PROTECTION & ADVOCACY

Oklahoma Disability Law Center, Inc.

June, 1999

IN THIS ISSUE:

 

 

UNDERSTANDING THE OLMSTEAD CASE

For the full U.S. Supreme Court opinion in Olmstead v. L.C.:

http://supct.law.cornell.edu/supct/html/98-536.ZS.html

Based on the majority opinion, you should be aware that the following conduct will probably violate the ADA and should not be accepted by people with disabilities and the people who advocate for or represent them. If you are aware of any cases that would violate the standards of conduct expressed by the majority opinion, please contact our office:

Justice Ginsburg, speaking for the majority of the Court, said that states are required to provide community-based treatment for persons with mental disabilities when certain conditions are met:

1) when the state's treatment professionals determine that such placement is appropriate;

2) when the affected persons do not oppose such treatment, and

3) when the placement can be reasonably accommodated, taking into account the resources available to the state and needs of other with mental disabilities.

[Presumably, this conclusion applies to developmental disabilities as well as mental disabilities. The majority opinion acknowledged that the ADA stepped up earlier measures to secure opportunities for people with developmental disabilities to enjoy the benefits of community living.]

Justice Ginsburg further concluded that, "Unjustified isolation, we hold, is properly regarded as discrimination based on disability."

With regard to the state's potential affirmative defenses, the opinion concludes, "Sensibly construed, the fundamental-alteration component of the reasonable-modification regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities."

The majority opinion noted, by way of example, that if a "state were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met."

Footnote 16 of the opinion approves the Section 504 regulation that explains what an "undue hardship" inquiry requires. 28 CFR § 42.511(c)(1998); see 45 CFR § 84.12(c)(1998).

The majority opinion also recognized:

1) The states' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the states' obligation to administer services with an even hand.

2) The court must consider, in view of the resources available to the state, not only the cost of providing community-based care to the litigants, but also the range of services the state provides others with mental disabilities and the state's obligation to mete out those services equitably.

3) "We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." Also, ". . .the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care or risk. . . Nor is it the ADA's mission to drive State to move

institutionalized patients into an inappropriate setting, such as a homeless shelter . . ." The majority opinion recognized the amicus briefs of the American Psychiatric Association and the Voice of the Retarded conclusion that for some people no placement outside the institution may ever be appropriate.

4) The state may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for habilitation in a community-based program. The opinion concludes that absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.

5) There is no federal requirement that community-based treatment be imposed on patients who do not desire it.

6) "We do not in this opinion hold that the ADA imposes on the States a 'standard of care' for whatever medical services they render, or that the ADA requires States to 'provide a certain level of benefits to individuals with disabilities' . . . We do hold, however, that States must adhere to the ADA's non-discrimination requirement with regard to the services they in fact provide.

Justice Kennedy's concurrence is concerned that deinstitutionalization has been a psychiatric Titanic, devoid of meaning with self-determination meaning that the person has a choice of soup kitchens. Justice Kennedy does explain a theory under which respondents might be subject to discrimination in violation of § 12132. "If they could show that persons needing psychiatric or other medical services to treat a mental disability are subject to a more onerous condition than are persons eligible for other existing state medical services, and if removal of the condition would not be a fundamental alteration of a program or require the creation of a new one, then the beginnings of a discrimination case would be established." Justice Kennedy goes on in the opinion to explain what this theory would mean in this case.

Justice Thomas' dissent explains his definition of discrimination, one that was rejected by the majority. He also expresses his opposition to using the federal machinery for the purposes of this case and suggests an "appropriate course would be to respect the States' historical role as the dominant authority" when providing services to people with disabilities.

OTHER IMPORTANT U.S. SUPREME COURT CASES IN JUNE

Generally, all cases decided by the Supreme Court in June may be found at: http://supct.law.cornell.edu/supct/supct.June.1999.html

The Court decided three ADA employment cases:

  • Sutton v. United Airlines
    http://supct.law.cornell.edu/supct/html/97-1943.ZS.html
  • Murphy v. United Parcel Service
    http://supct.law.cornell.edu/supct/html/97-1992.ZS.html
  • Albertson's v. Kirkingbird
    http://supct.law.cornell.edu/supct/html/98-591.ZS.html

    U.S. Supreme Court Hands Down Four Judgments That Have Far-Reaching Effects for People with Disabilities

    One big win, three big loses for people with disabilities.

    The Win - Court Declares that States must Provide Services to People with Disabilities in the Most Integrated Setting Possible

    The Supreme Court ruled that it is a form of discrimination under the Americans with Disabilities Act (ADA) to keep a person in an institution when community-based treatment is available and appropriate.

    "Today, the Supreme Court stated loud and clear that unnecessary segregation and institutionalization is precisely the kind of discrimination prohibited under the ADA,"Curt Decker, Executive Director of the National Association of Protection and Advocacy Systems (NAPAS) said.

    The decision affirms in part an April 1998 ruling by the 11th Circuit of Appeals, in which the Circuit Court held that the state of Georgia violated the ADA by confining Lois Curtis and Elaine Wilson, who have mental retardation and mental illness, in a mental hospital rather than serving them in integrated community-based programs, which their doctors and the state agreed was more appropriate.

    The Supreme Court agreed with the U.S. Department of Justice's regulations, which mandate that a state must administer its programs in the most integrated setting appropriate to the needs of individuals with disabilities. "Unjustified isolation, we hold, is properly regarded as discrimination based on disability."

    P&As were leaders in educating policy makers about the ramifications of the state of Georgia's position in Olmstead. A number of states had originally signed on to a brief in support of Georgia, but as a result of P&A efforts, and those of other disability-rights advocates, 19 states withdrew their support. NAPAS also signed onto a end-of-the-court brief in support of Lois and Elaine.

    The Losses- In three other cases under the ADA, the U.S. Supreme Court ruled today that determining whether a person with a correctable condition has a disability under the ADA, the effects of the corrective measures (e.g. eyeglasses, medication) must be considered.

    "Today's decision is a tremendous set-back for people with disabilities," Decker said. "The original intention of the ADA was to cover all people with disabilities, including those with correctable impairments like diabetes and epilepsy. People with disabilities are now caught between a rock and a hard place -- they can either treat their disability and not be protected from discrimination or not treat their disability and be protected by the ADA."

    The court, however, left open the question as to whether some people with correctable impairments will still be protected under the ADA because they are "regarded as" people with disabilities. "Today's decision offers little guidance and will only generate further litigation," Decker said.

    Curt Decker quoted in New York Times: http://www.nytimes.com

    NAPAS is a membership association of the Protection and Advocacy (P&A) System and Client Assistance Programs (CAP) which are mandated by Congress to provide legally-based advocacy services to people with disabilities. There is a System in every state, territory, and the District of Columbia.

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    Toward an Inclusive Definition of Disability

    By Andrew J. Imparato, General Counsel and Director of Policy National Council on Disability, June 28, 1999

    As an attorney who has spent my career working to promote Policies and laws that expand opportunities for the 54 million Americans with disabilities, I am deeply concerned that the U.S. Supreme Court totally missed the mark last week in three cases construing the definition of "disability" in the Americans with Disabilities Act (ADA). The Supreme Court has left me and millions of other Americans with significant mental or physical impairments unprotected against egregious discrimination.

    The three cases involved people with poor uncorrected vision, monocular vision, and hypertension who were challenging discriminatory employer policies that unfairly excluded them based on their impairments. In deciding that these people fall outside the civil rights protections of ADA because their conditions are correctable, our highest court has left many people with treatable conditions like epilepsy, diabetes, and, in my case, bipolar disorder, outside of the law's protection as well. Anyone who is functioning well with their disability is now at risk of losing civil rights protections as a result of the Supreme Court's "miserly" construction, to use Justice Stevens' characterization in his eloquent dissent.

    People with hidden disabilities often are unable to predict how an employer, coworker, friend, or colleague will react when they learn of the disability. In my case, I have had a wide range of experiences when I self-identify as a person with bipolar disorder or manic-depressive illness. Some people assume that it is something I had in the past and that I am "better." Some worry that I might "go postal" and treat me with kid gloves. One interviewer raised an unfounded concern about whether I would know how to conduct myself appropriately at staff meetings. My own experience confirms for me that fears, myths, and stereotypes about people with disabilities are alive and well in the United States. Congress enacted ADA in 1990 to address this country's sad history of excluding, paternalistic, degrading treatment of our citizens with disabilities. In its role of advisor to the President and the Congress on public policy issues affecting people with disabilities, my employer, the National Council on Disability (NCD), drafted ADA to address the many forms of discrimination that occur for people with a wide variety of disabilities.

    One of the core findings in ADA is that "disability is a natural part of the human experience." This is a powerful statement. "Disability" should not be interpreted by the Supreme Court to exclude the many people whose conditions in their natural state result in significant impairments in functioning but who can function well with medication, assistive devices, or other mitigating measures. The people who would be left out nonetheless will continue to encounter bigotry and attitudinal barriers when we are turned down for jobs or are passed over for promotions.

    ADA is about equal opportunity, full participation, equal access. It is not about hand-outs or special privileges for a select few. An inclusive definition of disability means extending a good thing-fairness-to more people. A narrow definition of disability for ADA means that civil rights will be "doled out" to the "deserving few."

    Under the decisions last week, people bringing ADA claims will need to emphasize the negative about their impairment and how it affects them, as if they were applying for disability retirement benefits. The evidence they submit to demonstrate their disability can and will be used against them when they seek to demonstrate their qualifications for the position they are seeking. This puts people in a Catch-22 situation that Congress never intended.

    When Congress defined disability in ADA, they intentionally used the inclusive, flexible definition that has been in place for many years under the Rehabilitation Act. The ADA definition includes not just people with physical or mental impairments that substantially limit at least one major life activity, but also people with a history of such impairments, and people who are regarded by others as having such impairments. If Congress wanted to limit coverage to people in wheelchairs, blind people, and deaf people, they certainly could have. Instead,Congress followed the advice of NCD and others and incorporated an inclusive definition of the protected class that would reach the many and varied ways that fears, myths, and stereotypes come into play to unfairly limit people based on their physical or mental conditions as opposed to their work experience and proven abilities.

    ADA should be read to protect anyone who is treated unfairly because of their physical or mental impairment. Because the Supreme Court decided otherwise, equal justice for all now rings hollow for millions of Americans with disabilities.

    National Council on Disability
    1331 F Street, NW, Suite 1050 Washington, DC 20004
    202-272-2004 Mark S. Quigley

    Public Affairs Specialist National Council on Disability
    1331 F Street, NW, Suite 1050 Washington, DC 20004
    202-272-2004 Voice
    202-272-2074 TTY
    202-272-2022 Fax mquigle-@ncd.gov

    http://www.ncd.gov

     

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    Ability Resources

    OKLAHOMA Affiliate of SWDBTAC

    http://www.ilru.org/dbtac

    http://www.ilru.org/dbtac/page6.html

    Ability Resources is located in Tulsa, Oklahoma. Their telephone number is (918)592-1235 (V/ TTY) and their fax is (918)582-3622.

    ACCESS OKLAHOMA ADA Roundtable, the designation for the state affiliate network, is a statewide coalition of organizations, agencies, people with disabilities, and other groups interested in ADA implementation issues. It is used as a vehicle to recruit and prepare core trainers and other resources to provide ADA technical assistance. ACCESS OKLAHOMA members include persons with disabilities, businesses and employer groups. Activities are coordinated through Ability Resources, an independent living center, in Tulsa. Through the Roundtable, numerous groups and individuals all over Oklahoma have received training and technical assistance on a range of ADA issues. Key Roundtable members and staff at Ability Resources are also trained ADA mediators. Special outreach initiatives are targeted to different groups in the Cherokee Nation. For more information on joining the ACCESS OKLAHOMA ADA Roundtable and its activities, call Carla Lawson at 1-800-722-0886.

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    ADA Technical Assistance

    Southwest Disability Business and Technical Assistance Center (SWDBTAC) http://www.ilru.org/dbtac

    1-800-949-4232

    Job Accommodation Network

    http://janweb.icdi.wvu.edu

    1-800-526-7234

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    RESOURCE FOR DESIGNING ACCESSIBLE WEBPAGES

    The homepage of the HTML Writers Guild's AWARE Center contains an explanation of how to make a web page accessible. If you are working on the internet and come across an inaccessible webpage, you may "cut and paste" this message and send it to them. If you need assistance, contact us.

    http://aware.hwg.org/

    The homepage of the HTML Writers Guild's AWARE Center AWARE stands for Accessible Web Authoring Resources and Education, and their mission is to serve as a central resource for web authors for learning about web accessibility. The AWARE Center was launched in April 1999 as part of the HTML Writers Guild's annual Web Accessibility Month, a special focus on the importance of designing for universal accessibility. The Center is supported by the Guild's staff and volunteers, and is designed as a resource for all web authors.

    The HTML Writers Guild's websites conform to the Web Content Accessibility Guidelines (http://www.w3.org/TR/WAI-WEBCONTENT/) published by the W3C's (http://www.w3.org/) Web Accessibility Initiative (http://www.w3.org/WAI/)

    Webpages may be checked through the Bobby service (http://www.cast.org/bobby/) provided by the Center for Applied Special Technology (http://www.cast.org/)

    http://aware.hwg.org/#resources Assembled a comprehensive list of important resources for web authors creating accessible web pages. These are geared specifically for web designers who wish to learn more about accessible web authoring. Other sites on accessibility (http://aware.hwg.org/sites/) have different focus or purpose, but are still of value to web page creators. However, the goal is to provide the web author with the information needed to make a site accessible to everyone.


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