Payan v. Los Angeles Community College District

/in , , , , , , /by Evan Monod

Filed: November 8, 2024

Court: U.S. Circuit Court of Appeals for the Ninth Circuit

Overview: Amicus brief explaining that the availability of compensatory damages and broad injunctive relief is essential in safeguarding the rights of people with disabilities under the ADA, and in fulfilling Congress’s goal of promoting inclusion and ending discrimination.

Excerpt: “The availability of comprehensive remedies under Title II serves essential functions beyond merely compensating individuals who have been subjected to discrimination. These remedies play a crucial role in achieving Congress’s broader goals in enacting the ADA and ensuring the statute’s effectiveness as a tool for eliminating disability discrimination in American society. Discrimination can inflict a complex web of injuries on people with
disabilities, ranging from immediate economic losses to long-term limitations on educational and professional opportunities, as well as dignitary harms that affect one’s ability to participate fully in society. Comprehensive remedies acknowledge this reality and provide courts with the tools necessary to craft relief that truly makes injured individuals whole. Robust remedies also deter discrimination. When public entities face the prospect of significant liability for discrimination, they have stronger incentives to voluntarily comply with the ADA’s requirements.”

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Hall v. Florida

/in , , , , , , /by Shira Wakschlag

Filed: December 23, 2013

Court: United States Supreme Court

Overview: Amicus brief urging the court to reject an arbitrary cutoff for IQ scores in making the intellectual disability determination and emphasizing the importance of courts consulting clinical standards in their analysis.

Excerpt: “After decades of intensive study, mental disability professionals have a substantial understanding of what an individual’s score on an IQ test can tell us and what it cannot. There is a strong consensus among psychologists, psychiatrists, and other clinicians, as well as their professional associations, that imposing an arbitrary IQ cutoff score of 70 is wholly inconsistent with our scientific understanding of these instruments. Florida courts responsible for adjudicating Atkins cases are precluded from fairly evaluating all of the essential evidence that has probative value in making that determination. Evidence about a defendant’s impaired adaptive functioning—in this case, clearly impaired starting in childhood—cannot be ignored merely because of a judicially-imposed rule which is neither clinically nor scientifically justified. In Atkins, this Court invited States to devise ‘appropriate procedures to enforce the constitutional restriction’ against executing individuals with [intellectual disability]. The Florida Supreme Court’s arbitrary rule prevents consideration of relevant evidence and excludes from the Constitution’s protection a considerable portion of those persons who have mental retardation. It therefore cannot be deemed “appropriate.” Effectively reducing the group of individuals entitled to that protection by means of an arbitrary rule can hardly be deemed to be “enforcement” of the right that this Court announced.”

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The Arc Submits Letter for Accessible Digital Form Filler Tool for the National Mail Voter Registration Form

/in , , , , , /by The Arc

The Arc submitted a comment letter about the National Mail Voter Registration Form. This is an online form that helps people register online and mail in their information. We offered suggestions to make it more accommodating for people with intellectual and developmental disabilities.

Ex Parte Blaine Milam

/in , , , , , , /by Shira Wakschlag

Filed: July 18, 2024

Court: Texas Court of Criminal Appeals

Overview: Amicus brief alongside other disability rights organizations arguing that Supreme Court precedent requires courts to refer to clinical standards when determining intellectual disability in death penalty cases.

Excerpt: “In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that executing defendants with intellectual disability violates the Eighth Amendment’s ban on cruel and unusual punishment. Subsequently, in Hall v. Florida, 134 S. Ct. 1986 (2014), in accord with the clinical consensus, the United States Supreme Court rejected an arbitrary cutoff for intelligence quotient (“IQ”) scores in making the intellectual disability determination and emphasized the importance of courts’ adherence to the appropriate clinical standards in their analysis. In Moore v. Texas, 137 S. Ct. 1039 (2017) (hereinafter “Moore I”), the Supreme Court held that the Eighth Amendment’s prohibition on cruel and unusual punishments requires that adjudications of intellectual disability in death penalty cases be “informed by the views of medical experts” and that the non-clinical factors adopted in Ex parte Briseño, 135 S.W.3d 1 (Tex. Crim. App. 2004) may no longer be used because they create an unacceptable risk that persons with intellectual disability will be executed. Following the Supreme Court’s lead, this Court has held that Texas courts ‘must be informed by the current medical diagnostic framework for assessing intellectual disability’ when determining whether a person has intellectual disability. Petetan v. State, 622 S.W.3d 321, 357 (Tex. Crim. App. 2021); Moore I, 137 S. Ct. at 1044. Courts must insist on the use of the clinical framework in evaluating Atkins claims. Otherwise, they risk violating the Eighth Amendment and unconstitutionally sentencing individuals to death.”

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Guthrey v. Alta California Regional Center

/in , , , , , , /by Evan Monod

Filed: July 11, 2024

Court: U.S. Circuit Court of Appeals for the Ninth Circuit

Overview: Amicus brief arguing that California regional centers and their vendors, which coordinate and deliver services to people with intellectual and developmental disabilities, are places of public accommodation under the Americans with Disabilities Act.

Excerpt: “Because they have physical buildings at which and from which they provide services to the public, California Regional Centers and their vendors (including Defendants/Appellees) are all places of public accommodation under Title III of the ADA. . .and the services they provide individuals like Plaintiffs/Appellants are covered by that statute. . .This Circuit’s requirement that discrimination challenged under Title III have a ‘nexus’ to a physical building simply requires a connection to that building; it does not require that the discrimination have occurred on the physical premises. The district court’s opinion requiring a showing that the challenged services were provided at Defendants’ offices. . . improperly restricted the reach of Title III, contrary to the plain language of the statute, its legislative history, and this Circuit’s precedent. The district court also improperly required that plaintiffs establish a violation of the ADA as a prerequisite to a claim under either Section 504 or the Unruh Act. These holdings are completely unsupported, as the three statutes – while all addressing disability discrimination – do so in different contexts with, as a result, different required factual predicates.  Ultimately, by eliminating all recourse for individuals with IDD to challenge discrimination by Regional Centers and their vendors, the district court’s decision threatens to undermine years of progress through both the ADA and California’s Lanterman Act.”

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The Arc Responds to FDA’s Proposed Rule to Ban Electro-Stimulation Devices for Aggressive or Self-Injurious Behavior

/in , , , , , , /by The Arc

The Arc submitted comments to a proposed rule by the FDA to ban electrical stimulation devices for aggressive or self-injurious behavior. These devices are used by only one institution in Massachusetts, and The Arc has been fighting for decades to protect its residents from this abuse.

City of Grants Pass, Oregon v. Johnson

/in , , , , , , /by The Arc

Filed: April 3, 2024

Court: U.S. Supreme Court

Overview: Amicus brief arguing that the Eighth Amendment ban on cruel and unusual punishment prohibits cities from criminalizing conduct associated with being unhoused.

Excerpt: “People with disabilities face unique challenges and deep-rooted stigmas that increase their risk for homelessness. Less than 5% of housing in the United States is accessible for moderate mobility disabilities, and less than 1% is accessible for wheelchair use. Housing costs are prohibitive for many disabled people who rely on public assistance for basic costs of living—the average cost of a one-bedroom apartment in the United States exceeds the maximum monthly Supplemental Security Income a person can receive. Moreover, widespread housing discrimination on the basis of disability further compounds the risk of homelessness. The Ordinances’ impact on homeless people with disabilities highlights how grossly out of proportion the punishments they impose are to the severity of the offense. Simply put, criminalizing the involuntary conduct of being a homeless person without a place to sleep—in a city with no public shelters—is anathema to the decency standards of any civilized society.”

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Robertson v. District of Columbia

/in , , , , /by The Arc

Filed: 2024

Court: U.S. District Court for the District of Columbia

Plaintiffs: Parents and guardians of students with disabilities in the District and The Arc

Counsel: The Arc, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Children’s Law Center, McDermott Will & Emery

Overview: Parents and guardians of children with disabilities living in D.C., along with The Arc of the United States, filed a class action lawsuit against D.C.’s Office of the State Superintendent for Education for failing to provide safe, reliable and effective transportation to and from schools for children with disabilities, thereby denying students equal access to their education and unnecessarily segregating them from their peers.

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Food and Drug Administration v. Alliance for Hippocratic Medicine

/in , , , /by The Arc

Filed: January 30, 2024

Court: U.S. Supreme Court

Overview: Amicus brief arguing that it is not the role of courts to substitute their evaluation of drug safety and effectiveness in place of the FDA’s expert determinations.

Excerpt: “The Fifth Circuit’s substituting its evaluation of drug safety and effectiveness for FDA’s expert determinations affects far more than the modifications to the conditions of use for the single drug at issue here. Patients and their providers depend on FDA’s determinations about safety and effectiveness and expect drugs to be available according to the terms of the FDA approval, including supplemental approval. Providers rely on FDA’s expertise-based approval of drug uses in making treatment plans, and patients depend on being able to take the drugs as prescribed by their providers. The Fifth Circuit’s ruling broadly jeopardizes the reliability of FDA’s original approvals of drugs, and the agency’s approvals of modifications to the conditions of their use. It is effectively a roadmap for other litigants seeking to overturn drug approvals or conditions of use they disfavor—whether those changes expand (as was the case here) or restrict how the drug can be used. If approved drugs or modifications to conditions of use can be so readily enjoined despite FDA’s scientific assessments, the resulting uncertainty would jeopardize patient access to drugs, particularly in cases where FDA has expanded the approved uses of a drug to cover new diseases or conditions. It could also threaten patient safety, as FDA approves modifications to conditions of use where it determines they are needed to protect patients from risks of harm. Finally, the Fifth Circuit’s decision would impair the development of new treatments, as uncertainty disincentivizes pharmaceutical manufacturers, clinicians, and patients from undertaking time-and resource-intensive clinical trials to study new drugs and new indications for approved drugs.”

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FDA v. Alliance for Hippocratic Medicine Amicus Brief

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Comments on the HHS Proposed Rule Implementing Section 504

/in , , , , /by Darcy Milburn

November 13, 2023

Melanie Fontes Rainer, Director
Office of Civil Rights
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201

Re: Notice of Proposed Rulemaking on Discrimination on the Basis of Disability in Health and Human Service Programs or Activities. Docket No: 2023-19149, RIN: 0945-AA15

Dear Director Fontes Rainer:

The Arc of the United States (The Arc) appreciates the opportunity to comment on and express our strong support for the proposed rule, Discrimination on the Basis of Disability in Health and Human Service Programs or Activities. The Arc is the largest national community-based organization advocating for people with intellectual and/or developmental disabilities (IDD) and their families. The Arc promotes and protects the human rights of people with IDD and actively supports their full inclusion and participation in the community throughout their lifetimes. The organization has long advocated that people with IDD must not experience disability-related discrimination in decisions to provide, delay, deny, or limit health care interventions or treatments. Our nearly 600 state and local chapters across the United States provide a wide range of services for people with IDD, including individual and systems advocacy, public education, family support, systems navigation, support coordination services, employment, housing, support groups, and recreation.

The Arc commends the Department of Health and Human Services (the Department) and the Office of Civil Rights for this proposed rule which updates, clarifies, and strengthens the implementing regulation for Section 504 of the Rehabilitation Act of 1973 (Section 504), the statute that prohibits discrimination against otherwise qualified individuals on the basis of disability in programs and activities that receive Federal financial assistance or are conducted by a Federal agency.

The Arc appreciates that the proposed rule establishes additional protections to ensure that an individual’s health and wellbeing are the only justifiable basis for making medical decisions. People with disabilities experience greater health disparities and barriers to quality health care compared to people without disabilities. This is especially true for people with IDD, who are systematically underserved by our healthcare system. Research suggests that although individuals with IDD are disproportionately high utilizers of healthcare services, they receive poorer quality of care, report poor experiences at hospitals, are less likely to receive preventative screenings and vaccinations, have poorer health outcomes, and shorter life expectancies. People with IDD experience higher rates of preventable health conditions and poorly-managed chronic conditions including, but not limited to: poor dental health, undiagnosed hearing and vision impairments, arthritis, obesity, diabetes, high blood pressure, and cardiovascular disease. Research shows people with IDD also lack access to adequate OB/GYN services – especially providers well-versed in using supported decision-making. For example, people with IDD have much lower rates of routine breast and cervical cancer screenings, higher breast cancer mortality rates, higher rates of medical complications during pregnancy, and higher rates of postpartum hospital admissions.

While there are many contributing factors to these disparities, discrimination and the stigma, exclusion, and devaluing the equal worth of people with IDD are critical problems faced by people with IDD. People with IDD and their family members frequently experience or observe discrimination from health care providers. They report that medical providers do not want to provide services to people with IDD, that they treat them differently, that they wrongly attribute health care issues to the fact that they have IDD, that appropriate treatment is not necessary due to their IDD, that they cannot see individuals with IDD because they do not have the expertise, and that they do not view people with IDD as reliable communicators of health issues. Many medical providers are not familiar with the support needs of individuals with IDD, refuse to allow a support person to accompany a patient with IDD during a procedure, and lack training in how to interact with someone using Alternative and Augmentative Communication (AAC) tools.

The most frequent concern expressed is that many people with IDD rely on Medicaid, which they access due to their disability, and many providers do not accept Medicaid. For example, many individuals with IDD and their families report significant challenges finding a dentist in their area that accepts Medicaid. While addressing that issue and others may be beyond the scope of the rulemaking, it remains an important concern regarding disability discrimination.

Another significant area of concern is that many mental health providers decline to treat people with IDD. More than a third of people with IDD have a co-occurring mental health condition, but they often experience barriers to accessing appropriate mental health services. This includes several assumptions that people with IDD cannot benefit from mental health services, that nonverbal individuals cannot participate in therapy, that multiple medications are needed to control the behavior of some people with IDD, and that mental health professionals do not have the competency to serve people with IDD. Many individuals with IDD are also improperly prescribed medications for mental health conditions despite not having any psychiatric diagnosis.

As above, fully addressing these complex issues may be beyond the scope of this rulemaking and complicate the issue of fully identifying discriminatory actions versus other complexities in the health care system. The addition of other examples in the rulemaking may be helpful to recipients for identifying where they need to modify their policies or practices and better understand the anti-discrimination provisions.

While our comments do not specifically address the section on medical equipment accessibility, we frequently hear about physical access challenges from our networks. For example, people with IDD, their families, and supporters report that:

  • Bathrooms within medical facilities often do not have automatically opening doors, adequate space to accommodate a wheelchair, or height-adjustable universal changing tables in family restrooms. Dental offices appear especially prone to inaccessible restrooms.
  • Waiting rooms often do not have accessible seating for individuals with chronic pain or obesity. Crowds, harsh lighting, and noise in waiting rooms can also pose challenges for individuals with autism who have sensory processing challenges.
  • Examination rooms frequently are too small to accommodate a wheelchair.
  • Physician offices often lack adequate patient transfer or lifting equipment such as Hoyer lifts. Patients often wait for extended periods of time for transfers, and some medical staff have limited knowledge on how to correctly use the equipment.
  • Medical equipment that people with IDD and their families frequently cite as inaccessible include: examination tables, dental chairs, eye examination equipment, scales, X-ray machines, mammography equipment, and other radiography equipment.
  • Parking lots at medical facilities frequently have too few accessible parking spots, especially van-accessible parking spots.
  • Many medical offices do not have automatically opening doors within buildings.
  • At-home diagnostic, therapeutic, and monitoring equipment such as heart monitors are also frequently inaccessible.

In addition, the Arc supports the Consortium for Constituents with Disabilities (CCD)’s recommendations that HHS, in collaboration with the Access Board, develop and issue standards for individuals with non-mobility disabilities, including sensory disabilities, intellectual and developmental disabilities, and individuals with multiple disabilities. For example, the introduced bipartisan Medical Device Nonvisual Accessibility Act (H.R. 1328) requires covered devices to meet nonvisual accessibility standards. If passed, HHS should incorporate similar requirements into 504 regulations. Although qualified individuals with any type of disability must be offered equal opportunity to access medical programs and services, regulated entities would benefit from specific technical guidance on how to fulfill their obligations and make their services accessible.

The proposed updated rules are necessary to ensure that people with IDD and other disabilities are not valued less than others; that children, parents, caregivers, foster parents, and prospective parents with disabilities do not face discrimination in a range of settings; and that websites, kiosks and mobile apps, weight scales, and exam tables used in medical settings are accessible to all patients.

The Arc also endorses the comprehensive comments submitted by CCD. The following comments will emphasize key points for people with IDD and provide additional examples where appropriate. Several of these examples were provided by people with IDD and their families though a communication we shared with our networks about the proposed rule in October 2023.

See continued comments at the resource link, below: