FEDERAL COURT OUTLAWS DISABILITY ACCOMMODATIONS UNDER NEW SECURITY MEASURES (Press Release)

From: reimburse@cochlearimplant.org - 06 Mar 2003

--FOR IMMEDIATE RELEASE--

FEDERAL COURT OUTLAWS DISABILITY ACCOMMODATIONS UNDER NEW SECURITY MEASURES
HHS Says it No Longer Has Obligation to Comply with Section 504

Denver, CO (February 24, 2003)— In a February 3, 2003 decision demonstrating appalling disregard for the needs of persons with disabilities, U.S. District Court Judge Benson Everett Legg held that persons who physically are unable to comply with new security measures after 9-11 can no longer be allowed access to Federal buildings. This decision sharply contradicts Section 504 of the Rehabilitation Act of 1973 which states that no person shall be excluded from participation in any activity on Federal property solely because of their disability.

The ruling stems from a shocking December 2001 incident previously reported in Inside CMS. Anne Williams, a contract security guard at the Centers for Medicare and Medicaid Services (CMS), refused to lift the hood of the car for a disabled lobbyist with the American Speech-Language-Hearing Association (ASHA). Although the agency’s vehicle inspection policy requires guards to lift the hood for all visitors, Williams laughed and insisted the lobbyist was “faking it” and could not be disabled if he could walk.

After she refused to call a supervisor for 20 minutes, the lobbyist waved down another contract guard named Eric Chase, who did provide the accommodation (remarking that Williams doesn’t lift hoods for fear it will “break her nails”.) However, Lt. Louis Mount with the Federal Protective Services refused to allow the lobbyist entrance to the building, ignorantly insisting that disability was no excuse not to comply with the directive of Williams to lift the hood.

One week after the lobbyist filed a written complaint documenting his disability and demanding sensitivity training for all contract security personnel, CMS attempted to cover-up their failure to provide accommodation by insisting that the lobbyist was barred entrance not because of his disability, but because he made terrorist threats! CMS then permanently banned the lobbyist from contacting CMS officials, an outrageous act that even CMS counsel admits is unconstitutional.

Not only had no person made any claim of terrorist threats on the day in question, but Officer Chase came forward to testify that indeed such never occurred! He was no longer employed at CMS within one month of his candor.

More disturbing is the fact that CMS never charged the disabled lobbyist with making any such threat, which would have required a jury. Instead they retaliated against his continued civil rights complaints by mailing absurd petty offense “violation notices” in an unpostmarked envelope intended to hide the fact they were spitefully issued one week after the lobbyist complained. In addition, no actual charge was filed until the Plaintiff retained a lawyer six weeks later for a civil lawsuit against CMS! The offenses were so low ($50 maximum fine) that no jury was allowed. “You can get a jury for a traffic ticket, but not if the government falsely accuses you of being a terrorist? Something’s wrong,” noted the lobbyist.

Magistrate Beth Gesner, a former Federal prosecutor for the same court, later ruled that asking for disability accommodation after one has been refused “unreasonably obstructs” security guards by distracting them from the difficult task of preventing terrorism. By stating “unreasonably”, the Federal regulation clearly allows for reasonable obstruction, such as a disabled person asking for a Section 504 right guaranteed by law. However, the Magistrate incredibly insisted that the mystery line between reasonable and unreasonable should be redrawn after 9-11, even if it barred the exercise of legal rights!

Even more disturbing, Magistrate Gesner actually admitted “speculating” that any person who can walk could not be so disabled that he physically could not lift the hood of his car. In doing so, the Magistrate substituted her non-clinical opinion in place of four physicians who documented that the lobbyist’s spinal cord injury prevented him from complying without risk of physical harm, including permanent disc damage. This included a physician order prohibiting the lobbyist from lifting more than five pounds.

Such an ignorant and unsupported ruling incensed all courtroom observers, many of whom reasonably expected the Court to sanction Lt. Mount after Officer Chase’s testimony demonstrated Mount had committed felony perjury by fabricating belated allegations of terrorist threats. Walter Dent, a Federal employee present for a subsequent case, stated that he was near retirement and this case was the “biggest waste of taxpayer money” he had ever witnessed. “I am still waiting for the Magistrate to explain how 9-11 excuses perjury,” comments the lobbyist.

One of the observers, a Lutheran minister of 38 years, wrote to Judge Legg urging him to “stop crucifying innocent people” and “have some good horse sense” in reversing Magistrate Gesner’s outrageous decision to punish disabled people for their infirmities. Others pleaded with Judge Legg to end this “fuss over petty nonsense.” Another minister wrote that the ruling “caused me grave concern.” Families of hearing impaired persons to whom the lobbyist previously donated his services asked the Judge why new security measures cannot be implemented in a manner that still respected disability rights. Yet another observer generated over 230 signatures on Internet petitions that persuaded four U.S. Senators to demand an explanation from CMS.

To date, CMS’ only response to Congress is to cite Magistrate Gesner’s decision, refusing to acknowledge the unlawful ban. However, the Office of Civil Rights for the Department of Health and Human Services actually informed the CMS Administrator in January that because of the demands for enhanced security following 9-11 “we conclude that CMS is not obligated to provide reasonable accommodation.” This stunning declaration contradicts OCR’s private concessions to a lawyer representing the lobbyist that the conduct of CMS security personnel was both “abusive and excessive.”

“Exactly what is a disabled person who physically can’t lift a car hood now supposed to do? Stay home?” asked the disabled lobbyist. “Wasn’t the point of Section 504 to allow disabled persons to be independent, contributing members of society, instead of treating them like miscreants and burdens? Judge Legg just set disability rights back 30 years!”

The Judge further created new law in the lobbyist’s civil lawsuit against CMS, ruling that the events of 9-11 warrant extended Federal government immunity from liability even to unlawful acts by government officials that willfully violate a person’s civil rights. “It’s incredible,” lamented the lobbyist. “He just ignored the U.S. Supreme Court and gave them [the government] a license to fabricate and abuse.”

Such an “above the law” attitude is nothing new for CMS, an agency infamous for ignoring legislative and judicial directives. In fact, as recent as last September, Judge Henry Kennedy with the U.S. District Court for the District of Columbia concluded in a Medicare case that it was “unlikely that CMS would [ever] comply with the law without being ordered to do so…[the] court is troubled by [CMS’] failure to confess error regarding [its] past conduct.”

For years, CMS refuses to disclose the data upon which they claim to base their payment and coverage decisions, denies due process rights to Medicare providers when fraud is merely suspected, and bankrupts “Mom and Pop” suppliers by stopping payments just because an elderly beneficiary forgets to return a questionnaire. The Chairman of the House Small Business Committee and other House members even demanded the resignation of Thomas A. Scully, the CMS Administrator last spring when he ignored Congressional subpoenas to testify regarding CMS’ refusal to assess the impact of agency regulations on small business, as required by Federal law.

ORM urges Mr. Scully to heed the calls from other members of Congress to resign. When first notified of this case, Scully denied all knowledge, only later to admit in an e-mail that he preferred to not to be involved and simply trust that the matter was handled “fairly.” “You would think an agency administrator would be concerned about criminal conduct by his own personnel, especially fabricating things as serious as terrorist threats,” noted the lobbyist. “CMS truly is a place where the inmates run the asylum….Tom Scully clearly lacks the leadership to stand up to the ‘above the law’ attitude of lifetime CMS bureaucrats that so infects his agency and harms the disadvantaged beneficiaries it claims to protect.”

The lobbyist further warned of dire consequences in allowing CMS to declare martial law in response to 9-11. “Section 504 has not been repealed by Congress or Presidential Executive Order,” noted the lobbyist. “If we allow CMS to arbitrarily suspend disability accommodation without legislative authority, it won’t end there. CMS has proven over the years that if you give them any discretion, it will be abused.”

As a few examples, he described how CMS could use public health emergencies as an excuse to pick and choose which providers can treat beneficiaries, or which beneficiaries can receive a supplier’s products. CMS could also drive any provider or supplier out of business simply for suspicions of illegal practices, or suspend payment to an entire class of provider because of one “bad apple.” They could even reduce payment for any item or service, by any amount, without notice or comment. “Using crises like 9-11 as an excuse to overlook agency indiscretions is a slippery slope that should scare the hell out of any entity that relies on Medicare or Medicaid business.”

As ORM has done with disability enemies such as D. Brooks Smith and Jeffrey Sutton, we are urging members of the Senate Judiciary Committee to vigorously oppose any future nomination of Judge Legg or Magistrate Gesner. “It would be a very dark day for the disability community if their activist hostility towards disability were allowed to prevail in higher courts,” remarked the lobbyist. “Congress never intended to allow the lives of disabled persons to be destroyed simply because they physically cannot lift a car hood.”

ORM maintains a Hall of Shame identifying entities that fail to respect the civil rights of persons with disabilities. While most earn a place on this list due to ignorance, the Federal agencies and judges involved in this case have demonstrated a level of hostility and disregard for the welfare of the disabled that we have never witnessed in our six-year existence.

For information on how you can get involved in protesting this assault on disability rights, please contact ORM at rights@cochlearimplant.org.