Claims and Bad Faith Law Blog

TWENTY NUMBERED ISSUES, TAKE 3 FOR NOW: END DISABILITY DISCRIMINATION.

For the past week, you have received and read about opportunities for Comments on rules that have been proposed to help make Medical Diagnostic Equipment accessible to all people:  The identifier for the Federal government is RIN 1190-AA78, and you can submit your Comments at the Federal eRulemaking website:  https://www.regulations.gov.

The MDE rules proposed by the Civil Rights Division of the U.S. Department of Justice follow similar rules proposed earlier by the U.S. Department of Health and Human Services.  Between them, these Departments will cover most if not all of the State and local governments, hospitals, physicians' groups, and other people that take Federal money, such as from the Medicare and Medicaid programs.

The Department of Justice has written twenty (20) specific invitations on Issues for Comment, within its proposed Notice of Proposed Rulemaking which you can find at Volume 89 Federal Register, pages 2183-2195 and at the Americans With Disabilities Act website:   https://www.ada.gov.

Take 3 of these specific issues to help frame your thoughts for now:

1. The Department seeks

public comment on whether different

scoping requirements should apply to

different types of MDE (e.g., requiring a

higher percentage of accessible exam

tables and scales than accessible x-ray

machines).

Has it been your experience that there is a need for more accessible exam tables than accessible X-ray machines?  (That's what they mean by "scoping requirements":  how many should be required.)   Whatever your experience may be or whatever you may think about this, take their invitation to Comment and tell the Department!

2.           The Department seeks information

             regarding:  The burdens that the rule’s

proposed approach to dispersion may

impose on people with disabilities e.g.,

increased wait times if accessible MDE

needs to be located and moved;

embarrassment, frustration, or

impairment of treatment that may result

if a patient must go to a different part

of a hospital or clinic to use accessible

MDE).

Again, they are looking for information about YOUR experience, not theirs.  And not someone else's theoretical daydreams, but YOUR EXPERIENCE.  Tell them in a Comment!

3. The Department seeks

public comment on this proposal, as

well as any specific information on:

The effectiveness of programs used

by public entities in the past to ensure

that their staff is qualified[.]

Have any experience with or thoughts about whether hospital workers today can operate Medical Diagnostic Equipment so that the equipment is accessible, and so that you receive the kind of good medical examination that you deserve?

How about physicians' staff, what is your experience and what are your insights about them in this regard?

Should job postings, employment applications and job interviews match the new dynamics of operating Medical Diagnostic Equipment and, if so, how?

After employees are hired, will more and better MDE training help?  More and better training on interacting with People With Disabilities?

Whatever your experience, and whatever your insights, once again:  SHARE them in your Comments!

To quote the Civil Rights Division of the DOJ:  "All comments must be submitted on or before February 12, 2024."

SHARE YOUR COMMENTS!

Please read the disclaimer.  This blog article is offered to the public domain to make clear that leaving Comments is cool!

MEDICAL DIAGNOSTIC EQUIPMENT: THE MEANING OF ACCESS FOR ALL.

The Department of Justice as it was run in 2017 withdrew previous attempts to look at whether equipment and furniture in "services, programs, and activities provided by State and local governments and public accommodations, are accessible to people with disabilities."

In 2021, this effort was restored.  The results of a change in approach include proposed new rules for Nondiscrimination On the Basis of Disability concerning Medical Diagnostic Equipment used in or with medical settings for medical specialists to make diagnoses.  The HHS was the first to propose new rules for all entities receiving Federal financial assistance.

The Civil Rights Division of the U.S. Department of Justice is proposing much the same new rules for Medical Diagnostic Equipment to be accessible to all of the public in "the services, programs, and activities offered by State and local governments" and by "public entities," under Title II of the Americans With Disabilities Act.  As the Federal government itself has written in its proposal for these new rules, "there are likely no public entities in the healthcare sector that do not receive some form of Federal financial assistance."  89 F.R. at 2192.

The need for new rules and Standards for Medical Diagnostic Equipment is no longer open for debate, if it ever really was.  What is open for discussion are your own Comments on how these proposed rules and Standards can work best.  Based on information provided by the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, the Department of Justice estimates "that this title II ADA proposed regulation would affect 6,905 public entities."  Id. That's a lot of public entities.

Before you, your family, or anyone you know goes to any medical exams for diagnosis, help make these proposed rules and regs the best that they can be!  You can submit your Comments online at the Federal eRulemaking website, https://www.regulations.gov, with the identifying information "RIN 1190-AA78" which will help the people processing your Comments match them with the proposed rules.  They are called rulemaking for Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities.  To read them, you can internet search that name, or if you prefer to search with a cite, you can input 89 Federal Register 2183-2195, or last but not least, you can check out the notice of this proposed rulemaking on https://www.ada.gov.

Comment now!  The Civil Rights Division is waiting to hear what you've got to say.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

PERFECTION IS NOT REQUIRED. "REASONABLE MODIFICATIONS": THAT'S WHAT'S REQUIRED.

He rolled into the examination room in his wheelchair.  There he stayed for the whole exam, in his wheelchair, while his doctor listened to his heart and lungs, looked inside his ears and throat, and then announced:  "I assume everything below the waist is fine."  The doctor was done with his exam.

          She rolled into the examination room in her wheelchair.  With the help of her doctor's staff, she transferred to a standard exam table but the staff had to stand by to make sure she did not fall off, as the table did not have guardrails.

          These are experiences reported to the National Council on Disability.  They are a big part of the reason that the Civil Rights Division of the U.S. Department of Justice is proposing to overhaul rules and adopt Standards for the use of Medical Diagnostic Equipment or "MDE."

          These and similar experiences are also a big part of the reason that the U.S. Department of Health and Human Services proposed new rules last September that would apply to healthcare providers that take Federal money like Medicare and Medicaid.  The DOJ and the HHS are operating in tandem, together.

          Perfection is not required under any of these proposed rules and Standards.  "Reasonable modifications" are what they require, and what Title II of the Americans With Disabilities law requires.

          Share your own experiences, and your thoughts and ideas.  You can Comment on the rules proposed by the Civil Rights Division and the Department of Justice on the Federal eRulemaking website:  https://www.regulations.gov, writing "RIN 1190-AA78" on your Comments so that they are sure to match up with these proposed rules.  You can find the proposed rules at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities" (the HHS rules apply to providers who receive Federal funds, while the DOJ rules will apply to State and Local Government Entities), or if you prefer citations, at 89 F.R. 2183-2195.

          Share your Comments!  Tell them what you have lived through and what you think! 

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.  

MAKING YOURSELF HEARD WITH COMMENTS ABOUT YOUR EXPERIENCES.

The "stakeholders" made themselves heard for years.  They told the Architectural and Transportation Barriers Compliance Board ("Access Board") what they thought about technical standards for Medical Diagnostic Equipment before the Access Board published Standards for that Equipment.  The last time Standards were published was 7 years ago, in January 2017.

         Since then we have examining tables that are too high for disabled people to climb up on in order to get a medical examination by their doctors.

         We have examining chairs that some ophthalmologists use in examining diseases of the eye – except that they cannot examine the eyes of disabled people who cannot get in ordinary exam chairs without reasonable modifications.

         And we have so many other features of Medical Diagnostic Equipment that were not made for Disabled People.  But they were supposed to be, if Title II of the Americans With Disabilities Act has any meaning.

         The new rules proposed by the Civil Rights Division of the U.S. Department of Justice do NOT require your doctor to purchase all brand-new equipment to accommodate the Disabled.

         Like the rules previously proposed by the Department of Health and Human Services for all health care providers that take Federal money, only "reasonable modifications" are involved here.  Reasonable modifications – that's what Title II of the Americans With Disabilities Act requires.  And that's all that the rules proposed by the Department of Justice for State and local governments and by HHS for takers of Federal funds would require too:  Reasonable modifications.

         This time, don't leave it up to the commercial "stakeholders" to Comment on Medical Diagnostic Equipment.  Share your own Comments with the Civil Rights Division and the Department of Justice – they're waiting for your Comments!

         You can submit Comments at all hours of the day and night at the Federal eRulemaking website:  https://www.regulations.gov, putting "RIN 1190-AA78" on your Comments so that they can be identified with the proposed rules you want to Comment on.  And here is a link to the Notice of Proposed Rulemaking by the Department of Justice:  https://www.ada.gov.  You can also find the proposed rules by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," or if you prefer to enter citations in your browser's search bar, you can find the proposed rules at 89 F.R. 2183-2195.

         Thank you for your leaving a Comment!

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved. 

PUTTING THE SQUEEZE ON DISCRIMINATION ON THE BASIS OF DISABILITY.

The Centers for Disease Control and Prevention estimates that approximately 61 Million adults have a disability in this country, and that 13.7% of them have a mobility disability,  including serious difficulty walking or climbing stairs – but also including serious difficulty in getting a medical diagnosis or a dental exam or an eye exam.  That translates into more than 8.5 Million adults with a mobility disability.

        The Civil Rights Division of the U.S. Department of Justice, alongside a rule previously proposed by the U.S. Department of Health and Human Services, is proposing to revise its rules in an effort to make Medical Diagnostic Equipment as accessible as possible to Persons With Disabilities.

        Their notice of proposed rulemaking is available at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," and for the citation-minded, at 89 F.R. 2183-95.  (This isn't just about State and Local Government Entities.  It's about you.  Remember that Health and Human Services is proposing similar rules for various health care providers that take Federal money such as Medicare and Medicaid.)

        Medical Diagnostic Equipment (or MDEs, the people writing these rules work in Washington, D.C., remember) is equipment used in or together with medical settings for the purposes of medical diagnosis by health care providers.       

        Examples of this definition may help to make it clear.  Medical Diagnostic Equipment includes:

• Medical examination tables.
• Examination chairs (including for eye exams and for dental exams).
• Weight scales.
• Mammography equipment.
• X-ray machines and other radiological diagnostic equipment.

      Have you or anyone you know ever had difficulty getting on a medical exam table because of a disability?

      Or having your weight taken at a doctor's office?

       Or had trouble with a mammogram (notoriously difficult to encounter for everyone), because of a disability?

      If the answer to any one of these or similar questions is "yes," then the people that work at the Civil Rights Division of the Department of Justice want to hear from you!  Think that they are working there because the money is so good?  Not likely.  More like they work there because they want to work on rules like these.

      Even if they didn't want to listen to you, they have to.   It's the law that they are required to read every single Comment.  So Comment about your own experience or that of your friends, neighbors, and family.  The people at the Civil Rights Division want to know about your personal, lived experience along with the data and briefs and memos paid for by others who are sure to Comment.  Add your voice and your experience.

      Make the resulting rules true because the rules take account of true experience.

      You may submit any and all Comments on the Federal eRulemaking website at https://www.regulations.gov, making sure to put "RIN 1190-AA78" on them so that your Comments get hooked up with the proposed rules that concern you.  The deadline for submitting Comments is February 12, 2024.

      And remember:  The United States Department of Justice, through its Civil Rights Division, invites your Comments.  Take them up on it and Comment!

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

NONDISCRIMINATION ON THE BASIS OF DISABILITY: CIVIL RIGHTS DIVISION'S PROPOSAL.

The Civil Rights Division of the United States Department of Justice has issued a Notice of proposed rulemaking about Nondiscrimination against Disabled people, which has been officially published at 89 Federal Register 2183 (Friday, Jan. 12, 2024).  Here is the pdf format:  Download Notice of Proposed Rulemaking Civil Rights Division Dept of Justice Nondiscrimination on the Basis of Disability (Jan. 12 2024).

All Comments must be submitted on or before February 12, 2024.  I intend to submit a Comment or two, never having been shy about expressing my opinions, like most people in the United States.

It's quick.  My Comments and yours do not need to be written for lawyers.  Quite the opposite.  Just write your Comments for people.  If you have personal experience to share, please share it.  In any case, feel free to share your thoughts and points of view about the many subtle forms that even well-meaning decisions bring discrimination against the disabled as well.

It's easy.  AND they are required by law to read your Comments!  It doesn't get any better than this.

You may submit Comments, identified by RIN 1190-AA78, on the Federal Rulemaking Website at https://www.regulations.gov.  Just follow the website's instructions for submitting Comments.  No worries.

Besides finding the Notice of Proposed Rulemaking in the officially published Federal Register, you can also find this "NPRM" as the people in Washington, D.C. call it at https://www.ada.gov.

Comments are good!

GO FORWARD

Please read the disclaimer.  This article ©2024 Dennis J. Wall.  All rights reserved.

POSTSCRIPT TO THREE ARTICLES REGARDING KEEPING SECRETS IN COMPLAINTS.

This is a postscript to articles published here starting on September 29, 2023 and continuing on October 2, 2023 and on October 4, 2023 about the complaint filed in September 2023 by the Federal Trade Commission against U.S. Anesthesia Partners, Inc., et al.  This was the first time that the FTC sued a private equity firm for allegedly increasing the price and thereby restricting the availability of patients' care.

Although large swaths of the Federal Trade Commission's allegations were blacked out or redacted in the version of the FTC complaint that was filed at the inception of the lawsuit in September 2023, a "Redacted Public Version" of the complaint has since been made available to the public.  FTC v. U.S. Anesthesia Ptrs., Inc., "Redacted Public Version" of Complaint, DE 69, filed Oct. 26, 2023 (S.D. Tex. Case No. 4:23-cv-03560), Download FTC v. U.S. Anesthesia Ptrs Inc. Redacted Public Version (of FTC Complaint) DE 69 filed Oct. 26 2023 (S.D. Tex. No. 4.23-cv-03560). The amounts by which the defendant private equity firm increased its profits or received in revenues remain blacked out, for some reason.  For example, see Paragraph 21, page 11 of Download FTC v. U.S. Anesthesia Ptrs Inc., Redacted Public Version (of FTC Complaint) DE 69 filed Oct. 26 2023 (S.D. Tex. No. 4.23-cv-03560).

It is worth noting that a group called The American Investment Council has been permitted to file an amicus brief.  The Federal Rules of course require the issues and Argument on each issue to be stated on the Table of Contents page of briefs.  In this case, the AIC's very first stated Argument is that "private equity greatly benefits the American economy."  FTC v. U.S. Anesthesia Ptrs., Inc., Brief of the American Investment Council as Amicus Curiae, p. iii, DE 117, filed Jan. 3, 2024 (S.D. Tex. No. 4:23-cv-03560), Download FTC v. U.S. Anesthesia Ptrs Inc., Brief of American Investment Council as Amicus Curiae DE 117 filed Jan. 3 2024 (S.D. Tex. No. 4.23-cv-03560).

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

CHALLENGING APPRAISAL BASED ON WAIVER.

"The party challenging the validity or enforceability of an appraisal clause based on waiver bears the burden of establishing both waiver by conduct of the party seeking appraisal and prejudice to itself."  Coleman v. Amguard Ins. Co., ___ F. Supp. 3d ___, No. 4:22-cv-03442, 2023 WL 9052250, at *1 (S.D. Tex. Dec. 28, 2023).

Appraisal is the author's subject in § 2:7, Volume 1 of Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2023 ed.).

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

 

REFUSING TO SILENCE THE CONTRACT PROVISIONS IN AN INSURANCE CASE.

In Polcom USA, LLC v. Affiliated FM Ins. Co., No. 20 Civ. 9206 (NRB) & 22 Civ. 0092 (NRB), 2023 WL 5573871 (S.D.N.Y. Aug. 29, 2023), an insurance case. unidentified parties (it is unclear who) apparently tried to seal "provisions in the parties' contracts[.]"  Polcom, 2023 WL 5573871, at *2n.3.  The Court resolved the "sealing" controversy here by telling the parties either to resubmit without sealing or not to resubmit at all.

Section 2:18 by the author in Volume 1 of Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2023 Ed.), addresses Post-Claims Handling Practices Issues—The Presumption of Public Access vs. Stipulated Secrecy Orders.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

"SHARING CLAUSES" AVOID DUPLICATIVE DISCOVERY, REQUIRE SHOWING.

There is a recognized exception to the usual prohibition on sharing discovery in one case with other cases.  That exception concerns "sharing clauses" written into stipulated protective orders and authorized by the courts.

Federal courts disfavor sharing clauses.  This observation was made by a U.S. Magistrate Judge in a case in which she refused to authorize a sharing clause.  SRH Holdings, LLC v. Gov't Emp's Ins. Co., No. 23-10325-DJC, 2024 WL 51279, at *1 (D. Mass. Jan. 4, 2024) (Boal, USMJ).  The Court noted that so far, courts have allowed sharing clauses only when the party seeking to share has made a showing that the discovery in question is "highly relevant to other litigation,"  i.e., sharing the discovery among different cases would avoid duplicative discovery and "would promote efficiency, minimize discovery costs, and conserve judicial resources."  SRH Holdings, 2024 WL 51279, at *1.

This deserves further attention in future cases.

Section 2:18 by the author in Volume 1 of Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2023 Ed.), addresses Post-Claims Handling Practices Issues—The Presumption of Public Access vs. Stipulated Secrecy Orders.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.