Monthly Archives: September 2017

NY Times Shines Light on Nazis’ Treatment of People with Disabilities

You really need to check out the New York Times’s series on disability. It is an ongoing collection of essays about disability, written primarily by people with disabilities.
Disability – The New York Times

One of the most recent pieces, written by Kenny Nies, chronicles how it wasn’t just Jews who were targeted for extinction during the Holocaust. People with disabilities were also systematically exterminated.
The Nazis’ First Victims Were the Disabled – The New York Times

Mr. Nies also reminds us that – lest we think this philosophy was limited to Nazi Germany – the United States also has a record of punishing people for their disabilities. In the beginning of the 20th Century there were still “ugly laws” in many states, which made it unlawful for people to present themselves in public if they were too “unsightly.”
The Ugly Laws _ Disability in Public _ Books – NYU Press _ NYU Press

Mr. Neis also mentions that infamous 1927 Supreme Court decision, Buck v. Bell, when Chief Justice Oliver Wendell Holmes wrote, “Three generations of imbeciles are enough.” He was defending the Court’s decision to allow the practice of involuntarily sterilization of women who were deemed too “feeble-minded” to produce more children.

Justice Holmes also wrote, “It is better for all the world, if instead of waiting to execute degenerative offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
The Supreme Court Ruling That Led To 70,000 Forced Sterilizations _ NPR

I would not for a moment equate the ugly laws or this Supreme Court decision to the unspeakable practices of Nazi Germany. But once it becomes acceptable to think of certain kinds of people as less worthy than others, where and how does it stop?

Tammy Duckworth is a U.S. Senator from Illinois. She is also a veteran who had her legs amputated after her plane was shot down during Desert Storm.

Senator Duckworth must fly a lot in her work and she says that airline employees have damaged her wheelchairs on several occasions, including one instance when her chair collapsed while she was sitting in it.

Larry Dodson watched his 350-pound wheelchair being loaded onto the plane for his direct flight. But somehow, when the plane landed, the wheelchair was “lost.” Although it was located an hour later, Mr. Dodson had to be transferred from his seat to an uncomfortable airport wheelchair. As a result, he developed bedsores and was in bed for three days. Because of this and other similar experiences, the 70-year old quadriplegic (also a veteran) now does not feel comfortable flying. In addition to being a disheartened traveler, Mr. Dodson is Secretary of the Paralyzed Veterans of America (PVA). As such, he has heard many similar stories about airline employees damaging travelers’ wheelchairs and other mobility devices.

Because of these and many similar reports, in 2011 the U.S. Department of Transportation (DOT) issued a Notice of Proposed Rulemaking (required by law) to get public input about this issue.

During a five-year period, the DOT received information from hundreds of people who had similar experiences to Duckworth and Dodson. As a result, it issued a new regulation in November 2016, requiring airlines to track instances of mishandled wheelchairs/scooters and to make this information available to the public. In that way, people choosing which airline to fly would have more information and the airlines would have more accountability.

Even though the rule was finalized in November 2016, the DOT delayed the actual implementation period to January 2018. This was based on information it had gathered that a year was long enough to allow airlines to prepare for this new requirement.

Everything was in place and ready to go. Then Donald Trump got elected.

In December 2017, Trump’s then chief of staff, Reince Priebus,sent out a memo to all federal agencies announcing a delay in the implementation of all pending federal regulations. This would seem to exclude the above rule because it was not pending – it had already been passed. Nevertheless, in March 2017, the DOT unilaterally delayed the implementation date of this rule until January 2019.

In response, the PVA filed a lawsuit against the DOT on July 31 (a copy of which is attached). The suit alleges that in pushing back the deadline, the DOT violated the law by arbitrarily changing this rule without getting public input.

We will see how the lawsuit goes, but I can’t help thinking of something Senator Duckworth said in a letter opposing the DOT’s action: “If an airline loses a passenger’s baggage, it is a serious inconvenience. If a wheelchair or motorized scooter is damaged or lost, it represents a complete loss of mobility and independence for that passenger.”

Television show perpetuates a disturbing – and incorrect – way of thinking about the law.

Is it really that big a deal if a disabled parking space is a couple of inches shorter than the Americans with Disabilities Act (ADA) regulations say it should be?

And is it right that a business can be sued for an ADA violation if they haven’t first been given a chance to correct the problem?

I would say that the answer to both of these questions is a resounding “Yes.” The difference of a couple of inches could determine whether or not a wheelchair can be maneuvered in and out of a van. And if someone was unable to go into an establishment because it was not accessible, why should that person then have the burden of “educating” the owner about the law?

The television show “60 Minutes” addressed these issues last December. In a segment called, “What is a Drive-By Lawsuit?” Anderson Cooper interviewed some business owners who had no idea they were not in compliance until they were hit with a lawsuit. Mr. Cooper also spoke to an attorney who had filed approximately 2000 of these suits, as well as a couple of individuals with disabilities who said they had been recruited by attorneys to visit various establishments and report if they were ADA-compliant.

As an attorney myself, I just have to shake my head and wonder about these tactics. I am also concerned that this tends to camouflage the real problem: Business owners – not the people with disabilities – were made to look like the victims. It also made me think about a bill that is currently before Congress, which would not allow these kinds of public accommodation lawsuits unless the business first received written notice of the problem and given 6 months to correct it. That time period could then be extended if the business could demonstrate “substantial progress” towards compliance (see my post of September 7, 2017).

Something else on that program also confused me: The owners (and frankly, Mr. Cooper himself) seemed somewhat outraged that someone could sue a business for lack of accessibility when the person had never actually entered the premises and/or tried to use the facilities. The main example was that of a hotel without a “pool lift,” when no one with a disability had ever asked to use one.

There is first the obvious point – if a pool has a pool lift, it is usually quite visible and it is natural that a person with a disability would refrain from inquiring about one if they don’t see it. Second, it made me think of a recent instance where I attempted to enter a building, only to confront a big flight of stairs at the doorway. After determining that there was no other entrance, I grabbed the railing and slowly heaved myself and my walker up the stairs. This was quite dangerous and really pretty stupid. But if I had chosen to stay safe and leave, does that mean I should lose my right to sue because I never was “there?”

And this begs the larger question: Why does there seem to be a growing trend of thinking that people with disabilities should not have the same rights as other victims of illegalities?

Mr. Cooper did mention that a business does not have to comply with these standards unless compliance is “readily achievable.” Although that issue seemed to get lost in the rest of the drama, it is a point well worth repeating: Many accommodations do not need to be made unless they are readily achievable, which is defined as “without much difficulty or expense.” For many other accommodations, they don’t have to be made if it would cause the establishment an “undue burden” or create a “fundamental alteration.”

And although Mr. Cooper griped about the extensive and detailed regulations governing accessibility in public accommodations, he neglected to mention that these standards only apply when a business is either building a new structure or altering portions of existing ones. Studies have shown that at that stage, the cost between building an “accessible” and “non-accessible” facility is negligible. And when that is weighed against the benefits of giving access to people that have traditionally been denied it, the gains are incalculable.

For more information, see: Title III Highlights

 

Unnecessary – and Illegal – Trauma for a Hospital Patient

Who isn’t nervous before surgery? Even if your condition is not life-threatening, it is always quite unnerving to go under the knife. One of the best ways to minimize your anxiety is to ensure that you and your doctor have a good relationship and are in constant communication – both before and after the procedure.

Unfortunately, that is not what happened to “B.W.,” who checked into Highline Medical Center in 2014 for a cervical laminectomy. B.W. was deaf, and according to the complaint he filed with the U.S. Department of Justice (DOJ), the hospital did not comply with his request to have an interpreter present both before and after the surgery. The interpreter was there beforehand, but not at any other time.

:Then,” according to the findings of the DOJ, “…when the doctor tried to talk to him about his condition being worse than was thought, he was relegated to writing notes which B.W. had trouble reading because he was just out of anesthesia and had difficulty moving his neck. This included communications regarding the fact that the surgeon found more damage in Complainant’s spine than expected, necessitating a bilateral decompression. Complainant was also unable to effectively communicate regarding the significant pain he was experiencing and was unable to effectively ask questions regarding his condition. Instead, the Hospital relied upon note-writing, despite the fact that Complainant was recovering from general anesthesia, was unable to move his head or neck, and was in significant pain, and was without the use of his reading glasses or hearing aids. Highline Medical Center also failed to provide an ASL interpreter during Complainant’s discharge from the hospital. Further, Highline Medical Center failed to provide an ASL interpreter for Complainant’s companion, his wife, who is also deaf, during both of these times of critical communication. These failures caused significant distress to both Complainant and his wife.”

The DOJ put out a press release earlier this month, announcing that the case has been settled. Although the hospital did not admit any wrongdoing (which is standard in these kinds of settlements), it has agreed to rewrite its policies about interpreters and to also provide training to its employees about being ADA-compliant. So despite the trauma that B.W. and his wife went through, this story has something of a happy ending – at least for future patients.

To read the settlement agreement, click the link below.

Settlement Agreement between the United States and Highline Medical Center

Confusion and Abuse Feed off Each Other when it Comes to Service Animals

We’ve all seen or heard the bizarre stories: the dog…snake…pig…bird…that wreaks havoc when it is traveling around with its owner. But because the owner refers to it as a “service” or “emotional support” animal, everyone is afraid to complain about it.

Then we hear about the situation earlier this summer: a woman who was legally blind called AAA because her car had broken down. However,  a new AAA employee told her that her seeing-eye dog could not accompany her in the truck that was towing her car.

Fortunately this mistake was eventually rectified, after an hour and a half of argument. AAA finally allowed the dog to stay with the woman and made a public apology. For more, see:

GoLocalWorcester AAA Refused to Pick Up Blind Woman Stranded with Service Dog

There’s no question that AAA should have trained this employee better and/or made its policy more clear. So let’s clarify: This situation involved Title III of the Americans with Disabilities Act (ADA), the public accommodations section. Title III does not consider any animal to be a service animal except a dog (and in some cases, a miniature horse). Title III also specifically states that an “emotional support” animal does not qualify as a service animal.   https://www.ada.gov/archive/qasrvc.htm
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In addition, Title III does not require any license or special identification for an animal identified as a service animal, and it is illegal to demand to see such identification.

Perhaps some of the confusion is because there are other parts of the ADA (as well as other disability laws) where this distinction is not so clear and where emotional support animals may be recognized in certain cases.

Assistance Dog pushing Crosswalk button

For more information about that, go to A Guide to Disability Rights Lawshttp://www.ada.gov.).

But  I and many other disability advocates believe that a big part of the reason there is so much confusion on this issue is because, quite frankly, people abuse the law. This is not fair to people who really need the help of those animals, because it damages their credibility. It is also not fair to the countless establishments who are trying very hard to understand and comply with the law.  And I’ll leave it to others to decide whether it is fair to the animals in question.

Whatever happened to “Ignorance of the law is no excuse?”

Today, Congress is voting on a very dangerous proposed amendment to the Americans with Disabilities Act (ADA).

As indicated in the attached ACLU article, this is a bill that would prohibit someone from suing a business for noncompliance with Title III (public accommodations) unless the person first gave the business written notice and waited for six months for the business to comply. And even then, the business would still be able to delay compliance if it could show that it was making “substantial progress” towards that end.

This bill is touted as a way to stop predatory lawyers from filing frivolous damage claims under the ADA. But the problem is that with this part of the ADA, monetary damages are not allowed. The only remedy is to fix the problem (i.e, build the ramp or install the grab bars). The effect of this change would be that as long as a business could show “progress,” it could continue to delay – justice.

As citizens of this country, we are all expected to know about the laws we are expected to follow. Why should it be any different when the victims of noncompliance are people with disabilities?

Congress Wants to Change the Americans with Disabilities Act and Undermine the Civil Rights of People with Disabilities American Civil Liberties Unio

 

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Downward Dog, Anyone? Yoga for people with Mobility Impairments

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There was a time when people with multiple sclerosis were told to exercise as little as possible. Doctors thought that this was the best way to conserve our energy. We now know that the opposite is true – exercise can actually enhance our strength and flexibility. And yoga, when we perform it safely, is one of the best ways to do that.

Click on the link below if you want to learn more about this program. And let me know if you would like to publicize any other programs or activities for people with disabilities.

We are all in this together!

Multiple Sclerosis Yoga Program