Reporter, The (Mental & Physical Disability Law) Highlights by yrr14496


									Highlights                   By John W. Parry, Editor-in-Chief

Expert Evidence [004]                                                                The Federal Circuit decided that a claimant’s entitlement to
                                                                                veterans benefits is a property interest that is protected under the Due
     Maryland’s highest court found that, pursuant to a state rule              Process Clause, and that such a violation occurred where the Board of
barring expert witnesses from devoting more than 20 percent of their            Veterans’ Appeals considered unlawfully altered medical records in
annual “professional activities” to testifying in personal injury cases,        denying benefits, and a reasonable probability existed that, had the
a retired neuroradiologist was not permitted to include as                      unaltered records been considered, the outcome would have been
“professional activities” reading journals, observing colleagues’               different. Cushman v. Shineski, 576 F.3d 1290 (Fed. Cir. 2009), 34
procedures, discussing patients with former colleagues, and attending           MPDLR 30; [1.05(h)].
conferences. University of Md. Med. Sys. Corp. v. Waldt, 983 A.2d 112                The Alaska Supreme Court declared that a prison guard, who had
(Md. Ct. App. 2009), 34 MPDLR 19, [004(c)].                                     been threatened by a convicted murderer with a sharpened pencil,
                                                                                experienced the type of extraordinary or unusual work-related stress—
Public Health Detentions [1.01]                                                 defined as a sudden fright or fear of physical harm or death—that
                                                                                entitled him to receive workers’ compensation benefits for
     The Centers for Disease Control and Prevention, in a final rule,           posttraumatic stress syndrome. Kelly v. Alaska Dep’t of Corr., 218 P.3d
removed HIV infection from the definition of “communicable                      291 (Alaska Sup. Ct. 2009), 34 MPDLR 32; [1.05(f)].
diseases of public health significance,” as well as any references to
HIV from the scope of examinations for aliens. Immigrants and                   Insurance [1.06]
foreign visitors with HIV will no longer be banned from the United
States, and aliens seeking permanent residence will not be required to               The U.S. Departments of Health and Human Services, Labor, and
undergo HIV testing. HIV is no longer viewed as a public health                 the Treasury issued interim rules requiring group health plans that
threat. 74 Fed. Reg. 56547 (Nov. 2, 2009), 34 MPDLR 153;                        include mental health and substance use disorder benefits with general
[1.01(d)(vii); 1.05(g)].                                                        medical and surgical benefits to treat them equally in terms of out-of­
                                                                                pocket costs, benefit limits, and practices. 75 Fed. Reg. 5410 (Feb. 2,
Civil Incompetency [1.04]                                                       2010), 34 MPDLR 153; [1.06(a)(ii)].

     New Jersey became the latest state to enact legislation consistent         Criminal Incompetency [2.01]
with the National Instant Criminal Background Check System
Improvements Act of 2007, Pub. L. No. 110-180. Persons may petition                   The Kansas Supreme Court upheld dismissal of criminal charges
the superior court to expunge a court-ordered or voluntary                      against a defendant, who was deemed unlikely to become competent
commitment from the court’s records. The court must grant                       to stand trial in the foreseeable future as the result of a traumatic brain
expungement if it finds that the petitioner will not likely be a danger         injury, finding that he was not a “mentally ill person” who was subject
to the public safety, and that granting relief is not contrary to the           to civil involuntary commitment. Kansas v. Johnson, 2009 WL
public interest. N.J. Assembly No. 4301 (2010), 34 MPDLR 154;                   3489418 (Kan. Sup. Ct. Oct. 30, 2009), 34 MPDLR 50; [2.01(d)(i)].
[1.04(f)(iv)].                                                                        The Fourth Circuit—joining other circuits—found that, given the
     A Colorado appeals court ruled that a nursing home could not               significant liberty interests involved in avoiding unwanted drugs, the
compel the estate of a patient who had died at that home to arbitrate a         government must prove the Sell v. United States, 539 U.S. 166 (2003),
wrongful death claim, where the patient’s son—her legal                         27 MPDLR 548, factors by clear and convincing evidence to
representative as to healthcare decisions through a health proxy—was            involuntarily medicate a person found incompetent to stand trial with
not authorized to sign an arbitration agreement on his mother’s behalf.         antipsychotic medications. United States v. Bush, 585 F.3d 806 (4th
Such an agreement is not a “medical treatment decision.” Lujan v. Life          Cir. 2009), 34 MPDLR 51; [2.01(d)(iv)].
Care Ctrs. of Am., 2009 WL 4069573 (Colo. Ct. App. Nov. 25, 2009),
34 MPDLR 23; [1.04(g)(i)].                                                      Diminished Culpability [2.02]

Federal Entitlement [1.05]                                                           The Ninth Circuit found that trial counsel’s failure at the penalty
                                                                                phase to obtain a mental health expert and neuropsychological testing
     Congress closed what it viewed as a loophole by barring                    for a capital defendant with multiple head injuries and a drug
retroactive payments of Social Security Disability Insurance or                 addiction constituted ineffective assistance of counsel. The American
Supplemental Security Income benefits to persons during periods for             Bar Association’s (ABA) Guidelines for the Appointment and
which they are prisoners, fugitive felons, or probation or parole               Performance of Counsel in Death Penalty Cases recommend that trial
violators. Pub. L. No. 111-115, 123 Stat. 3029 (Dec. 15, 2009), 34              counsel obtain defense experts and neuropsychological testing in
MPDLR 153; [1.05(a)(i)].                                                        these circumstances, and Ake v. Oklahoma, 470 U.S. 68 (1985), 9

34:1 MPDLR                                                                 11                                                     January February 2010

MPDLR 97, was not satisfied by appointing a neutral expert who                   (Wash. Sup. Ct. 2009), 34 MPDLR 68; [2.03(c)].
reported directly to the court. Jones v. Ryan, 583 F.3d 626 (9th Cir.
2009), 34 MPDLR 64; [2.02(a)(i), (d)(ii)].                                       ADA Scope of Coverage [3.01]
     A divided Virginia Supreme Court held that, in an inquiry about
a capital murder defendant’s future dangerousness, a lower court did                   Oregon amended the definition of “disability” in Or. Rev. Stat.
not err in refusing under Ake to appoint a forensic psychologist at state        §659.110 et seq.—which governs discrimination in the employment
expense to testify at sentencing about the defendant’s prison life.              context—to mirror the revised definition of “disability” under the
Because such testimony could apply to any inmate, the defense failed             Americans with Disabilities Amendment Act of 2008 (ADA-AA). Or.
to establish a particularized need. Morva v. Virginia, 683 S.E.2d 553            S.B. No. 874 (2009), 34 MPDLR 154; [013].
(Va. Sup. Ct. 2009), 34 MPDLR 65; [2.02(a)(i), (d)(ii)].                               A New York federal court, citing the ADA-AA’s provision that
     A divided U.S. Supreme Court ruled that the Alabama courts had              the “regarded as” disability definition does not apply to transitory or
not acted unreasonably in viewing a decision not to pursue mitigating            minor impairments, concluded that a former employee, who had
evidence based on a capital murder defendant’s borderline mental                 returned to work without restrictions two months after breaking his
retardation—by an attorney who had only recently been admitted to                arm, was not actually or regarded as disabled nor had a record of a
the bar—as strategic under the applicable habeas corpus law, 28                  disability under the 1990 version of the ADA. George v. TJX Cos.,
U.S.C. §2254(d)(2), rather than as an oversight or mistake. At trial,            Inc., 2009 WL 4718840 (E.D.N.Y. Dec. 9, 2009), 34 MPDLR 79;
counsel and his more experienced co-counsel had decided not to                   [3.01(a)(1)].
introduce such evidence. Justices Stevens and Kennedy countered that
there was a “world of difference between a decision not to introduce             ADA Enforcement [3.02]
evidence at the guilt phase . . . and a failure to investigate mitigating
evidence . . . at the penalty phase.” The dissent opined that counsel’s                The Ninth Circuit held that a plaintiff with paraplegia had no
decision “was the result of inattention and neglect.” Wood v. Allen,             private right of action to enforce 28 C.F.R. §35.150(d), a regulation
2010 WL 173369 (Jan. 20, 2010), 34 MPDLR 55; [2.02(d)(ii), (iii)].               enacted to implement §202 of the ADA. Although there is a private
     The U.S. Supreme Court, in a unanimous per curiam opinion,                  right to enforce §202, the obligations that §35.150(d) imposes on
reversed the Sixth Circuit’s grant of habeas corpus relief to a death-           public entities—to draft a detailed plan and schedule for achieving
row petitioner, finding that it improperly relied on the ABA’s 2003              access—are nowhere in §202’s plain language. According to
Guidelines for the Appointment and Performance of Defense Counsel                Alexander v. Sandoval, 532 U.S. 275 (2001), private actions may only
in Death Penalty Cases. These guidelines may be used to determine                be used to effectuate a statute’s clear requirements or prohibitions.
what reasonable performance by defense counsel entails based on the              Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009), 34 MPDLR
norms prevailing at the time, but are not “inexorable commands” with             93; [3.02(c)(1)].
which all capital defense counsel must comply. Justice Alito                           The Ninth Circuit joined many other federal courts in ruling that
concurred, opining that these guidelines have no “special relevance”             neither compensatory nor punitive damages are available for
in determining whether a specific lawyer’s performance has satisfied             retaliation claims brought under the ADA Title V; only equitable relief
the Sixth Amendment standard. Bobby v. Van Hook, 130 S. Ct. 13                   is available. Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir.
(2009), 34 MPDLR 56; [2.02(d)(ii)].                                              2009), 34 MPDLR 95; [3.02(f)(i)].
     A divided Michigan Supreme Court overruled an appeals court                       The Ninth Circuit concluded that a teacher had standing under
and reinstated a guilty but mentally ill verdict for a defendant with            both the ADA Title II and the Rehabilitation Act §504 to file claims
bipolar disorder who had crashed her car into a police vehicle and fled          that she was improperly forced to resign after she had filed a formal
the scene while in an alleged manic phase. Although the state had no             complaint with the U.S. Department of Education that the employer
experts testify, but instead, tried to impeach the defense experts with          school district was violating federal and state laws in denying its
eyewitness accounts, the trial court had not acted unreasonably in               special education students a free appropriate public education. The
discounting several defense experts’ opinions that she was insane, as            anti-retaliation provisions of Title VI of the Civil Rights Act are
well as evidence that she had been committed to a mental hospital.               available under §504, and a similar protection appears to exist under
Michigan v. Weddell, 774 N.W.2d 509 (Mich. Sup. Ct. 2000), 34                    Title II as well. Barker v. Riverside County Office of Educ., 584 F.3d
MPDLR 66; [2.02(f)].                                                             821 (9th Cir. 2009), 34 MPDLR 94; [3.02(f)(i)].

Sexually Violent Predator [2.03]                                                 Employment [3.05]

     The Washington Supreme Court found that, because sexually                       The Ninth Circuit adopted the Tenth Circuit’s position in
violent predator commitment proceedings are civil in nature, the state           Schrader v. Ray, 296 F.3d 968 (10th Cir. 2002), 26 MPDLR 846, that
acted legally in conducting a mental health exam on a sex offender               §504 incorporates the provisions of the ADA Title I in establishing
before a commitment petition had been filed and not providing a right            when a private right of action for workplace discrimination may
to counsel during that exam. In re Det. of Strand, 217 P.3d 1159                 ensue, but does not incorporate Title I’s exclusion of independent

January February 2010                                                       12                                                            34:1 MPDLR

contractors from the definition of covered employees. Fleming v. Yuma            Administration violated §504 by failing to correspond with blind or
Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009), 34 MPDLR 100;                     visually impaired persons in alternative formats, such as Braille or
[3.05(b)(iv), (c)(iv)].                                                          Microsoft Word CDs. Reading to them over the telephone may have
      The Seventh Circuit, citing Cleveland v. Policy Mgmt. Sys. Corp.,          been acceptable two decades ago, but not now given the advancements
526 U.S 795 (1999), 23 MPLDR 532, ruled that a police officer with               in technology. American Council of the Blind v. Astrue, 2009 WL
chronic obstructive pulmonary disease failed to explain the apparent             3400686 (N.D. Cal. Oct. 20, 2009), 34 MPDLR 131; [3.06(c)(ii)
inconsistency between his ADA claim that he could perform his                    (Subtitle B); 3.02(c)(ii)].
essential job functions with or without accommodations and his claim                  The Ninth Circuit held that, under the ADA Title II and §504, an
in his pension benefits application that his condition made it                   Oregon county transportation system was not required to
impossible for him to be a police officer. Accordingly, he was                   accommodate a paratransit rider by transporting her in sedans or taxis
estopped from bringing his ADA claim. Pension benefits were viewed               rather than buses. The Secretary of Transportation, who has the sole
“pretty much the same” as Social Security Disability Insurance                   authority to determine the level of services that paratransit systems
benefits at issue in Cleveland. Butler v. Village of Round Lake Police           must provide, has not yet issued final rules that would impose such a
Dep’t, 585 F.3d 1020 (7th Cir. 2009), 34 MPLDR 100; [3.05(f)(ii)].               comparable services requirement. Boose v. Tri-County Metro. Transp.
      The Equal Employment Opportunity Commission’s final rule                   Dist. of Or., 587 F.3d 997 (9th Cir. 2009), 34 MPDLR 130; [3.06(c)(ii)
implementing Title II of the Genetic Information Nondiscrimination               (Subtitle B), (l)(ii)].
Act of 2008, Pub. L. No. 110-223, 42 U.S.C. §2000ff et seq., 32
MPDLR 680, bars employers with 15 or more employees from                         Housing [3.09]
(1) using genetic information in making decisions related to any
terms, conditions, or privileges of employment; (2) requesting,                       An Ohio federal court found that a dog that provides support,
requiring, or purchasing genetic information with respect to an                  comfort, and therapy to a person with a mental disorder is not a
employee (including applicants) or his or her family member, with                “service animal” under the ADA and its implementing regulation, 28
limited exceptions; (3) firing, demoting, harassing, or otherwise                C.F.R. §36.104, but is considered a reasonable accommodation under
retaliating against an employee for opposing discrimination; and                 the Fair Housing Amendments Act (FHAA) and state law. The court
(4) disclosing genetic information about an employee, with limited               followed the FHAA’s regulations that view the proper role of service
exceptions. 74 Fed. Reg. 63981 (Dec. 7, 2009), 34 MPDLR 153;                     animals as including emotional support. Overlook Mut. Homes, Inc. v.
[3.05(i)(vi)].                                                                   Spencer, 2009 WL 3486364 (S.D. Ohio July 16, 2009), 34 MPDLR
      The Seventh Circuit decided that an employer satisfied its ADA             140; [3.09(c)(v), (f)].
Title I obligation to provide reasonable accommodations to a route
manager with multiple sclerosis, where it rejected his request for light-        Education [3.10]
duty work, but allowed him to take short-term disability and provided
him a second driver to help with his routes. Brunker v. Schwan’s Home                  The Third Circuit joined eight other federal circuits in deciding
Serv., Inc., 583 F.3d 1004 (7th Cir. 2009), 34 MPDLR 81; [3.05(k)].              that compensatory and punitive damages are not recoverable under the
                                                                                 IDEA. Chambers ex rel. Chambers v. School Dist. of Phila. Bd. of
Public Services [3.06]                                                           Educ., 587 F.3d 176 (3d Cir. 2009), 34 MPDLR 142; [3.10(a)(iii), (b)].

     A California federal court found that the Social Security

                                                             MENTOR PROGRAM

 The ABA Commission on Mental and Physical Disability Law's Mentor Program pairs law students with disabilities,
 prospective law students with disabilities, and recent law school graduates with disabilities with practicing attorneys. To
 sign up to be a mentee or a mentor, visit and
 complete the online forms. If you have any questions, please contact William J. Phelan, IV, at,
 or 202.662.1576.

34:1 MPDLR                                                                  13                                                  January February 2010

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