Don't Trump State on Medicaid Care for Children With Disabilities

Alyson M. Palmer, Fulton County Daily Report, Law.com

4-28-09 -- A federal appeals panel has declared that treating doctors don't have the final say in how much nursing care the state must provide children with disabilities under Medicaid. . . . Friday's ruling by the 11th U.S. Circuit Court of Appeals reversed a district judge's decision that had said the state must provide the amount of nursing care that a North Georgia girl's doctor said she needs. . . . Despite a slew of amicus briefs by state governments and Medicaid plan administrators, the panel dispatched the case in a two-page, unpublished, unsigned opinion that came out a month after oral argument. . . . Holland & Knight partner Robert S. Highsmith Jr., who represented a pro-state friend of the court that provides managed care services for Medicaid programs, said his client, WellCare of Georgia, had been concerned about language in U.S. District Judge Thomas W. Thrash Jr.'s ruling that suggested anything ordered by a treating physician is medically necessary under the law. "That one sentence just had to get reversed," said Highsmith. "We are very excited that they saw and reversed that clear error."

Advocates for blind protest loss of Kindle's voice function

by Greg Sandoval, CNET News

4-7-09 -- The controversy regarding the text-to-speech function offered by Amazon.com's Kindle 2 digital book reader appears to be heating up again. . . . Groups advocating for the blind and reading disabled on Tuesday held a protest at the Manhattan offices of the Authors Guild. The guild was very vocal in opposing the text-to-speech technology in the Kindle. The group, which represents 4,000 authors, argued that the Kindle infringes on copyright and could hurt audio book sales. . . . The whole debate seemed to be over in February when Amazon appeared to give in. The Web's largest retailer said it had decided to enable publishers with the power to disable Kindle's text-to-speech function on a per-title basis. . . . Text-to-speech enables computers to read text in a lifelike voice.

Henry Winkler tells kids how he copes with a learning disability: 'One ... word ... at ... a ... time'

by Ben Horowitz/The Star-Ledger

4-6-09 -- In the world of special education, Henry Winkler is as big a hero today as he was on television's "Happy Days" 30 years ago, when his role as the leather-jacket-wearing, motorcycle-riding "Fonz" made him one of the nation's most popular actors. . . . Winkler had to overcome a case of severe, undiagnosed dyslexia to pursue his career. . . . "Every one of you has greatness in you," Winkler, now 63, said recently in Short Hills, at a talk sponsored by the Winston School, a private school that serves students with dyslexia and other learning disabilities. . . . "It doesn't matter if you don't get a subject," he told the audience, which included many of the school's first-grade to eighth-grade students. "How you learn has nothing to do with how great you are. Your job is to find out what your gift is, what your contribution will be."

NEW YORK

Polio Victim's 30-Year Crusade Garners $22.5 Million Award

Mark Fass, New York Law Journal

4-2-09 -- In May 1979, Elizabeth Tenuto brought her 5-month-old daughter, Diana, to a Staten Island, N.Y., pediatrician for her second dosage of an oral polio vaccine. . . . A month later, Ms. Tenuto's husband, Dominick, contracted polio, apparently by touching Diana's stool while changing her diaper. . . . Now, three decades after becoming permanently paralyzed, Mr. Tenuto has won a $22.3 million verdict in New York state court against Lederle Laboratories, the giant pharmaceutical company he claims negligently manufactured the vaccine Orimune and failed to adequately warn doctors of its dangers. . . . The court action brought by Mr. Tenuto and his wife, Tenuto v. Lederle Laboratories, 001134/1981, finally went to trial in February before Supreme Court Justice Joseph Maltese. . . . After Mr. Tenuto's lead trial counsel, Benedict Morelli, finished summations, Lederle offered $10 million to settle.

March 2009

NEW YORK

Woman Who Failed to Disclose Depression Cannot Collect Unemployment Benefits, Appeals Court Rules

Joel Stashenko, New York Law Journal

3-27-09 -- A woman who did not disclose that she suffered from depression to the employer that fired her for excessive absenteeism cannot collect unemployment insurance benefits, or argue that her rights were violated under the Americans with Disabilities Act, a New York appeals court has ruled. . . . The Appellate Division, 3rd Department, let stand a finding by a state administrative law judge that Mawuli Anumah's failure to inform her employer about her mental illness constituted misconduct disqualifying her from benefits. The court also upheld two affirmations of the hearing officer's decision by the Unemployment Insurance Appeal Board. . . . Anumah's appeal was supported by several mental health organizations, which argued that her failure to disclose her condition was "beyond her control."

UNITED STATES SUPREME COURT

ADA Amendments Mean Employers Need to Be More Cautious

Robert M. Behrendt, Texas Lawyer

3-6-09 -- In the ADA Amendments Act of 2008, which President George W. Bush signed into law on Sept. 25, 2008, Congress amended the Americans With Disabilities Act, 42 U.S.C. §12101, et seq. , to be consistent with its original intention of "providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and to "provide broad coverage." . . . The amendments, which became effective on Jan. 1 and apply to conduct after that date, substantially change "how employers and courts are to evaluate ADA claims," noted Judge Robert James of the U.S. District Court for the Western District of Louisiana, Monroe Division, in December 2008 in Knox v. City of Monroe . . . . By rejecting the narrow and exacting holdings in two U.S. Supreme Court cases and then expanding key definitions in the ADA, the amendments significantly broaden the protective scope of the ADA. As a result of the new law, employers should take a more cautious approach in their employment practices and decisions and should expect an increase in the number of disability discrimination claims asserted by employees.

February 2009

CALIFORNIA

Blind law student sues Law School Admissions Council over accessibility

Sheri Qualters / Staff reporter

2-20-09 --The National Federation of the Blind and a blind law school applicant filed a discrimination lawsuit against the national law school admissions test administrator, The Law School Admissions Council, in a California Superior Court. . . . The lawsuit, which was filed on Feb. 19 in Alameda County, claims that the Newtown, Pa.-based admissions council violates two California laws requiring equal access to disabled persons because its Web site and Law School Admission Test (LSAT) preparation materials are inaccessible to the blind. National Federation of the Blind v. Law School Admissions Council Inc., No. RG-09436691 (Alameda Co., Calif., Super. Ct.). . . . The lawsuit's claims include alleged violations of California's Disabled Persons Act and California's Unruh Act, which requires businesses to offer equal accommodations and facilities to disabled persons. The plaintiffs are also asking the court for a declaratory judgment stating that California laws require the admissions council to provide blind persons equal access to its Web site.

FEDERAL COURTS

Judge in autism case injects insult to Sarah Palin

By Thomas Zambito, Daily News Staff Writer

2-6-09 --A federal judge got political Wednesday, taking a swipe at Sarah Palin while powwowing with lawyers in the case of an autistic boy whose parents are fighting a ban on big dogs at their luxury upper East Side building. . . . Manhattan Federal Judge Naomi Reice Buchwald blasted the Alaska governor and former vice presidential candidate for bringing her Down syndrome child on stage after a debate. . . . "That kid was used as a prop," Buchwald told lawyers during a hearing on Wednesday. "And that to me as a parent blew my mind." . . . Buchwald, a 62-year-old Democrat appointed by former President Bill Clinton, said Palin should have put her child to bed. Such conferences are often held behind closed doors, but Buchwald held yesterday's session in open court. "Tell me who told the reporter," Buchwald demanded after realizing her words were on the record.

January 2009

NEW YORK

2nd Circuit: Disabled Attorney Entitled to Fees for 10-Year Fight for Benefits

Left with memory loss and severe pain as a result of a car accident while on business as a Weil associate, the lawyer stopped working in '91

Mark Hamblett, New York Law Journal

1-27-09 -- Bad faith by an insurance company means that a disabled lawyer will receive attorney fees incurred during the 10 years he fought for long-term disability benefits. . . . Zbigniew Slupinski, formerly of Weil Gotshal & Manges, prevailed in his lawsuits in 2005 and 2006 against the First Unum Life Insurance Co. for long-term benefits, but he was denied fees and prejudgment interest by Southern District of New York Judge Thomas P. Griesa. . . . However, the 2nd U.S. Circuit Court of Appeals said Griesa erred and it reversed him in Slupinski v. First Unum Life Insurance Co., 05-5849 and 06-4178-cv. The appeal was decided by Judges Amalya Kearse, Guido Calabresi and Robert Katzmann, with Judge Kearse writing for the court. . . . Slupinski was working for the firm as an associate in August 1991 when, while on business in Poland, the taxi he was riding in collided with another vehicle. Slupinski was thrown from the taxi into the street, where he was run over by another car. He suffered several injuries, including what turned out to be permanent damage to his left arm.

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The American with Disabilities Act has made it possible for more people to be out in the world: working, shopping, eating in restaurants, getting to and from the doctor’s office and more.

In spite of the positive strides made through the Disabilities Act, Congress has allowed a huge chunk of the population fall through the cracks – rendering them defenseless against workplace discrimination. Take Action >>

There are 20.8 million children and adults in the United States, or 7 percent of the population, who have diabetes.

Unfortunately, courts have been throwing out diabetes discrimination cases because of an absurd Catch 22, siding with employers who claim that a person with diabetes is "too disabled" to do the job, but not "disabled enough" to be protected by the laws!

It’s clear Congress intended to protect people with diabetes and other chronic diseases from discrimination when they passed the Americans with Disabilities Act in 1990.

Tell the Senate to Support "The Americans with Disabilities Restoration Act" today >>

Thank you,
Breeana L.
Care2 and ThePetitionSite Team

DISABILITY LAW NEWS & VIEWS ARCHIVES

DISABILITY ADVOCATES

The Bazelon Center for Mental Health Law is a national legal advocate for people with mental disabilities. Through precedent-setting litigation and in the public policy arena, the Bazelon Center works to advance and preserve the rights of people with mental illnesses and developmental disabilities.

Center for Self-Determination: The Center for Self-Determination is not a place. It is a highly interactive working collaborative of individuals and organizations committed to the principles of self-determination. The purpose of the collaborative is to change the nature of the support and service system for individuals with disabilities, using the principles of self-determination to help all persons create the lives they want, connected to and with their communities.

Disabled Student -- the website devoted to informing and empowering physically disabled students in mainstream school settings.

Disability Resources, Org. The world's foremost gateway to disability resources on the Internet, featuring thousands of the best web site convenientally arranged by subject or state.

Freedom Clearinghouse: Our Mission is to use the Olmstead decision to free all law abiding people with disabilities from institutions to live in the community.

Hospice Patients Alliance: The Hospice Patients Alliance was formed formed by experienced hospice staff and other health care professionals who saw that hospices were not always complying with the standards of care, and in fact, were in some cases, violating the rights of patients and families and exploiting them for financial gain, or not providing adequate care to control pain or other distressing symptoms during the end of life period.

National Resource Center on Psychiatric Advance Directives

Mental Health America (formerly known as the National Mental Health Association) is the country’s leading nonprofit dedicated to helping ALL people live mentally healthier lives. With our more than 320 affiliates nationwide, we represent a growing movement of Americans who promote mental wellness for the health and well-being of the nation – everyday and in times of crisis.

NOT DEAD YET, The Resistance, NDY is a grassroots disability rights group formed to oppose the movement to legalize assisted suicide and euthanasia. ILLINOIS. Email Diane Coleman at ndycoleman@aol.com -- Email Stephen Drake at sndrake@aol.com

Road to Freedom -- The Road to Freedom is a yearlong, 50-State bus tour and photographic exhibit chronicling the history of the grassroots "people's movement" leading to passage of the Americans with Disabilities Act (ADA). . . . They are touring the United States to tell the story of the struggle for disability rights, past and present, and to promote educational and economic opportunity for children and adults with physical, mental, cognitive, sensory and developmental disabilities. . . . The Road To Freedom is a project of ADA Watch and the National Coalition for Disability Rights (NCDR).

Society for Disability Studies -- The Society for Disability Studies (SDS) is the only scholarly society devoted to disability studies as a field. Membership will keep you informed of developments in SDS, will empower you to vote on matters affecting the organization, and will link you to others in the United States and around the world who share your interests through our annual meetings and our membership directory.

World Association of Persons with Disabilities -- Whether the term is disability, disabled, disabilities, handicapped or whatever the popular "categorizing" label.... WAPD is a nonpartisan, nonprofit association under God, that represents huge portions of the one in five residents of earth that are being... ALIVE!... INVOLVED!... and EFFECTIVE!... in their daily living.

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"I do not charge the judges with wilful and ill-intentioned error; but honest error must be arrested where its toleration leads to public ruin. As for the safety of society, We commit honest maniacs to Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the republic, which is the first and supreme law."
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