Yes, it's exactly like Sophie's Choice

From Inside Higher Ed, here's the story of a seven-year-old ADA case against Louisiana's McNeese State University for failure to make the student union accessible to the disabled. In 2001, a student using a wheelchair injured herself while trying to pry open a restroom door. (For those unfamiliar with this particular access dilemma, imagine sitting in a chair that rolls while trying to open a heavy door towards yourself and hold it open while you pull yourself through, all in a usually very confined space.)

The noteworthy aspects of this specific case are 1) that the university president has stated that access to the student union -- where the school newspaper, yearbook, student government offices and the two major cafeterias on campus are located -- was not a high priority, and 2) that the school's legal team is arguing that the plaintiff, a former student with epilepsy who was recovering from several surgeries to a knee at the time of her restroom injury, was not completely incapable of walking and thus had no business using the wheelchair in the inaccessible restroom.

From the article:

In a 2007 summary judgment, a Louisiana district court ruled that McNeese had failed to meet its obligations under the federal disabilities law. The act required that the Old Ranch [nickname for the union] be equipped with an accessible bathroom because the building had been renovated after 1990, the court found.

McNeese is now appealing the judgment, arguing that [the plaintiff, Collette] Covington — who didn’t absolutely need a wheelchair, according to McNeese officials — isn’t entitled to coverage under federal law. Covington had started using the wheelchair about a week before the accident, not because she couldn’t walk, but because she wanted to get around campus “at a faster pace,” according to statements attributed to Covington in court documents.

“It is reasonable to assume, then, that Covington could have stepped out of her wheelchair temporarily in order to use the restroom,” McNeese’s lawyer wrote in an appellate brief.

Also noteworthy is that the author of the linked article on the case describes the university president's position as follows:

Under the harshest interpretation, Hebert’s words could mean that he simply doesn’t view giving disabled students an “education” as a “high priority.” In the broader context of his deposition, however, Hebert noted that McNeese was confronted with something of a Sophie’s Choice. Forced to choose between making classrooms accessible and making the union accessible, he said, McNeese chose the classrooms. Whether McNeese lacked the funds to do both, however, is disputed in the lawsuit.

Because deciding how to use public funds for a public facility is exactly like choosing which of your children to let the Nazi's kill.

The good news is this: As I post this, comments below the article are 100 percent positive and supportive of the ADA and following the law to provide disabled access, including this comment by Jane Jarrow, president of Disability Access Information and Support:

From the article, it appears that both Covington’s lawyer and InsideHigherEd missed the obvious in this case. The ADA was passed in 1990, but the Rehabilitation Act of 1973 (with it’s Section 504 regulations) was implemented in 1977. While the Rehab Act had somewhat less stringent requirements for architectural access than does the ADA, basic access to restrooms has always been... basic! McNeese State, as a public institution has had more than 30 years to respond appropriately to federal mandates for equal access for persons with disabilities. Moreover, it appears that McNeese has resorted to an Appeal to Spite in its denial of wrongdoing. Covington asserted that she was injured because the bathroom door was not in compliance with access requirements. McNeese responds that because Covington didn’t NEED to be in a wheelchair (an “iffy” assertion, at best), the fact that they failed to meet their 30+ year responsibility for access shouldn’t matter. Huh? Meantime, InsideHigherEd also seems to need a refresher course on disability law. The article states that, “The ADA, which applies some of its most stringent rules to public universities...” There is simply no basis for this bald statement unless the suggestion is that the Title II regulations (which apply to public entities of all kinds, including colleges and universities) are among the “most stringent rules” of the ADA. If that were the intent of the comment, it still misses the mark, as the requirements for architectural access (ADAAG) under discussion in this case appear in Title III of the ADA. While the letter of the law for both the ADA and Section 504 focuses on legal requirements for *access* to programs and facilities, the spirit of the law has always suggested that indepence, safety, and dignity are important issues in assessing how well those legal mandates for access are met. It would appear that McNeese State has lost sight of all three.

That's something, right?

Slumgullion #45

Yeah, I'm still here. I got new eyeglasses this weekend, and while it may take a few days to adjust to the bifocals (!) I hope to be spending less time squinting and more time online again.

In the meantime, this is the news I'm catching up on today:

"What happens when chronically ill kids grow up?" -- A June article in the Houston Press explains the gap in health care for disabled children who come of age. It's an important topic I haven't seen covered in such depth before, but, hello... the "first large generation of chronically ill pediatric patients to reach ­adulthood"? I'll be 40 in October, and I'm really tired of hearing how all the seriously disabled children before now died before needing adult health care. We're here. We've been here. A number of us have even been blogging online for quite some time. It's just that we're mostly invisible to the mainstream media.

"Girls parents and agency face charges in starvation" -- Danieal Kelly of Philadelphia was 14. She died in 2006 and the charges have just now been filed. Mark at The 19th Floor writes about Danieal and the grand jury indictment (pdf file with one very graphic photo) of nine people for her needless suffering and death.

"Immigrants facing deportation by U.S. hospitals" -- From a NYT series on how the government and others "compel illegal immigrants to leave the United States." Here's an excerpt:

Eight years ago, Mr. Jiménez, 35, an illegal immigrant working as a gardener in Stuart, Fla., suffered devastating injuries in a car crash with a drunken Floridian. A community hospital saved his life, twice, and, after failing to find a rehabilitation center willing to accept an uninsured patient, kept him as a ward for years at a cost of $1.5 million.

What happened next set the stage for a continuing legal battle with nationwide repercussions: Mr. Jiménez was deported — not by the federal government but by the hospital, Martin Memorial. After winning a state court order that would later be declared invalid, Martin Memorial leased an air ambulance for $30,000 and “forcibly returned him to his home country,” as one hospital administrator described it. . . .

Mr. Jiménez’s benchmark case exposes a little-known but apparently widespread practice. Many American hospitals are taking it upon themselves to repatriate seriously injured or ill immigrants because they cannot find nursing homes willing to accept them without insurance. Medicaid does not cover long-term care for illegal immigrants, or for newly arrived legal immigrants, creating a quandary for hospitals, which are obligated by federal regulation to arrange post-hospital care for patients who need it.

American immigration authorities play no role in these private repatriations, carried out by ambulance, air ambulance and commercial plane. Most hospitals say that they do not conduct cross-border transfers until patients are medically stable and that they arrange to deliver them into a physician’s care in their homeland. But the hospitals are operating in a void, without governmental assistance or oversight, leaving ample room for legal and ethical transgressions on both sides of the border.

Indeed, some advocates for immigrants see these repatriations as a kind of international patient dumping, with ambulances taking patients in the wrong direction, away from first-world hospitals to less-adequate care, if any.

“Repatriation is pretty much a death sentence in some of these cases,” said Dr. Steven Larson, an expert on migrant health and an emergency room physician at the Hospital of the University of Pennsylvania. “I’ve seen patients bundled onto the plane and out of the country, and once that person is out of sight, he’s out of mind.”

"Taking the long way around" -- From Oceanside, California, an example of how higher gas prices and budget cuts that have led to more crowded public transit is pushing wheelchair users off the bus. We'll be hearing more stories like this, I suspect.

"Her new role is fighting old label" -- Ms. Wheelchair America is interviewed by the Houston Chronicle. Beauty contests for disabled women have been covered here before, but I do like the approach to her new job that the current Ms. Wheelchair America, Michelle Colvard, seems to be taking. She says:

They're two main ways that the media portray women who have disabilities. It's either kind of passive, needing help, victim, suffering. You hear a lot of those words, wheelchair-bound, these negative-word connotations. ... On the other hand, women with disabilities who have done pretty well for themselves are put up on a pedestal. I think sometimes that's a bad thing, too.