What a “Comprehensive” Disability Firm Does (for Our Able-bodied Clients, Too)

Are you confused about what the Massachusetts Disability Lawyer does? If so, this blog’s for you.

In the Beginning

When we set out to create Prokowiew Law, we knew it would be a disability firm. At first we were interested in primarily Americans with Disabilities Act (ADA) claims, imagining that we’d fight to bring employers, governments and businesses up to ADA standards for accessibility. Our ideas on the scope of disability law have changed, so we've grown.

A Diversity of Needs

People with disabilities have a diversity of (often unique) needs, going well beyond the ADA. 

As we surveyed the market, we found that many disability law firms were just covering one area of disability law. The Disability Law Center in Boston caters to ADA enforcement. There are a plethora of firms throughout Massachusetts handling social security disability exclusively. We handle both.

Many firms also handle Special Education Law, making sure their clients needs are met in schools. Those practices also often create guardianships, where another person would be responsible for decisions about someone's personal care or financial matters due to disability. 

Often elder law firms, which focus on the needs of the aging client, also work in disability law and guardianships. They advocate for fair treatment from nursing homes and hospitals.

Both of these types of firms often offer estate planning, too. They know their clients need wills, trusts for long-term planning, and healthcare proxies to meet all their legal needs. 

The unfortunate truth is that sometimes a person with a disability or their guardian needs to bring a personal injury claim against someone who's aggravated their disability, or otherwise hurt them. It's another distinct aspect of disability advocacy. 

We decided Prokowiew Law is ready to do all of this. My experiences and interests include estate planning and disability advocacy. When I was a law clerk, I drafted wills and other estate documents for able-bodied clients, and will continue to do that for Prokowiew Law. We’re also ready to help create guardianships, and to help visualize and then actualize long-term planning for all our clients.

How We Serve our Able-bodied Clientele

Our focus is certainly on disability law, but there’s room for all manner of client, including able-bodied individuals, to take advantage of our services. We want each one of you to realize the importance of getting your estate plan in order, so that when you’re gone, your family doesn’t have to scramble to figure out what you wanted, and what to do. The injured person may find he or she needs our personal injury services. 

What Can We Do for You?

Prokowiew Law is more than one thing because disability is more than one thing. Our skills in estate planning and personal injury go beyond estate plans for people with disabilities, and our services for people with disabilities try to address the many needs of the client. Spread the word: we’re ready to help in a variety of ways. If you’re confused about what we do, please leave a comment so that we can explain. We want YOU to understand us, as well as we try to understand you. 

Covered Disabilities under Social Security Disability Benefits

     Social Security Disability benefits are reserved generally for workers with a physical or mental condition who are unable to perform full time work for at least 12 months. As for those who have never worked or not worked very much, for those who have never worked, or worked very little, Supplemental Security Income disability is available from Social Security under the same definition of disability, i.e., unable to perform full time work for 12 months.

     We spoke in past posts about the definitions of disability under the Americans with Disabilities Act. The laws that govern Social Security Disability have their own definitions of disability. Social Security Disability law defines a covered disability as an “inability to engage in substantial gainful activity (SGA) due to certain medically determinable physical or mental impairments which can be expected to result in death or which have lasted or can be expected to last for a continuous period of at least 12 months.” To collect benefits under the Social Security Disability program, you must meet certain requirements.

     Social Security Disability laws list covered physical and mental disabilities. The physical disabilities include:

           

     Asthma

     Diabetes

     Herniated disks

     Other lumbar and cervical (back and neck) problems

      In addition, disabilities include:

     Arthritis

     Heart problems

     Spine problems

     Fibromyalgia

     Sleep apnea

     AIDS

     Cancer

     Hepatitis

     Cirrhosis and other liver conditions

     Brain injuries

     Cerebral palsy

     Lupus

     Repetitive stress disorders

     Hearing loss

      Mental disabilities included psychiatric disabilities, including but not limited to:

     Anxiety

     Agoraphobia

     Panic attacks

     Depression

     Schizophrenia

     Bipolar disorders

     Mental retardation

     Evaluation of claims

    There is also a Listing of Impairments applicable to an evaluation of claims for disability benefits under the Social Security Disability insurance program. The Listing of Impairments describes, for each major body system, impairments considered severe enough to prevent an individual from engaging in any gainful activity. Part A of the Listing of Impairments contains medical criteria that apply to the evaluation of impairments in adults who are age 18 and over. Part B of the Listing of Impairments contains additional medical criteria that apply only to the evaluation of impairments of persons under age 18.

    Sound confusing? It can be. Much like navigating the law of the ADA, navigating Social Security Disability law can be trying and exhausting.

Proving You're Disabled under the ADA (Part 1)

Under the ADA § 12102 (3), a person is disabled if he or she “has an actual physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”

There are three requirements within the definition:

-a physical or mental impairment;

-a substantial limitation; and

            -effect on a major life activity.

We’ll focus in today’s blog (and in Part 2) on mental disabilities (e.g., cognitive impairments, developmental delays, mental illness, and learning disabilities) as a way of demonstrating both how the ADA has been viewed by the courts, and the sorts of hurdles that exist to defining oneself as disabled under the ADA.

Using two cases, Olmstead v. L.C., 527 U.S. 581 (1999) and Bartlett v. New York State Board of Law Examiners, 226 F.3d 69 (2nd Cir. 2000), we’ll compare the process of invoking a disabled legal-identity under the ADA with the way people with disabilities are barred from even claiming that legal-identity. This identity has not remained fixed, and even as case law has amassed regarding how disability should be understood, policy-makers are still in the process of revising the law to account for current social understandings and needs of individuals with disabilities.

The protections provided by the ADA are meant to give individuals with disabilities a legal remedy when they encounter discrimination in public spheres such as in employment services rendered by states, and public accommodation through more accessible design in environment and policy. Specifically in areas of employment and state services, the ADA codifies that if an individual is otherwise qualified for a position or services, then he or she may request reasonable accommodation from their employer or State. Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117 (1994).

Reasonable accommodations can mean changing the organization of a position within a company, changing hiring practices that exclude individuals with disabilities, and/or modifying policies and services to make them more accessible for individuals with disabilities. Accommodation does not have to be made in all cases as the ADA also states that the accommodations must be reasonable.

If an accommodation causes an “undue hardship” for the entity, such that the modification would require “significant difficulty and expense,” then it would not be considered reasonable. Olmstead v. L.C. 98 US 536, 7.

The burden is on the individuals with disabilities to demonstrate that they satisfy one of the three criteria for defining disability under the ADA in order to file suit: impairment with substantial limitation of a major life activity, history of such an impairment, or perception of having an impairment. 

For individuals with disabilities to even use the ADA, he or she must adopt at least one of these three identities defined under the law, and must prove themselves disabled under ADA definitions. As the cases we’ll look further at in Part 2 demonstrate, this can be a tricky task.

The Low Cost of ADA Compliance (and the Misconception of the High Cost)

          Along with the spirit of the ADA came the requirement that discriminatory barriers to employment be removed for individuals with disabilities, in order that they may achieve the “equality of opportunity, full participation, independent living and economic self-sufficiency” that Congress originally sought when they passed the original ADA.

          The ADA defines discrimination as “not making reasonable accommodations to the known limitations of an otherwise qualified individual.” In order to avoid this discrimination, employers have to accept the financial burden of accommodation up to the undue hardship ceiling.

          Employers often complain about the costs associated with making reasonable accommodations. According to a DePaul University and Illinois Department of Commerce and Economic Opportunity study, the financial advantages of making the accommodations outweigh the disadvantages:

-Participants with disabilities from the retail and hospitality sectors stayed on the job longer than participants without disabilities.

-Across all sectors, participants with disabilities had fewer scheduled absences than those without disabilities.

-Retail participants with disabilities had fewer days of unscheduled absences than those without disabilities.

Regardless of sector, participants with and without disabilities had nearly identical job performance. <www.disabilityworks.org/downloads/disabilityworksdepaul studyexecutivesummary.pdf>.

The above and other studies point to the ideas that costs of compliance are small, and the additional benefits of compliance are that individuals with disabilities are less excluded in society in general when put into work. They are also taken off government-assisted programs.

It seems, however, that before the individual with a disability begins the arduous task of defining his or herself as disabled under the ADA, they’re faced with a misconception that equality is too expensive. This misconception is a societal obstacle that, so long as it exists and goes unpacked, will hinder the ADA from reaching its goals. 

(Stay tuned for my next blog as the focus of Massachusetts Disability Lawyer turns to guardianship in special education as well as other disability cases.)

The ADA’s Spirit Versus the ADA in Practice

On July 26, 1990, with 3,000 disability rights advocates looking on, then President George Bush signed the Americans with Disabilities Act (ADA) into law. Bush described the ADA that day as

the world’s first comprehensive declaration of the equality of people with disabilities, and evidence of America’s leadership internationally in the cause of human rights. With today’s signing, every man, woman and child with a disability can now pass through the closed doors, into a bright new era of equality, independence and freedom.

Equality, independence and freedom: these were the purported goals of the ADA more than 20 years ago. The definition of disability contained within the ADA, however, creates enormous hurdles for individuals with disabilities, as they must first prove themselves disabled under its definition before they can begin to seek its protections.

This creates a discrepancy between the original spirit of the ADA and its effect on those trying to use the law. While the legal identity of “disabled” contained within the ADA could be used to challenge barriers, it created new ones.

The ADA itself—as well as court interpretation—has created obstacles to equality, independence and freedom. It’s also created two groups of individuals with disabilities: those who were considered disabled under the ADA and were able to seek protection under the ADA, and those who were disabled, but were not able demonstrate the legal standards set out in the ADA and were therefore excluded.   

            The ADA’s definition of disability creates a categorization of disability that places an additional burden on individuals with disabilities, instead of addressing institutional barriers and attitudes that construct individuals as disabled. As Professor Katherine Dudich of the Massachusetts School of Law at Andover has stated, the ADA is reactive, not proactive. It is this characteristic of the ADA, and its requirements for qualifying as disabled under the ADA, that are antithetical to the original spirit of the law.