ADA at 25

Over the weekend, the ADA turned 25. So where was I 25 years ago? I just received my LL.M. in Health Law from Depaul University (prior to that I had done three years of high dollar value civil litigation), and was the General Counsel for Harris County Mental Health and Mental Retardation Authority in Houston, Texas. Mental Health and Mental Retardation Authorities, which is what they used to be called, are independent governmental entities in Texas responsible for ensuring the safety net for persons with mental health, intellectual disabilities, and substance abuse. They can be quite large. At the time, Harris County MHMR had 1000 employees and a $50 million budget. Obviously, the very nature of such an operation demanded knowing the ADA. Once I got into it, I realized that I had seen the rules before and not only was it a professional necessity, but it was also a way that I live my own life.

With respect to having seen the rules before, in college, I was part of the Governor of Illinois program where I was assigned to a state agency. In my case, I worked under the supervision of a wonderful supervisor, Susan Little, maiden name, and delved deeply into § 504 of the Rehabilitation Act. In particular, I remember spending a great deal of time on the State of Illinois affirmative action program for persons with disabilities and whether it was working. That also led me into constitutional law and the doctrine, which you do not see much of anymore, of a irrebuttable presumption. So, when the ADA was enacted, I had already dealt with the rules involved in the Rehabilitation Act. Therefore, the basic premise of the ADA was familiar to me.

With respect to the professional side, obviously all of the clients of the mental health and mental retardation authorities were individuals with disabilities. So, the organization itself had to deal with clients with disabilities. They also had to be aware of the rights that persons with disabilities had in whatever context they might be in. Finally, the organization had its own independent obligations, such as developing self-evaluation plans and transition plans, both of which needed legal assistance to accomplish.

With respect to the personal side, as readers know, I am congenitally deaf but with the ability to lip read and extraordinarily powerful hearing aids, I have always functioned entirely in the hearing world. Hearing is actually two components. First, there is a volume component, which I have very little of without hearing aids. Second, there is a comprehension component, which is the ability to understand what is being said if the volume is loud enough. I never lost the comprehension component. If the volume is loud enough, I can get 80 to 90% of what is being said (it is extraordinarily unusual for a person with my volume of hearing loss to be able to comprehend the language to the degree I can if the volume is loud enough), and that combined with my lip reading skills, allows me to function in the hearing environment as a hearing person even though with hearing aids I still have a 40% hearing loss. What I realized was that the whole system of reasonable accommodations is something that I have always asked for just to be able to function at optimum capacity in the hearing world. For example, if someone was speaking with their hand over their mouth, I would ask them kindly to put the hand down. In college, I always made sure that I had a professor that spoke clearly and loudly. As time went on, I also developed some joint issues, which is not progressive, so that it became critical for me to use use voice dictation technology, which I started using probably about 17 years or so ago (I believe all editions of my book have been written with voice dictation technology).

In short, I have been involved with this area of the law for a long time, and it is both a professional and personal thing with me. I have always believed that this law works if people are properly educated about it. I have also believed that education and awareness of the rights of people with disabilities have to be seen from the perspective of the person with a disability or things will backfire.

Many of my fellow bloggers have written about how old they were when the ADA was enacted, and the reader can do the math and figure out how old I was when the ADA was enacted (I did not take off anytime from college before going on to law school). When the Rehabilitation Act of 1973 came into effect I would have been 13 or 14 years old. That basically put me in eighth grade. I was very fortunate to have gone to school in a town which at the time that was the center for the deaf and hard of hearing in north suburban Chicago. I was pulled out of classes for speech therapy and lip reading skills, but otherwise was mainstreamed. All of this was long before the IDEA and 504 plans. So, the process was all very informal. It is anybody’s guests act to what would’ve happened if the process was more formal a.k.a. 504 plans and IEP’s. I can say that if the process had been more formal, my parents would have been fierce advocates doing whatever was necessary to ensure that I maximized my achievement. I was fortunate that I grew up with the parents that allowed me to be given all the resources that I needed to succeed as a hearing person in a deaf world and for that I’m grateful. That is not to say that being a deaf person functioning as a hearing person in a hearing world was always easy. This was before the time of cell phones and Bluetooth devices and so people viewed people wearing things in their ears quite a bit differently. Also, being deaf but functioning as a hearing person can be a hard concept for people to grasp.

So, the ADA means a great deal to me. It isn’t really surprising that once I got involved with the ADA as an attorney in 1990, I never looked back. It is extremely important to me that people get this law right. As I say in my book, this law works if people just understand what the law is. That said, readers of my blog know that the ADA is extremely complex and there is no substitute for knowledgeable legal counsel. What I hope I do with my blog and with my practice is demystify the ADA.

In short, thank you Mom and Dad (Dad actually suggested that I pursue this field either in college or law school, and of course I resisted:-), and to all the folks that were responsible for the ADA, including but not limited to: George H.W. Bush, Senator Harkin, Senator Dole, Tony Coehlo, Chai Feldblum, Justin Dart, George W. Bush (he signed the amendments to the ADA that have been a real game changer), and the list goes on and on, and if a name is not mentioned, I mean no disrespect. Without the ADA, I would have no right to be accommodated in a hotel for example (hotels accommodating the deaf can still be a real trip so to speak but it’s nice to have the right to be accommodated), would be unable to watch British movies in movie theaters without becoming incredibly frustrated, and persons with disabilities would have a great deal of difficulty becoming part of society to their fullest capabilities. For that matter, without the ADA, one only wonders what area of law I would’ve wound up in (certainly not an area of the law that calls to me the way this one does).

Happy 25!

Frequently Asked Questions about Service Animals and the ADA (Guidance from the DOJ)

Recently, the Department of Justice issued a guidance entitled, “frequently asked questions about service animals and the ADA,” which can be found here. I thought I would go over and highlight some of the questions discussed in the guidance, especially since service animals v. therapy dogs blog entry of mine consistently ranks as one of everyone’s favorite blog entry. I am not going to go over every question-and-answer in the guidance, but will highlight some of them. By clicking on the link above, the reader can see all of the questions. What I have done here, is list the question that the DOJ asks (for sake of convenience, I have sometimes combined questions are rephrased them without changing the substance), and then I offer my own thoughts.

1. What is a service animal?

DOJ: Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed by the dog must be directly related to the person’s disability.

My thoughts:

A) It is absolutely true that a service animal is a dog. However, miniature horses get much the same protection, but they are not referred to in the regulations as a service animal.

B) Interesting the statement that task performed by the dog must be directly related to the person’s disability because…

2. What question can a covered entity’s employees ask to determine if a dog is a service animal?

DOJ: In situations where it is not obvious that the dog is a service animal, staff can only ask two specific questions: 1) is the dog is a service animal required because of a disability? And 2) what work or tasks had the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate a task, or inquire about the nature of the person’s disability. [italics mine]

My thoughts:

A) On the one hand, DOJ is saying that a task performed by the dog must be directly related to the person’s disability. On the other hand, DOJ is saying that where it is not obvious that the dog is a service animal, staff is not allowed to inquire about the nature of the person’s disability. What that means is that there is a conclusive presumption that once it is explained what work or task the dog has been trained to perform, it is automatically deemed to be related to that person’s disability.

B) The key with trying to figure out whether an animal is a service dog is determining whether it is engaged in recognition and response. If it is, then it is a service dog. If it is just a matter of providing comfort for a person with a disability, then it is a therapy dog.

C) Service dogs are the only ones protected by the ADA. However, other laws protect therapy dogs, including the Air Carrier Access Act and the Fair Housing Act.

3. Does the ADA require a service animal to be professionally trained?

DOJ: No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program.

My thoughts: Make sense. Training an animal to be a service dog is extraordinarily expensive. Some entities will give the dogs away for free, but most service dog cost an incredible amount of money, which many people can’t afford. Also, depending upon disability and the breed of dog, training a dog to be a service dog may be something that is easily doable. For example, I have a miniature poodle and he has basically trained himself to be a service dog with respect to alerting me to sounds when I am in the house. However, he wouldn’t qualify as a service dog because he is just too exuberant in public:-) I suppose if I had the inclination and the time and he gets older, I might be able to break him of that habit. Even so, it is not necessary in my case because I function entirely as a hearing person in the hearing world and a hearing dog would not be of any benefit to me outside my home (unless I suppose, I was staying in a hotel overnight by myself. Even so, it wouldn’t be necessary if the hotel reasonably accommodates my deafness).

4. Who is responsible for the care and supervision of a service animal?

DOJ: The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.

My thoughts: This is all absolutely true. However, covered entities are required to make reasonable accommodations to a handler with a service animal as discussed here.

5. Can hotels assign designated rooms for guests with service animals, out of consideration for other guests?

DOJ: No. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to “pet friendly” rooms.

My thoughts: Every time I read this, I do my best not to go ballistic. If this argument is true, then a deaf person should have the absolute right to insist on a room in a hotel that a nondisabled person could stay in and insist on portable equipment put in so that a deaf person could access the room. Instead, many hotels segregate all persons with disabilities, including the deaf, into certain rooms. A practice that drives me absolutely batty.

6. Does the ADA require the service animal be certified as service animals?

DOJ: No. Covered entity may not require documentation, such as proof that the animal has been certified, trained, or licensed as a condition for entry.

My thoughts: Requiring certification of service animals from what I can gather happens quite frequently (in fact it is such a common occurrence from what I can gather, that it is not unusual for people with service dogs to carry the certification documentation on them), and is a practice that needs to stop.

7. My city requires me to register my dog as a service animal. Is this legal under the ADA? Can the service animal be any breed of dog and if so, must the municipality adjust if they have an ordinance restricting certain breeds of dogs?

DOJ: Mandatory registration of service animals is not permissible under the ADA. However, service animals are subject to the same licensing and vaccination rules applicable to all dogs.

DOJ: A service animal can be any breed of dog and municipalities, must make an exception if a prohibited breed is a service animal.

My thoughts: Readers may also want to check out this blog entry of mine with respect to these issues.

8. When can service animals be excluded?

DOJ: The service animal can be excluded if including the service animal results in a fundamental alteration to the goods, services, program, or activities provided to the public; overrules legitimate safety requirements; or if a particular service animal is not housebroken or out of control and the handler does not take effective action to control it. The DOJ goes on to explain in a separate question that under control often means the service animal is harnessed, leased, or tethered while in public places unless those devices interfere with the service animal’s work or the person’s disability prevents use of the devices. In that case, voice signals or other effective means to maintain control of the animal are in order. Under control also means that the dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, barking once or barking a lot because it has been provoked does not mean that the dog is out of control.

My thoughts: I don’t see why the barking exception needs to be restricted to a quiet place. A service dog should not be repeatedly barking, absent provocation, wherever that service dog is located. Also, when it comes to whether a dog is under control, much of it should be common sense.

9. Are hotel guests allowed to leave their service animals in their hotel room when they leave the hotel?

DOJ: No because the dog must be under the handler’s control at all times.

My thoughts: This makes perfect sense because if the dog is not with the individual, it simply cannot be a service dog. On the other hand, I could see situations where it may not always be necessary for therapy dog to be with the individual. Again, therapy dogs are governed by different rules and laws.

10. Are restaurants, bars and other places serving food or drink required to allow service animal to be seated on chairs or allow the animal to be fed at the table?

DOJ: No

My thoughts: True, but restaurants are becoming very dog friendly. Here in Decatur, Georgia for example, it is not unusual to see restaurants with extended patios allow dogs and not just service dogs and therapy dogs, to accompany an owner at their table and even provide or allow water bowls to be at the table.

11. Are churches, temples, synagogues, mosques, and other places of worship required to allow individual to bring their service animals into the facility?

DOJ: no because such organizations are specifically exempt from the ADA.

My thoughts: However, you do want to check your individual State law as it may go beyond the ADA. Also, places of worship may be desirous of doing the right thing and make individual exceptions for people wanting to take advantage of their place of worship.

12. Do commercial airlines, apartments, mobile home parks, and other residential properties have to comply with the ADA?

DOJ: Commercial airlines are subject to the Air Carrier Access Act and apartments, mobile home parks, and other residential properties are subject to the federal Fair Housing Act.

My thoughts:

A) The Air Carrier Access Act, which is something I have written about before, is the exclusive remedy where commercial airlines do not properly deal with the rights of persons with disabilities. The Air Carrier Access Act does not contain a right to a private cause of action. True, a person or their lawyer can file a complaint with the Department of Transportation and they can take action or not.

B) The Fair Housing Act is the law that covers apartments, mobile home parks, and other residential properties.

C) Both the Air Carrier Access Act and the Fair Housing Act allow for therapy dogs.

Before leaving this blog entry, keep in mind that this is only a guidance from the Department of Justice and not a final rule. Accordingly, as a result of the discussion we had in this blog entry, courts will have flexibility with respect to how far they want to go in following this guidance.

If This Decision Holds, Game Changer: Applicable Statute of Limitation for ADA Claims Redux

I
Introduction

One of the publications that I subscribe to is Disability Compliance for Higher Education . It is an excellent publication for anyone involved with ADA compliance in higher education. Its audience is mainly University 504 and ADA coordinators, University administrators, and professors. One of the cases it featured in its most recent publication was the case of Dickinson v. University of North Carolina. The write up of that case in Disability Compliance for Higher Education focused on two of the issues dealing with the merits of the case [whether the person was a qualified individual with a disability (yes), and whether the University could be justified in imposing a probation agreement because of a disability on a student where that agreement had no basis in the policies of University (no)]. In addition to those two issues, the court also looked at other issues on the merits including:individual liability for public officials in North Carolina (individual liability exists when the conduct complained of is malicious or corrupt, outside the scope of official authority, or where the public employee was negligent in the performance of his governmental or discretionary duties), whether sufficient facts existed to allege retaliation (yes); and whether sufficient allegations were made to support a tortious interference with contract claim (yes).

Keep in mind, that as far as I can tell, this decision is unpublished, and so it’s precedential value is going to depend upon the jurisdiction you are in. You want to check your local rules on that. Also, keep in mind that this case talks about denying a motion to dismiss and we simply don’t know how this is all going to work out once the defendant files a motion for summary judgment after discovery occurs.

All this said, this case is a game changer if the reasoning takes hold in other jurisdictions, especially if this reasoning takes hold in published decisions. The game changer is not on any of the issues noted above, but rather on just what is the statute of limitation for ADA claims. Consistently, in every quarter, one of my greatest hits is my blog entry dealing with the applicable statute of limitation for ADA claims. It makes perfect sense to me that such a blog entry would be a greatest hits every quarter because the ADA itself does not contain an explicit statute of limitations. Also, the ADA has different titles that work different ways leading to different theoretical and practical statute of limitations, which is all discussed in the aforementioned blog entry. If one reviewed the blog entry on the applicable statute of limitation for ADA claims, you will recall I reached the conclusion that the four-year federal statute of limitations could well apply where the individual was making a claim of disability discrimination where either the claim was that they were regarded as being a person with a disability or the claim was based upon them using mitigating measures to compensate for the disability. I came to that conclusion because of the case that was discussed in that blog entry differentiated between interpretation and actually granting new rights and responsibilities. If it was simply a matter of interpretation, then the four-year statute of limitation would not apply. However, if new rights were involved that were not involved before the federal statute of limitations law was enacted in December 1990, then the four-year statute of limitations would apply to mitigating measures and regarded as claims.

II
Facts and Setting the Table

So why is this particular case a game changer if it becomes widely adopted? Well, first you have to know the facts about the person making the claim with respect to her disability. Her disabilities were severe migraine headaches and polycystic ovary syndrome, both of which are periodically completely disabling. Polycystic ovary syndrome can cause a person to be in debilitating pain for weeks at a time. It was undisputed that when the applicable state law is looked to for the applicable statute of limitations, she was not within the applicable statute of limitations. However, she would be within the four-year statute of limitations if it applied.

III
Court’s Reasoning

In holding that the four-year statute of limitations applied, the court reasoned as followed:

1. As mentioned in my post on the applicable statute of limitations, whether the four-year statute of limitations applies depends upon how Jones v. RR Donnelly and Sons Company, 541 U.S. 369 (2004), is interpreted. In that case, the court unanimously held that a cause of action follows the four-year statute of limitations if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.

2. Prior to the ADAAA, the ADA contained no definition of physical or mental impairment, substantially limits, or major life activities.

3. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court said that mitigating measures had to be factored into whether a person was substantially limited in a major life activity.

4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the United States Supreme Court held that in order to be substantially limited in a major life activity you had to be severely restricted or prevented from performing a major life activity. For that matter, this case also talked about how a disability could not be temporary in order to be protected by the ADA, and Fourth Circuit case law was in agreement with that. For example, the Fourth Circuit had previously held that a person with an episodic disability was not protected by the ADA because in general she was not severely restricted or prevented from performing a major life activity.

5. The court looked to the rules of construction contained in the ADAAA whereby the rules of construction say: that the definition of disability needs to be construed in favor of broad coverage of individuals with disabilities to the maximum extent permitted by the ADA; the term substantially limits needs to be interpreted consistently with finding and purposes of the amendments to the ADA; a person can satisfy the substantially limit definition if just one major life activity is substantially limited; episodic disabilities are protected if when active the disability substantially limits a major life activity; and whether a person has a disability must be determined without respect to mitigating measures that the person uses (eyeglasses being the exception).

6. University of North Carolina did not attempt to explain how the plaintiff’s claims would have been viable under the ADA and Rehabilitation Act as they existed prior to the ADAAA. Further, it wasn’t entirely clear to the court that her claim would have been viable.

Takeaways:

1. Doing this particular blog entry has allowed me to revisit my prior blog entry on statute of limitations. Doing that, forces me to conclude that if a case is going to adopt the distinction between interpretation and the granting of rights, that there is a third possibility as to when the statute of limitations of four years will apply. That is, in addition to regarded as and mitigating measures, where a person has a disability that is episodic, it would seem pretty clear that a new right was likely created and the four-year statute of limitations would be in play.

2. This case goes beyond the right v. interpretation distinction in reaching the conclusion that if the claim would not have been viable prior to the ADAAA as the ADA had been interpreted by the courts but would be viable now after the ADA amendments, then the four-year statute of limitations is in play.

3. Paragraphs 1 and 2 of the Takeaways section mean that if you are a defendant, you want to argue that there is a distinction between new rights being created and interpretation being clarified. Keep in mind, that even if you are arguing successfully for that distinction, you still may wind up playing with the four-year statute of limitation quite easily if mitigating measures, regarded as, or an episodic disability is involved. With respect to being a plaintiff, this case allows you to argue that the key question is whether the claim was viable before the ADAAA when compared to after the ADAAA regardless of whether it was a matter of new rights and liabilities or just a matter of interpretation.

4. Also, very significant is two references by this court with respect to who has the burden of proof. In particular, the court said, “Defendants do not attempt to explain how Dickinson’s claims would’ve been viable under the ADA and Rehabilitation Act as they existed before the ADAAA…. Also, the court said that “… The court is not persuaded that Defendants have demonstrated that Dickinson’s allegations of disability would have been sufficient to state a claim before the ADAAA, thus requiring application of the two-year statute of limitations.” The quote taken together leads to the implication that the burden could be well upon the defendant to show that the two-year statute of limitations is in play. It also means a trial within a trial, which is likely to be very expensive, whereby a defendant has to show that a plaintiff’s claim would have gotten them to first base before the ADAAA. In addition to being very expensive to show , the ADAAA is such a game changer on the definitional questions, that such a showing may be an uphill climb in any event.

5. As a practical matter, this case, if it takes, this case will mainly be a game changer with respect to title II of the ADA because, as mentioned in my prior blog entry on statute of limitations, title I of the ADA has strict limitations associated with it and title III of the ADA issues go away if the problem is fixed (think architectural accessibility). Of course, when it comes to a title III matter, if the problem is not fixed, then this blog entry is certainly in play (i.e. the four-year statute of limitations). Also, private universities are subject to title III and so this blog entry will come into play in that context.