In This Issue
- DLC Secures Important Ruling in ADA Discrimination Case
- Self-Advocacy in Education
- Guardianship and My Summer Story
- Eliza McIntosh is Ms. Wheelchair America
- Election Day is Tuesday, November 8, 2016
DLC Secures Important Ruling in ADA Discrimination Case
For years, Brent Levorsen donated plasma in exchange for money in an effort to supplement his limited income. And in May 2013, he attempted to do just that at a Salt Lake City branch of Octapharma Plasma, Inc. (Octapharma). But when an Octapharma employee learned that Levorsen was diagnosed with borderline schizophrenia, the employee became concerned that Levorsen might have a schizophrenic episode while donating and dislodge the collecting needle, possibly injuring himself or someone else. The employee told Levorsen that he was ineligible to donate plasma due to his mental illness. And though Levorsen supplied Octapharma with two recommendations from medical providers certifying that he was healthy enough to give plasma safely, Octapharma banned him from donating at all plasma-donation centers (“PDCs”) nationwide.
Levorsen came to the DLC for legal assistance. On his behalf, the DLC demanded that Octapharma allow Levorsen to resume donations, arguing that his exclusion violated the Americans with Disabilities Act (ADA). Octapharma refused—claiming that its PDCs were not covered by the ADA, and that it was entitled to refuse donor privileges to anyone it deemed unsuitable. In response, the DLC brought a lawsuit on Levorsen’s behalf in 2014. The lawsuit hinged on the ADA’s “public accommodation” rules for entities like grocery stores, laundromats, restaurants, theaters, libraries, banks, and a wide variety of other businesses and service providers, all of which must provide equal access and services to people with disabilities.
After the lawsuit was filed, Octapharma responded with a motion to dismiss, arguing that PDCs are not covered under Title III of the ADA because they don’t provide traditional goods or services in exchange for customers’ money—instead, they pay donors money for their plasma. The trial court judge agreed with Octapharma, dismissing the case and concluding that PDCs did not fit under any of the categories Congress listed as “public accommodations” under the ADA. As such, the court found that Octapharma could continue deny Levorsen access—because its PDCs are simply not covered by the law.
The DLC, with co-counsel from the Washington, D.C. civil rights law firm, Relman, Dane & Colfax, appealed the dismissal. Then on July 12, 2016 the U.S. Court of Appeals for the Tenth Circuit ruled that Octapharma and its PDCs—like virtually all other commercial establishments open to the public—are public accommodations subject to the non-discrimination requirements of the ADA. This ruling, the first on this issue by a federal appellate court, overturns the holding of the trial court and rejects the multi-billion-dollar plasma industry’s position that PDCs may freely turn away people with disabilities or otherwise discriminate with impunity. In rejecting Octapharma’s argument that PDCs are not “public accommodations” because they give users money instead of taking it, the Tenth Circuit found this “superficial distinction” irrelevant. Under the plain language of the ADA, which explicitly covers “other service establishments”, the Tenth Circuit found that a PDC was a “’service establishment’ for two exceedingly simple reasons: It’s an establishment. And it provides a service.” The court also concluded that this expansive reading of the ADA was justified in light of Congress’s clear intent to ensure that individuals with disabilities have “access to the same establishments available to those without disabilities.” Because the district court erred in concluding otherwise, and in dismissing the underlying action on that basis, the Tenth Circuit reversed the decision and remanded for further proceedings.
Reflecting on the broad importance of the decision, DLC Legal Director Aaron Kinikini said: “When an industry depends on humans as the source of the raw materials which it transforms into billions of dollars in profits, it should be required to comply with the civil rights laws intended to protect those humans. This decision goes a long way to ensure that the ADA’s protections reach as many people, in as many places, as Congress intended.” While binding only on Tenth Circuit states– Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming – the decision is likely to alter the plasma industry’s discriminatory behavior around the country.
Self-Advocacy in Education
One of the our biggest education goals is to “assist self-advocates with issues related to: eligibility, placement in the least restrictive environment, suspension, expulsion, and highly intrusive interventions.” This year, we received an email inquiry for help from Sadie Clifford.
“Hello, my 9-year-old son who is bright and loves learning has always had some struggles at school. He does not “fit-in-the-box” and we’ve always worked very closely with the school. Last school year, after a bicycle accident, things started to escalate, which is what prompted us to finally seek a diagnosis. As we and the school have suspected for years, he was diagnosed with autism spectrum disorder and also received testing for a traumatic brain injury.
At the beginning of this school year, we set up a behavior intervention plan for him, which was going great for the first six weeks. Then there was an incident and he was suspended for three weeks before he was allowed to go back. Two days after returning, he was suspended again, and has now been out of school for a total of ten weeks. At our last meeting with the district, six and a half weeks ago, they told us that they were going to start testing to see if he qualified for special education services. We have been pretty upset and confused as to why they hadn’t started this years ago, so that he could be getting the resources that are available to help him, before situations escalated to what they have. However, we didn’t know what the protocol was. At this point, even with promises from the district to get him tested and back into school as quickly as possible, its been 45 days since our last meeting, with absolutely no word from the school or the district. His teacher continues to send homework, but that is the extent of communication from the school. We have searched for special education attorneys in Utah, and have been unsuccessful, and we are really just trying to find someone to help us understand his rights, and help the school do their part and take some responsibility for their lack of action. I found [the DLC] on the Autism Speaks website, and I’m hoping that you can help, or maybe send us in the right direction?”
The DLC investigated Sadie’s complaint and based on information in Gabe’s school records, our first concern was that the school district hadn’t evaluated Gabe for special education eligibility even though there was evidence that the district had reason to believe that he needed to be evaluated. We were also concerned that Gabe was suspended from school indefinitely and that his return to school was contingent on his being evaluated for special education eligibility.
After the DLC contacted the school district, Gabe was evaluated. The DLC advised Sadie how to advocate for her son at a meeting with the IEP team. Gabe was found eligible for special education and was placed in a school setting that provided him with needed supports and services. Fortified with advice from the DLC, Sadie also met with the school district to request compensatory education time. The school district eventually agreed and Gabe received extra instruction to make up for the weeks he missed school.
Guardianship and My Summer Story
As a summer intern at the Disability Law Center, my main project focused on the alternatives to guardianship and promoting independence. When I began the internship, I had little understanding of the topic. I soon realized just how big of an issue guardianship is and how promoting independence is what’s key.
The first thing I learned was once a person reaches the age of 18, he or she becomes legally responsible for his or her own decisions. If an individual is unable to independently make decisions necessary to provide for his or her own basic needs, health, or safety, many parents think that the only solution is to go to court and gain guardianship over their adult child. However, this may take away important basic rights (like whether to marry and where to live or work).
There are alternatives to guardianship that allow individuals to maintain their basic rights while allowing the parent and/or supporter to help make some decisions on behalf of the individual. For example, a financial power of attorney can allow a supporter to make only financial related decisions on behalf of the individual, allowing all other rights to be maintained.
Another alternative I researched is supported decision-making. Texas was the first, and still is, the only state to pass a bill making supported decision-making agreements legal documents and requiring alternatives to be considered, or even tried, before guardianship is granted. This is a great way to promote independence because the individual maintains autonomy and independence while seeking help to make decisions from a support network.
As a part of my work this summer, I helped plan a Supported Decision-Making Conference that will take place in the summer of 2017. I also researched best practice ways to promote independence through educating families, professionals, and individuals. I spoke with legal, educational and civil rights professionals, gathering information about what the process of guardianship or its alternatives look like in different settings, and learning what information families and professionals know and need.
Finally, I attended a probate court session in Salt Lake City to watch adult child guardianship cases. This was definitely a highlight of the job because I was able to see how guardianship scenarios unfold in real life. Going to court opened my eyes to just how often guardianship is granted and the value of promoting basic rights and freedoms.
My experience at the DLC has been valuable and eye-opening thanks to my amazing supervisors and co-workers. I’ve learned so much about law and about an issue that I didn’t know was so prevalent within society today.
Allie Wallin, of Whitman College, recently completed her intership with the DLC. For more information about alternatives to guardianship, call (800) 662-9080.
Eliza McIntosh is Ms. Wheelchair America
For most of us, Eliza McIntosh first caught our attention when she passionately and articulately publicized her experience as a delegate at the state Republican Convention. Eliza was denied the opportunity to represent her precinct because she, along with several other delegates, were unable to stand to cast their vote. She went on to meet with legislative and party leaders in an attempt to affect change. That is just one of the tremendous activities she engaged in as Ms. Wheelchair Utah.
This summer, Eliza worked with the DLC to not only encourage more accessible voting practices, but to advocate for accessible transportation options. She celebrated with us and Uber when accessible vans were added to the fleet of Uber choices for Utahns with disabilities.
A former member of the Paralympics basketball team and a Guiness Book of World Records holder, Eliza has now been crowned Ms. Wheelchair America and she’s garnering international attention. Traveling around the country lending support to the platforms of the reigning Ms. Wheelchair in each state, has her excited about the future. Her overall goal she says—“to take on institutional, architectural, and attitudinal barriers for people with disabilities, because these hold us back more than our conditions.”
We recently heard from Eliza on the road. She said, “I’ve never been so enthused about disability advocacy! Becoming Ms Wheelchair Utah, and eventually Ms Wheelchair America, opened up my eyes not just to the many barriers that people with disabilities face, but to the passionate, empowered community that is banding together to fight them!”
“I had the opportunity to visit an orphanage in Mexico for children with disabilities,” she continued. “The facilities were clean and welcoming, and the equipment was new, but the opportunities were extremely limited. Those children eat, sleep, play, and live there 24/7. There are no clear paths for advancement or life outside of the orphanage. I’m so thankful that is not the narrative of disability in the USA.
Thank you for your efforts! They are needed and noticed. I’m proud to work with you towards a world of universal design and equality for all, regardless of mental and physical ability. Where there’s a Wheel there’s a Way!”
Election Day is Tuesday, November 8, 2016
Twenty-one of Utah’s 29 counties have moved to vote by mail this year. If you live in one of these counties, you should have recieved your ballot in the mail by now. So what does this mean for those who may require an accessible voting machine to vote independently and privately?
The counties that have moved to vote by mail usually have a few polling places available on Election Day. Contact your county clerk for more information on this.
The following counties will vote at traditional polling places this year: Box Elder, Carbon, Daggett, Emery, Piute, Tooele, Utah, & Washington. If you live in one of these counties, you will also have the option to vote early at some polling locations. These locations will also have an accessible voting machine. For more information on early voting contact your county clerk’s office and for help finding your local polling place, visit vote.utah.gov.
If you experience any problems with voting by mail or traditional means, call the DLC voting hotline at (800) 662-9080, available Mon-Fri. 9:00am-4:00pm, and on Election Day (Tues. Nov. 8th) 7:00am-8:00pm. You can also reach us at www.disabilitylawcenter.org/contact.
- DLC VOTING HOTLINE: (800) 662-9080