Patti's Blog - Advocate for Elders, People with Disabilities and Their Families

U.S. Wins Record $240 Million Discrimination Verdict in Iowa

Excerpt from: Bloomberg Business (click for full article)

 

The U.S. Equal Employment Opportunity Commission said an Iowa jury awarded $240 million in damages, a record for the agency, in a trial accusing a Texas-based turkey processing company of severe abuse and discrimination against workers with intellectual disabilities.

The jury in federal court in Davenport, Iowa, found that Hill Country Farms Inc., doing business as Henry’s Turkey Service, subjected 32 men to verbal and physical harassment, harsh living conditions and other abuses from 2007 to 2009, after 20 years of similar mistreatment, the EEOC said today in a statement.

The Goldthwaite, Texas-based company employed the men in Iowa, where they worked eviscerating turkeys. The EEOC presented evidence that the company exploited the workers because their intellectual disabilities made them vulnerable and unaware of their rights, the agency said.

$6M Award Upheld for ‘Rampant’ Sex Abuse of Deaf and Blind Children

Excerpt from: Lawyers.com (click for full article)

 

A federal court has upheld a $5.75 million settlement of a lawsuit alleging rampant student-on-student sex abuse at the Hawaii Center for the Deaf and Blind.

The lawsuit claimed that a group of older students who called themselves “the ringleaders” bullied, terrorized, assaulted, robbed, gang raped and sodomized younger, smaller students at the school.

The parents of the victims blamed the school administration, the state of Hawaii, and school counselors for not providing a safe school environment and for trying to cover up the abuse.

Each of the class members will receive $20,000 or more, depending on the degree of abuse they suffered and other factors that figure into the impact of the abuse and the amount of damages they are owed for their injuries, such as whether the abuse affected their job history, mental health, substance abuse and other evidence of physical, psychological and emotional consequences.

Judge closes book on lawsuit involving nursing home residents with intellectual, developmental disabilities

Excerpt from: McKnight's (click for full article)

 

A U.S. District Court judge has brought a definitive end to a large, long-running class action case involving nursing home residents with developmental and intellectual disabilities.

Lead plaintiff Loretta Rolland, now 71, and four other plaintiffs brought the case against the state of Massachusetts in 1998. They contested the state system of placing people with intellectual or developmental disabilities in nursing homes, saying that these residents were not being given “active treatment” in these facilities, and that many were capable of living in other settings. The class of plaintiffs eventually exceeded 1,800 people as the case stretched on for 15 years.

The plaintiffs sought other care options, such as specialized group homes, for those with intellectual and developmental disabilities. They also wanted nursing homes to provide more active, comprehensive care plans for those who could not move into different settings. Opponents included the families of some of the nursing home residents, who felt their loved one required care in the skilled setting and feared forced removals.

Justice Department Settles Lawsuit Against Golden Corral Restaurant for Violation of the Americans with Disabilities Act

Excerpt from: DOJ (click for full article)

 

The Department of Justice announced today the settlement of its lawsuit against the Golden Corral restaurant in Westland, Mich., which alleged that the owners and operators of the Golden Corral violated the Americans with Disabilities Act (ADA) by denying service to a mother and her minor children based on the appearance of the children’s skin due to a genetic skin disorder.

The Justice Department’s lawsuit, filed in the U.S. District Court for the Eastern District of Michigan in Detroit, alleged that the manager of the Golden Corral restaurant demanded that Danielle Duford and her four daughters leave the restaurant based on the appearance of the children’s skin caused by a genetic skin disorder, epidermolysis bullosa, which causes blisters to form on the skin in response to minor injuries and temperature changes.   Despite Duford informing the restaurant manager of her children’s disability and repeatedly emphasizing that they did not have a contagious disease, the manager required the family to immediately leave the restaurant, claiming that he had received complaints from other customers.   Title III of the ADA prohibits public accommodations, such as restaurants, from discriminating against people on the basis of disability, or their association with an individual with a disability, in the full and equal enjoyment of the goods or services offered. 

One Step Forward On Mental Health Parity

Excerpt from: psych-appeal.org (click for full article)

 

Yesterday, the United States District Court for the District of Vermont became the first court in the country to interpret the Mental Health Parity and Addiction Equity Act of 2008—and that decision is favorable to mental health patients. 

In C. M. v. Fletcher Allen Health Care, Inc., plaintiff C. M. challenges her health plan’s administration of mental health benefits. Specifically, she alleges that the Plan violates MHPAEA by: (1) requiring pre-approval for routine mental health services but not for medical-surgical services; (2) conducting concurrent reviews of mental health services but not requiring such reviews for medical-surgical services; and (3) initiating automatic review processes triggered by a fixed number of visits for mental health services but not for medical-surgical services.

The defendant argued that the Interim Final Regulations under MHPEA require that, in addition to demonstrating that mental health services were treated in a different manner than medical-surgical services, patients have to demonstrate that “no clinically appropriate standard of care would permit a difference,” to prove violation of MHPAEA. The Court disagreed, finding that “the Parity Act was promulgated to eliminate impermissible disparity in the benefits afforded for mental health and substance abuse disorders when compared to those afforded medical/surgical conditions. ...  It stands to reason that plan administrators would also bear the burden of establishing, under the Parity Act, why mental health and medical benefits are treated differently based upon divergent clinical standards.”

Supported Decision-Making: A Viable Alternative to Guardianship?†

Excerpt from: Penn State Law Review (click for full article)

 

The law has traditionally responded to cognitive disability by authorizing surrogate decision-makers to make decisions on behalf of disabled individuals. However, supported decision-making, an alternative paradigm for addressing cognitive disability, is rapidly gaining political support. According to its proponents, supported decision-making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves. This article describes supported decision-making and its normative appeal. It then provides a descriptive account of how supported decision-making works based on the empirical literature on supported decision-making as well as that on shared decision-making, a related model used in medical contexts. The article shows how employing supported decision-making in lieu of guardianship, or integrating it into the guardianship system, has the potential to promote the self-determination of persons with intellectual and cognitive disabilities consistent with international and national legal norms.

Slow Lawyering: Representing Seniors in Light of Cognitive Changes Accompanying Aging

Excerpt from: Penn State Law Review (click for full article)

 

As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process.
* Professor of Law and Director, Elder Law Clinic, Syracuse University College of Law.

MAY IS ELDER LAW MONTH!!

Excerpt from: Cramer Law Center (click for full article)

 

May has been declared to be National Elder Law Month and Older Americans Month.  We think that makes this the perfect time to discuss how we and other elder law attorneys can serve “older Americans” (defined as those who are at least 60 years of age).

Family Sues Over Altered Photo Of Son With Down Syndrome

Excerpt from: Disability Scoop (click for full article)

 

In what’s believed to be a first-of-its-kind case, a family is bringing a federal lawsuit after a photo of their son with Down syndrome was doctored and spread across the Internet.

Adam Holland was 17 in 2004 when he was photographed taking part in an art class at the Vanderbilt Kennedy Center, which serves people with developmental disabilities. In the image, Holland is seen smiling, holding up a piece of paper with a picture that he drew.

Nearly a decade later, however, Holland’s parents, Pamela and Bernard Holland of Nashville, Tenn., say in court papers that they were stunned to find the image of their son altered and reposted numerous times across the Web.

In one case the Hollands found that a Tampa, Fla. radio station posted the photo of their son with his drawing replaced by the words “Retarded News.” Another website called Sign Generator allegedly made a version available to download for a fee under the heading “Retarded Handicap Generator.” And in a third instance, the family says that a Minnesota man posted the image on Flickr with the words “I got a boner” in place of their son’s drawing.

Now the Hollands are suing the radio station’s owner, Cox Media Group, as well as the owner of the Sign Generator website and the Flickr user. In a federal court filing last week the family said that posting the “unauthorized, deceptive, false, misleading and defamatory images” caused “severe mental anguish and emotional distress” and they’re seeking compensatory and punitive damages totaling $18 million.

Lawsuit: Girl with disabilities sexually assaulted at school

Excerpt from: Tuscaloosa News (click for full article)

 

An eighth-grade student with disabilities was sexually assaulted in an empty classroom at Oak Hill School five years ago, according to a lawsuit filed in Tuscaloosa County Circuit Court last week.

The suit filed by the girl’s mother claims that a 14-year-old male student assaulted the then-14-year-old girl in 2007.

The complaint names the school’s former principal, two teachers and a teacher’s aide as defendants. Tuscaloosa City Schools is not named because the system receives state funding and is immune from lawsuits in all but a few circumstances.