ADA in Focus: Fall 2019

Volume 23, Number 3

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Fall 2019, Volume 23, Number 3 (suitable for printing)

Fall 2019, Volume 23, Number 3, in large print (suitable for printing)

In this issue:

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Focal Point

Title II: Access to Health Care in Detention and Correctional Facilities

Title II of the ADA covers the criminal justice systems of state and local governments, just as it covers all other state and local government programs and activities. When an individual is detained or incarcerated, however, a unique relationship is formed. When a person is taken into custody, the public agency takes on a greater responsibility for that individual’s health and safety.

Prisoners lose many freedoms and rights, but they still have certain civil rights, including the right to be free from disability discrimination and to have access to the facilities, programs, and services that are available to similar prisoners without disabilities.

Additionally, all inmates have the constitutional right to be free from cruel and unusual punishment. This constitutional right may be violated when prisoners are purposefully subjected to brutal treatment, when prison operators demonstrate deliberate indifference to serious illnesses or injuries, or when prison conditions are so poor that prisoners’ lives or health are seriously threatened.

The public duty to ensure reasonable health, well-being, and safety extends to ensuring that vulnerable individuals, including those with disabilities, are protected from abuse, assault, or self-injury.

Many studies and statistics have indicated that the percentage of individuals who have disabilities is much higher in jails, detention centers, and prisons than it is in the general population. There are undoubtedly many reasons for this, but for the operators of these kinds of facilities, it often means meeting a high level of need for a wide variety of health care services and personal assistance, medications, special diets, assistive devices, and medical supplies.

Additionally, these needs often trigger or overlap other general ADA requirements, such as the obligations to provide accessible facilities, to make reasonable modifications in policies and practices, or to provide auxiliary aids and services to communicate effectively with inmates who have vision, hearing, or speech disabilities. For example:

  • Inmates who are deaf may need sign language interpreter services to make sure communication is effective during medical assessments, treatments, counseling sessions, etc.
  • Inmates with psychiatric disabilities may need alternate approaches (e.g., de-escalation techniques, treatment, medication) to avoid ineffective or damaging punishments (e.g., use of force, seclusion) and address disability-related behaviors that may be negative but are not dangerous or threatening.
  • Inmates with mobility disabilities may need equal access to facilities, ranging from toilets and showers to recreational spaces, in order to maintain health and avoid medical complications or secondary conditions.

Services Provided Through Contracts

Many detention and correctional facilities hire contractors, including private companies, to conduct programs or provide services to detainees and inmates. Public entities remain responsible for ensuring that these programs and services comply with the requirements of Title II of the ADA, and that inmates with disabilities are provided with adequate and appropriate health care and related services.

Resources

U.S. Department of Justice (DOJ)

Ensuring Equality in the Criminal Justice System for People with Disabilities

National Institute of Corrections (NIC)

This agency provides technical assistance, training, and materials to federal, state, and local detention and corrections systems. Training and materials address a wide variety of issues related to planning and implementing jail and prison programs, including workforce development, community re-entry, and working with victims. Many projects focus on disability or include disability-related components, such as health care, aging in prison, and working with inmates with mental illnesses.

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Zoom in on Training

Transition Boot Camp:
Practices and Partnerships to Improve Employment Outcomes

November 13, 2019
Philadelphia, PA

This innovative workshop is designed for professionals who want to improve employment outcomes for youth with disabilities through effective planning for the school-to-work transition. 

This event will be held at the same hotel where the ADA Update conference will take place. Registration is separate for the Boot Camp and the Update, but those who would like to attend both will receive a $50 discount on their Update registrations.  

Annual Mid-Atlantic ADA Update

November 14 – 15, 2019
Philadelphia, PA

This year will mark our 26th annual conference on the ADA. Our pre-conference session, “ADA Overview,” will be offered on Wednesday, November 13 for those who need an introduction to the ADA and those who want a refresher.

The conference will feature a host of speakers with expertise in various aspects of ADA implementation and other disability issues. Presentations and workshops will explore a range of topics related to employment, post-secondary education, and state and local government activities, including detention and corrections programs.

The 2019 ADA Update will offer professional development hours for several accreditation organizations, as well as a general certificate of participation. An exhibit area will feature an array of vendors showcasing their products and services.

Get more details about the Boot Camp and the ADA Update conference and register today!

ADA National Network Online Learning

Check out the ADA National Network’s online learning programs, which offer live webinars and archived sessions on a broad range of topics, including architectural design, accessible technology, arts and recreation, ADA legal developments, and much more. Upcoming sessions:

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Trainings pages for a comprehensive listing!

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Close-Ups: What's New

New Resource for Places of Lodging:
Housekeeping Tips for Mobility Accessible Guest Rooms

Our new tip sheet is designed to help lodging operators and housekeeping staff make things a little easier for guests staying in mobility-accessible guest rooms. Keeping items like hand-held shower spray units, extra bedding and towels, toiletries, hair dryers, irons, and coffee makers within reach will go a long way toward making people with disabilities, including those who use wheelchairs, feel welcome!

housekeeping tip sheet in English and Spanish

The handy tip sheet comes with English on one side and Spanish on the other. If you’re a lodging operator, a traveler with a disability, or simply want to promote accessible customer services in places of lodging, contact us here in the Mid-Atlantic ADA Center and let us know how many copies you need!

As always, call us with your questions about the ADA and the hospitality industry!

NDEAM 2019: Celebrating Workers with Disabilities

National Disability Employment Awareness Month (NDEAM) is right around the corner, but it’s not too late to get involved! The Department of Labor’s Office of Disability Employment Policy (ODEP) offers a wealth of ideas and resources you can use to promote inclusive employment opportunities and recognize the contributions of American’s workers with disabilities!

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Zoom in on Court Decisions and Settlements

Court: Plasma Donation Center’s Policy
Based on “Speculation, Generalizations, or Stereotypes”

The Third Circuit Court of Appeals (covering federal courts in Delaware, Pennsylvania, New Jersey, and the Virgin Islands) recently issued an opinion in the case of Matheis v CSL Plasma, Inc. The plaintiff in the case, George Matheis, challenged CSL Plasma’s policy, which categorically denies donation opportunities to individuals who use service animals for anxiety disorders.

CSL operates a plasma donation center in York, Pennsylvania, where blood plasma is extracted from individual “donors,” who are paid. The donation process can be stressful, taking up to two hours per session and involving an individual health screening. Mr. Matheis had undergone this process successfully about 90 times, earning a few hundred dollars a month over the course of approximately a year.

However, when he arrived at CSL with his newly acquired service dog, explaining that he would be using the dog because of his post-traumatic stress disorder (PTSD), he was told that he would not be allowed to donate unless he provided a letter from his healthcare provider, saying he could donate safely without the dog.

CSL raised two fundamental arguments in defense of its policy. First, it argued that a plasma donation center is not subject to Title III of the ADA because it does not provide goods or services to the public in exchange for money; rather it pays members of the public for plasma, which it then sells to third parties (such as manufacturers). This argument has been raised in other courts, and has resulted in differing opinions.

In this case, the lower court and the court of appeals agreed that CSL is covered by Title III. The appeals court said that the “direction of monetary compensation” between business and customer does not necessarily indicate whether a business is a place of public accommodation (in this case, a “service establishment”). The court likened the plasma donation center to several other types of businesses which are generally considered public accommodations, including banks, pawn shops, and recycling centers. These businesses may also compensate their customers, or make purchases from them for the purpose of resale (as pawn shops often do).

Secondly, CSL argued that, even if it were covered by Title III, its policy of excluding people who use service animals for anxiety disorders is a legitimate safety rule. This is where the lower court and the court of appeals parted company. The district court had ruled in favor of CSL, but the appeals court found the “evidence” supporting the policy “unimpressive.”

According to the ADA, a legitimate safety rule must be based on “actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” CSL’s defense of its policy relied on a single declaration from its divisional medical director, who opined that donors “with severe anxiety may be unable to follow directions, cause disturbances, impact the donation process” and “present serious health and safety risks to themselves, medical staff, and other donors.”

The declaration also addressed the use of service animals: “CSL’s general policy is to defer a donor who requires more than two medications daily or a service animal for anxiety, until the need for medications or service animal decreases. … This policy is not directed to the use of a service dog, as CSL allows service dogs for vision- and hearing-impaired donors, but is based on the severity of the anxiety.”

The court said these statements seemed “clearly speculative and to generalize widely about individuals who use psychiatric service animals, all of whom CSL apparently views as people with ‘severe anxiety.’ No medical justification or other scientific evidence undergirds CSL’s implicit conclusion that all those persons have ‘severe anxiety’ and will put staff, other donors, or themselves at risk when donating plasma. … This is clearly inadequate to show that CSL’s policy is based on actual risk and not based on speculation, stereotypes, or generalizations.”

The case will be returned to the lower court in hopes of a final resolution.

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