Great News on Movie Theatre Accessibility

http://lflegal.com/2012/09/cinemark-press/#press

Progress for Mentally Ill Inmates

http://masslawyersweekly.com/the-docket-blog/2012/04/13/wolf-oks-settlement-over-mentally-ill-inmates/

My Kid Would Never… | The Current Conscience

I've been hearing a great deal lately from parents of disabled kids who are facing bullying at school based upon their disabilities. This article explores the denial some parents face about their child as bully. 


My Kid Would Never… | The Current Conscience

Wretches and Jabberers

An FYI for those of us in Massachusetts...

The Graduate School of Education & The University Diversity Council
is pleased to offer you an opportunity to view

Wretches and Jabberers
Two men with autism embark on a global quest to change attitudes about disability and intelligence

Film showings will be in the UH Amphitheater on
April 9th from 1pm-3pm
April 10th from 12pm-2pm
April 13th from 2pm-4pm

This filmcoincides with the

June Fox Lecture
Abandoning Intellectual Disability:
The Case for Presuming Competence
and
Art Exhibition: Surface Scenes

Speaker | Artist
Dr. Douglas Biklen
Dean, School of Education, Syracuse University
Thursday, April 12, 2012 ~ 6:30 p.m.
Amphitheater ~ University Hall
1815 Massachusetts Avenue, Cambridge, MA

Reception will follow in Atrium Gallery

The Psychiatric Drugging of Children and Elderly

Check out this video of Jim Gottstein discussing the psychiatric drugging of children, youth and the elderly at his guest lecture at Alaska Pacific University, February 22, 2012

Gottstein's the President of the the Law Project for Psychiatric Rights, a public interest law firm devoted to the defense of people facing the horrors of forced psychiatric drugging and electroshock.

On "Olmstead"

For a person with a disability 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. The case of Olmstea demonstrates that this can be a tricky task.

The Olmstead case (Olmstead v. L.C. 98 US 536, 7. ) distinguishes variation within the category of “mental disabilities” as well as demonstrating a common example of how individuals must assume a disabled identity in order to access the ADA. The plaintiffs in that case were individual women identified as having cognitive disabilities as well as psychological disabilities. Id. at 7. The women were described as having mental retardation: one has been also diagnosed with schizophrenia, and the other with a personality disorder. Both were voluntarily admitted to a hospital and confined for treatment in the psychiatric unit. The state agency providing the women treatment felt that the women could be placed in a community-based residential program, but they were not transferred, and the two remained in the hospital.

The women wanted to be in a community-based residential program, and they filed suit against the State of Georgia under Title II of the ADA. Georgia failed to place them in a community-based program after doctors deemed it appropriate. The District Court found the failure to place the women in a community program was discrimination based on their impairments. Id. at 9. That court held that unnecessary institutional segregation amounted to discrimination that cannot be justified by lack of funding. The court further held that immediate placement would not “fundamentally alter” the State’s practice and did not allow for a cost-based defense for the State. At the Supreme Court level, the issue was whether Georgia could use funding as a defense for not deinstitutionalizing a person with a disability.

The Supreme Court mostly upheld the District Court decision. This decision informed readings of the ADA by States, requiring that, under the ADA, states place persons with mental disabilities in community settings as opposed to institutions when the State’s treatment professionals have determined such placement is appropriate, the transfer is less restrictive, and not opposed by the individual. The Supreme Court differed from the lower court in holding that placement of an individual in a community-program depends on factoring in the State’s resources along with the needs of other individuals with mental disabilities who are receiving services.

This holding illustrated two things: the refusal of deinstitutionalization by a state agency is discrimination under Title II of the ADA; and it considers unjust segregation as a mode of discrimination. The case resulted in allowing State agencies to use budgetary short-falls as a defense when individuals desires to have placement in a community-based environment as opposed to an institution, though the court required clear evidence to demonstrate this.

To examine this case from the perspective of differing from the original spirit of the ADA, the plaintiffs only qualified for the programs involved because doctors deemed them so. Both women were diagnosed with their disability and later found to be qualified for a different program in order for their issues to even begin to seek relief under the ADA. This case highlights how the ADA is predisposed to rely on medicalized definitions of disability. A person with a disability must first demonstrate impairment before assuming the identity created by the ADA. Here, the identity was helpful to the plaintiffs and provided ADA access.

Disabled Patients' Wishes Ignored

An interesting article (originally from BostonGlobe.com) about the tendency of Massachusetts courts not to honor the rights of those ruled incompetent.

Abortion ruling raises fears among mental health advocates

Respecting Your Disabled Clients' Head Space

     Recently I had a client referred to me by his wife, who warned me that he was a “tall, proud man, who wasn't comfortable being labeled disabled.”

     I've written here about how the various laws around disability have “labels” or definitions that individuals need to meet before they can be protected under the laws. I've encountered numerous clients, as well as friends, who are not comfortable yet with the idea that they fit into some of these definitions. It's not surprising when, for instance, to be disabled for the sake of Social Security benefits, a person needs to prove an “inability to perform substantial gainful activity.”

     People want to work. They want to be useful to society. I am casting people with some broad strokes here, but overall, it's true. It's far more appealing to be able to perform substantial gainful activity than to not be able to. But most of the laws demand that folks first admit they are unable, not only to the courts, but also to themselves, their families, and society. It's no easy acknowledgment.

     The question for me then is, how to meet my clients in their own mental space, respecting where they are now with accepting their disability? I've had disabled good friends come to acceptance of their disabilities over the course of years, so how could I expect anything else from my clients?

     In the case of the “tall, proud man” I mentioned at the outset, as comfortable as his wife was with his disability and the tricky label it came with, she wasn't my client. I told her I'd have to respect his head space, too. One skill I employed when he and I did eventually speak on the phone was the not-to-be-overlooked one of listening.

     I could push the laws on him all day, tell him he was disabled, and could take advantage of Social Security Disability benefits, but all that was going to fall on deaf ears if he wasn't yet comfortable with his disability. The more I listened, the more I let him talk, the more information he gave. He told me of the struggles, and I listened.

     I also made certain I used my vocabulary around disability with as much ease as I could muster. Being disabled can be a real pain in the butt, from the physical limitations of it to the way the world is designed (overall) for able-bodied individuals. I talked with him about some of that with the same matter-of-factness as I might talk about long lines at stores during Christmas. The more I did that, the more he did, too.

     Lastly, I shared with him some of the experiences of other clients and my friends who are disabled. Oftentimes, when someone's not yet ready to see themselves as disabled, they think they're alone—that no one else has dealt with this pain-in-the-butt situation before. While every disabled person is different, many of the struggles of being disabled in an able-bodied world are similar. I like to think that hearing about others' struggles gave him the sense he was not as alone as he originally thought.

     All of this is to say that respecting your client's head space is an art, not a science. It's requires you to be one part listener, as well one part gentle nudge, and a whole lot of other things in different measures. If they're not ready to be a part of that process, there's nothing you can do. If they are ready to dialogue about what you can do as their disability attorney, then some of what I've mentioned might help.

     That tall proud man is now my client. We got here through conversation that was messy and slow. My next client will be different. But I am ready when they are.

Reasonable Accommodations under the Americans with Disabilities Act

I was recently asked by another attorney whose specialty lies outside disability law about the legality of discrimination based on disability when it came to a public employer. The protections provided by the ADA are meant to give people 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. ADA, 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 people with disabilities, and/or modifying policies and services to make them more accessible for people 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.