Newsletter – December 2007 (page 2)

AND NOW, THE UPDATE:

Membership

We now have grown to 1,068 members representing 47 states and Puerto Rico.  We are also proud to claim members in Canada, Hong Kong, Australia.  Our Board of Directors stands at 40, our Executive Committee at 8, our Attorneys represent 4 law firms and our Consultants number 6.  We want to acknowledge here our debt to our Board of Directors and our Executive Committee for their support, their encouragement and their many kinds of contributions to our goals.  Most particularly, we want to express our appreciation for the efforts of our First Vice-President, Marla Dumas.  Above all, our deepest appreciation to the attorneys and consultants who handle all our cases.  Contrary to what is widely believed by the public, these are professionals who, although they earn their livings, in part, through these efforts, are primarily attracted to this work by their belief in and dedication to our mission!

We would be quite remiss if we failed to mention the enormous contributions of our computer consultants, Gregory Arkin and Alain Ginzberg, without whom we would not be able to function!  I want to thank my assistant, Thomas Miller, for his efforts in making certain that the administrative aspects of the organization run smoothly and for undertaking the task of composing and typing the bulk of this newsletter.

Finally, you may have heard that we have received our Florida and our U.S. trademark registrations for Access Now^®.  Attorney Frank Herrera has provided invaluable pro bono assistance in achieving this milestone.  Once again, we wish to express our gratitude to Mr. Herrera.  The result of his efforts is the successful culmination of our multi-year effort to protect the Access Now^® name.

A BRIEF OVERVIEW OF OUR LITIGATION:

Since our June newsletter, Access Now^® has made progress in settling cases in 21 states.  We have filed a total of 965 cases since our inception.  Presently, there are 136 cases with outstanding Settlement Agreements, requiring alterations or modifications, which in several cases should be completed by January 1, 2008, or later.  (Cases involving hospitals and other large or complex facilities have post-settlement compliance completion dates much further into the future.)

During the past six months, Access Now^® has entered into 77 additional settlements to make properties A.D.A.-compliant.  They include:

Hospitals                                   59

Cruise Ships                                 1

Government                                2

Hotels                                         1

Schools                                       1

Access Now^® continues to assert itself nationally in scope.  The 10 states in which cases have been settled range from the South and the mid-Atlantic to the Great Plains and Pacific shore.  Our headquarters state of Floridaaccounted for 8% of settlements over the past six months.

We will keep expanding our geographical presence as best we can as we continue to receive requests for information and assistance from around the country and internationally.  (In the last two weeks of November alone we fielded approximately 10 such requests.)  Please notify us if you become aware of situations where access continues to be denied.  We remain solidly in the forefront of the fight for accessibility.

The following is a partial listing of the cases that have been settled since our last newsletter:

Cruise Ships

Norwegian Cruise Lines, Miami, Florida

Government

Florida Department of Transportation, St. Augustine, Florida

City of Vancouver, Vancouver, Washington

Hospitals

Hotels

Hilton Hotel, Knoxville, Tennessee

Schools

East Central University, Ada, Oklahoma

NOTABLE CASES 

There are some cases that are especially important because of their value as precedents or because they remove significant numbers or types of barriers.  Several of those types of cases are listed below.  Please remember that most defendants in non-class action cases insist on confidentiality as a condition of signing settlement agreements.  Therefore, we cannot discuss those cases by name, although they number quite a few.  However, several of them are included in the cases listed above.

Hospitals

This has been a banner six months for our hospital litigation effort.  The number of individual hospital cases that have been settled and approved in a Fairness Hearing has increased dramatically.  This result is the product of several years’ diligent work by our attorneys, experts and plaintiffs.  The 72 HCA, Tenet and Triad facilities listed in the prior section are among the many cases we are pursuing to increase the quality of hospital care for our members and others in the disabled community.  We are awaiting court decisions in other cases, and we continue surveying other facilities that have been brought to our attention.  We again want to recognize the firm of de la O, Marko, Magolnick and Leyton, and particularly their associate, Charles D. Ferguson, for their work with respect to these cases.

City of Sonora, California

The city is working hard to live up to its promise to make all of its facilities, programs and services ADA-compliant.  Our attorneys recently received a full self-evaluation and transition plan from Sonora’s attorney.  Their initial view is that the plan appears comprehensive, and the City is in the process of modifying city properties consistent with the plan’s parameters.  This is another step in Sonora’s realizing its desire to become a community that guarantees the opportunity for participation by its disabled community.  Please read more about the City’s efforts in an excerpt from the Sonora Union Democrat reprinted on pages 10. & 11. of this newsletter.  (Kudos to the firm of Schwartz, Zweben and Slingbaum, LLP.)

City of St. Augustine, Florida

This case was settled on May 30^th and things are already moving forward.  Within five weeks of settlement, the city had taken action to fulfill its promises regarding accessible parking as well as making maps of those areas available.  Our attorneys, led by William J. Moore, III, along with de la O, Marko, Magolnick and Leyton, have done a great job.  Kudos also to St. Augustine officials for “doing the right thing” once the error of their ways had been shown.

Emory University

In this case, Access Now^® and member Kami Barker sued Emory University and its architects and engineers for denial of access in university housing projects.  We settled with Emory for ADA and other accessibility violations.  After a trial in August, 2006 before an Atlanta jury, a verdict for liability and damages was returned against the builders, Trammel Crow Residential, but not against the architects, Niles Bolton Associates.  On September 27, 2007, the court issued orders granting the attorneys for Access Now^® attorney’s fees but denying their motion for a new trial.  We are appealing the judgment in this case.  Our attorney, Matthew Dietz, and his law firm continue their expert work in this ground-breaking case.  Matt will be joined by two excellent appellate attorneys in seeking to have the judge’s decisions reversed.  We have reason to believe that the U.S. Department of Justice will support us on appeal with an amicus curiae brief.  Stay tuned for more news!

Vancouver, Washington

On August 7^th member Michelle Beardshear and Access Now^® settled our case against the City of Vancouver regarding inaccessible street, sidewalks and structures in violation of the ADA and other state and federal laws.  In the settlement the city agreed to make modifications to all of the above over the next two years to bring the violations into legal compliance.  Vancouver has already spent $35,000 to survey its curb ramps and intersections.  A yearly plan has been put in place that will prioritize modification to curb ramps and intersections in the city.  Improvements to City Hall, a police station and several libraries, parks and sporting structures have also been addressed in the agreement.  We must recognize the City of Vancouver for acting expeditiously and entering into the settlement agreement only six months after suit was filed.  We commend the city for taking the positive steps necessary to come into compliance with the ADA and other laws.  We also want to thank our attorneys, Stephan M. Nitz of Schwartz, Zweben & Slingbaum, LLP and Catherine A. Chaney of Seattle, WA, for their work on this case.

CLASS ACTIONS

Class actions affect a large number of disabled persons, usually because a large number of facilities are involved.  Among several cases pending, Arby’s has been settled;  (over 700 locations.)  Post-settlement inspections by Access Now^® are continuing.  This effort is being led by the law firm of Rosen, Switkes and Entin and we want here to express our thanks and appreciation to them!

LITIGATION BY OTHERS

We want to keep you informed about important recent litigation around the country, of which you might not be aware, as well as update information from June’s newsletter affecting the rights of the disabled.  We think it is important for our members to keep abreast of successes realized by and within the disabled community, whether accomplished by “Access Now”^® or by other organizations.  We are all in this fight together!

The following is a remarkable decision by the United States Court of Appeals for the District of Columbia Circuit:

At nineteen years of age Abigail Burroughs learned that she had head and neck cancer.  After she had exhausted all other treatment options over an eighteen month period, doctors told her about two new drugs that could save her life.  These drugs were still in federal Food and Drug Administration (FDA) trials and available only to a limited number of patients.  Though both drugs were eventually approved, it didn’t happen in time to save Abigail.  With no other government-approved treatment options, Abigail died at the age of twenty-one.

Before she died, Abigail helped to establish the Abigail Alliance for Better Access to Developmental Drugs in an effort to prevent this tragedy from continually replaying itself.  The Abigail Alliance asked the FDA to devise a better system for allowing terminally ill patients who are out of treatment options to get early access to developmental drugs that could save their lives.  However, the FDA refused to consider allowing terminally ill patients to bypass its lengthy drug approval process, which takes seven years on average.

The Abigail Alliance sued, claiming that terminally ill patients who are out of treatment options have a constitutional right to access experimental drugs that are in the late stages of clinical trials.  A divided three judge panel of the D.C. Circuit Court of Appeals upheld the Abigail Alliance’s claims.  The panel’s majority held that terminally ill patients have a constitutional right to care which cannot be abridged without a compelling reason.  The government promptly asked for rehearing, and the D.C. Circuit agreed to hear the matter before all 10 active judges.  The result:  By a vote of 8-2, the full Court rejected Abigail Alliance’s claims, concluding that patients like Abigail Burroughs, whose lives are hanging by a thread, do not have a fundamental right at stake.  The Court effectively found it rational for the FDA to doom terminally ill patients to a certain death in order to protect them from uncertain side effects of investigational medicines.  Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, No. 04-5350 (D.C. Cir. 8/7/07).

Dissenting, Judge Rogers argued that the majority “opinion reflects a flawed conception of the right claimed by the [Abigail Alliance] and a stunning misunderstanding of the stakes.”  Regarding the majority’s conclusion that the right to life-saving drugs is not fundamental simply because these drugs have not yet been proven effective, Judge Rogers explains that the case centers on whether the Constitution protects an individual’s decision to try to save his or her own life by accepting the unknown risks of an experimental drug.  The majority’s failure to give Due Process protection to this personal, life-altering choice is wholly inconsistent with a litany of case law protecting personal autonomy and liberty.  We can only hope that, on appeal, the Supreme Court will correct the D.C. Circuit’s unfortunate decision.

Pennsylvania Nursing Home Targeted in Unique Suit

On September 5^th, the United States Attorney for the Eastern District of Pennsylvania filed a federal lawsuit against a nursing home, United States of America v. Holland-Glen Nursing Facility (E.D. PA).  While many disability advocates have tried, unsuccessfully, to have state health departments rigorously conduct and enforce inspections of nursing homes, this lawsuit provides another handle.  Like nearly all others in the country, this nursing facility in Hatboro, PA, a Philadelphia suburb, received Medicaid funds and was, therefore, subject to the federal statutory and regulatory requirements.  Holland-Glen serves 20 to 30 residents ranging in age from infants to their early 20s.  At least two deaths have occurred at the nursing home. It is also accused of operating without a license.

U.S. Attorney Patrick Meehan stated, “This is a life and death issue.  All previous efforts to bring this [nursing] facility into compliance have failed, and we are taking this step in an attempt to ensure the safety of the residents.”  Among the violations the U.S. Attorney alleged was that the nursing home received Medicaid reimbursement for services that were “of a quality which fails to meet professionally recognized standards of health care.”  The Nursing Home Reform Act required that nursing facilities must:

1. Comply with “professional standards and principles which apply to professionals providing services in such a facility.”  It should be noted that national data shows very few RNs or LPNs providing services; services are provided by attendants.
2. “Care for its residents in such a manner and in such an environment as will promote maintenance of enhancement of the quality of life of each resident.”
3. “Provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a plan of care.”
4. Have “sufficient nursing staff to provide nursing and related services” to reach the “well-being” mentioned in paragraph 3.

Thanks to Philadelphia attorney Steve Gold for bringing this situation to our attention.  (Information Bulletin #225 – 9/07).  Mr. Gold suggests that in light of the Holland-Glen case, disability and older American advocates do the following:

1. Set up an appointment with your U.S. Attorney to discuss nursing facilities in your area.
2. Ask your U.S. Attorney to look at the complaint in United States of America v. Holland-Glen, and inquire if your U.S. Attorney would consider filing a similar lawsuit.
3. Pick out the worst nursing facility in your area, and ask your U.S. Attorney to investigate and sue it.

Mr. Gold’s Information Bulletins are available at http://www.stevegoldada.com.

Florida Woman Can Seek Damages for Service Dog Discrimination

The 11^th Circuit U.S. Court of Appeals recently decided that an action can be maintained for non-economic damages under Title III of the ADA and Section 504 of the Rehabilitation Act of l973.  In this case, the Defendant, University MRI-JFK in Lake Worth, Florida refused to let Annette Sheely bring her service dog into the MRI room while she was accompanying her son for treatment.  Ms. Sheely sought damages for emotional distress.  The district court dismissed her request, reasoning that such damages were not allowed under the Rehabilitation Act.  The Court of Appeals reversed the dismissal, finding that a plaintiff discriminated against by a business’s policy not allowing her service animal to accompany her could be made whole under Federal law for the injury suffered.  The Court did find that Ms. Sheely could not maintain her case under the Florida Civil Rights Act (FCRA).  Although Florida law does not provide that disabled individuals have the right to be accompanied by service animals in places of public accommodation, the Court held that under the FCRA, University MRI-JFK is not a public accommodation.  Therefore, Ms. Sheely cannot sue.  This is a very important case defining the rights under Federal law of those who rely on their service animals.  Sheely v MRI Radiology Network, P.A., No. 06-13791 (11^th Cir. 10/24/2007).