Disability Rights NC Litigation Report 3/15/15 March 2, 2015 Disability Rights NC is currently engaged in nine cases in federal court. In addition, we are also filing a Brief of Amicus Curiae in an ADA case pending in the Fourth Circuit Court of Appeals. A short description and the status of each case follows. Federal Court Cases: Pashby v. Cansler, 11-cv-0273-BO (EDNC). This case is a class action challenge to the changes to the State’s new Personal Care Services (PCS) under the state’s Medicaid plan. The suit alleges that DHHS is violating the ADA and Olmstead by increasing the eligibility criteria for In-Home personal care while leaving the criteria for Adult Care Home personal care unchanged, thus forcing people into adult care homes in order to receive any services at all. Doug Sea of Legal Services of Southern Piedmont and Sarah Somers of the National Health Law Program are co-counsel. In December 2011, Judge Boyle granted the plaintiffs’ motion for a Preliminary Injunction, thus forcing the state to restore services to the recipients of In-Home PCS. The State appealed, and in March 2013, the Fourth Circuit issued its opinion, Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013), affirming the district court’s issuance of an injunction prohibiting the state from enforcing the new PCS policy. There are nearly 5,500 class members whose services have been restored as a result of the 2013 injunction. In October 2013 notices were sent to nearly 1,000 new class members informing them that they should request restoration of their services. We recently received another list of new class members that, after reconciling the list for duplicate entries, another 4,000 individuals will be added to the class. Notices are being sent to these new class members in four waves beginning in December and continuing through March, 2015. Many of those receiving the notices are calling us, asking for additional information concerning the case – a project which is taking a considerable amount of time for the staff and attorneys working on the case. We continue to engage in intermittent settlement negotiations with the state, the goal of which would be eligibility criteria for ACH and In-Home PCS that are administered in a way that is truly evenhanded. K.C. v. Cansler and PBH, 11-cv-0354-FL (EDNC). This is a class action that challenges substantial changes to PBH’s Innovations waiver program, all implemented without benefit of any appeal rights for the hundreds of recipients whose services would be reduced as a result. Doug Sea of Legal Services of Southern Piedmont and Jane Perkins of the National Health Law Program are co-counsel. In March 2012, Judge Flanagan granted the plaintiffs’ Motion for Preliminary Injunction, ordering PBH to restore services to all those Innovations recipients who had their plans of care reduced. PBH filed an appeal to the Fourth Circuit. The Department did not file an appeal. In May 2013, the Fourth Circuit issued an opinion dismissing PBH’s appeal. K.C. v. Shipman, 716 F.3d 107 (4th Cir. 2013). Although the court did not reach the merits of the case – i.e. whether the Innovations recipients were entitled to notice and appeal rights – it did have a great deal to say about the importance of the “single state agency” requirement of the Medicaid Act. After the case was returned to the district court, the parties continued to explore settlement. Those discussions resulted in a settlement agreement detailing the due process rights of waiver participants. A “fairness hearing” before Judge Flanagan is scheduled for April 4, 2015, where it is expected that she will give her final approval to the terms of the settlement. Of importance, if Judge Flanagan does approve it, all 12,000 waiver participants across the state will benefit from the settlement agreement. Clinton L. v. Cansler and PBH, 10-cv-0123-JAB (MDNC). In this case, DRNC represents six former Thomas S. class members whose services were cut by PBH, thus increasing their risk of institutionalization in violation of the ADA and the Olmstead decision. The trial of the case before District Judge N. Carlton Tilley began on September 9, 2013. Final arguments in the case were held on November 13 & 14, 2013. There were 37 days of testimony followed by two days of argument. On August 28, 2014, Judge Tilley issued a 78-page opinion, ruling in the defendants’ favor on all claims. Judge Tilley first addressed whether the Plaintiffs’ ‘reverse-Olmstead’ claims were tenable under the ADA. That is, whether it was necessary for an individual with a disability to be in an institution to raise an Olmstead claim. Following the Fourth Circuit’s opinion in Pashby v. Delia, Judge Tilley held that one could raise an Olmstead claim if the plaintiff faced a “significant risk of institutionalization” as a result of the defendant’s actions. Judge Tilley then reviewed the evidence presented for each of the six Plaintiffs and found that either (a) the plaintiffs had not demonstrated a sufficiently severe risk of institutionalization or (b) that the risk was not causally traceable to the actions of the defendants. We believe that Judge Tilley’s opinion is flawed in several respects and are examining whether an appeal would be likely to succeed. In the meantime, we filed a Motion to Alter or Amend the Judgment on September 25, 2014, asking Judge Tilley to reconsider three aspects of his ruling. We await his ruling on that motion. Jacobs v. N.C. Administrative Office of the Courts, et al., 11-cv-0169-BO (EDNC). This is an employment discrimination suit brought under the ADA and the Rehabilitation Act. Vanessa Lucas of Edelstein & Payne is co-counsel on the case. Plaintiff Christine Jacobs was employed as a file clerk by the Clerk of Court for New Hanover County in January 2009. Soon after her employment began, her job duties were changed and she was required to staff the front desk, interacting with the public for most of the day. This was a problem because Ms. Jacobs has been diagnosed with Social Anxiety Disorder. Although she made a sincere attempt to adjust to her new duties, she disclosed her psychological condition and requested a reasonable accommodation – that her duties not require constant public interaction. She was terminated as a result. The EEOC investigated the incident and issued a Right to Sue letter finding ‘cause’ to believe that discrimination and/or retaliation had taken place. On September 3, Judge Boyle granted the defendant’s Motion for Summary Judgment, holding that the Plaintiff is not a ‘person with a disability.’ After conducting an analysis of the opinion, we have decided to pursue an appeal to the Fourth Circuit Court of Appeals. The Appellant’s Brief was filed on November 26, 2013. NDRN recruited Brian East of the Texas P&A to write a brief of amicus curiae on behalf of a number of mental health organizations urging the Fourth Circuit to reverse the district court’s ruling. Oral argument was held on December 9, 2014, and by all accounts the court of appeals was sympathetic to the plaintiff’s arguments. The 4th Circuit opinion in Jacobs v. N.C. Administrative Office of the Courts, et al., 11-cv-0169-BO (EDNC) is published!  It discusses and adopts the EEOC regulation that “interacting with others” is a major life activity. This case is the first one we are aware of where a Federal Court of Appeals has recognized interacting with others as a major life activity, and is the first 4th Circuit case applying the amended ADA (which expanded the definition of disability) to mental illness. In addition, the opinion says that an individual with a mental illness must be reasonably accommodated and if the accommodation will enable the person to remain employed, even if that means shifting job duties among employees. The Deputy Legal Director for the Bazelon Center for Mental Health describes the opinion as “extremely good” and “particularly useful for ADA coverage of psychiatric disabilities.” Wilson, et al. v. NC DMV, 5:14-CV-085-BO (EDNC). This is a challenge to the manner in which the North Carolina Department of Motor Vehicles treats people with disabilities. Disability Rights NC is suing in its own behalf as well as representing six individuals. The litigation alleges that the DMV maintains a Medical Review Program directed to people with disabilities based on speculation, stereotypes and unwarranted generalizations about their abilities. The DMV’s program requires people with disabilities to undergo behind-the-wheel driving tests, obtain unnecessary physical evaluations and submit to arbitrary licensure restrictions, all without benefit of minimal due process guaranties. In response to the lawsuit, the DMV filed a motion to dismiss. A hearing on the Defendant’s motion was held on August 5, 2014; Holly Stiles argued the case for the plaintiffs. On August 20, Judge Boyle issued a ruling denying the defendant’s motion to dismiss. Of importance, he validated the issue of associational standing for Disability Rights NC, stating that the P&A has standing to sue on behalf of the people it serves. The case will now proceed to discovery. After its Motion to Dismiss was denied, the DMV sent notices to two of the plaintiffs – one informing plaintiff Natasha Wright to appear at a hearing and another demanding that plaintiff Pamela Dickens (again) provide medical information confirming her ability to safely drive or face the immediate suspension of her driving privileges. Disability Rights NC filed a Motion for a Temporary Restraining Order and Preliminary Injunction to prevent this continued harassment of the plaintiffs pending resolution of the lawsuit. Judge Boyle entered a TRO prohibiting the DMV from conducting the hearing for Ms. Wright or suspending Ms. Dickens’ license, and a hearing on the injunction was held on October 29. On December 23, 2014 Judge Boyle granted the preliminary injunction using fairly strong language addressing the plaintiffs’ likelihood of success on their claims. The case will now proceed to the discovery phase. Nicholas C. v. Wos, 1:14-cv-0072-MR (WDNC). This lawsuit challenges the excessive use of a mechanical restraint device by the J. Iverson Riddle Developmental Center (JIRDC) on Nicholas C., a twenty year old resident of the facility. The center’s treatment of Nicholas was uncovered in our monitoring of the activities of the JIRDC Human Rights Committee, which must review the center’s use of restraint and seclusion. After discussing this case for some time with the JIRDC staff (and making little progress), Disability Rights NC filed suit on Nicholas’ behalf in order to force the center to discontinue the use of the mechanical restraint device. In response, JIRDC modified Nicholas’ behavior plan to eliminate the use of the device, replacing it with the use of seclusion (to an excessive degree in our estimation). A court-ordered mediation was held on January 20, 2015, and the parties reach agreement on a settlement of the dispute. The terms of settlement call for the very specific (and restrictive) circumstances under which the facility might employ the use of the mechanical restraint on both Nicholas and any other of its residents. Of importance, the settlement applies not only to JIRDC but also all of the state’s developmental centers, so the case had the systemic effect that was one of our initial goals. As part of the settlement agreement, the defendants agreed to reimburse Disability Rights NC for its costs in the amount of $1,000. On February 27, 2015, a stipulation of dismissal was filed with the court. Elmendorf v.  Duke University, No. 14-cv-0697-UA-JFP (MDNC). This is a suit brought under Title III of the Americans with Disabilities Act and state law. Prior to his enrollment in the Divinity School at Duke University, Mr. Elmendorf was promised specific accommodations for his Dyslexia. Once classes began, Mr. Elmendorf did not receive the accommodations he required and had to drop, withdraw, and take incompletes in many of his courses. When Mr. Elmendorf filed a complaint with Duke’s Office of Institutional Equity about the discrimination he had experienced, the Divinity School told him he would lose his tuition scholarship if he did not withdraw his grievance. Ultimately, Mr. Elmendorf abandoned his goal of obtaining a Masters in Divinity degree and was required to apply his credits toward a less rigorous and less valuable degree. Suit was filed in August 2014. On September 17, 2014, Duke file its Answer, and also filed a Motion to Dismiss aimed at the state law claims alleged in the Complaint; namely a negligent misrepresentation claim and a claim made pursuant to the North Carolina Unfair and Deceptive Trade Practices statute. That motion has been fully briefed and we await a ruling from the district court. Wiker v. Advanced Foot and Ankle Center, No. 5:15-cv-4 (WDNC). This is a case brought under Title III of the ADA. Roger Wiker is visually impaired and uses a guide dog (Fred) to navigate his environment. When he went to an appointment at his local podiatrist he was informed that Fred could not accompany him to the examination room. The reason given by the podiatry practice was that the treatment room was a sterile environment and therefore animals were not allowed. Mr. Wiker made every attempt to reason with eth doctor, even to the point of calling in law enforcement to inform the podiatry practice that it was a violation of the law to deny admittance to his guide dog. Notwithstanding these efforts, the podiatrist would not relent. Suit was filed on January 9, 2015 against both the podiatry practice group and the larger physician-owned Professional Association under which the practice operates. We await the answer of the defendants. Sanderson v. Tripp, et al., No. 4:15-cv-23 (EDNC). This case is brought under Title II and Title III of the ADA. Plaintiff Natasha Sanderson is deaf. When scheduling an initial appointment with a dentist, Dr. Tripp, she was informed that she would not be provided with an ASL interpreter as she had requested. Ms. Sanderson is covered by the Medicaid program. Under the federal regulations governing Medicaid, the state Medicaid agency is required to make certain that members of its network of providers do not discriminate based on disability. To this end, the State Defendants are required to adopt grievance procedures and to promptly and equitably resolve complaints of disability-based discrimination in the Medicaid program. In October 2013, Ms. Sanderson first attempted to file a grievance with the Medicaid agency but nothing happened. Multiple attempts to elicit an adequate response from the state officials have been unsuccessful. Consequently, on February 4, 2015, suit was filed against Dr. Tripp and the state officials responsible for the administration of the Medicaid program in North Carolina, seeking to declare the actions of Dr. Tripp to be a violation of the ADA and seeking to enjoin the State from its continued neglect of this important grievance program. Answers from both defendants are expected in March. Amicus Activity: Stephenson v. Pfizer, No. 14-2079 (4th Cir.). Whitney Stephenson worked as a pharmaceutical sales rep for Pfizer for 27 years. She was very highly valued and extremely successful in her sales work. She began to lose her vision, and in 2011 became unable to drive a car. Ms. Stephenson asked to use a driver to enable her to travel to appointments with the medical offices where she met with medical professionals about Pfizer’s products. Pfizer declined. The district court granted summary judgment to the employer on Ms. Stephenson’s ADA claims. The Court reasoned that driving from office to office was an “essential function” of Ms. Stephenson’s job, and because she was unable to satisfy this essential job requirement, she was therefore no longer qualified for the job. In our amicus brief (joined by the National Disability Rights Network), we are arguing that driving is not in fact an essential job function for the position of sales representative. Although traveling from place to place might be a legitimate essential job function, driving an automobile is instead only one manner of accomplishing this task, and that a critical tenet of the ADA is that people with disabilities might require an accommodation to perform a functional requirement of a particular job – even to the extent that a human assistant might be needed. The brief will be filed on March 9, 2015. 5