The ADA Compliant End of Life Quality Assurance Sphere Strikes Back!
Supreme Court throws open the doors to compensatory damages claims under the Americans with Disabilities Act
“Regulators…we regulate any stealing of this property. And we are damn good too.”
Rarely do I find myself pumping my fist in the air and silently mouthing “Yes, Justice Gorsuch, Yes!!!”
Today is a rare exception.
The Americans with Disabilities Act (ADA) of 1990 is crucial legislation for people with disabilities. As a child and adult psychiatrist, it is bedrock jurisprudence for my ability to advocate for my patients.
The act is the result of decades of advocacy…
The history of the ADA did not begin on July 26, 1990 at the signing ceremony at the White House. It did not begin in 1988 when the first ADA was introduced in Congress.
The ADA story began a long time ago in cities and towns throughout the United States when people with disabilities began to challenge societal barriers … and when parents of children with disabilities began to fight against the exclusion and segregation of their children. It began with the establishment of local groups to advocate for the rights of people with disabilities.
And, given the fact that all of us will become sick, less mobile, impaired, blind, and otherwise impaired with time, I consider this advocacy effort to be one of the most important projections for all of us. The strutting and fretting we do upon the stage of life involves limping and assist devices, sooner or later.
The most basic understanding of the ADA is as follows:
The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. The ADA prohibits discrimination on the basis of disability just as other civil rights laws prohibit discrimination on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities, purchase goods and services, and participate in state and local government programs.
Relentless advocacy led to this very broad law, and it's why, for example, there are curb cut so you can get across the street on your wheelchair if you need to. This effort was beautifully documented in one of my favorite podcast, 99% Invisible:
This is a big deal when you need it to exist.
The ADA provided a framework for advocacy that changed our world for the better. Our more accessible world is a form of social insurance. Disabilities are visited upon all of us by the vicissitudes of fate. Having a world you can still access even if something bad happens? These protections are quietly comforting even in a dark night of the soul.
This doesn't happen by magic. We needed standards to be changed. Practically, we needed to make it expensive for people who don't care enough at the moment to act in a way that protects all of us. This is the reason for civil rights laws. The more enforceable they are, the more compliance with those standards comes…standard.
There remain issues for children receiving delayed or absent disability services in schools.
I was one of those kids. My kids are likely to be also.
There has not been a meaningful penalty for the schools doing a bad job. It made sense for schools, financially, to kick the can down the road, because special education services are very expensive, and so it was in their financial interest to ignore the problems kids had until they got sued.
I wrote a parody piece a while back about litigating ADA complaints on the Death Star, so I am going to smugly say I called this…
On a more serious note, this is financially impactful for municipalities. Here is some data on what this looks like, financially, just here in the city of New York:
Special education claims are in the thousands, and the delta is, as of 2021, all about settling less than are filed.
We can see above that $224.1M for Special Education is the lions share of payouts for NYC Civil Rights Litigation.
Total civil rights settlements are going up however…hmmm…but not on special education…
The city wins most labor and employment law cases based on civil rights matters…
And civil rights lawsuits outside of special education settlements are only accounting for $95M.
The total bill for getting sued for NYC is as follows:
To make this clear, in 2021:
Total claims (tort plus law): $934M
Special Education claims only: $224.1M
Which till now only included the city grudgingly paying prospectively for services after being sued. Now, and I am as surprised as the next person to say this, but thanks to the Goresuch Authored and Unanimously Decided Perez v. Sturgis, all those cases onward are also entitled to sue for additional injury, as this is not within the scope of the existing IDEA statute: (emphasis mine)
Held: IDEA’s exhaustion requirement (editor: families are forced to go thorough the IDEA process first and exhaust it before any other actions) does not preclude Mr. Perez’s ADA lawsuit because the relief he seeks (i.e., compensatory damages) is not something IDEA can provide. Pp. 3–8.
(a) Section §1415(l) contains two features. The first clause focuses on “remedies” and sets forth this general rule: “Nothing [in IDEA] shall be construed to restrict” the ability to seek “remedies” under “other Federal laws protecting the rights of children with disabilities.”
Historically, plaintiffs under ADA had and their kids had to wait and suffer and fall behind before they could get prospective services paid.
Previously, families had no recourse to collect on damages for a violation of the law that occurred prior to their legal complaint. The current (IDEA) law exits to force payment going forward. The graveman of this case is the fact that the IDEA statute doesn't say anything about other laws, only about its own enforcement. And since it doesn't touch on those other laws, it doesn't prohibit them being enforced. And “any other laws” means families can sue for damages.
Justice Gorsuch goes on to argue:
—Justice G-Dog.
…when it comes to claims for damages as a result of services that should have been rendered under the ADA.
Schools now have two choices:
start proactively providing services, or
start paying out massive damages for the costs and injuries associated with avoidance.
This is a good decision for kids with disabilities and their families.
One can only imagine the additional domains, beyond special education, where this unanimous decision might also be understood to apply?
To quote Nate Dogg and Warren G from their G-funk classic “regulators”:
Mount Up,
—Owen Scott Muir, M.D.