Oklahoma May Violate the ADA by Imposing a Five-Prescription Per Month Cap on Medicaid Recipients Receiving Services at Home

Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); 72(4) U.S. Law Week 1056 (Aug. 5, 2003)

Oklahoma may be violating the Americans with Disabilities Act (ADA) by imposing a five­ prescription per month cap on Medicaid recipients who receive their state-funded services at home rather than in a nursing facility.  Oklahoma, as part of an optional federal Medicaid waiver program in which it participates, allows individuals who meet the level of care required for institutionalization in a nursing facility to live at home and receive state-funded medical care.  Until September 2002, participants were entitled to an unlimited number of state-paid medically necessary prescriptions.  At that point, responding to a budgetary shortfall, the cap was put into operation, although patients in nursing facilities continued to receive unlimited prescriptions.  The state anticipated that capping the number of prescriptions available would save the state $3.2 million...

Found in DMHL Volume 23 Issue 1

ADA Expands Range of Individuals that May Be Entitled to Medicaid Funded Home and Community Based Health Care

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)

The Ninth Circuit joins many other courts that have grappled with the scope of the Americans with Disabilities Act (ADA) and its impact on Medicaid waiver programs.  The state of Washington participates in the federal Medicaid program that provides federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons.  Participation by states in this program generally is optional but a state receiving Medicaid funds must comply with the requirements of the Medicaid Act.  An exception to this rule is the Medicaid waiver program under which certain Medicaid requirements can be waived for innovative or experimental state health care programs.  The programs encouraged by the waiver program include increased provision of home and community based health care to Medicaid recipients who would otherwise only qualify for nursing home care....

Found in DMHL Volume 23 Issue 1

ADA Suit Against Government for Failure to Reasonably Accommodate Disabled Persons Does Not Require Showing that Persons Without Disability Treated Better

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); 71(49) U.S. Law Week 1780-81 (June 24, 2003)

The Second Circuit held that individuals with a disability who claim the government has failed to reasonably accommodate their disability as required under Title II of the Americans with Disabilities Act (ADA) do not have to show that the government treated individuals who are not disabled better (i.e., that there was a "disparate impact"). The case was filed by HIV-infected individuals who allege New York City violated the ADA by not providing them with adequate access to public social service benefits such as food stamps, welfare benefits, and Medicaid coverage. The city responded there was no ADA violation because the plaintiffs received the same­ albeit difficult to obtain-access to services as persons without disabilities...

Found in DMHL Volume 23 Issue 1

Employer Provided Reasonable Accommodation to Call Center Employee Who Has a Bipolar Disorder; ADA Claim Rejected

Rush v. Verizon Virginia, Inc., 7:04CV00093, 2004 WL 2900654 (W.D. Va. Dec. 9, 2004)

The Americans with Disabilities Act (ADA) generally prohibits an employer from discriminating against an employee because of the employee's disability.  In addition, an employer must grant a requested accommodation for the disability if the accommodation is reasonable and would allow the employee to perform the essential functions of the position...

Found in DMHL Volume 24 Issue 2

Dismissal of Lawsuit Asserting Licensure Testing Procedure for Professionals Violated ADA for Failing to Reasonably Accommodate Examinees Mental Disability Reversed, Remanded for Further Consideration

Feaster v. Florida, 846 So. 2d 1238 (Fla. Dist. Ct. App. 2003), vacated & remanded for further consideration in light of Tennessee v. Lane (2005)

Many professionals, including physicians, nurses, psychologists, social workers, and attorneys, are required to be licensed in the state in which they desire to provide services. Title II of the Americans with Disabilities Act (ADA) prohibits states from discriminating on the basis of a disability in providing access to their services, programs, or activities...

Found in DMHL Volume 24 Issue 2

Monetary Damages Can Be Recovered from a State Under the ADA When Disability Discrimination Also Violates the Constitution

United States v. Georgia, 126 S. Ct. 877 (2006)

Title II of the Americans with Disabilities Act of 1990 (ADA) places limits on the ability of public entities, including states, to exclude or deny benefits to an individual with a mental or physical disability.  Although Title II authorizes private citizens to file lawsuits seeking to recover monetary damages from public entities that violate the ADA, the Eleventh Amendment of the federal Constitution recognizes the sovereign immunity of the states and generally provides them with immunity from such suits...

Found in DMHL Volume 25 Issue 2

States Can Limit the Number of Individuals with a Developmental Disability Participating in a Community Placement Medicaid Waiver Program Without Violating the ADA

Arc of Wash. State Inc. v. Braddock, 403 F.3d 641 (9th Cir. 2005)

The federal Medicaid Act furnishes funds to the states to help them provide care to eligible low-income persons.  Although states are not required to participate, if they accept this federal funding, which all fifty states do, they must comply with federal requirements and regulations.  Washington, like many states under the Medicaid waiver program, provides a variety of non-institutional care options for qualified persons with a developmental disability who desire to live at home or independently.   Medicaid, and in turn the State of Washington, limits the availability of these services to a given number of individuals (9,977 when this lawsuit was commenced) to control the program's costs, which are jointly paid by the federal and state governments. Because all available slots are full and because openings generally occur only when a person who is currently receiving home or community-based services dies or becomes ineligible for services (which occurs relatively infrequently), extended delays may occur before a qualified individual is able to obtain these services...

Found in DMHL Volume 25 Issue 1

Sovereign Immunity Bars ADA Suit Against a State for Failing to Fund Community­ Based Services Through Medicaid

Bill M. v. Neb. Dep't of Health & Human Servs. Fin. & Support, 408 F.3d 1096 (8th Cir. 2005)

In many states there is a shortage of community placements and services for individuals with a developmental disability, even though these states created an entitlement to these community programs under their Medicaid program. Because the absence of community programs may necessitate that such individuals be institutionalized, various lawsuits asserting these individuals' legal rights are being violated have been brought against states and state officials....

Found in DMHL Volume 25 Issue 1

Administering the MMPI to Prospective Employees Violates the ADA

Karraker v. Rent-A­ Center, Inc., 411 F.3d 831 (7th Cir. 2005)

Concerned that individuals with disabilities often face barriers to joining the workforce based on unfounded stereotypes and prejudice, Congress in enacting the Americans With Disabilities Act of 1990 (ADA) limited the ability of employers to use "medical examinations" as a condition of employment. The ADA prohibits the use of pre-employment medical tests, the use of medical tests for existing employees that lack job-relatedness and business necessity, and the use of medical tests that screen out (or tend to screen out) people with disabilities.  An Illinois employer asked prospective employees 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI) as part of a battery of tests.  The employer claimed that the MMPI simply measured potentially relevant personality traits and thus was not a prohibited medical exam...

Found in DMHL Volume 25 Issue 1

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Communitybased Services

Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.)

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments.

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members.

The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Found in DMHL Volume 30 Issue 3

Arkansas Court Rules against US Department of Justice in CRIPA/ADA/IDEA Lawsuit Brought Against State of Arkansas

United States v. State of Arkansas, et al., 2011 U.S.Dist. LEXIS 61347 (June 8, 2011)

Following a six-week trial from September 8 through October 15, 2010, the United States District Court for the Eastern District of Arkansas has found that the United States Department of Justice (“DOJ”) did not meets its burden of proving as alleged under the Civil Rights of Institutionalized Persons Act (“CRIPA”) that the State of Arkansas and Arkansas state officials were failing to provide reasonably safe conditions and habilitation and training services necessary to protect the residents’ liberty interests, at Conway Human Development Center, a training center for 509 persons with developmental disabilities. The Court also held that DOJ failed to prove that Conway Development Center violated the integration mandate of the Americans with Disabilities Act as alleged by failing to provide services in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. The Court did find that Conway Development Center failed to comply with all the requirements of the IDEA, but because Congress provided for a state educational agency to enforce compliance with that Act and because evidence established that the state agency was enforcing the Act and the Center had submitted a corrective action plan, no injunction was appropriate.

The Court began its opinion noting how unusual it was for the US Department of Justice’s Civil Rights Division to be enforcing the rights of individuals with disabilities when most of the residents of Conway Development Center had parents or guardians to enforce those rights. Most of the parents or residents were fully satisfied with the services provided and opposed the DOJ claims. Six members of the Conway Human Development Center Parents’ Association, an association comprised of parents and guardians concerned about the Center, its residents and staff, testified at trial regarding the services. The Court noted that two of the witnesses were nurses themselves. Many of the same parents were also members of Families and Friends of Care Facility Residents, a statewide umbrella organization for all of the parent and guardian groups of the human development centers.

Conditions of Care

DOJ alleged that the policies and practices at Conway Development Center departed from generally accepted professional standards and residents were subjected to abuse and neglect, unconstitutional use of restraints, and unprofessional levels of psychological and medical services. DOJ also alleged that the Center’s procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers and other injuries were subpar, and that residents died prematurely. The Court reviewed in detail the testimony of the experts, Center staff and parents on each of the allegations and concluded that the DOJ experts were holding Center staff to a “best practices” standard as opposed to the standard in Youngberg v. Romeo, 57 U.S. 307 (1982) that requires proof of a departure from generally accepted professional standards. The Court specifically noted that the Center was certified by the Centers for Medicare and Medicaid Services (“CMS”) and complied with all CMS standards. DOJ’s experts had testified that professional standards in each of the disciplines were constantly changing and one DOJ expert testified that the CMS standards were outdated. The Court therefore found that the DOJ experts had presented no standards with which the Conway staff could be expected to comply, nor did the experts present any benchmarks to compare the Center’s alleged deviations involving, for example, the numbers of abuse or neglect complaints, choking incidents or aspiration pneumonia with other comparable facilities. In fact, the Court found that one of DOJ’s experts “had no formal education in any field relevant to her testimony,” Opinion at 28, and that another expert “presented no evidence that convinced the Court that she was qualified to testify as an expert in any area other than occupational therapy.” Opinion at 83. Applying the Youngberg standards to this case, the Court held that “[e]ven if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professional judgment was not actually exercised.” Opinion at 133-134.

Americans with Disabilities Act

DOJ also alleged that Conway Developmental Center was violating the integration mandate of the Americans with Disabilities Act by failing to provide services, programs and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities as upheld in Olmstead v. Zimring, 527 U.S. 581 (1999). DOJ also alleged that the Center’s staff failed to provide parents and guardians with adequate information about other services that DOJ considered more integrated, and that staff did not exercise professional judgment in determining the most integrated setting appropriate for residents.

The evidence established that Arkansas participates in and serves 4083 individuals in the Home and Community Based Waiver program, or four times the number of individuals served in its training centers. In 2007, there were approximately 700 persons on its waiver waiting list, and as of April 2010, that number had risen to 1400. By the time of trial, the waiting list included 1600-1700 people. The evidence revealed that if a parent or guardian of a resident in a developmental center sought a waiver placement, that resident went to the top of the waiting list. The superintendent of Conway Development Center testified that many or all of the Center’s residents could be served under the waiver with the proper supports and if resources were sufficient. The evidence also demonstrated though that from June 2007 to July 2009, only 18 residents were discharged.

After considering all of the evidence, the Court held that the terms “restrictive” and ”integrated” in the ADA refer to the level of interaction disabled individuals have with nondisabled persons. It then found that the Center provided a significant number of opportunities for individuals to interact with people in the community, sponsoring 305 off-campus activities, including some work opportunities, attendance at movies, eating out, bowling, shopping, fishing, going to parks, going to the state fair, going to the library, attending athletic events, attending church, and participating in the Special Olympics. The Court also heard evidence that nondisabled volunteers visited and worked with residents in about 592 on-campus activities held the previous year, in addition to unrestricted visits permitted from families and friends. The Court also found that individuals in community settings, including those residing in individual apartments had no more contact with nondisabled individuals than did those residing at the Conway Developmental Center. The Court stated, “just as it is an error to assume that because Conway Human Development Center is an institution, its residents have no interaction with nondisabled person, so too is it an error to assume that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.” Opinion at 109. The Court noted that no evidence was presented that the Center refused to discharge a resident when requested by the parent or guardian.

Before each annual interdisciplinary team meeting, the Center sent the parent or guardian a brochure explaining services available under the waiver program with a list with contact information of waiver providers in the state and in the county where the resident’s family resided. The Center also sent the parent or guardian a choice of services form on which the parent or guardian indicated whether they wanted to receive services through the waiver program or at the Center. In addition, the Center invited providers to attend meetings of the Friends and Families of Care Facilities and whenever there was a vacancy in a home in a resident’s community, the Center notified the family. The Court thus found that the Center adequately informed parents and guardians of the nature and scope of the home and community based waiver program and provided them with a comprehensive list of waiver providers.

The Court also found that the interdisciplinary team discussed whether the Center was the least restrictive most integrated placement at each annual team meeting and made sure the parent or guardian had received the brochure and list of waiver providers. The Court therefore found staff members at the Center made professional judgments in determining the least restrictive placement appropriate for each resident, even though staff and families agreed that the professionals often did not recommend placement with a waiver provider unless requested to do so by the parents or guardians.

Impact on Virginia

DOJ notified Virginia on February 10, 2011 of the results of its investigation finding that Virginia and Central Virginia Training Center are also violating the integration mandate in Americans with Disabilities Act, making most of the same allegations it made in its losing case against Arkansas: http://www.justice.gov/crt/about/spl/documents/cvtc_findlet_02-10-2011.pdf. With DOJ having lost the Arkansas case, Virginia may now have greater leverage in its negotiations with DOJ that it seemed to have lost when the State of Georgia agreed in October 2010 when faced with a similar federal court complaint to close all of its facilities for individuals with intellectual disabilities rather than go to trial.

DOJ had also previously launched a CRIPA investigation in 2008 at Central Virginia Training Center alleging it had probable cause to believe that CVTC was not protecting residents there from harm and was providing professionally inadequate psychological and psychiatric services. It expanded its investigation in 2009 to investigate CVTC’s nutrition services and occupational therapy and physical therapy programs, alleging many of the same violations at issue in the Arkansas lawsuit. After three on-site visits in 2008 and 2009, DOJ has yet to issue a “findings” letter detailing the results of that investigation.

Most DOJ investigations result in settlement agreements with the state that are filed with the court either before the original complaint is filed or before going to trial. Settlements are reached because of the extraordinary expense involved in month-long trials involving prior document-intensive discovery, the hiring of experts in every discipline under attack and the prolonged diversion of staff time and resources away from the delivery of care to individuals. Whether Virginia will be able to significantly increase its waiver program and switch from an institutionally-based system of care to a community-based system under a reasonable settlement agreement and or will decide to litigate remains to be seen as DOJ and Virginia continue their negotiations.

Found in DMHL Volume 30 Issue 6

Eighth Circuit Upholds Dismissal of Civil Suit Alleging Violation of the Constitution and ADA for Interrogation of Suspect with Intellectual Disabilities

Folkerts v. City of Waverly, Iowa, 707 F.3d 975, (8th Cir. 2013), rehearing denied 2013 U.S. App. LEXIS 7279 (8th Cir. April 10, 2013)

The Eighth Circuit Court of Appeals has upheld the district court’s grant of summary judgment dismissing a civil case filed on behalf of a 30-year old man with intellectual disabilities against the City of Waverly, Iowa, and the investigating officer, finding no violation of his constitutional rights, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, as a result of his interrogation and subsequent charges of sexual assault.

The plaintiffs Melvin and Idella Folkerts are the legal guardians of their adult son Travis Folkerts who has an IQ of 50. In May 2008, Travis lived alone in a supervised apartment when a neighbor reported that Travis had engaged in inappropriate conduct with her minor son. A patrol officer who knew Travis had a disability spoke with the complainant and then contacted Troy Schneider, an investigator with the police department and now a defendant in this case. The patrol officer then spoke with Travis who was alone and read him his Miranda rights, asking Travis if he understood them. Travis indicated he did and then provided the officer with the phone number of his caseworker upon request.

The next day Schneider went to Travis’ apartment where he was alone and read him his Miranda rights and more fully explained them so he could better understand them. Schneider believed Travis understood them. He then took Travis to the police station where he continued the interrogation in a conference room that Schneider believed was less intimidating than the regular, smaller interrogation room. He also asked Travis non-leading open-ended questions because he thought it would be easy to get him to say something he did not do if he was asked leading, direct questions.

At Travis’ request, Schneider called Travis’ mother who spoke with Travis by phone. Travis told her he was nervous. Schneider told Mrs. Folkerts she could come down to the police station if she wanted, but she said she thought Travis would be less nervous if she did not. Schneider continued the interrogation and Travis incriminated himself. Afterwards Schneider drove Travis to his parents’ home and explained the situation to them. Schneider then arranged to have Travis booked using friendlier booking procedures. After consulting with the county attorney, Schneider filed a complaint charging Travis with the misdemeanor of lascivious conduct. An Iowa court found Travis incompetent to stand trial and dismissed the charges.

The Folkerts then filed a civil lawsuit against the City of Waverly and the investigator Troy Schneider under 42 U.S.C. § 1983, alleging violation of their son’s and ward’s substantive constitutional rights in the interrogation process, and violations of § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for disparate treatment and failure to make reasonable accommodations. To establish a substantive due process violation, the Court stated that the Folkerts must demonstrate that a fundamental right has been violated and that the officer’s conduct shocks the conscience. To support their allegations the Folkerts recited Schneider’s 1) failure to accommodate Travis’ disability during the interrogation; 2) inadequate investigation; 3) investigation as retaliation against Travis’ relatives; and 4) filing of a defective charge.

The Court found that Schneider’s behavior did not shock the conscience. He altered his questioning style, more fully explained Travis’ Miranda rights, and interviewed Travis in a less intimidating room. He also called Travis’ mother and invited her to the police station. The Court also found that the adequacy of the investigation also did not shock the conscience. In order to do so, the Court stated the officer must 1) attempt to coerce or threaten the suspect; 2) purposefully ignore evidence of the suspect’s innocence; or 3) systematically pressure to implicate the suspect despite contrary evidence. Further, the patrol officer here had interviewed the alleged victim, his mother and visited the scene. The Court therefore found that Schneider’s failure to do so himself does not establish an intentional or reckless failure to investigate.

The evidence also revealed that during an investigation the previous year of a burglary of a business owned by Travis’ cousin’s wife, Schneider was alleged to have been rude to Travis’ cousin and not to have pursued a lead. No evidence was submitted, however, that Schneider retaliated against the family members by investigating Travis. Lastly the charge filed required a showing that the accused be “in a position of authority” over the victim. There was no Iowa case law interpreting this element of the offense before Schneider filed the charge and he sought the advice of the county attorney before doing so. Although following an attorney’s advice does not automatically provide an officer with qualified immunity, the Court found it demonstrates the reasonableness of the action. In this case, Schneider’s behavior does not shock the conscience.

The Folkerts also alleged that the city’s culture of indifference to people with disabilities demonstrated its deliberate indifference to Travis’ needs. The Court stated that a pattern of similar constitutional violations by trained employees, or a specific instance accompanied by a showing of lack of training to handle recurring situations, is necessary to establish deliberate indifference on the part of the city. The Court found that the plaintiffs here, however, failed to allege even a single violation of rights.

To establish a prima facie § 504 violation, a qualified individual with a disability must be denied the benefit of a program or activity of a public entity receiving federal funds. For a prima facie ADA violation, a qualified individual with a disability must be excluded from participation or denied the benefits of a public entity’s services, programs, or activities. Here, the interrogation was covered by the ADA. The Court found, however, that no reasonable jury could conclude that the defendants failed to make reasonable accommodation for Travis’ disability. Schneider altered his questioning style, more fully explained his Miranda rights, interviewed Travis in a less threatening room, drove Travis to the Folkerts’ home and explained the situation to them, and arranged an alternative and friendlier booking procedure. Most importantly, the Court stated Schneider called Travis’ mother and reasonably concluded that her comment that her presence might make Travis more nervous meant that she was not coming to the police station and was not requesting additional or alternative accommodations for her son. The Eighth Circuit therefore upheld the district court’s granting of the defendants’ motion for summary judgment and dismissal of the case.

Found in DMHL Volume 32 Issue 2


Application of “accommodation” requirement to emergency police encounters with persons with mental illness

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211 (9th Cir.) cert. granted sub nom. City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 702 (2014).

Lower Court Opinions:

Plaintiff, Teresa Sheehan, filed suit under 42 U.S.C. 1983 against police officers and the city after the officers entered her home without a warrant and shot her five or six times when she reacted violently to the officers' presence, grabbing a knife and threatening to kill the officers. Plaintiff, a woman in her mid-50s suffering from a mental illness, told the officers that she did not want to be taken to a mental health facility. The United States District Court for the Northern District of California granted summary judgment in favor of the defendants finding that the officers (1) were justified in entering Sheehan’s home, (2) did not use excessive force when they shot Sheehan, and (3) could not bring against the individual officers or the city under the Americans with Disabilities Act. The district court relied on language from a 5th Circuit case in reaching this third conclusion: “section 12132 does not permit a cause of action based on an “officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.”

The 9th Circuit affirmed in part, holding that the officers were justified in entering plaintiff's home initially under the emergency aid exception because they had an objectively reasonable basis to believe that she was in need of emergency medical assistance and they conducted the search or seizure in a reasonable manner up to that point. The court held that there were triable issues of fact as to whether the second entry violated the Fourth Amendment where a jury could find that the officers acted unreasonably by forcing the second entry and provoking a near-fatal confrontation. The court further held that there were triable issues of fact as to whether the officers used excessive force by resorting to deadly force and shooting plaintiff. Finally, the court held that the district court properly rejected claims of municipal liability; the court joined the majority of circuits that have addressed the issue and held that Title II of the Americans with Disabilities Act, 42 U.S.C. 12132, applied to arrests; on the facts presented here, there was a triable issue as to whether the officers failed to reasonably accommodate plaintiff's disability; and the court vacated summary judgment on plaintiff's state law claims and remanded for further proceedings.

Briefs of Petitioners and Respondent:

On appeal to the Supreme Court, both parties raised two questions in their original briefs. First, whether the accommodation requirement of Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations during the course of bringing an armed and mentally ill suspect into custody. Second, for the purpose of determining whether officers were entitled to qualified immunity, whether it was clearly established that even if an exception to the warrant requirement applied, entry into a residence may be unreasonable under the Fourth Amendment when officers enter the home of an armed and mentally disturbed individual.

According to petitioners (City and County of San Francisco), Sheehan was not entitled to accommodations during her arrest process because she was not “qualified…to invoke a public entity’s duty to modify its activities” because she posed “a direct threat or significant risk to the safety of others” at the time of her arrest. Petitioners contended that, because the determination of threat or risk is to be based on the reasonable judgment of the person from whom the accommodation is demanded, and the officers made an objectively reasonable judgment based on the information they had at the time, Sheehan was not entitled to an accommodation during her arrest. In regard to the Fourth Amendment warrant-exception issue, the petitioners contended that the rule articulated in the case below—that absent an immediate need police officers are prevented from entering the residence of an armed, violent, and mentally ill person and even in the case of an immediate need to enter the officers are prevented from using force to defend themselves against even a provoked attack—both contradicted Supreme Court precedent and was not clearly established by 9th Circuit precedent.

In response, the brief for Teresa Sheehan argued at the outset that it did not make “legal” sense to apply an exception to Title II’s reasonable accommodation requirement when an individual’s mental illness is the reason for the police’s interaction with that person. Further, the brief for the respondent contended that, as a factual matter, Sheehan could not have been considered a reasonable direct threat for the purpose of the exception because (1) she was alone in the residence and the officers were on the outside of the door, (2) Sheehan was not a flight risk, and (3) Sheehan had only ever threatened individuals who entered her room without permission. In response to the petitioners’ claim that delay would have been an unreasonable accommodation, respondent contended that the proposed modifications put forward were “consistent with applicable training materials and universally accepted police practices designed to minimize the risk of a violent confrontation with a mentally ill individual.” Finally, Sheehan contended that the officers should not be entitled to qualified immunity in respect to their actions because forcibly reopening the door to Sheehan’s room and shooting her multiple times without taking her mental illness into account or identifying a countervailing need to enter was objectively unreasonable.

Reply Brief of Petitioners:

In their reply brief, the petitions began by identifying that while Title II of the ADA “does not permit police officers to assume that erratic conduct caused by mental illness is dangerous” it also does not “require officers to ignore dangerous conduct because it may be caused by mental illness.” The reply brief emphasized that arrest situations— especially ones involving mentally ill persons who are armed, acting erratically, and potentially violent—involve split-second judgments that should not be assessed “[w]ith the benefit of hindsight and calm deliberation.” Thus, the risk determination should be assessed in the closed universe of the facts of the situation as available to the officers at the time of the arrest. The reply brief also took issue with the temporal focus on the respondent’s brief (i.e. solely focusing on the “second” entry when the officers entered Sheehan’s closed-off bedroom). Instead, petitioners argued that the second entry could not be considered in isolation, but must be analyzed in the context of the entire encounter up to that point: “[W]hen the officers decided to reenter Sheehan’s room, they knew beyond question that Sheehan was violent and intended harm.”

Briefs of Selected Amici Curiae:

American Psychological Association (et alia): The American Psychological Association filed a brief in conjunction with several other amici. The complete list of joint amici included the American Psychiatric Association, American Psychological Association, Delaware, Illinois, New Mexico, Ohio, and Vermont Psychological Associations, National Council on Disability, National Alliance on Mental Illness, and Judge David L. Bazelon Center for Mental Health Law. The joint brief took the position that the question of whether an individual is “qualified” within the meaning of the ADA should be determined by analyzing the entire encounter between law enforcement and the mentally ill individual. Further, the brief argued that it is precisely the situation in which failure to provide accommodation is the partial cause of threatening or violent behavior that the statute’s protection is important. Finally, the APA brief took the position that an obligation to provide reasonable accommodations when interacting with mentally ill individuals at the time of arrest would not impose any undue burden on law enforcement or other public entities.

Policy Council on Law Enforcement and the Mentally Ill (“Policy Council”): The Policy Council filed a brief in strong support of respondent Teresa Sheehan, opening their argument with the proposition that it is “critical to the safety and well-being of those suffering from mental illness, as well as their loved ones, that the Americans with Disabilities Act (ADA) apply vigorously to police encounters” because they are “acutely vulnerable.” The Policy Council’s brief highlighted the public policy concerns that support the enforcement of the ADA’s accommodation requirement: namely, “the importance of encouraging people who need help to seek it.” The brief also took the position that in “barricade situations involving mentally ill individuals, there should rarely be a question as to the [ADA]’s applicability.” Finally, the Policy Council argued that “fairness and equity suggest that the ADA accommodation requirement should apply when officers are present for the sole purpose of assisting” mentally ill persons.

United States: The amicus brief of the United States of America supported vacatur in part and reversal in part. As to the ADA claim, the United States agreed that “[b]y its plain terms, the provision…extends to arrests.” The government did, however, also argue that when “police officers arrest an individual with a disability who is armed and violent, any deviation from ordinary law enforcement tactics will generally present very real safety risks.” Still, while of the mind that in the ordinary run of cases no modifications to the ADA will be required, the government espoused the position that a plaintiff should still “remain free to show that special circumstances rendered a modification reasonable” given the facts of any particular case.” Given the facts of the instant case, the government argued that Sheehan’s being armed and violent put the burden on her to show that an accommodation would not have presented safety concerns for the officers involved.

National League of Cities: The National League of Cities, filing in support of the petitioners, began by arguing that the holdings of the 9th Circuit below ignored the “practical reality faced by police officers who must routinely confront seriously mentally ill suspects who are armed and violent.” Taking a position quite different from the other amici curiae, the National League of Cities, while acknowledging that some cities have adopted special procedures for responding to incidents with mentally ill individuals, claims that “there is no conclusive evidence that these specialized approaches reduce the rate or severity of injuries suffered during police encounters with mentally ill suspects.” Further, the National League of Cities argued that requiring police officers to “undertake special procedures to accommodate an armed and violent suspect’s mental disability during an emergency situation” would have serious consequences for the safety of officers and the public because it would encourage them to “hesitate or delay in confronting an armed and violent suspect who displays any sign of a mental illness.”

Argument Analysis:

[ from Lyle Denniston, Argument Analysis: Can a Really Rough Start be Overcome?, SCOTUSBLOG.COM, (Mar. 23, 2015, 3:07 PM), http://www.scotusblog.com/2015/03/argument-analysis-can-a-really-rough-start-beovercome/ ]

In the opening moments of the oral arguments, Justice Scalia expressed concern (and thinly veiled annoyance) at his perception that the case “may have changed markedly once it got on the Court’s docket.” Justice Scalia questioned Christine Van Aiken, deputy city attorney for San Francisco, on the apparent discrepancies between the question on which the Court granted certiorari and the arguments raised in the city’s merits brief. According to Justice Scalia, the Court had taken the case to decide whether the ADA should apply at all in the context of an arrest (the position taken in the city’s lower court briefs), but the briefs filed by the city with the Supreme Court couched the question in terms of when the ADA’s protections kick in during an arrest. The city’s articulated position in its merits brief (as read out from petitioners’ filings by Justice Scalia and also remarked upon by Justice Sonia Sotomayor) was that the ADA’s protections only apply once “a threat [posed by a disabled person] has been eliminated.” Justice Samuel Alito also introduced another complicating factor—although no one had addressed the issue in a brief— by articulating the opinion that the definition of discrimination in the context of police activity could be a threshold matter.

By the time Van Aiken’s time had expired, the Court had only spent a little time on the merits of the case. Ian H. Gershengorn, Deputy Solicitor General, spoke next, advancing the view espoused in the federal government’s brief that the protection of the ADA “definitely does, and should, apply to police arrests.” He received some pushback from the Justices, but held strongly to his argument even under fire on the topic of the questions that might arise in the “tense situations” when officers confront a potentially violent and mentally ill individual.

Soon after Leonard Feldman, Sheehan’s lawyer, began his arguments, the Justices seemed to be “developing some skepticism about how police could actually try to calm a situation when an armed and violent person came at them with a knife and with a threat to kill them.” Specifically, Chief Justice John Roberts raised the issue of whether Sheehan might have been a suicide risk—suggesting that a reasonable fear of an individual posing a risk of self-harm might be enough to trigger exceptions to the ADA and the Fourth Amendment warrant requirement.

Ultimately, the court seemed confused (or at the least to have serious lingering questions) about (1) which standard each party was advocating for the Court to apply in interpreting the ADA’s applicability to arrests, and (2) the factual specifics of whether Sheehan did actually pose a “direct threat” to the officers.

Found in DMHL Volume 34 Issue 1

ADA workplace accommodation

Claim by fired deputy clerk of court that her social anxiety disorder constituted a disability and that her employer failed to make reasonable accommodation survives summary judgment motion, as the Court emphasizes the remedial goals of the ADA

Jacobs v. NC Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)

Christina Jacobs was hired as a deputy clerk in the New Hanover County Superior Court. The job description for deputy clerk included many activities, and only a few of the deputies regularly provided customer service at the courthouse front counter. Jacobs, who was diagnosed with social anxiety disorder, was assigned to provide customer service on a daily basis. She experienced extreme anxiety and distress from interacting with the public at the counter. She requested to be assigned to a role with less direct interpersonal interaction. Her employer did not respond to her accommodation request, and three weeks later fired her. She made a timely complaint to the EEOC, which conducted an investigation and made a finding in her favor. The Department of Justice later issued a “Right to Sue” letter. Jacobs filed suit, claiming, among other things, disability discrimination, failure to accommodate, and retaliation, all in violation of the Americans with Disabilities Act (ADA). After discovery, defendant employer moved for summary judgment, which the district court granted on all counts.

The Fourth Circuit reversed and remanded on all counts except the claim of retaliation. It noted that the district court’s most fundamental error was deciding disputed factual issues in favor of the moving party, rather than determining whether, if the facts were as Jacobs alleged, no reasonable juror could find that the defendant had committed violations of the ADA. 

The Fourth Circuit then examined the claims and facts. Some notable observations include:

1. The Court first reviewed the ADA definition of “disability” and nonexhaustive list of “major life activities” including the EEOC’s acceptance of “interacting with others” as a major life activity. Moreover, the 2008 ADA amendments broadened the definition of disability in order to expand the scope of protection available under the Act “as broadly as the text permits.” The Fourth Circuit “therefore defer[red] to the EEOC's determination…that interacting with others is a major life activity.”

2. The Court rejected the employer’s claim that Jacobs had failed to show that her alleged social anxiety disorder substantially limited her ability to interact with others. The Court noted that the 2008 amendments define a disability as one that “substantially limits…as compared to most people in the general population…An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

3. The Court noted that a person “need not live as a hermit in order to be” substantially limited. The fact that Jacobs endured the social interactions for a time did “not per se preclude a finding that she had social anxiety disorder,” and “a reasonable jury could conclude that Jacobs was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA.”

4. The Court ruled that at this stage of the litigation the absence of any documentation of poor performance, and the shifting reasons of the employer regarding unsatisfactory performance, were sufficient to establish that the employer’s claims were a pretext and not the actual reason for the decision to fire her.

5. The Court also analyzed whether the employer made a reasonable effort at accommodation. The Court wrote that employers have a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” under the ADA (Wilson v. Dollar Gen. Corp., 717 F.3d at 346, 4 th Cir. 2013). 9 The Fourth Circuit found that, given the undisputed facts regarding the meeting at which Jacobs was fired, “a reasonable jury could easily conclude” that Jacobs’s employer acted in bad faith by failing to engage in the interactive process with Jacobs at that meeting.

Found in DMHL Volume 34 Issue 2

Forced medication of involuntarily committed patients

Disability Rights New Jersey, Inc. v. Comm'r, New Jersey Dep't of Human Servs., No. 13-4255, 2015 WL 4620273 (3d Cir. Aug. 4, 2015)

State administrative procedure authorizing hospital medical panel review and approval of forced medication of patients in non-emergency situations does not violate ADA or constitutional rights of patients

Background: Plaintiffs brought action challenging New Jersey’s administrative policy for the forcible medication of involuntarily committed persons in state psychiatric hospitals in non-emergency situations. The plaintiffs alleged that the policy—which required in-hospital medical panel review, approval and oversight of all proposed involuntary medications, with various procedural requirements and the right to inhospital appeal and review—violated the Americans with Disabilities Act (ADA), Rehabilitation Act (RA), and the 14th Amendment, and asked that the Court require the state to establish a procedure for judicial review. The district court found that the state’s administrative policy was valid, except as to patients who had been found by a court to be ready for discharge and were in the hospital awaiting transfer to the community (“CEPP” patients). The district court granted summary judgment to the state in regard to all but the CEPP patients. Summary judgment was awarded to the plaintiffs in regard to the CEPP patients. Both the plaintiffs and the state appealed.

Holdings: A 3-judge panel of the Court of Appeals affirmed the district court’s ruling, “though not for all its stated reasons.” The panel, relying heavily on the U.S. Supreme Court’s decision in Washington v. Harper, 494 U.S. 210 (1990), found that New Jersey’s medically-based panel review process properly balanced the liberty interests of the nonCEPP patient with the state’s interests in both the safety of the hospital and the treatment and return to the community of the patient. Relying on Mathews v. Eldridge, 424 U.S. 319 (1976), however, the panel found the CEPP patients’ due process rights were violated by New Jersey’s policy.

Notable Points:

Due process analysis by the Court for non-CEPP patients: Noting that the U.S. Supreme Court had never addressed the constitutional right of involuntarily committed patients to refuse recommended medications for treatment, the panel adopted the balancing test applied to prisoners who refuse recommended psychotropic medications. The panel explained that, although convicted criminals in prisons do not have the same due process rights as persons held in non-criminal facilities, the U.S. Supreme Court’s treatment of forced medications in such cases makes clear that they can be justified only for non-punishment purposes; thus, application of Harper was not confined to prisoners. Because the New Jersey policy was essentially identical to the policy challenged in Harper, the panel found that it met all due process and related constitutional standards.

Due process analysis by the Court for CEPP patients: The panel specifically found that the standards in Harper could not be applied to CEPP patients, who had been “adjudicated by a court to be nondangerous.” The panel turned to the 3-pronged balancing test set out in Mathews v. Eldridge. 10 The panel noted that the administrative policy would permit forcible medication “even after a judge has ruled that the factual basis for their continued civil commitment has disappeared.” If a patient on CEPP status had so deteriorated that forcible medication of that patient had become necessary, the “appropriate course” for the state would be to recommit the patient.

Found in DMHL Volume 34 Issue 3

ADA and “reasonable accommodations” requirement

State in Interest of K.C., 2015 UT 92, 2015 WL 7571828 (Utah Nov. 24, 2015) (not yet released for publication in permanent law reports and thus subject to revision or withdrawal)

Americans with Disabilities Act applies to services and programs offered to a parent who has mental illness and other disabilities and whose children are in foster care

Background: The state of Utah sought to terminate a mother’s parental rights to the minor child, K.C. After several previous hearings, mother argued at hearing on termination of her residual parental rights that social services agency had failed to comply with ADA in providing services to her. The Juvenile Court terminated the mother’s parental rights despite her invocation of the ADA, holding that it is not a defense in termination proceedings because the proceeding is not “a service, program, or activity.” Alternatively, the court held that the mother had not suffered harm because her disabilities had been accommodated through previous changes made by the Department of Child and Family Services. K.C.’s mother appealed.

Holdings: The Supreme Court of Utah first held that the Americans with Disabilities Act applied to situations in which the government was asked to provide reunification services to a parent in a dependency hearing. According to the Supreme Court of Utah, reunification services qualified as “services provided by a public entity” and a reunification plan qualified as “a program or activity, as the terms are used in the ADA.”

Despite reversing the trial court’s ruling that the ADA did not apply to the provision of reunification services, the Supreme Court of Utah upheld the trial court’s alternative determination that further modification of the submitted reunification would be unreasonable. That determination by the trial court was not an abuse of discretion where the trial court “found that the plan had already been tailored to the mother’s individual needs, including needs related to the mother’s mental illnesses and physical limitations.” Additionally, the Court noted that K.C.’s mother, N.D. had not “identified any specific modification that she requested that was denied by the court” and claimed only that “she should have been granted additional time to complete the objectives of the reunification plan.”

Found in Found in DMHL Volume 34, Issue 4

Reasonable accommodations under ADA and 14th Amendment

Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178 (2nd Cir. 2015)

Medical school failed to meet “reasonable accommodations” standards of ADA regarding exams for student with mental illness, but due process afforded to the same student in regard to dismissal from school for inadequate performance met constitutional standards

Background: Maxiam Dean began to experience increased symptoms of depression after failing Step 1 of the United States Medical Licensing Examination. He met with an internist who recommended pharmacological treatment and provided him with an “excuse slip” recommending a leave of absence due to his situational depression. Dean presented the slip to his medical school, and was informed that it did not provide sufficient information to support an extended leave. The defendants offered a 10 week leave in response to Dean’s request for 3 months and informed him that he would not be extended any additional accommodations, and that he must sit for his Step 1 by May 21, 2007. After failing to pass (or sit for) his third attempt at Step 1, Maxiam Dean was dismissed from the program. Dean brought suit under Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and 42 U.S.C. § 1983. The United States District Court for the Western District of New York granted summary judgment to the defendants and dismissed Dean’s complaint. Dean then appealed.

Holdings: The Fifth Circuit held that the district court had erred in granting summary judgment to the defendants on the ADA and Rehabilitation Act claims because the defendants failed to show that the requested accommodation was unreasonable and to provide a “plainly reasonable” alternative. The Fifth Circuit found the record “devoid of evidence” regarding defendants’ consideration of whether Dean’s proposed accommodation would impose undue financial or administrative hardship on the M.D. program. Thus the lack of evidence regarding “the basis for denying Dean’s requested modification to the exam schedule preclude[d] any conclusion on summary judgment as to the unreasonableness of that accommodation.” Defendants would be entitled to summary judgment only if “the undisputed record reveals that the plaintiff was accorded a plainly reasonable accommodation”, but a reasonable juror could have found that the “abbreviated study period encompassed within Dean’s leave” would not have been sufficient to prepare him to sit the exam.

The Court held that Dean’s procedural due process rights had not been violated, though, because he “received notice of potential termination…and a careful and deliberate decision.”

Found in Found in DMHL Volume 34, Issue 4

ADA Integration Mandate

Steimel v. Wernert, 15-2377, 823 F.3d 902 (7th Cir. 2016)

For the purposes of the ADA integration mandate, protection is not limited to just those who are institutionalized. A state may violate the integration mandate if it refuses to provide already-existing treatment to disabled people where such services would improve community integration.

Background: Section 1915(c) of the Social Security Act established the Home and Community-Based Care Waiver Program, which allowed states to diverge from the traditional Medicaid program to provide community-based care for Medicaid receivers who would have otherwise been institutionalized. Nonetheless, the states must comply with the ADA’s integration mandate, which requires that the states administer services in “the most integrated setting appropriate” for qualified individuals.

The Indiana Family and Social Services Administration (The Agency) runs three of many home- and community-based services in the Medicaid program: the Aged and Disabled Medicaid Waiver Program (A & D waiver), the Community Integration and Habilitation Medicaid Waiver Program (CIH waiver), and the Family Supports Medicaid Waiver Program (FS waiver). The relevant differences between the three are the monetary cap on services and what must be demonstrated to qualify for said services. The FS waiver had a service cap of $16,545, whereas the CIH and A & D waivers did not have caps. In 2011, The Agency felt that it needed to change its policies to better adhere to A & D rules. The plaintiffs were moved to the FS waiver and were ineligible for the CIH waiver; they subsequently filed their claim, alleging that, because of this change, they enjoyed 30 fewer hours in the community than they did before the change. Furthermore, plaintiffs’ guardians alleged that the restriction of services led to lapses in supervision of plaintiffs that had and would result in injuries. The plaintiffs argued that this waiver structure violated the integration mandate because it effectively institutionalized the plaintiffs within their own homes and put them at risk for being institutionalized. The district court granted summary judgment to the defendants; plaintiffs appealed.

Holding: The Seventh Circuit extended the meaning of “institutionalized” to include in one’s own home, thus qualifying plaintiff’s argument. The court further noted that a state may be in violation of the integration mandate if it refuses to provide already-available services to individuals who could be more integrated into the community with such services. And because the plaintiffs sought services that already existed within the structure, the state was obligated to provide them if they enabled the plaintiffs to live in a more community-integrated setting.

Found in DMHL Volume 35, Issue 2

ADA Non-discrimination Requirement for “Public Accommodations”

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016)

Tenth Circuit adopts a definition of “public accommodations” under the ADA that results in a commercial plasma donation center being prohibited from refusing to do business with a person with schizophrenia who seeks to donate plasma.

Background: Brent Levorsen had various psychiatric disorders including borderline schizophrenia. For years, Levorsen donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do so at a Salt Lake City branch of Octapharma Plasma, Inc., but an employee at that location became aware that Levorsen had borderline schizophrenia. The employee informed Levorsen that he was ineligible to donate plasma out of a fear of him lashing out during the donation process, possibly injuring himself or others. Levorsen then obtained a note from his psychiatrists clearing him to donate, but Octapharma maintained its refusal to allow Levorsen to donate. Levorsen then brought suit claiming discrimination under the ADA. The district court granted Octapharma’s motion to dismiss for failure to state a claim based on a determination that plasma donation centers do not fit the definition of a service establishment under the ADA.

Holding: The Tenth Circuit reversed the district court’s finding and held that plasma donation centers fit the definition of service establishments under the ADA. The court reasoned that the “ordinary meaning” of service establishment was not tied to the purchase of services from the establishment; rather, an establishment that provides a service, which could include accepting and paying for donations of plasma, is the essence of the term and what the ADA sought to cover. The court remanded the case for further proceedings consistent with that determination.

Found in DMHL Volume 35, Issue 3