Supreme Court Decisions: Impact on the ADA''s Future

Operator

Ladies and gentlemen, thank you for standing by. Welcome to the Supreme Court Decision: Impact on the ADA''s Future. Conference call. If you should require any assistance during the conference please press star followed by 0. As a reminder this conference is being recorded. At this time I would like to turn the conference over to your host, Jennifer Bowerman. Go ahead, please.

Jennifer Bowerman

Good afternoon and welcome. We are excited to have all of you on line today. We have approximately 106 lines calling into our different sites throughout the United States. This session is hosted by the Great Lakes, Mid-Atlantic and Pacific Disability and Business Technical Assistance Centers. The session is also currently being real time captioned on our web site. If you would like to view it in its captioning you can log into the Great Lakes web site. The address is www.adagreatlakes.org. You can log into our real time caption room. At this point I would like to turn the presentation over to John Wodatch, John is the Chief of the Disability Rights Section of the U.S. Department of Justice and has played an instrumental role in many of the Amicus Briefs submitted on behalf of the Department of Justice directly to the U.S. Supreme Court as they review decisions during this last term. John is going to give us an overview of the recent U.S. Supreme Court decisions and then he we-we will take questions at the half point of the presentation. John?

John Wodatch

Thank you, very much. Good afternoon everyone and I guess good morning to those of you who are in Hawaii and Pacific Basin who are joining us. What I would like to do this afternoon is talk about the five Supreme Court decisions that dealt with the ADA that came out in the last session spending a lot of the time on Olmstead versus L.C. Then talking a little bit about the three employment cases, then discussing briefly the Cleveland decision and conclude with just a few words on some hot topics that we can expect the Courts to be addressing and the ruling on in the next year. I''m joined today by Sheila Foran who is the Special counsel to the Director of Office of Civil Rights at the Department of Health and Human Services as you will see as we get into this, we are working closing with HHS. They have some particular responsibilities for implementation of the L.C. decision and Sheila will have a few words to say when I have finished talking about the Olmstead. She will also be available to answer your questions on the subject. Let''s start with Olmstead v L.C. For those of you who haven''t read it, it''s a case involving two women who have mental retardation and also have mental disorders. They were living in the community and were experiencing an acute phase of their mental conditions and so they presented themselves voluntarily to a light locked psychiatric institution that was operated by the State of Georgia. It was the kind of facility designed to stabilize individuals during an acute phase of mental illness and then return them to the community. They had been in the institution a while and their treating physicians had determined that they had been adequately treated and could now go into community based setting. That didn''t happen. And the two women brought a case in the District Court in Georgia. They basically alleged that the state''s failure to provide long term care services in a community setting rather than in an institutionalized setting violated Title II of the ADA and also what''s come to be known as the integration provision of the Department of Justice''s regulation. That regulation says, it was promulgated in 1991 when the ADA regulations came out, that public entities must administer services, programs, activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. These two women won at the District Court and the State of Georgia appealed. And they won again at the Court of Appeals. Then it went on to the Supreme Court. The Department of Justice filed an Amicus Brief, as did a number of other organizations and entities around the country. I think you are aware it became a case generating a lot of discussion around whether states would file briefs and what position they would take. On June 22nd the Supreme Court issued a decision. It was a five justice majority, and they agreed with the position that the United States had advocated and held that the unjustified isolation of persons with disabilities in institutions is a form of discrimination. I think you have to take a step back and realize this is a rather major statement and I think a major endorsement of the key ADA concept. It really is an assessment by the Supreme Court that integration is a key principal under the Americans with Disabilities Act. It was interesting, the Court based this on two judgments: One was that the institutional placement of people who could benefit from living in the community and could handle living in the community perpetuated unwarranted assumptions that these people were incapable and unworthy of participating in communities life. So that was one theme. Another theme or judgment was that confinement in an institution severely diminishes the everyday life activities of a person with a disability, whether it was family relations, social contacts, work options, economic independent, educational achievement or cultural enrichment. The Court in an opinion by Justice Ginsburg said that this is not an unfettered right, there are qualifications or limitations on how the integration mandate applies. Basically there are three parts: A person who is an institution should be placed in a community setting when the state''s treatment professionals have determined that community placement is appropriate. That''s issue one. Second, is when the transfer from the institutional care to a less restrictive environment is not opposed by the individual and third, the placement can be accomplished without fundamentally altering the state''s services program. I think those were three key issues. Clearly in this case the state''s treating professionals had determined that L.C. and E.W. both could be better served in the community. They clearly wanted to be placed in the community and then the issue then became: can this be accomplished without fundamentally altering the state''s program? The Eleventh Circuit in looking at this issue had looked at that and said that the appropriate framework to make that decision was to look at the state''s mental health budget and compare it with the cost of providing community care for these two women. The Supreme Court basically said that that was too narrow an approach. And that what you had to do when you are looking at a fundamental alteration undue burden kind of cost issue, is that you have to look at the state''s available resources and the needs of other people with mental disabilities in the community. Recognizing that there had to be care and treatment of a large and diverse population of people with mental disabilities, it''s part of the state''s obligation. Interestingly, at one point Justice Ginsburg laid out a suggestion and I think it''s a very key suggestion, and I think it''s a starting off point about where we should be going from here. She said that we should be looking at whether a state has what she called comprehensive effect actively working plan, that''s a quote, for placing qualified persons with mental disabilities in less restrictive settings and a waiting list that moved at a reasonable pace that was not controlled by the state''s endeavors to keep its institutions fully populated. I think what the Supreme Court was attempting to do here was sort of layout what the next step should be for people trying to understand this decision. I think this is key as to how we should be looking at this. Each state should probably be looking at having a comprehensive effectively working plan that will move those people who should be appropriately placed in the community, in the community. The Supreme Court recognized there will be waiting lists but also noticed that these lists should be-people should be able to move off them at a reasonable pace. Another key factor is that the state can''t control this pace by just saying that they wanted to keep the state institutions fully populated. So I think the key is going to be what are appropriate placements for persons with disabilities? And I think that the Court was recognizing that there is a range of treatment options that a state is going to be providing, because there are going to be a range of needs expressed by the people of the state. You have to factor all of these in together when you are making a determination as to how to proceed in terms of providing care in an institutional setting or in an institutionalized setting. A couple things I would like to say about the decision. One of the first is they have to take a deep look at it and realize the important thing that the Supreme Court said. Some people have compared this decision for people with disabilities to Brown v Board of Education, the landmark decision saying that that led to the desegregation of the school system in this country and the racial desegregation. I think that''s apt in some ways, because both of them deal with a very broad statement. Here unjustified isolation of people with disabilities is a form of discrimination under the ADA. What''s interesting about that is that the Supreme Court very forthrightly said that discrimination here can be looked at in terms of one group of people with disabilities being treated differently than another group of people with disabilities. That holding was by no means clear before the Supreme Court looked at it in these terms. The question I guess that may be on some minds at this point is where do we go from here? Clearly I think some of you know there are already some 10 to 12 cases in the Courts already that are sort of being held in abeyance. We know of a number of complaints that have been filed both with our office and with the Office of Civil Rights at the Department of Health and Human Services. Keep in mind under the Title II regulation when we receive complaints at Justice, that deal with these kinds of issues, we will be forwarding them on to the Office of Civil Rights at HHS so that will be the entity that will be looking at this. They have some, a large number of complaints from people saying that states agencies involved with the provision of long term care and mental health and health care services to people with disabilities have not be adequately treated in a self-evaluation plans because they did not consider the integration regulation in those. So one vehicle that will be happening over the next year or so is how those complaints are handled and what goes on. Clearly we will be working with HHS to develop the government''s views in terms of litigation that''s ongoing. But I think where a large part of this action should continue in the next year is at the state level with groups of persons with disabilities in each state working with the state agencies responsible for providing health care services, long term health care services, mental health services, other rehabilitation services. And coming to grips with what the Supreme Court suggested, which is the development of a comprehensive effectively working plan for placing persons with disabilities in less restrictive settings. Dealing with waiting lists. So it''s incumbent on us at the federal level and people at the state level and groups of persons with disabilities to work together to try and come up with what good plans are and to come to grips with some of these what is a reasonable pace. How do you consider the looking at-what is a fundamental alteration in terms of looking at available resources, how broadly do you do that. I know some thinking is beginning on that. I think we have to work on this together. On the day that the decision came down, President Clinton issued a statement really endorsing the decision and calling on Janet Reno and Secretary Donna Shala to work with people with disabilities, with state medicaid directors, with others who have responsibilities here to try and take what is really a lofty goal here and make it workable. I think we are engaged on that journey at this point. I think again going back to Brown v Board of Education. It''s useful to look at what happened in a similar area there. It took from that decision in 1954 to the late ''60s or early ''70s before there was effective implementation of what the Supreme Court held in 1954. We can look at that model and say that''s not a model we want to follow. Through administrative action, through positions we take in the court, working with the groups, through groups of persons with disabilities working in each state with their state officials, I think we can achieve what the Supreme Court has laid out in a much shorter period of time. It will be useful for us to work now and to use a year from now the 10th anniversary of the ADA as an effective time to look and see. Can we, by that time, put into place the kind of comprehensive effectively working plans that will accomplish this. What I would like to do now is turn the podium over a period of time to Sheila Foran, Special Counsel to the Director of the Office of Civil Rights at HHS. I should point out to you for a number of years, she just began in this position recently, but I can personally vouch for the fact that she was well trained. For the past seven years or so she worked in my office at the Department of Justice and I know that the Office of Civil Rights is going to be served well by her. Here she is.

Sheila Foran

Thanks a lot, John. I think that was an extremely useful analysis of the Olmstead case. As John said, I''m Special Counsel to Tom Perez, Director of the Office of Civil Rights. He actually wanted to be here himself to participate in this call, but he''s meeting with State Medicaid Directors on this very issue, interestingly. I would like to bring back what I learned today, also, from your questions to him. As John said, HHS is working closely with the Department of Justice in determining just how we are going to apply these broad terms expressed in L.C.to particular cases. Just for background, I know some of the people on the line are actually in the regions for the Office of Civil Rights. But for those of you who don''t know, the Office for Civil Rights, the Department of Health and Human Services enforces federal laws that prohibit discrimination by health care and human service providers that get funds from HHS. The Title II regulation for ADA delegates authority to OCR to investigate ADA complaints against public entities that provide medical care, among other things. So where OCR find a violation if we can''t settle the case we refer it to the Department of Justice. And everybody who is effected by the L.C.decision I think everybody wants to know exactly what these broad terms used by the Supreme Court mean. What does the Court mean by a comprehensive effectively working plan or a waiting list that moves at a reasonable pace. Both the advocates and the state entities are trying to identify what tools should we use to determine how these terms should be defined. I, along with George Lyon at the Office of Civil Rights who is General Counsel there, attended a legal roundtable on Olmstead that was response supported by the National Association of Protection and Advocacy Systems last week. Most of the discussion among all these different advocacy groups centered around how are we to argue to courts how these terms should be understood? Some of what came up is how difficult it is going to be to deal with the fundamental alteration framework set out by the Supreme Court. But that said, you know, all of this is going to be fleshed out over time through application and particular circumstances. The Office for Civil Rights has up to 29 complaints that it has received that have been on hold pending the decision. So we are in the position now that we have an understanding and a framework for dealing with investigating these cases. That means coming up with a formula. And I don''t think there is a cookie cutter formula to doing this. There are some possible tools to determine whether a plan is comprehensive, effectively working. You might look at what are the ranges? What range of states do we have out there? Which are the model states that have excellent programs in place? Can we look to them to say well, you should do it like they do it. Should we be instead saying okay, one state resembles another state very much in many ways; you can use them as a benchmark to compare where your program should be. How short that waiting list should be? How effective is that plan, how comprehensive should it be. To return to some of the things John said, the great thing about this decision is that it says that individuals served by the state have a civil right to be served in the most integrated setting. It''s not just an issue of public policy any more. It''s not just left to the state''s discretion to do this. It''s a matter of legal right. So even though it''s true that the Supreme Court has set out the defense and has added to what the Justice Department''s typical formulation of a fundamental defense was. It has added this idea of you have to look at the range of services that the state provides and whether they are meting out those services in an equitable fashion. Even though that defense is there, the right to not be unduly institutionalized is established here as a civil right. Where there is no costs to placing somebody in the community, they have to do it. Which is an important point that might have gotten lost. So I am going to actually open this back up for John to finish on the other Supreme Court cases. Then we can talk about particular questions people have. I can tell you within the department we do have internal working group in the Department of Health and Human Services. We are also working across with Justice, so the administration will have a common position on all of this. So here is John.

John Wodatch

Thank you, very much, Sheila. Now I would like to turn to three other decisions that were issued on the same day as the L.C. case. There are three employment cases, Sutton v United Airlines, Murphy v United Parcel Service, and Albertson''s v Kirkingburg. As pleased as we were at the Department of the Supreme Court with L.C. we were likewise as disappointed with the result that the Court reached in these cases, which I suppose is a long way of saying they disagreed with the position that we had presented to them. These three cases deal with the definition of a person with a disability in the statute. You all remember the statute has a three part definition that includes: a person with a disability to have a physical or mental impairment that substantially limits one or more of the major life activities of the person; they have a record of such an impairment; or if they are regarded as having such an impairment. The issue in these cases was how you in looking at whether a person is a person with a disability, deal with what the Court called mitigating measures, meaning either the use of medication or devices to ameliorate the symptoms or effects of disabilities. In the Sutton case, which was with United Airlines, and involved twins who wore glasses. Their uncorrected field of vision was 20/200 or worse in each eye but with glasses were corrected to 20/20 they were experienced airline pilots, worked at a regional airline. They went to apply at United. United said they couldn''t get a job because they did not have close enough to perfect vision. They were 20/100 or worse in each eye. Therefore they were not qualified. So the question became are they a person with a disability. The Murphy case involved a person who since he had been eleven years old had high blood pressure. But he used medication to lower it. It was clear that without the medication he had hypertension and extreme phases and was a person with a disability. The question was once he took the medication, was he still a person with a disability? Albertson''s v Kirkingburg involved a truck driver who had monocular vision and the question there was whether this was a person with a disability. In all three cases the Supreme Court set out the standard that you look at a person as they are with the measures. So in Mr. Murphy''s case you decided whether he was a person with a disability by looking at him when he was taking his medication. In the Sutton twins case, since they wore glasses they didn''t have a substantial limitation of a major life activity, seeing. This was a departure from the position we had argued and a departure from what in our minds was the clear legislative history of the ADA. But there was language in the committee report saying that you looked at whether someone was a person with a disability without regard to whether they were taking medication or had otherwise ameliorated the effect of the disability. The Supreme Court disagreed they said you had to look at the words of the statute itself. It''s interesting because it turns on rulings of grammar and numbers, which is not usual for a Supreme Court decision. The decision in Sutton said you had to look at the definition itself and the definition says a person with a disability is someone who has a physical or mental impairment that substantially limits one or more of the major life activities. That "S" on limits is what determines the case. It''s the present indicative tense and you look at people as they are standing in front of you. If they are taking medication, wearing glassing glasses, have a prosthetic device you have to take that into consideration in deciding whether they are a person with a disability. Similarly they look at the findings of the law and one of the findings said there were 43 million people in the United States in 1990 who had disabilities. It was clear to the Supreme Court if Congress thought that everyone who had severe moderate to severe myopia was included it would be many more than 43 million people who would be covered. So they looked at those two facts from the statute and said these people without-that you have to look at mitigating measures and therefore the four persons involved in these three cases were not people with disabilities. They also looked at the regarded as part of the definition. Remember the third prong of the definition. But then said for example in the Sutton case, United Airlines wasn''t regarding them as unable to get a job as an airline pilot because they were airline pilots. They were just regarding them as being unable to be a global airline pilot in the way that United Airlines looked at the situation. A little even more galling to me in the United Airlines case was United allows their employees who have vision like the Sutton twins to stay as airline pilots, they just won''t hire someone with them. So if you are hired as a pilot and then your vision goes bad and you require glasses you can stay as a United Airline pilot. The same thing in the Murphy case. They said that the employer, U.S. didn''t regard Mr. Murphy as a person with a disability. They just regarded him as someone who couldn''t do a job as a mechanic who also had to drive a commercial vehicle. He could get a job any place as a mechanic. Again a much more narrow view of the definition of person with a disability than we had thought the law required and certainly different than the brief that we filed. The impact of this is something we are examining, we are working very closely with the EEOC. One of the things at risk here and one thing I want to make clear to you, that the Supreme Court didn''t say if you are taking a mitigating measure that means you are not a person with a disability. It means you have to look a lot more carefully. So the kinds of persons who we in the past might have thought were covered and now are at risk of not being covered, for example people with epilepsy who are taking medication, in the past we would have said to someone with epilepsy is a person with a disability. Now we have to say okay, even if their epilepsy is controlled to a certain degree by the medication they are taking, are they still substantially limited in a major life activity? Same thing of a person with diabetes, taking insulin or a person who has missing a.m. or legs and uses prosthetic devices, people with monocular vision, children with ADD, persons who use hearing aids, limited vision, glasses that don''t bring vision to 20/20. Persons who have psychiatric conditions, particularly people with severe depression or who are bipolar who are taking medication. This whole group of people we now have to do a series of questions where before it would have been okay we think that''s a person covered with a disability. Now we have to look at does the person still have an occasional seizure? Even with a hearing aid, does the person still has a substantial limitation in hearing? One of the things that made the cases, especially the Sutton case, difficult with the Supreme Court is that glasses in the case of the Sutton twins was one of the few things, one of the few kinds of mitigating measures that totally took care of the disability. I think we all realize that most of these other mitigating measures do not work all the time. Do not work adequately even when they are working in certain circumstances. Now we are going to have to go through that kind of analysis. Interesting think thing that the Court said in this case that is perhaps helpful and hadn''t been said before, you can look at the side effects of medications and mitigating measures to determine whether there is a substantial limitation of a major life activity. For example someone who is taking medication for depression or medication for epilepsy and because of the nature of the medication has side effects. One side effect being inability to bear a child because of the increased chance of birth defect, that is something we can now look at and say that person has a substantial limitation of a major life activity of reproduction. One of the things that the Supreme Court has done is going to make us-it hasn''t, you know, ruled all of these people out of the statute, it''s going to make it more difficult to prove a case. Instead of decreasing litigation I think what the Supreme Court has done is opened up a whole new field of litigation for both persons with disabilities who are bringing cases and employers and others who are defending cases. We have to also look at the second prong of the definition, record of a person with a disability. There will probably be increased reliance on that in the future. A number of these people who now might not be considered by the Court under the terms of the decision as a person with a disability, certainly may have a record of a disability. And therefore might be protected under the law under that prong. We are going to have a lot more looking into major life activities and in a broader sense. There are those who will maintain that people who are using a regimen of insulin to control or deal with diabetes are also engaged in a severe regiment of eating patterns and habits, whether that amounts to a major limitation of a major life activity, eating is something the Courts will be looking at, as will we. I think the major life activity of caring for one''s self is something in its broadest sense is going to be something that will be an issue we will look at. As a result of this, I can tell you that we have been talking a lot within the administration at the White House, with EEOC, with other federal agencies about how we should approach this decision. Clearly there are a number of cases already in the courts, we will take an active role in trying to shape how the Supreme Court decisions are interpreted. Also in terms of the kinds of cases we bring, we will be looking at trying to bring the kinds of cases that can get a more expansive view of a person with a disability. One of the problems that we faced here was the Supreme Court was dealing especially with the issue of eyeglasses with something they thought clearly wasn''t covered. If we have examples of discrimination against persons with epilepsy, people with diabetes, people with prosthetic devices, we might see different results from the Courts and I think it''s part of our job to ensure that good cases get taken to the Courts. I can point out to you that there are those in the disability rights community who think it is appropriate at this point to have a legislative solution and that clearly the Supreme Court didn''t get it. They thought they had-and that they had misinterpreted what Congress did and the right way to deal with it is go forward to Congress. The administration''s view on that at this point is we are keeping all our options open and looking at all ways to try and deal with these Supreme Court decisions. So no decision has been made one way or another in terms of the administration''s view. On that strategy, I think clearly these three cases reverse sort of the trends that came about with the Abbott case which was a very expansive view of what a person with a disability is. That''s a case involving whether a woman who was HIV positive who was refused treatment by a dentist was protected by the ADA. The Supreme Court had a very expansive look at how you looked at impairment and major life activities. I think those things are still good law and we can apply them, but clearly mitigating measures issue is something that is going to occupy our time for the next several years in trying to come to grips with what the Supreme Court had in mind there. I will just talk about a couple other cases and then we will open this up to questions. So one other Supreme Court case that we should mention Cleveland v Policy Management Systems Corporation. This is a situation that had been coming up through the Courts. Usually a situation where someone because of the severity of their disability or because of discrimination by an employer are no longer employed; they have been fired from their job; applies for Social Security benefits. In their application for Social Security benefits in order to get them, I think many of you realize, you have to say you are so seriously disabled that you are unable to work. In some of these situations, what happened is the person sued the employer and the Courts were confronted with how do they deal with these two separate statements: a person filing a lawsuit saying I''m a person with a disability and I''m qualified to do this job and the same person going to Social Security and saying I am unable to work. The Supreme Court looked at this issue and unanimously decided those statements were not inherently contradictory. Because the standards that the Social Security Administration uses for determining your eligibility for benefits are different standards than the ADA standards. The Cleveland case gave a good example. The person who was fired from her job was asking for reasonable accommodation and was denied reasonable accommodation. When Social Security looks at whether they are going to give Social Security disability benefits, they do not look at reasonable accommodation issues. So it may be that someone can apply and get Social Security benefits and still be a qualified person with a disability for employment purposes. What this case just says is there is no automatic bar, there is no presumption one way or another, it''s a matter of fact. The Court is going to have to look at the person and make a determination whether they are a person with a disability and what effect the statement of Social Security had on a case-by-case basis. Let me just mention a couple hot topics that are coming up and then we will open this up for questions. Hot topics, issues in the courts, or you are likely to hear about in the next year. One of them that has been occupying a lot of our attention is whether Title II of the ADA is Constitutional. There have been a number of decisions, most recently the 4th circuit in a case called Amos versus Maryland Department of Public Safety held the ADA was Constitutional. In just about every Title II case that is brought either by the federal government or by private parties states are saying the ADA is unconstitutional. The reason for this is there is a line of cases that the Supreme Court outside of the Civil Rights arena is looking at the nature of federalism and whether states can be sued and whether Congress has the power under the Constitution to enact legislation that will allow the federal government to say that a state can be sued for a violation of a federal law. I think we are involved in some 20 to 25 cases on this, in the past three months alone we have filed another seven cases. At the end of this term, in the Supreme Court there were several cases dealing with this issue. None of them were in a civil rights context. But in all of them I think there were some warning signs that we may have more difficulty convincing courts that Title II of the ADA is Constitutional legislation. We have been successful in our attempts to do that at the lower court level. But it is something I think that eventually the Supreme Court is going to have to look at. In the next term the Supreme Court is going to be looking at the age discrimination and employment act and whether that is Constitutional legislation. How they rule on that will tell us a lot about what''s going to be happening. You should keep that sort of on your scope. Another issue that we have had federal appeals go in two different directions is whether Title II of the ADA covers employment. In our view Title II covers employment even though Title I specifically covers employment. If you remember Title I covers the employment practices of employers that have 15 or more employees. Section 504 upon which Title II is based, covers the employment practices without regard to the number of employees. Because Title II was meant to be like section 504, when Congress enacted it they said that it is our view that Title II also covers the employment practices of state and local governments. The 11th Circuit in a case coming out of Florida held that Title II did cover employment. Recently the 9th Circuit in a case involving Oregon, held that Title II doesn''t cover employment. Some of you may know we are involved in an employment case against the City and County of Denver that''s on appeal to the 10th Circuit. The 10th Circuit recently asked us to brief the issue of whether Title II covers employment. So I think it''s an issue that''s going to occupy our attention and you should be aware of. Another area we are involved in a lot of litigation and investigations in the development and the design and construction of a new type of movie house. You may know of it called stadium styled seating. In movie theaters being built across the country, the seats are placed on risers much like a stadium as opposed to sloped floor. We are involved in litigation against several chains. They are also suing us. We are also involved in eleven major investigations. In our view these theater chains are not building, designing and constructing these new theaters to give people who use wheelchairs a line of sight comparable of that given to other people in the theaters. Another area involves cruise lines. There is a lot of litigation about whether cruise lines are public accommodations and covered by Title III. Our answer to that is yes, they are. They are places of lodging, establishment serving food and drink, entertainment, exercise, recreation, certainly they are covered as places of public accommodation. The difficult issue is a number of cruise ships are owned by foreign flags. So although they may dock in U.S. ports they are owned by foreign companies and there are those who would say that takes them out of the scope of the ADA. It''s our view it does not. We are involved in a case in the Eleventh Circuit, again in Florida, saying because a cruise ship comes and does business here, docks in our lands, the ADA has authority over them. I think there is going to be more litigation on that subject. Two more issues then open up to questions. One, the issue of insurance is a very lively one. We have been involved in litigation trying to establish the degree to which the ADA applies to the practices of insurance companies. I regret to inform you there is a recent decision out of the 7th Circuit Doe v. Mutual of Omaha, involving two HIV positive individuals who are challenging lifetime caps on the health insurance policy. In one case if you had AIDS or HIV positive the most you could get in health care benefits was $100,000; if you didn''t have AIDS you could get $1M. Another policy was $25,000 instead of $1M. We argued before the Court and actually won at the lower court saying that Title II covered this. It was disability-based discrimination. Insurance policies were covered. The 7th Circuit in a recent decision reversed that and held that Title III of the ADA doesn''t require insurance companies to alter its product and that in fact in most cases insurance isn''t covered by the ADA at all because of another federal statute. We are involved in litigation in the 9th Circuit and in the 5th Circuit to try and get courts to take a different point of view. Just keep that on your screen and our position has been all along that insurance is covered, that the terms and conditions of insurance policies are covered by Title III of the ADA. But that position has not been framed well in the courts. The last issue I will mention to you involves an issue that a number of you have brought to our attention in terms of access to technology. The changes to technology that are occurring, ensuring that they do not exclude people with disabilities, particularly people who are blind from access to computers and other technology, web sites, for example. Congress passed something called the Workforce Incentive Investment Act of 1998 which had an amendments to Section 508 of the Rehab Act. This gives new requirements for the federal government for the purchase of electronic and information technology and basically says that information electronic and information technology developed, maintained, procured or used by federal agencies must be accessible. This would apply to computers, whether it''s hardware or software or web pages, fax machines, copiers, telephones, and we at the Justice Department have a limited role. We are doing a self-evaluation of the government that we have to do and issue a report by February 7 of next year. And the Access Board is developing standards for what makes something accessible. I just wanted to give you sort of an early warning there is a lot of activity going on here in terms of, for example, what makes a web site accessible and what does the government have to do about that, as well as fax machines, telephone machines, a wide variety of information. The access board is spending a lot of its time on that issue, as are we. With all of that information overload that you now have, why don''t we follow whatever process you are going to follow to get some questions.

Jennifer Bowerman

Thanks, John. Thank you so much for that update. My desk right now is filled with faxed questions. And there are several questions already in on mitigating measures and record of impairment, which we will get to in a couple minutes. So if you have a different topic, run to your fax machine now. If you already had a question about mitigating measures or record of impairment or regarded as having an impairment, if you could hold back on those, because I think that there are already several questions here that might end up actually answering your question. I''m going to start with the first two questions that we have specific to Olmstead, John. And actually I''m going to direct the first to Shelia if she is still.

The question is

what type of advisement could you give to people as far as filing a complaint in light of the Olmstead decision? A follow-up question to that, John, would be in regards to reasonable time frames for people to move off of waiting list, what variables could be considered to determine whether a set amount of time is reasonable or unreasonable?

Sheila Foran

Right now we are really at the beginning of this process. And we do have 29 complaints that are already in line. I guess I would say the one thing I can tell you is that we are going to try to take a different approach to these complaints than would be typical. And that is instead of investigation and enforcement. Yes, investigate in order to find out what the story is, but then try to bring all the stakeholders to the table and try to help all the parties come to a resolution by listening to each other. Getting information from developmental disability community and mental retardation community, and gathering all that information and making sure people talk to each other and trying to negotiate compromised solutions instead of tying these cases up in litigation forever. When John mentioned that the 10th Circuit was getting that question about whether Title II covers employment, that''s a case that''s been in the Department for how long would you say, seven years? Seven years. And that''s not the kind of quick prompt action on waiting lists that we want to see. So, maybe I''m not telling you not to file complaints, but on the other hand waiting and seeing what we can do with the best state we have, maybe, and trying to kind of focus our energies on getting the states to come along with us voluntarily and working with your advocacy groups, too, instead of everybody rushing to the government, too. Obviously on all fronts this is a good strategy as well. I''m going to hand this over to John now for the second part of the question.

John Wodatch

The second part of the question dealt with what factors should we look at if we are talking about waiting lists that move at a reasonable pace. I think there are a number of factors that go into that. We are certainly trying to begin thinking that through with HHS and with state officials and with organizations that have been very active in this area. Clearly the starting point for me in all of this is what are the appropriate placements for people in a state? How many people do they have? Are they in state institutions who should appropriately be placed in the community setting? Then you have to look at what the infrastructure is in a state and what the state is doing to create the infrastructure for those community services. Which is why some states are going to be much better equipped to deal with this than others, because they will be in place in a number of community programs. But establishing community programs where there is a need is going to be a factor that goes into this. Available resources in the state, what''s in the state mental health budget, how are people being served? In our view there are going to be cost savings in some of these circumstances of placing people in the community. So I don''t think we have a list of one through ten at this point. There are a lot of factors that have to go into this. One of the things we want to spend some of our time is identifying state programs that are exception in some way and trying to replicate those programs in other states.

Sheila Foran

I just wanted to say in case I didn''t quite understand the question the first time around that you wanted me to answer. To the extent the question was really about what that complaint should contain, is the complaint incredibly thorough and contains all the information that John just talked about, obviously that''s a huge help. If you are collecting the information about what the community infrastructure looks like, what the state resource allocation looks like, historic information, obviously anything you can do to make the complaint as really thorough and use individuals. Don''t just have X state appears to not place people quickly. If we have an individual story to tell, obviously that''s more compelling.

Jennifer Bowerman

Thanks Sheila and John. Of course our next questions come in on the issue of mitigating measures and in addition to the record of impairment. On one particular question reads in light of the Supreme Court''s ruling in mitigating measure cases, can you please discuss the viability using the record of impairment prong as a way of being covered under the ADA? For instance if a person used to be symptomatic but now uses mitigating measures to address the symptoms, what would a plaintiff need to show to argue that the defendant''s actions are based on a record of impairment?

John Wodatch

Well, I must admit after the first thing I thought of after I read the Supreme Court decisions was, well, thankfully we have record of and I think it''s something that we should make every effort to use in the case we have. I think what you are going to have to show as a plaintiff is that a person before they took the mitigating measure, the medication, the device, before they used that, that they did have a physical or mental impairment and that it substantially affected a major lift activity even though it''s not doing it now or maybe doing it intermittently now. I think you have to show that. It''s interesting to go back to a 504 case that was at the Supreme Court, it was a 1987 case that dealt with a woman who had a history of TB and had a recurrence of it and was fired from her job as a school teacher. The Supreme Court found in that case that she did have a record of a handicap because that was a 504 because the terminology changed. I think the difficulty isn''t going to be establishing that it''s a person with a disability. I think the difficulty is going to be showing that act of discrimination is connected with the record. And I think we can do that. But I think that''s where if you are a plaintiff establishing that case you should be doing that. I wouldn''t also foreclose the option of trying to go under the first prong as well, if you have someone who is a person who has diabetes and is on insulin, trying to establish a substantial limitation in eating. I know people in the American Diabetes Association are trying to think through how they can convince a court that this is a person with a disability under prong one as well as under a record of. But I think most people will be able to make a case under record of and I think an avenue we should proceed with.

Jennifer Bowerman

The next series of questions actually comes in as far as medication or the use of medications. Several technical assistance centers, centers for independent living and so forth, are getting calls from individuals that take medication and their disability might be lessened or that. But now there has been suggestion here and there that well, if I just don''t take my medicine, then, you know, I will be covered. Could you respond to that?

John Wodatch

Yes, I can. One of the terrible impacts of this decision is that it would lead someone to think in order to be protected by this law that the person should stop taking their medication. Certainly that, is not anything that the government or any other official would recommend. We have had these same kinds of calls coming in to us in terms of people being worried that they are now open to discrimination and the protection they thought they had isn''t there any more. We are going to make every effort to show people who have a physical impairment who are taking medication or using devices may still be protected. You still may have a substantial limitation of a major life activity. But clearly I don''t recommend going off the medication, not using the hearing aid, not taking the medication for depression, not taking your insulin, in order to be protected by the law is substituting one problem for another one. It''s certainly not recommended.

Jennifer Bowerman

Kind of a switch as you brought up the issue of the constitutionality of Title II. The first question of that being would that include local government as well as state government and could you also describe the application of Section 508 and how that might apply to state or local government or even if it would?

John Wodatch

Okay. The constitutionality issues really deal with state action. And not local or county action is what my understanding of how that would play itself out. There might be courts however, that would view that differently, that a county or local government is just a subsidiary of a state and therefore the unconstitutionality might apply there. So I think it''s uncharted territory as to how that will play out in terms of that. We are certainly hopeful. It is our view that the ADA is constitutional legislation and I think we will prevail with that position in the Supreme Court. Which is not to say that it won''t be a rocky road between now and then. It will also be our view if the Courts say that it''s unconstitutional as it applies to states that that would not be the case for county or local governments. But I don''t know if that will prevail. For those of you who are lawyers, and who are listening to this and you have a choice, it would certainly to be safe at this point, whenever you are bringing a Title II action, also if it''s at all applicable bring a Section 504. Because even if the worst case scenario happens and Title II is held unconstitutional, you would still have the 504 part of your complaint and they really are parallel. As long as you are dealing with an entity receiving federal financial assistance you should in any private actions do both of those. On the Section 508 point, it only applies to the federal government. It does not apply to recipients of federal funds or apply in any other way. So that the change that Congress passed really is an effort to get the federal government to change. The theory behind the legislation, if the federal government is a huge purchaser of electronic and information technology and if the federal government requires that certain things be done in an accessible format or accessible way and we make that clear, that will bring about the availability of that technology for everyone. So even though it doesn''t apply to state and local governments, the impact of the government''s purchasing power will result in the availability of technology. Because I think the fear that led to this legislation was that technological changes were being made without thinking about the impact of the change in technology on persons with disabilities. That will change. I think that the major producers of technology are aware of this change in law and aware that in another year from now the federal government won''t be able to buy something that isn''t accessible. That is the design of that legislation.

Jennifer Bowerman

Back to Olmstead, a little bit, John, do you see the issue of most inclusive environments or most integrated settings, do you see that argument trickling into other programs offered by state and local government?

John Wodatch

That''s an interesting question. I think clearly the integration regulation that was at issue in Olmstead, applies across the board to all public entities. The regulation says the public entity must provide this program, services and activities, in the most integrated setting appropriate to the needs of the individual with a disability. So the regulation by its terms will. Now, a caveat, though, the L.C. v Olmstead, that whole issue is very fact specific. A lot of the ADA is fact specific. So I don''t know how much of that will be useful. In fact I think the notion, one of the fears that I have about the Olmstead case, one of the few fears, is that this comprehensive effectively working plan which works very well in this when you are talking about state Medicaid and state mental health budgets and long term health care issues, doesn''t work very well when you are talking about an individual kinds of Title III issue or individual Title II issue. Someone goes to a hospital that''s run by the state. And asks asks for an accommodation. That shouldn''t have to be put into this whole comprehensive plan whether somebody comes in with a service and says we will have to think about it and get back to you in six months. My concern is taking this decision out of its context doesn''t make much sense. What''s important and what is applicable in other areas is that the Supreme Court has said that integration is an important part of Title II of the ADA. It''s something that has to be taken into consideration. So there will be some spill over from that, but it''s so fact specific that it''s going to be difficult to take the terms of the case itself very much and apply them.

Jennifer Bowerman

Great. If you could actually go back and you had brought up the issue of technology access. This has come up often, especially as e-commerce continues to build web sites where you can make purchases on line, educational environments that you could actually take courses on line, too. Do you see that becoming a priority for DOJ at any time? Are there any cases or complaints that you are looking at that could give more guidance?

John Wodatch

That''s a very astute question, whoever asked that. We haven''t received complaints as much as inquiries and requests for guidance. I can tell you we are looking for, outside the area of Section 508 which is an area we are spending sometime on, we are also looking at Title II and Title III of the ADA and how they apply. Interestingly one of the insurance case that I mentioned in the 7th Circuit Doe v Mutual of Omaha, the bright part of that decision one of the issues in insurance cases is insurance cases say they are not covered under Title III because they do not operate a place of public accommodation meaning a building where you go in and buy the insurance. We have maintained in all this litigation you don''t need a place in the sense of a building. That in the 1st Circuit long time had agreed with us. In that case Judge Posner in his decision said insurance was limited in its coverage did say for example, and he used a web site as an example even though it was electronic it was a place you went into. And we are looking at that issue and the issue of web sites and electronic commerce. Clearly when the ADA was enacted it wasn''t mentioned specifically, but what we are looking at is how does the ADA apply in those circumstances. Certainly we are aware of states that are going to the use of kiosks that may be placed in shopping malls or other places as a way to interact with your state or local government, pay your parking ticket. You can renew your driver''s license without having to go to a place, you can do it either over the web or by going to a kiosk and those are all transactions that we are looking at and will be providing guidance on how the ADA applies to those circumstances.

Jennifer Bowerman

Great, thanks John. You alluded to this a little bit as far as what you see the next issues the Supreme Court taking on. I think you specifically brought up the issue of age discrimination. Do you see any other cases, ADA related, that now with the decisions that have been made that might need to go forward to the Supreme Court as far as further clarification?

John Wodatch

Well, there are a number of cases on the ADA on Title I and Title II that are in the Courts of Appeal. Interestingly the case that''s going to the Supreme Court on the Age Discrimination Act also had an ADA part. But the Supreme Court is only looking at it in terms of Age Discrimination Act. I would expect just because of the volume of cases, the Supreme Court will eventually take an ADA case. Now until recently usually the Supreme Court will only take a case if there is a split in the circuits or some reason for them to take it. Until recently there was no case holding the ADA unconstitutional. We have been fairly successful in putting forth our arguments. But recently in a case in North Carolina involving parking placards, they didn''t say the ADA was unconstitutional but they did say the provision in our regulation that said that you couldn''t charge for accommodations was unconstitutional. I think at some point in the future, and my guess is that maybe the 8th Circuit will declare the ADA unconstitutional. The reason I say that is we have had a couple of cases in that court and they have split evenly. Usually what happens is the whole circuit will look at the case or all the judges in the circuit, called an en banc proceeding, they had one in the 8th Circuit and split evenly on whether the ADA was constitutional. Since that time one of the judges of the 8th Circuit has died. And he was a judge who had ruled that the ADA was constitutional. I know there is another case going before the 8th Circuit. So it''s likely that in the next year the 8th Circuit will find the ADA unconstitutional and then it is likely that the Supreme Court will look at Title II of the ADA and whether it is constitutional. At this point the Supreme Court doesn''t have a case before it on that issue for the next term. I don''t know if it will be in the next term or the year after, but I would expect we will be hearing more about that. There have been several cases we have been involved in recently on the constitutionality of the ADA and we have won all of those. But I just foresee the way this is going, especially the way the Supreme Court dealt with a couple cases at the end of its term, basically these become federalism issues. What is appropriate a state''s rights issue and what is a federal issue. In the past civil rights legislation has faired very well in terms of being an appropriate area for the congress to legislate in. And we are hopeful we will be able to prevail on that issue when and if it gets the Supreme Court.

Jennifer Bowerman

Great, thanks John. We are going to get ready to wrap up in a second and I will come back to you, so if you have any closing comments. We did receive a number of questions that we are not going to be able to get to today. If you still have one of those questions, if you don''t feel that they have been answered please feel free to call your regional disability and business Technical Assistance Center at 800-949-4232. Again that''s 800-949-4232. And there will be technical assistance specialists on staff to go over if you have a specific situation or to give you further technical guidance under the Americans with Disabilities Act. John I will go back to you if you have any closing comments.

John Wodatch

I would like to just close with one thought for the people participating today. Whether you are a person with a disability or whether an employer. If you are getting a lot of your information from the newspapers and there are accounts of the Supreme Court cases. Take it with a grain of salt. First there was very little coverage of Olmstead because it''s not something that entities can understand. But the coverage of the employment decisions basically said people with diabetes, people with epilepsy aren''t covered any more. That''s not what these cases said. So if you are a person with a disability, I guess my advice to you is not to despair and say I used to be covered by this law and now I''m not. It''s certainly more difficult but there are circumstances under which we are going to be able to show and courts will accept that you are people with disabilities and you have protection under this law. If you are an employer, I don''t think you can just say oh, I can go out now and not hire someone and say you have diabetes and I''m not going to take you here. Or someone with epilepsy, someone who is bipolar I don''t have to hire you any more. It''s not as simple as the newspapers make that out to be. And I think you should be very careful in terms of the judgments you are making. Also look to the purpose of what the ADA was about which was really to shift how this country looked at disability in terms of the decision making that was made by the entities that are covered by the law. The very notion that you have someone who has diabetes, but is able to do the essential functions of the job. That is someone you should be hiring, that''s what the purpose of this law is. I think as the Courts look at that, we will get back to a sense of balance. So I would urge all of you to, if you have questions, to follow-up in terms of the specifics of these with the DBTAC''s and try and get at what these decisions mean rather than on relying on the popular press. I thank you for being attentive and participating and bearing with us all.

Jennifer Bowerman

Thanks so much, John for giving us your time this afternoon to go over the Supreme Court decision. Your expertise and insight is very valuable to us. We do appreciate the time that you have taken today. Special thank you to Sheila as well for sitting in and giving us perspective from HHS. Our next session is scheduled for Wednesday, September 22 at 1:00 p.m. Central time. That session will feature the new regulations under the Department of Justice and the Department of Transportation specific to over the road buses and will feature Marilyn Golden, presenting on that topic. It will be an hour session. In mid August we will post a full calendar for the upcoming year, October through next September. And offer a three track program: an architectural track, employment track and a general topic track. So please look to the web site, the Great Lakes web site and your Pacific and Mid-Atlantic web sites as well for the full calendar and information on registering for future sessions. I would like to thank all of you for participating. We hope to have you back on line in September.