CREECblog

Sacramento Bee op-ed written by Bill Lann Lee

Bill Lann Lee, CREEC’s Senior Counsel, wrote an op-ed about some of the Medi-Cal system issues we are seeking to address in the lawsuit we filed with MALDEF (Mexican American Legal Defense and Educational Fund) and the law firm of Feinberg, Jackson, Worthman & Wasow LLP on behalf of individuals, as well as St. John’s Well Child & Family CenterSEIU-United Healthcare Workers West (SEIU-UHW), and National Day Laborer Organizing Network (NDLON) in the The Sacramento Bee today!

“Making sure that Medi-Cal provides the access to health care for those it covers is simple justice.”

Here’s the full piece.

CREEC joins advocates in challenging discrimination in California’s Medi-Cal system

The official press release for the Medi-Cal case filing is below:

For Immediate Release

 

LOS ANGELES, CA, July 12, 2017 – State officials are violating the civil rights of 13.5 million individuals enrolled in Medi-Cal, the health insurance program for low-income Californians, a majority of whom are Latino, according to a lawsuit filed Wednesday.

 

The suit, filed in Alameda County Superior Court, alleges that Medi-Cal patients face huge obstacles in obtaining timely access to care because the state pays providers so little for their services that many doctors decline to accept Medi-Cal patients. Those problems are further compounded by the state’s failure to adequately monitor and oversee the program, according to the lawsuit.

 

MALDEF (Mexican American Legal Defense and Educational Fund), CREEC and the law firm of Feinberg, Jackson, Worthman & Wasow LLP filed the suit on behalf of individuals, including a man who has cerebral palsy and is semi-paraplegic, as well as St. John’s Well Child & Family Center, SEIU-United Healthcare Workers West (SEIU-UHW), and National Day Laborer Organizing Network (NDLON).

 

“Medi-Cal is a critical program to so many of California’s children and adults; it is no exaggeration to say that our current and future workforce – our very prosperity as a state – depends on Medi-Cal providing access to vital physician care,” said Thomas A. Saenz, MALDEF president and general counsel. “We must ensure that Medi-Cal is administered in a fair and non-discriminatory manner that serves the healthcare needs of Latinos and all others enrolled in the program.”

 

At issue is Medi-Cal patients’ inability to access the care they need because of low reimbursement rates and unnecessary red tape.

 

Currently, California’s rates are so much lower than Medicare and employer-sponsored insurance rates that they discourage participation by healthcare providers and leave Medi-Cal recipients with few options, according to the lawsuit. With so few Medi-Cal providers, patients are frequently unable to find the primary and specialty care they need. When they do, they often wait weeks or months for appointments, or must often travel long distances –  effectively denying them meaningful health care, according to the complaint.

 

“California is required by law to provide Medi-Cal health insurance participants access to healthcare equivalent to the access of people with other insurance coverage, including employer-sponsored insurance and Medicare,” said Bill Lann Lee, senior counsel of the Civil Rights Education and Enforcement Center (CREEC), and a former assistant attorney general for civil rights at the U.S. Department of Justice. “In the past, when Medi-Cal was a predominantly white program, access was better because the reimbursement rates were closer to other insurance reimbursement rates. That changed when the Medi-Cal program became increasingly Latino and then majority Latino. That is discrimination.”

 

The lawsuit alleges the Medi-Cal program is discriminatory because as the number of Latino enrollees has increased, reimbursement rates have decreased, in violation of state civil rights protections. Among those struggling to receive adequate healthcare access are Analilia Jimenez Perea and her son, Saul, who are two of the named plaintiffs in the civil rights suit. Saul is a Medi-Cal patient who has cerebral palsy and is semi-paraplegic. He suffers from severe seizures that have required frequent hospitalizations, but Analilia has had an extremely difficult time finding doctors who will see him. In one instance, they waited a year and a half for an appointment with a neurologist.

 

“It’s very sad when I try to get an appointment for him at a special clinic and they are happy to speak to me until they learn he has Medi-Cal, and then they either turn us away or tell us we’ll have to be put on a waiting list,” said Analilia.

 

Latinos in California have rapidly become the largest group of people receiving their health care through Medi-Cal. In 2000, 2.3 million Latinos were enrolled in Medi-Cal. By 2016, that number had risen to 7.2 million, a clear majority of the Medi-Cal population. In that same time frame – 2000 to 2016 – Medi-Cal payments to health providers fell 20 percent compared to what Medicare pays for the same services. Medi-Cal reimbursement rates to health providers are 48th in the nation. In many cases, the reimbursement rate is lower than a physician’s cost of providing care. Similar problems exist with managed care.

 

“These statistics show that California has created a separate and unequal system of health care, one for those with private insurance and Medicare, and an inferior one for those in the majority Latino Medi-Cal program,” said Catha Worthman, one of the lawyers and a partner at Feinberg, Jackson, Worthman and Wasow LLP.

 

“The physical effects of Medi-Cal’s inadequacy are brutal and the result of this unfair system, in a nutshell, is that everyone loses,” said Jim Mangia, president & CEO of St. John’s Well Child and Family Center. “It is time for California’s state government to stop undermining the fundamental human right to health. It is time for California to stand up and provide the comprehensive, affordable health care that every resident of this state deserves.”

 

“Healthcare is a fundamental human right, yet it remains inaccessible for many day laborers and low wage workers,” said Cal Soto, worker rights coordinator for NDLON. “When every penny earned is vital to keeping a household afloat, an untreated illness or injury could severely disrupt the well-being of the entire family. It is unacceptable that Medi-Cal sometimes reimburses at less than half the rate of other health insurers. California has the highest GDP of any state in the country, and we must continue to fight to ensure that our immigrant community is not provided with second-class healthcare coverage.”

Seattle Commits to Ensuring an Accessible City

The official press release from the Seattle curb ramps settlement is below. A copy of the Proposed Consent Decree is also available for review.

SEATTLE, WA, July 18, 2017– The City of Seattle has settled a landmark class action lawsuit by committing to installing over twenty thousand accessible curb ramps throughout Seattle over the next eighteen years. Curb ramps provide people with mobility disabilities a safe way to get on and off sidewalks as they travel through the pedestrian right of way.

 

People with disabilities are the largest minority group in the country; census figures estimate that 56.7 million, or 1 in 5, Americans has a disability. In Seattle alone, there are approximately 26,000 people with mobility disabilities who use wheelchairs, walkers, scooters, or other mobility devices to get around. Missing, broken, or poorly maintained curb ramps prevent people with mobility disabilities from safely using city sidewalks, crosswalks and other walkways to participate in daily activities like getting to work or going to school.

 

“As a lawyer with a disability practice in Seattle, I am beyond thrilled with this agreement,” said Conrad Reynoldson, one of the plaintiffs who brought the case. “This means that both my clients and I will have full, equal, and safe access to an inclusive community. It has been hard finishing up law school, setting up my practice, or even getting to court, when I have to figure out a way to get there that doesn’t involve me going blocks out of my way or traveling in the street due to a missing curb ramp.”

 

David Whedbee, another plaintiff, explains “beyond the thousands of new curb ramps, one of Seattle’s most promising commitments is improving how a citizen can request a new curb ramp or fix a broken curb ramp. They no longer have to figure out how to do this on their own. Instead, this agreement makes sure that there is one clear, easy system for installing or fixing curb ramps.”

 

“Federal and state disability access laws were enacted decades ago to provide persons with disabilities an equal opportunity to fully participate in civic life,” said Tim Fox, plaintiffs’ counsel and co-founder of the Civil Rights Education and Enforcement Center. “Today, we stand together with the City of Seattle to fulfill the promise of those laws by ensuring that people with disabilities can travel independently throughout their communities.”

 

“With inclusion as our guiding principle, today, we are making Seattle safer and more accessible for everyone by correcting a problem that has persisted for decades,” said Mayor Ed Murray. “By building thousands of curb ramps we are righting a wrong that prevented people with mobility disabilities from easily moving around the city. It has been a priority of my administration to ensure everyone has dependable, safe access to our entire transportation network. Our commitment to building curb ramps fits with our ambitious Pedestrian Master Plan, Vision Zero, and our transportation levies. Thank you to City Attorney Pete Holmes and his team for making today a reality.”

CREEC is thrilled to have partnered with Goldstein, Borgen, Dardarian & Ho and Disability Rights Washington on this important case.

 

If you have a mobility disability and would like to comment on the proposed Consent Decree, please call our toll free number 888-461-1919 or email us at curbramps@creeclaw.org.

CREEC, DU Civil Rights Clinic are Finalists for Public Justice’s Trial Lawyer of the Year!

We are very excited to announce that a team of lawyers and (then) law students from CREEC and the University of Denver Sturm College of Law’s Civil Rights Clinic (CRC) is one of four national finalists for the Trial Lawyer of the Year award presented by Public Justice. We have been nominated for our work on the Anderson and Decoteau cases. Public Justice — a nonprofit organization that pursues high-impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability and challenge predatory corporate conduct and government abuses — presents its Trial Lawyer of the Year Award to the attorney(s) who made the greatest contribution to the public interest within the past year by trying or settling a precedent-setting, socially significant case.

CREEC also wants to congratulate the other three finalist teams, especially our good friends at Schneider, Wallace, Cotrell, Konecky, Wotkyns, LLP; Goldstein Borgen Dardarian & Ho; Legal Aid at Work; and the Disability Rights Legal Center for their great work on the Los Angeles sidewalk case, Willits v. Los Angeles.  Possibly the coolest thing to come from this nomination will be the chance to hang out with these rockstars in Boston at the Public Justice gala!

Image: A cinderblock room with walls that narrow toward the far end from approximately 8 feet wide near the photographer to approximately 3 feet wide at the far end. At the end, there are two long narrow windows extending from about one foot off the floor to about 6 inches from the ceiling. The room is empty except for a flourescent light on the ceiling and a chin-up bar on the right wall.

The “outdoor” exercise cell at CSP prior to the Anderson and Decoteau cases.

CREEC and the CRC brought the Anderson and Decoteau cases on behalf of men incarcerated in the Colorado State Penitentiary (CSP) who had been denied outdoor exercise for years or even decades. These men, who were locked in 90 square foot cells for 23 hours a day, were only permitted to exercise in an empty cell similar to the ones they live in with a narrow slit of a window and a pull-up bar.  The CRC and CREEC filed a lawsuit on behalf of Troy Anderson in 2010 claiming that the Department of Corrections’s (DOC’s) refusal to provide him outdoor exercise violated his constitutional right to be free from cruel and unusual punishment. Student attorneys under the supervision of Civil Rights Clinic faculty and CREEC attorney Amy Robertson, took the case to trial in 2012.  In a written decision, U.S. District Judge R. Brooke Jackson held that the DOC’s refusal to provide outdoor exercise to the men at CSP was cruel and unusual punishment, finding that “coupled with the other conditions of administrative segregation at the CSP, this prolonged deprivation is a paradigm of inhumane treatment.”

Image: basketball hoop in an outdoor concrete yard, fenced with razor wire, with the mountains in the background.

One of the new yards built at CSP as a result of the Anderson and Decoteau cases.

Following the court’s decision, the DOC moved Mr. Anderson to a different prison, leaving the remaining 700 men at CSP without outdoor exercise. As a result, the Clinic and CREEC began investigating and interviewing scores of men at CSP concerning their experiences with outdoor exercise and in December 2013, filed the Decoteau v. Raemisch case, a class action asserting that the failure to provide outdoor exercise at CSP violated the rights of the men incarcerated there.

In late 2015, the case settled with an agreement by the Department of Corrections to construct outdoor exercise yards at CSP.  The yards have now been completed, and some of the men at CSP are feeling the sun on their faces for the first time in decades.

CREEC was thrilled throughout these cases to work with the Civil Rights Clinic, an intensive, year-long litigation program where students represent clients in civil rights cases in federal court under the supervision of clinic faculty.

The announcement of the 2017 Trial Lawyer of the Year will be made at the Public Justice Gala on July 24 at the Fairmont Copley Plaza in Boston, Mass.

Welcome Liz Jordan, our first CREEC Fellow!

Image: headshot of light skinned woman with shoulder length curly brown hair and wearing a pink shirt. Welcome, Liz!

CREEC is very excited to welcome our new Fellow, Elizabeth (Liz) Jordan! Liz is CREEC’s first annual Fellow and we are thrilled that she will be utilizing her extensive human rights experience to advance CREEC’s mission.

After graduating from Yale with a BA in Political Science and Latin American Studies, Liz conducted human rights research in Madrid, Spain as a Fulbright Scholar. She graduated from New York University School of Law in 2013 as an Arthur Garfield Hays Civil Liberties Fellow. While in law school she participated in numerous internships and clerkships which focused on human and civil rights. As a Law Clerk for Orleans Public Defenders, she assisted public defenders in all aspects of their cases including trial preparations and investigations. As a Hays Fellow Law Intern, she drafted memoranda regarding imprisonment of indigent criminal defendants for non-payment of fines, as well as racial profiling in schools for the ACLU Racial Justice Program. She also conducted group orientation in English and Spanish for detained immigrants for the Legal Aid Society, Immigration Law Unit.  After graduating from law school, Liz became a Fellow at the Capital Appeals Project in New Orleans, where she represented clients with first-degree and second-degree murder convictions. Before coming to CREEC, she was an Immigration Staff Attorney for The Door’s Legal Services Center, where she represented approximately 200 unaccompanied minors facing deportation. Outside the office, you can find Liz outdoors, hiking skiing, or riding horses (seems like she’ll fit right in in Colorado).  Liz also loves spending time in museums and cooking, but her favorite activity is yoga!  Welcome, Liz! We are excited to be working with you!

CREEC is civil rights non-profit that specializes in high impact litigation and advocacy fighting all forms of exclusion and discrimination in order to obtain effective and enduring systemic reforms that redeem the promise of fairness embodied in our nation’s civil rights laws.  The CREEC Fellowship is an opportunity for a recent law school graduate, law clerk, or returning lawyer to contribute creatively to the work of our small civil rights non-profit staffed by lawyers with decades of experience in civil rights advocacy and litigation in a broad range of areas.  The Fellow will also work with grassroots groups and co-counsel at partner public interest and private pro bono law firms, and gain experience in all phases of CREEC’s work, including advocacy, litigation, public education and outreach, investigations, brainstorming, and playing with the office dogs.

We will begin accepting applications for the second CREEC Fellowship later this summer.

Trip to Red Rocks

Some days practicing law requires long hours in the office, but some days practicing law allows you to be outside on a crisp, Colorado spring day.  Luckily for the legal team working on a case to improve accessibility at Red Rocks, Friday was a perfect day (despite the impending snow storm) to take measurements and photographs of the concert venue.  Alison Daniels and Jennifer Purrington from Disability Law Colorado (DLC), Kevin Williams and Tram Ha from Colorado Cross-Disability Coalition (CCDC), and Amy Robertson and Caiti Hall from CREEC ventured to Red Rocks to document the current conditions and discuss improvements for disabled concertgoers.

Red Rocks is a beautiful open-air amphitheater built into a natural rock formation in Morrison, Colorado.  The incredible venue draws some top-line performers andPhoto of five woman standing around a man using a wheelchair in front of the stage at Red Rocks Colorado locals, as well as visitors from across the country, to Red Rocks to have a unique concert experience. Unfortunately, many disabled concertgoers have been denied meaningful access to Red Rocks and thus have been unable to take part in this quintessential Colorado experience. That is why, in December of this year, DLC, CCDC, and CREEC filed a lawsuit in Colorado Federal District Court challenging ticketing and seating policies that make it difficult for people with mobility disabilities; we are also investigating seating and ticketing problems for people who are deaf, hard of hearing, or visually impaired, that keep them from fully enjoying concerts at Red Rocks.

We are currently interested in talking with people who have encountered problems like this. If you have attended or have attempted to attend a concert at Red Rocks and use a wheelchair or have limited mobility, are Deaf or hard of hearing, or have vision impairments, please contact our office.

You can get in touch with us by calling our office (303) 757-7901 or by emailing info@creeclaw.org.

RTD enhancing use of wheelchair securement area and mobility access on light rail vehicles

The official press release from the RTD settlement.  A copy of the settlement is also available for review.

Denver, CO, April 26, 2017 – The Regional Transportation District (RTD), Colorado Cross-Disability Coalition (CCDC), and Civil Rights Education and Enforcement Center (CREEC) are collaborating to ensure that passengers with mobility impairments requiring devices specifically to assist with ambulation, including manual and motorized wheelchairs, scooters, and walkers, are able to easily board and maneuver inside light rail vehicles.

As a part of this effort, RTD will be altering the seating design of current and new light rail vehicles. The retrofit includes removing a set of seats next to the current wheelchair areas, which will open up the designated area for easier access. This will also provide additional standing room for passengers in light rail vehicles when not being used for mobility devices.

Within the next five years, RTD will be retrofitting all existing light rail vehicles. In addition, all new vehicles will be substantially similar in design to the retrofitted vehicles.

“We are committed to ensuring that our services are as accessible and safe as possible for all riders,” said RTD General Manager and CEO David Genova. “We continue to partner with organizations that represent the ADA community to look for ways that we can improve our facilities, vehicles and services.”

RTD directs light rail operators not to discriminate against disabled riders and trains operators to ensure they are aware of their obligation not to discriminate.

In addition, Plaintiffs and CCDC, and class members working with them, have agreed to notify RTD prior to filing future litigation against RTD concerning the Americans with Disabilities Act or similar laws.

“This settlement requires that the parties meet and discuss issues before taking any adverse action,” said Colorado Cross-Disability Coalition Executive Director and Plaintiff Julie Reiskin.  “I am proud that we were all able to come together to find an agreeable solution for all parties that helps improve light rail services throughout the region.”  CCDC worked in conjunction with CREEC on the resolution of this matter.

CREEC mourns the passing of fair housing legend Tracey McCartney

The fair housing world lost a giant when Tracey McCartney passed yesterday.  To us, Tracey embodied the saying that there is no limit to what you can accomplish if you don’t care who gets the credit.  Tracey worked tirelessly but in many ways behind the scenes — known and beloved by the fair housing community but no fan of self-promotion.  She played a crucial role in connecting lawyers and advocates who work for fair housing around the country, patiently herding us like cats, and ensuring a platform in which we could share knowledge, ideas, mutual support, and gallows humor.  She was terrific at connecting people on an individual level, as well, and was hilarious and self-deprecating in person.

Below is the press release issued by the Tennessee Fair Housing Council.  We miss you, Tracey, and will work to honor your memory.

Long-time leader of the Tennessee Fair Housing Council, Tracey McCartney left this world following illness. McCartney leaves behind a loving spouse, Nancy Blomgren of Nashville, and family who will scatter her ashes in a creek that runs by a 200-year-old white oak on her parents’ land. Here she will sustain deer and coyote, dogwood and mountain azalea.

 

The loss of Tracey McCartney represents a significant blow to the National Fair Housing Community. Tracey McCartney joined the Tennessee Fair Housing Council in February 1998. She was an attorney, admitted to the bars of both Alabama and Tennessee. She received a law degree from the University of Alabama in 1995. While in law school, she worked for 2½ years as a clerk/advocate for the Alabama Disabilities Advocacy Program, where she gained valuable fair housing experience dealing with group homes/zoning and reasonable accommodation issues.

 

In September 1995, she became one of the inaugural employees of the Central Alabama Fair Housing Center, which was established in Montgomery, Alabama, in 1995.

 

During her time at the Central Alabama Fair Housing Center, Tracey coordinated 516 individual testing visits in the areas of rental, sales and mortgage lending and assisted with 48 individual insurance tests. She also handled 141 individual complaints of housing discrimination (in addition to the hundreds of inquiries that implicated landlord-tenant or some other non-discrimination issue and were referred elsewhere), providing counseling on the law, testing, other types of investigation, conciliation, referral to HUD for investigation and referral to attorneys for litigation. She recruited and trained 90 testers for the center’s enforcement program.

 

Since joining the Tennessee Fair Housing Council in February 1998, Tracey provided leadership, management, and legal service. She was responsible for setting the broad direction of the agency; supervising the enforcement staff on testing, case intake and litigation; and supervising the operation of the National Fair Housing Advocate web site at http://www.fairhousing.com. Tracey’s strong skills and reputation made her a sought after trainer and consultant.

 

McCartney was a stalwart advocate for expanding housing opportunities to all. Her legacy will live on through the many communities
and lives she touched.

Settlement Requires Major Improvements in Conditions for Prisoners With Disabilities at Montana State Prison

ACLU, CREEC, and the Montana Department of Corrections Resolve Americans with Disabilities Act Claims Remaining from 1994 Class-Action Lawsuit Over Prison Conditions

FOR IMMEDIATE RELEASE
March 2, 2017

CONTACT:
ACLU of Montana, 406-203-3374, media@aclumontana.org
Amy Robertson, Civil Rights Education and Enforcement Center, 303-551-5156, arobertson@creeclaw.org
Alexandra Ringe, national ACLU, 212-549-2582, aringe@aclu.org

MISSOULA, Mont. — Attorneys for prisoners with disabilities at the Montana State Prison and the state of Montana today filed a proposed settlement agreement that will bring the prison into greater compliance with the Americans with Disabilities Act. This agreement guarantees that prisoners with physical disabilities will have greater access to facilities and programs at the prison that are available to the rest of the population, like vocational training programs and prison jobs. In addition, the agreement requires that prisoners with mental disabilities shall be given reasonable accommodations when needed, such as in disciplinary hearings and education programs. Prisoners with disabilities will not be disciplined for behavior that is a product of a mental illness or physical disability. They will also be ensured the accommodations they need to participate in work assignments.

“The Montana Department of Corrections is to be congratulated for working with the plaintiffs to reach this settlement,” said Jon Ellingson, lead local counsel and staff attorney for the ACLU of Montana. “The department’s actions demonstrate a commitment to prison reform that both helps prisoners rehabilitate and benefits the public when these prisoners reenter society after serving their terms.”

The class-action lawsuit, Langford v. Bullock, originated 23 years ago following riots at the Montana State Prison. The parties reached a settlement long ago, and the prison complied with all provisions with one exception: compliance with the requirements of the Americans with Disabilities Act. The agreement filed today finally resolves that issue. The ACLU National Prison Project, the ACLU of Montana, and the Civil Rights Education and Enforcement Center of Denver, Colorado (CREEC) participated in the final negotiations with the state.

“This agreement reminds us that our prisons contain many people with physical and mental disabilities who are entitled to be treated equally and humanely under the law. This agreement helps us reach that goal,” observed Amy Robertson, CREEC’s co-executive director.

“Without the appropriate accommodations and programs, people with physical and mental disabilities can suffer terribly in prison, and can be denied paths to earn their release by completing programs they need to be paroled,” said Eric Balaban, senior staff attorney with the ACLU National Prison Project. “This settlement will help ensure that prisoners with disabilities at the Montana State Prison can work their way to freedom like prisoners who don’t have disabilities.”

“The ACLU of Montana is proud to have participated in this lawsuit, the result of which brings substantial prison reform to the state of Montana,” said Caitlin Borgmann, executive director of the ACLU of Montana. “It needs to be emphasized that reform inside our prisons benefits the public by better preparing the prisoners for life outside of prison.”

The parties have jointly filed a motion with the court requesting preliminary approval of this class action settlement. If the court approves, a notice will go out to prisoners at Montana State Prison, and the court will schedule a final fairness hearing for later in the year.

For more information about Langford v. Bullock, please visit CREEC’s Langford case page.

 

 

Disability Rights Organizations Oppose H.R. 985

H.R. 985, the “Fairness in Class Action Litigation Act of 2017,” is currently before the House Judiciary Committee.  It would eviscerate class actions in many important ways.  In our letter to the Committee — joined by 37 other disability rights organizations — we explained how devastating it would be to cases that improve the lives of people with disabilities.

The Honorable Bob Goodlatte Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

The Honorable John Conyers, Jr. Ranking Member
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Re:  H.R. 985 – the Fairness in Class Action Litigation Act of 2017.

Dear Chairman Goodlatte and Ranking Member Conyers:

The disability rights organizations, individuals with disabilities, and their family members who have signed below strongly oppose H.R. 985, the Fairness in Class Action Litigation Act of 2017.

H.R. 985 would be devastating to the rights of people with disabilities.  By severely limiting attorneys’ fees in cases seeking only injunctive relief, it would remove class actions as an essential tool for those who seek to improve the systems that serve people with disabilities.  In the paradoxically-named “Class Member Benefit” provision, attorneys’ fees for injunctive cases – with no claim for damages — are limited to “a reasonable percentage of the value of the equitable relief, including any injunctive relief.”  How can one put a value, however, on the important gains achieved through these class action lawsuits?  Community living?  Effective communication?  Freedom from abusive conditions?

And ultimately, without the ability to pay the rent, pay their staff, and make a modest living, what lawyers or organizations will be able to bring these cases?

As you are aware, Rule 23(h) of the Federal Rules of Civil Procedure requires the court to review and approve any attorneys’ fees awarded in a class action, and specifically requires that the Court “must find the facts and state its legal conclusions” supporting any award.  Fed. R. Civ. P. 23(h)(3).  Decades of precedent ensure that these awards are reasonable in amount — reflecting reasonable hours actually worked multiplied by a reasonable rate — and are fair to the class.  As Justice Alito explained, writing for the majority in Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), this “lodestar” rate is “presumptively sufficient” to achieve the goals of attorneys’ fees provisions without providing a “windfall” to attorneys.  Id. at 552.

Indeed, the attorneys’ fees provision in section 1718(b)(3) will provide an incentive to defendants to prolong litigation with the goal of ensuring that the class incur fees and costs that exceed the value of injunctive relief sought by the class – directly contrary to the stated goal of this legislation to ensure “prompt” recoveries.  Under this bill, class counsel would not be paid for those fees and costs, even though it was defendant’s litigation strategy that made the expenditure of time and costs necessary.  The Supreme Court addressed this precise situation in City of Riverside v. Rivera, 477 U.S. 561 (1986), upholding an award of attorney’s fees and costs to the plaintiff’s counsel that was more than seven times greater than the value of the relief obtained for the plaintiff, and noting that a defendant “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”   Id. 580 n.11

In light of this, respectfully, no further limits are required to ensure fairness to the class; the proposed limits — far from being “class member benefits” — would take from potential classes of disabled people this essential tool for improving their lives.

The undersigned are also concerned about the provision prohibiting a single individual or organization from being a named plaintiff in more than one class action.  This provision overlooks the fact — especially in the disability rights arena — that the world is still very inaccessible, and that it is not unusual for individuals with disabilities to encounter discrimination in a variety of different contexts.  It would also prohibit organizations such as the American Association of Retired Persons, the National Association of the Deaf, or the National Federation of the Blind from being a class representative more than once.  This would significantly hobble their mission to advocate for people with disabilities and increase the accessibility and integration of such individuals.

The cases listed below are only a small sample of the many class actions that have sought to improve life for people with disabilities.  Most if not all would be impossible under the proposed legislation.

  • Willits v. City of Los Angeles, 2016 WL 4500781 (C.D. Cal. Aug. 26, 2016): Class of pedestrians with disabilities seeking accessible sidewalks.
  • National Organization on Disability v. Tartaglione, 2001 WL 1258089 (E.D. Pa. Oct. 22, 2001): Class of people with visual and mobility impairments seeking to secure access to polling places.
  • Commonwealth of Mass. v. E*TRADE Access, Inc., 03-11206-MEL (D.Mass. Dec. 7, 2007): Class of blind people seeking to make automatic teller machines accessible.
  • Bates v. United Parcel Serv., 204 F.R.D. 440 (N.D. Cal. 2001): Class of deaf truck drivers seeking to secure job opportunities.
  • Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334 (N.D. Cal. 2008): Class of people with mobility and vision disabilities seeking removal of barriers along outdoor designated pedestrian walkways.
  • Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012): Class of individuals with intellectual or developmental disabilities seeking improved employment conditions.
  • Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27 (E.D.N.Y. 2002): Class of children with psychiatric disabilities seeking to secure prompt treatment.
  • Bacal v. Southeastern Pennsylvania Transportation Authority, 1995 WL 299029 (E.D. Pa. May 16, 1995): Class of people with disabilities seeking to secure access to paratransit.
  • Dunakin v. Quigley, 2017 WL 123011 (W.D. Wash. Jan. 10, 2017): Class of nursing home residents seeking to reform nursing home screening and referral to promote independence.
  • Boulet v. Cellucci, 107 F. Supp. 2d 61 (D. Mass. 2000): Class of individuals with intellectual and developmental disabilities seeking reasonably prompt services.
  • Romano v. SLS Residential Inc., 298 F.R.D. 103 (S.D.N.Y. 2014):  Class of psychiatric patients seeking to challenge mistreatment.
  • Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001): Class of inmates and parolees with disabilities seeking accessible programs and services.
  • Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996): Class of deaf people seeking accessible alarm boxes.
  • Toney-Dick v. Doar, 2013 WL 5295221 (S.D. N.Y. Sept. 16, 2013): Class of people with disabilities seeking to secure appropriate disaster planning.
  • Williams v. Conway, 312 F.R.D. 248 (N.D. N.Y. 2016): Class of deaf inmates seeking effective communication.
  • Steward v. Abbott, 189 F. Supp. 3d 620 (W.D. Tex. 2016): Class of individuals with intellectual and developmental disabilities seeking to receive services in the community.
  • Ball v. AMC Entm’t, Inc., 246 F. Supp. 2d 17 (D.D.C. 2003): Class of deaf movie patrons seeking effective communication.
  • B. v. Norwood, 170 F. Supp. 3d 1186 (N.D. Ill. 2016): Class of children with disabilities and chronic health conditions seeking adequate nursing services.
  • Lacy v. Dart, 2015 WL 1995576 (N.D. Ill. Apr. 30, 2015): Class of inmates who use wheelchairs seeking accessible cells, transport, and access to court.
  • Benjamin v. Dep’t of Pub. Welfare of Com. of Pennsylvania, 2014 WL 4793736 (M.D. Pa. Sept. 25, 2014): Class of individuals with intellectual and developmental disabilities seeking to receive services in the community.
  • Harry M. v. Pennsylvania Dep’t of Pub. Welfare, 2013 WL 4500051 (M.D. Pa. Aug. 21, 2013): Class of deaf Medicaid recipients seeking effective communication.
  • V. L. v. Wagner, 669 F. Supp. 2d 1106 (N.D.Cal. 2009): Class of people with disabilities challenging cutbacks to in-home attendant care program that prevents out-of-home placement.
  • Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal 2009): Class of seniors and people with disabilities challenging restrictive eligibility criteria for Adult Day Health Care that would have caused unnecessary placement in nursing homes.

We urge that the Committee not move this bill forward.  If the bill does move, we urge that hearings be convened so that this Committee may hear from the many people — including people with disabilities — whose lives this legislation will affect.

Thank you for your attention to this letter.

Sincerely,

/s/

Amy F. Robertson
Co-Executive Director
Civil Rights Education and Enforcement Center

cc:        Members of the House Judiciary Committee (by fax)

Co-Signers

American Council of the Blind
Arizona Center for Disability Law
Association on Higher Education And Disability (AHEAD)
Autistic Self-Advocacy Network
Center for Accessible Technology
Center for Public Representation
Colorado Cross-Disability Coalition
Disability Independence Group
Disability Law Center of Massachusetts
disAbility Law Center of Virginia
Disability Law Colorado
Disability Rights Advocates
Disability Rights Bar Association
Disability Rights California
Disability Rights Center – New Hampshire
Disability Rights DC at University Legal Services
Disability Rights Education and Defense Fund
Disability Rights Florida
Disability Rights Iowa
Disability Rights Maryland
Disability Rights Mississippi
Disability Rights Nebraska
Disability Rights Pennsylvania
Disability Rights Tennessee
Disability Rights Texas
Disability Rights Vermont
Disabled Parent Rights
Helping Educate to Advance the Rights of the Deaf (HEARD)
Judge David L. Bazelon Center for Mental Health Law
Legal Aid at Work (formerly known as Legal Aid Society – Employment Law Center)
National Association of the Deaf
National Disability Rights Network
National Federation of the Blind
National Health Law Program
Paralyzed Veterans of America
The ARC
Washington Lawyers’ Committee for Civil Rights and Urban Affairs

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