JFActivist

CA: Victory! Court Protects Teacher-Advocate-Whistleblower from Retaliation

Thank you Larry Komar for contributing this information:

A new decision, Susan Barker vs. Riverside County Office of Education, (9th Cir., 10/23/09), reversed a federal district court's decision to dismiss the teacher's retaliation suit on the grounds that she lacked standing under Section 504 and the ADA.   The 9th Circuit held that a teacher that complains to her administrators and files a complaint with the US Department of Education Office for Civil Rights for violations of the students' rights is protected from harassment and retaliation under both Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act.  

After Barker complained to supervisors that the special education services provided to students with disabilities at her school  violated the special education laws, and subsequently filed a complaint on behalf of her students with OCR for violations of Section 504, she was allegedly subjected to various acts of intimidation including failure to respond to her emails and calls, excluding her from important meetings, changing her to work sites further from her home, reducing her workload and refusing to allow her to fill in for other staff.   Based on the treatment she was receiving, Barker resigned, but alleged that she was "constructively discharged."   Notably, on June 16, 2006, the Office for Civil Rights "determined that the preponderance of the evidence showed that....(the school system) retaliated against Barker in violation of Section 504 and Title II...."   Holding that Barker had standing to sue under Section 504, the court wrote, "empathetic people who teach and interact frequently with the disabled are the most likely to recognize their treatment and to advocate on their behalf."   The court also found that her actions were protected under the anti-retaliation provisions of Title II of the ADA.   The case was remanded to the district court to allow her to go forward in attempting to prove the underlying allegations in her complaint.
 
This decision is a welcome victory affirming the right of school employees to speak out when they believe that the rights of children with disabilities are being violated.   Hopefully, it will encourage other school staff that are aware of serious problems in relation to the treatment of children with disabilities to bring these complaints to their school administrators or to the OCR.

>>> For More Information on this Case

CA: Victory! Judge Halts State Cuts to Prevent "Incredible Human Suffering"

From Disability Rights California (10/19/09):

Judge Halts Home Care Cuts: Says approach would likely violate federal law and cause “incredible human suffering” to seniors and people with disabilities who need these services

Oakland, CA –U.S. District Court Judge Claudia Wilken ruled today that the state cannot go forward on November 1 with its planned cuts of In-Home Supportive Services (IHSS) to an estimated 130,000 Californians because of the substantial harm, damage and injury which would result. The Judge said that the state’s Functional Index rankings were clearly not based on need, that essential services could be withdrawn arbitrarily, and “people could lose something irreplaceable – the ability to remain safely in their homes.”

Therefore, she enjoined all IHSS cuts as requested by people who use IHSS and local unions, in the class action lawsuit, V.L. v Wagner.
 
The judge ruled that the plaintiffs were likely to show at trial that the cuts to services, enacted in the recent state budget, violate federal law. Approximately 40,000 low-income seniors and people with disabilities would have lost all their IHSS services, including personal care; another 90,000 would have lost such services as meal preparation, food shopping and help with laundry and housecleaning.
 
“We are convinced a humanitarian disaster would have resulted from the precipitous and arbitrary withdrawal of essential services approved by the legislature and the administration in the budget, and are delighted that the Court agreed with us,” stated lead counsel Melinda Bird of Disability Rights California.
 
“This is a big day for people with disabilities, their families and seniors throughout the state – their right to stay safely in their homes - and not be forced into nursing homes or other institutions - has been reaffirmed by the Court,” said Paula Pearlman of the Disability Rights Legal Center.
 
“We told the Court that the method being used to decide who would be cut was arbitrary and particularly discriminated against children with disabilities and people with cognitive or mental health disabilities”, stated Stacey Leyton of Altshuler Berzon LLP.
 
Leyton summarized: “Talking to people who use IHSS and the workers who provide IHSS, I came to realize how important this program is, and how cost-effective it is. Some receive only a few hours a week of help, but that's what enables them to stay at home and be part of their community."
 

The lawsuit was brought by 5 people who use IHSS services, on behalf of a proposed class of IHSS consumers, represented by Disability Rights California, the Disability Rights Legal Center, the National Senior Citizens Law Center, the National Health Law Program and attorney Charles Wolfinger; and by 5 SEIU locals and United Domestic Workers – AFSCME, bringing the case on behalf of IHSS providers.

Details at http://www.disabilityrightsca.org

Insurer Ends Health Program Rather than Pay for Services

From the Washington Times (10/14/09):

Insurer ends health program rather than pay out big
By William Ehart

Ian Pearl has fought for his life every day of his 37 years. Confined to a wheelchair and hooked to a breathing tube, the muscular dystrophy victim refuses to give up.

But his insurance company already has.

Legally barred from discriminating against individuals who submit large claims, the New York-based insurer simply canceled lines of coverage altogether in entire states to avoid paying high-cost claims like Mr. Pearl's.

In an e-mail, one Guardian Life Insurance Co. executive called high-cost patients such as Mr. Pearl "dogs" that the company could "get rid of."

A federal court quickly ruled that the company's actions were legal, so on Dec. 1, barring an order by the federal Department of Health and Human Services, Mr. Pearl will lose his benefits...

>>> For the Full Article

NY: Warehousing People with Psychiatric Disabilities in "Adult Homes" Violates ADA

From the NY Times (9/8/09):

State Discriminated Against Mentally Ill, Judge Rules
By JAMES BARRON

New York State discriminated against thousands of mentally ill people in New York City by leaving them in privately run adult homes, which effectively replaced state-run psychiatric hospitals more than a generation ago but turned out to be little more than institutions themselves, a federal judge ruled on Tuesday.

The judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, ruled that the state was violating the Americans With Disabilities Act by housing more than 4,300 mentally ill people in New York City in more than two dozen adult homes. He said the residents had little hope of mingling with anyone in the wider community.

The nonprofit group that sued the state had asked Judge Garaufis to tell state officials they could no longer steer mentally ill people into adult homes. He stopped short of that but directed the state to submit a “remedial plan” by mid-October.

The ruling, which applies to mentally ill people not considered dangerous to themselves or others, suggested that the state would have to begin finding individual apartments or small homes for virtually all adult-home residents who wanted one...

>>> For the Full Article

Just In: AAPD Joins Facebook Causes

From the JFA Moderator:

AAPD recently joined Facebook Causes as a way to get the word out about the disability rights movement and to make it easier for YOU, our dedicated activists, to contribute your support.

Take Action TODAY: Join or Donate to AAPD's Cause on Facebook and share these links with your friends.

>>> To Join the Movement

>>> To Support our Work

Ask the Expert: Reimbursement for Advocate Fees?

Ask the Expert: Reimbursement for Advocate Fees?

Question:

Good afternoon, I am currently paying an advocate to represent me an impartial hearing for reimbursement to private school for my son. Do u know if I am entitled to get any fees back that I pay to her. I have about 5 hearings and each are quite costly. Thanks. 

Cecile

 

 Answer: 

Cecile, 

The IDEA has a “cost-shifting” provision that says that a “court, in its discretion, may award reasonable attorney’s fees as part of the costs…to a prevailing party who is the parent of a child with a disability.”  20 U.S.C. Section 1415(i)(3)(B)(i)(I). 

You’ll notice that the language just says:  “attorney’s fees.”  On June 26, 2006, the Supreme Court in Arlington Central School District v. Murphy held that courts could no longer award expert fees and other related costs since this was not explicitly written in the law.  Therefore, were you to hire an attorney you could be reimbursed, but advocate fees are not usually reimbursed.

Furthermore, expert testimony is often critical in IDEA cases, which are fact-intensive inquiries about the child's disability and the effectiveness of the measures that school boards have offered to secure a free appropriate public education.   Unfortunately, as a result of this lack of reimbursement for expert fees, evaluations and related costs, many parents may no longer financially be in a position to advocate for their children's educational rights should such proceedings become necessary. 

In response to concerns from parents, Representative Chris Van Hollen of Maryland introduced a bill in June, to address this problem.  The IDEA Fairness Act (H.R. 2740), would allow parents to be reimbursed for reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of their IDEA case.

All information provided is of a general nature and for informational purposes only.  It should not be construed as providing legal advice and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future.  No one should act upon such information without appropriate professional advice after a thorough examination of the facts of the particular situation.  The opinions expressed in this column are the opinions of the individual author or expert, and may not reflect the opinions of AAPD or any other expert.

Submit Your Questions: If you have a question about your rights or how the law protects you, email jfa@aapd.com and list "Ask the Expert" as the subject. Questions should be no more than 200 words in length.

White House Nominates Disability Advocate

From the White House (August 6, 2009):

FOR IMMEDIATE RELEASE

President Obama Announces More Key Administration Posts
Today, President Barack Obama announced his intent to nominate the following individuals for key administration posts:

•  David C. Gompert, Principal Deputy National Intelligence Director, Office of the Director of National Intelligence
• William E. Kennard, Representative of the United States of America to the European Union, with the rank of Ambassador, Department of State
• Alan D. Solomont, Ambassador to Spain and Andorra, Department of State
• Robert J. Grey, Board Member, Legal Services Corporation
• John G. Levi, Board Member, Legal Services Corporation
• Martha L. Minow, Board Member, Legal Services Corporation
• Julie A. Reiskin, Board Member, Legal Services Corporation
• Gloria Valencia-Weber, Board Member, Legal Services Corporation

President Obama also announced that he will designate Ruth Y. Goldway, currently serving as a Commissioner on the Postal Regulatory Commission, as Chair of the Postal Regulatory Commission...

Julie A. Reiskin, Nominee for Board Member, Legal Services Corporation

Julie Reiskin is the Executive Director of the Colorado Cross-Disability Coalition (CCDC), the only statewide organization of and for people with disabilities that has a focus on systemic change. CCDC has taken a leadership role within Colorado on publicly funded long-term health care.  Ms. Reiskin has  proposed and helped to implement many solutions to create a sustainable and client friendly Medicaid program, acted as a respected  advocate for individuals and has trained many others in health advocacy and health policy.  Prior to becoming the Executive Director for CCDC in 1996, Ms. Reiskin served as the organizations’ policy analyst.  Ms. Reiskin moved to Colorado from Connecticut in 1994.  In Connecticut, she was a partner in a consulting firm, specializing in diversity issues throughout Southern New England.  She also had a private psychotherapy practice.  Previous work includes, but is not limited to, several positions working with "hard to serve" youth and positive youth development, AIDS/HIV Education, and grassroots community organizing.  Ms. Reiskin has taught extensively in the areas of disability rights, disability culture and disability policy, along with other areas related to diversity in human services. Ms. Reiskin got her Masters in Social Work from the University of Connecticut, with a major in community organizing in 1989.  She obtained a B.S. in Women’s Studies from the University of Connecticut in 1985...

>>> For the Full Release

Comment Below: ...From the JFA Moderator: Congratulations Julie! We are confident you will do a superb job in representing our community on the Legal Services Corporation Board and in guiding LSC  to seek equal access to justice for members of the disability community, to whom justice is so often denied.

Sotomayor Confirmed

From the LA Times (Aug. 7, 2009):

Sotomayor will bring unique perspective to the Supreme Court
The newly confirmed justice's experiences with a disability, economic struggles and as a prosecutor and trial judge are among several things that may set her apart from her new colleagues.
By David G. Savage and James Oliphant

Reporting from Washington -- The historic confirmation Thursday of Judge Sonia Sotomayor as the nation's newest justice will bring new perspectives to the Supreme Court, and not just because she will be its first Latino.

After three days of debate, the Senate voted 68 to 31 in her favor, with nine Republicans crossing party lines to support her.

During the debate and confirmation hearings, her experience as a Latina seemed to overshadow discussions about her qualifications. But her background will probably affect her thinking and influence her decisions in ways that were hardly mentioned in the Senate fight.

After she is sworn into office Saturday, she will be the only justice whose first language is not English. She has had diabetes since childhood -- a medical condition classified as a disability under federal law. She was raised in a Bronx housing project where drugs were more common than Ivy League college success. And the 111th justice is a divorced woman with no children...

Her diabetes and daily insulin shots it requires were not much discussed during the hearings, but that experience is bound to influence her views, some lawyers say.

"She may be a strong voice for access to healthcare," said Sylvia Lazos, a law professor at the University of Nevada, Las Vegas. "She will be a real player in the debates over what is a disability."

Advocates for those with disabilities have suffered some big defeats in the court in the last decade, and they have high hopes for Sotomayor. "We're very excited. We don't feel we have had a champion on the current court," said Andrew Imparato, president of the American Assn. of People with Disabilities...

>>> For the Full Article

AAPD Urges Senate to Support Sotomayor

August 4, 2009

Dear Senator:

I write on behalf of the American Association of People with Disabilities (AAPD) to express our strong support for the confirmation of Judge Sonia Sotomayor as Associate Justice of the Supreme Court of the United States. After extensive review of Judge Sotomayor’s disability-related rulings from her career as a trial judge and appeals court judge, along with her public statements in speeches and in interviews, AAPD’s bipartisan Board of Directors voted unanimously to support the confirmation of Judge Sotomayor because of the Board members’ belief that she will apply the law in a manner that safeguards the civil rights of all Americans, including people with disabilities. 

Judge Sotomayor has an exemplary judicial record.  Her interpretation of the Americans with Disabilities Act (ADA) demonstrates her firm commitment to protecting civil rights and safeguarding human liberty. Her opinions are thoughtful, fair, and respectfully interpret the law. As a judge on both the district and circuit courts, Sotomayor has carefully interpreted major disability rights laws like the ADA, the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA). These laws were designed to protect the civil rights of people with disabilities, and her conscientious application of these laws in her decisions shows her respect for Congress’s intent to protect individuals with disabilities from discrimination.  

In significant ADA cases concerning the definition of “disability”--an area of the law where our community has had great difficulty with the Supreme Court and lower federal courts--Judge Sotomayor has thoughtfully and fairly evaluated testimony to determine whether the plaintiff was protected by the law.

Her jurisprudence in the disability area shows that she has a good understanding of the real-life implications of her decisions, and sees the important connections between disability rights laws and other civil rights laws.  Her personal experience as a woman with childhood-onset insulin-treated diabetes gives her additional insights that have informed her approach to disability issues.

In our 14 year history, AAPD has never weighed in to support or oppose a nominee to the Supreme Court of the United States.  We are breaking that neutrality with this nomination because we believe that Judge Sotomayor will help bring some balance to a Supreme Court that has repeatedly interpreted the ADA and the Constitution in a miserly manner that has seriously undermined Congressional efforts to recognize and protect our civil rights.  Unfortunately, at the moment, we do not believe we have one Justice on the current Supreme Court who has consistently interpreted the ADA and other key civil rights laws in a manner that respects and follows Congressional intent and reflects a fair and just reading of the U.S. Constitution.

Based on her record and her experience, Judge Sonia Sotomayor is extremely well qualified to replace Justice David Souter on the Supreme Court.  Should you have questions about Judge Sotomayor’s record in the area of disability rights or the analysis that supports AAPD’s position, please feel free to contact me.  I also encourage you to look at the materials analyzing her record at www.aapd.com. 

Sincerely,

Andrew J. Imparato
President and CEO

Action Alert: Final Vote on Sotomayor

From the JFA Moderator:

*** Action Alert: Rally for Sotomayor ***

The Senate is going to vote on the confirmation of Judge Sonia Sotomayor toward the end of this week.

For those in the DC area: There will be a rally

Wednesday, August 5 at 12 noon in the Upper Senate Park.

AAPD President and CEO, Andy Imparato, will be speaking about the disability community's strong support for Judge Sotomayor. Come! Bring your friends, family and co-workers.

For Everyone Across the Country:  Call, Fax, email your Senators to urge them to vote for the confirmation Judge Sonia Sotomayor.  Visit http://www.senate.gov/general/contact_information/senators_cfm.cfm to find out how to contact your Senators.

Whether at the rally or from your home, now is the time to tell the Senate that the disability community is tired of having a Supreme Court that fails to understand us and fails to protect us. Ask them to support us by supporting Judge Sotomayor.

>>> For More Including A List of Speakers