THL_JanFeb18

All Aboard Project TRAIN The Road to Reasonable Accommodation in Dealing with Employees with Special Needs Protecting Income and Health Coverage When a Worker Becomes Disabled Navigating the Fight for Legal Rights of Students with Disabilities Supporting Adults with Disabilities to Avoid Unnecessary Guardianship Houston’s Prelude to the ADA

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THE HOUSTON

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Volume 55 – Number 4

January/February 2018

Special Needs Law & Advocacy

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contents January/February 2018

Volume 55 Number 4

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12

FEATURES Aboard Project TRAIN 10 AllBy Raymond L. Panneton Road to Reasonable 12 The Accommodation in Dealing with Employees with Special Needs

By Stanley Santire

Income and Health 16 Protecting Coverage When a Worker

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22

Becomes Disabled: How Short Term Disability, Long Term Disability, FMLA, COBRA and Social Security Work Together

By James Passamano, Beth Sufian and Karey Sopchak

the Fight for Legal 22 Navigating Rights of Students with

Disabilities Utilizing Section 504, IDEA, and Special Education

By Leona E. Filis

Adults with 26 Supporting Disabilities to Avoid Unnecessary Guardianship

By Dustin Rynders

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34

Mediation & Alternative 30 Texas Resolution of IDEA Disputes

By The Hon. Josefina M. Rendón

Prelude to the ADA 32 Houston’s

By David T. Lopez Special Needs Cases 33 Handling with Special Care

By Mary Flood

Homeowners Enforce 34 Helping Contracts in a Post-Storm Era

The Houston Lawyer

By Daniel Goldberg and David Berk

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.

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contents January/February 2018

Volume 55 Number 4

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departments Message 6 President’s A Tribute to the Special People

in Our Community

By Alistair B. Dawson From the Editor 8 Advocacy Beyond The Courtroom

By Farrah Martinez

Lawyers Who 37 Houston Made a Difference

Edwin Parker and Robert Lovett

By The Hon. Mark Davidson

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41

Spotlight 38 Committee Law Week Fun Run Breaks

Sponsorship Record

By Zach Wolfe

in professionalism 39 ATheProfile Honorable Gregg Costa U.S. Court of Appeals for the Fifth Circuit

Trends 40 Legal Texas Supreme Court Narrows

the Potential Recovery for Injured Employees

By Preston Hutson

43

ReviewS 41 Media Business and Commercial Litigation

in Federal Courts, Fourth Edition Reviewed by Jill Yaziji

The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself Reviewed by David T. Lopez

The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption Reviewed by Raymond L. Panneton

Special Day at the 43 ACourthouse

The Houston Lawyer

44 Litigation MarketPlace

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January/February 2018

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president’s message

By Alistair B. Dawson Beck Redden LLP

A Tribute to the Special People in Our Community

I

am so pleased that this issue of The Houston Lawyer is dedihelping a student with a disability maximize their educational cated to those special people in our community who have opportunities. If you are interested in helping a special needs unique needs. I have spent my entire life with family memstudent, please sign up at www.makejusticehappen.org. bers who have “special needs.” I have seen them face and Second, we can provide jobs to special needs individuals. overcome challenges in their lives – challenges that the rest Many people just assume that there is no place in their workforce of us largely take for granted. I have witnessed for those with special needs. That assumption is the joy and sense of accomplishment that they wrong. Not only is there a place for these speexperienced when they passed their driving test cial people, but I submit to you that they will be and received a driver’s license, went on their first the most loved, most admired, most trusted and date, went to college, and brought home their most loyal employees that you will ever have. Evfirst pay check. I have also seen the love and joy ery employer of a special needs employee I have I have spent that special people bring to those around them. ever spoken to has told me how much they love my entire life with their employee and how happy they are that he/ Despite the challenges that they face in life, those with special needs often have a huge cashe works with them. They have also told me how family members pacity to love and an incredible ability to share having this special person in their workforce has who have ‘special that love with those around them. I believe that made their company a better place to work, a they are born with larger hearts than the rest of better environment every day and how much the needs.’ us. I have also seen some of the heartache that other employees have benefitted from working they face in life. Many of them just want to live a “normal” life, with the special member of their workforce. Imagine the benefit but they know that they cannot. Almost all of them want to be your employees receive from watching someone with a disability treated like a “normal” person and cannot understand why they overcome that disability and make a meaningful contribution. are not. I have also seen their frustration as they struggle to comJust having them there every day improves workplace morale. municate their thoughts or feelings in a way the rest of us can The HBA is developing and will shortly distribute educational understand. materials regarding the employment of a person with a special There is a lot that we can all do to help the special people in needs disability. After these materials have been distributed, we our community. First, we need to make sure that they get the will provide interested employers with special needs individuals best education that is possible for them. Because of their diswhom we believe would be great additions to their work force. ability, those with special needs are legally entitled to additional So far 19 firms and companies have signed up for this wonderful accommodations in school or at university. These accommodaopportunity. More information about this program is available at tions may include extra time on a test, specialized instruction www.hba.org/committees/project-train. from a teacher or having a seat at the front of the classroom.

Today we pay tribute to the special people in our community.

Sadly, many schools are not providing the accommodations that My hope is that we can be leaders for an inclusive community some students are legally entitled to receive. The HBA is helping where there are no stigmas, no judgments and no exclusions. address this injustice by providing lawyers for these students Let’s all join together and give these special people the opportuwho will advocate on their behalf and get them the additional nities in life that they so deeply deserve. I promise you that the help that they need so that they can maximize their educational rewards from your efforts will be extraordinary. And our comopportunities. I cannot imagine anything more rewarding than munity will be a much better place.

“

The Houston Lawyer

”

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January/February 2018

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January/February 2018

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from the editor

By Farrah Martinez Farrah Martinez, PLLC

Associate Editors

Polly Graham Fohn Haynes and Boone, LLP

Preston Hutson MehaffyWeber PC

Jeff Oldham Bracewell LLP

The Houston Lawyer

Taunya Painter Painter Law Firm PLLC

Hon. Jeff Work Manning, Gosda & Arredondo, L.L.P.

8

Advocacy Beyond

I

The Courtroom

n elementary school, I had a classmate named Nicholas. He appeared a little different than the rest of us.

He wore thicker glasses; he had poor coordination; and, he often lost his balance. Nicholas had a tough time keeping up with the rest of us. At that age, even though he was different we did not appreciate the difference, and we certainly did not discriminate. If he raced another student, his opponent did not slow down to level the playing field. Looking back, Nicholas likely had Cerebral Palsy. Interestingly, I vividly remember Nicholas’ mom. It seemed she fiercely advocated on his behalf.

Frequently, she would visit the school to ensure he was treated fairly and to make sure he was receiving the attention he needed. The rural area where Nicholas and I grew up did not have a single lawyer or access to advocacy groups. This issue uncovers the complexities that parents and schools face to ensure each child receives an education uniquely suited to meet their needs and that prepares them for continued education, employment, independent living, and access to healthcare.

In “Navigating the Fight for Legal Rights of Students with Disabilities Utilizing Section 504, IDEA and Special Education,” Leona E. Filis explains those laws designed to protect and regulate educational services for the growing number of students who require accommodations and emphasizes the vital role of parents, advocates and attorneys to ensure these laws are applied and that students receive necessary educational services.

Then Judge Josefina M. Rendon’s article “Mediation & Alternative Resolution of IDEA Disputes” describes the dispute resolution process for parents and schools when parents and educators disagree on the best path to a free and appropriate public education uniquely designed for that individual student and what services would best benefit the special needs of that child.

After a disabled student’s education has concluded, the goal for some is to transition to independent living.

Dustin Rynders’ article “Supporting Adults with Disabilities to Avoid Unnecessary Guardianship” tells the story of a young woman with Down Syndrome who courageously opposed what she believed was an unneces-

January/February 2018

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sary guardianship and won.

Many individuals with special needs also seek to utilize their talents and skills to obtain employment. Raymond Panneton’s article unveils HBA President Alistair Dawson’s initiative Project TRAIN to aid in the expansion of opportunities for those with special needs to obtain training, necessary legal resources and employment through the support of local businesses and firms committed to helping those with disabilities.

Disability can strike at any time and James Passamano, Beth Sufian and Karey Sopchak’s piece highlight the importance of “Protecting Income and Health Coverage When a Worker Becomes Disabled: How Short Term Disability, Long Term Disability, FMLA, COBRA and Social Security Work Together.”

Next, the issue reflects on discrimination and David Lopez’s article “Houston’s Prelude to the ADA” provides a historical snapshot of a Houston case that transcended how employment discrimination cases are now handled.

The case gained national attention and that momentum eventually led Congress to enact the Americans with Disability Act (ADA). Which leads us to our final piece on our theme, “The Road to Reasonable Accommodation in Dealing with Employees with Special Needs” by Stanley Santire which provides valuable insight for dealing with discrimination claims, rights and obligations under the ADA, and offering reasonable accommodations.

Fortunately, through the advocacy of many, the laws and standards continue to evolve to protect more than 6.5 million children and school-age youth who live with disabilities and over 151,000 adults who enter the workforce each year.

We know that many Houstonians are still dealing with the aftermath of Hurricane Harvey, and in many instances, legal issues are just now surfacing. To continue to help our members, we also present an article by Daniel Goldberg and David Berk, “Helping Homeowners Enforce Contracts in a Post-Storm Era,” that helps construction and restoration businesses protect their financial interests while considering the needs of homeowners affected by this devastating storm.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Alistair B. Dawson

Chris Popov

Warren W. Harris

Benny Agosto, Jr.

Bill Kroger

Neil D. Kelly

Second Vice President

Jennifer A. Hasley

DIRECTORS (2016-2018)

Richard Burleson David Harrell

Diana Gomez Greg Ulmer

Collin Cox Hon. Erin Lunceford

DIRECTORS (2017-2019) Daniella Landers Lionel M. Schooler

editorial staff Editor in Chief

Farrah Martinez Associate Editors

Polly Fohn Jeff Oldham Hon. Jeff Work

Preston Hutson Taunya Painter

Anietie Akpan Kimberly A. Chojnacki Al Harrison Annalynn V. Hoffland Hon. Scott R. Link David T. Lopez Marni Otjen Hon. Josefina M. Rendón

Editorial Board

Anna Archer Veronica Cruz Matthew J. Heberlein Kristen Lee Dana Lizik Avi Moshenberg Raymond L. Panneton

Managing Editor

Tara Shockley

HBA office staff Executive Director

Kay Sim

Director of Education

Director of Projects

Continuing Legal Education Assistant

Membership and Technology Services Director

Communications Director

Membership Assistant

Communications Assistant /Web Manager

Receptionist/Resource Secretary

Ashley G. Steininger

Jessica Creamer

Ron Riojas

Tara Shockley

Carly Wood

Bonnie Simmons

Danielle Keith

Lucia Valdez

Administrative Assistant

Valerie Ramirez

Advertising sales Design & production QUANTUM/SUR

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By Raymond L. Panneton

All Aboard Project TRAIN Houston Volunteer Lawyers sponsored “Advocating for Children with Special Education Needs” on November 10, a CLE that provided an overview of special education law and a panel on pro bono advocacy for special education. At the program were, from left, HBA president, Alistair Dawson; Shiloh Carter, staff attorney at Disability Rights Texas; Louis Geigerman, founder, National ARD/IEP Advocates; and Dustin Rynders, supervising attorney at Disability Rights Texas.

T

here exist few professions which are tasked with ensuring that all people are treated equally, fairly, and with dignity. As lawyers, we often think that our responsibility begins and ends at the courthouse steps. HBA President Alistair Dawson reminds us that our social and civic responsibilities extend well beyond the courtroom.

With the introduction of Project TRAIN (Training, Readiness, and Inclusion Network), Dawson has created a network of organizations, resources, and materials to ensure that those with special needs are able to obtain gainful employment in our communities.

Project TRAIN’s mission, in part, is to assist law firms and private companies in hiring and retaining employees with special needs or cognitive impairment.

The HBA, in conjunction with The Center, Social Motion Skills, H.E.A.R.T., Jewish Family Services, and Disability Rights Texas, will recruit and educate employers to participate in Project TRAIN. The program will pair the employer with potential employees who will be a good fit for the employer’s needs, as well as educate and support employers in effective ways to manage employees with cognitive impairment.

In addition to gainful employment, Project TRAIN will also provide pro bono legal services, ensuring children with special needs are receiving the appropriate and necessary school and social services to which they are entitled. Additionally, TRAIN volunteers will assist parents with children who have special needs in establishing supported decision-making arrangements or guardianships once their children turn 18.

Launching in Spring of 2018, Dawson hopes that Project TRAIN will provide employers with the tools and training necessary to welcome those with special needs into their businesses.

Currently, 19 Houston area law firms and businesses have pledged to participate in Project TRAIN. These businesses include: Akin Gump Strauss Hauer & Feld, LLP Andrews Kurth Kenyon LLP Apache Corporation Baker Botts L.L.P. Bracewell LLP Beck Redden LLP Constable Alan Rosen Gardere Wynne Sewell Haynes & Boone, LLP Hogan Lovells LLP Jackson Walker LLP Littler Mendelson LLP Locke Lord LLP Morgan, Lewis & Bockis LLP Norton Rose Fulbright US LLP Porter Hedges, LLP Reed Smith LLP Thompson & Knight, LLP Vinson & Elkins LLP

The program provides training for volunteers.

For more information on how your firm or business can participate in Project TRAIN, please contact HBA President Alistair Dawson at adawson @beckredden.com or via phone at 713951-6225.

Raymond L. Panneton is a member of The Houston Lawyer Editorial Board and practices business litigation with Hendershot, Cannon, Martin & Hisey, PC. He can be reached at ray@hcmhlaw.com. thehoustonlawyer.com

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By Stanley Santire

The Road to Reasonable Accommodation in Dealing with Employees with Special Needs

I

n dealing with the needs of an employee with a disability, an employer might hear a voice from the Lord of the Rings. Bilbo begins his adventure singing, “The Road goes ever on and

on...” and ends with “And Whither then?

I cannot say.”

In 1990, America began an adventure with the Americans with Disabilities Act (ADA) “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”1 In the view of Congressional drafters of the ADA, some Supreme Court decisions later frustrated the original intent of the law. In 2008, Congress tried to clear the path with the Americans with Disabilities Act Amendment Act (ADAAA).

For lawyers dealing with disability discrimination claims, the adventure is dealing with ADA rights and obligations and coping with challenging terms like “disability” and “reasonable accommodation.” The clearest guide on that road is to keep in mind that just as each employee claiming a disability is a unique human being, the circumstances are different for each employer from whom an accommodation is claimed.

As the workplace constantly changes, the range of jobs evolves from heavy lifting and physical functions to extensive use of computers and the internet. The variety of ways to cope with employee disabilities also grows and impacts an employee’s ability to perform those jobs.

We find ourselves traveling a road with no end and singing with Bilbo, “And Whither then? I cannot say.”

Beginning the Road: Meaning of Disability The first step in dealing with the ADA is determining whether an employee has a disability. A disability is “a physical or mental impairment that substantially limits one or more life activities,” “a record of such an impairment,” or “being regarded as having such an impairment.”2 Before it morphed into the ADAAA, the Courts confined the ADA’s recognition of a disability worthy of protection to a permanent impairment.

The ADAAA extended protection to a temporary impairment.3 A Texas Federal district court pointed out that “the

regulations make it clear that effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”4 The ADAAA also expanded the range of disability claims and the right to accommodation by adding a category for “being regarded as” impaired. The Fifth Circuit has held that a claimant may be “regarded” as impaired if they are subjected to discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”5 In other words, an employer can violate the ADAAA, regardless of whether an actual impairment exists, if the employee suffers discrimination due to an employer’s perception that the employee suffers from an impairment.

Beyond Disability: Qualified and Essential Functions Beyond showing proof of disability, the employee, or the applicant for employment, must show qualification for the job regardless of the impairment. This is a two-step process. First, the individual must have the requisite skill, experience, education and other requirements for the relevant job. Per Equal Employment Opportunity Commission (EEOC) regulations, the second step is to prove or demonstrate an ability to perform the essential job functions with or without reasonable accommodation.6 As in dealing with much of the ADA, a prime role is played by EEOC regulations. This role is significant in that those regulations are entitled to deference “to the extent it is reasonable and harmonizes with the plain language of the statute, its origin and purposes.”7 The EEOC analytical pattern for determining essential functions rests primarily on evidence of (1) the employer’s judgment as to what is essential, (2) written job descriptions, (3) amount of time spent on performing the function as part of the job, and (4) work experience of past and current employees in the job.8

From Functions to Accommodations Most workplace laws dealing with discrimination are designed to prevent an employer from considering characteristics of an employee, such as skin color, gender, age, religion, and national origin.

Not so with the ADA. It requires the employer to give regard to a characteristic; i.e., a disability. The employer is then to take steps to accommodate the employee. This requirement extends only to the degree that such accommodation does not impose an “undue hardship” on the employer.9 In other words, the need posed by the employee’s disability is balanced against the consequent burden on the employer. So, the guide is the term “reasonable” as an adjective resulting in the critical phrase “reasonable accommodation.” In the face of the eternal struggle to define “reasonable” in various areas of law, as well as the entire history of philosophy, both the ADA and the EEOC provide guidance. In particular, there are three types of reasonable accommodations. They are: 1. Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position; or 2. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or 3. Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

The range of possible accommodations depends on where the variety of impairments intersects with the possible burdens imposed on the employer called on to accommodate the particular impairment. An excellent source of ideas for exploring possible accommodations is online at the Job Accommodation Net-

work, (JAN).10 The Department of Labor refers to JAN as “the leading source of free, expert and confidential guidance on workplace accommodations and disability issues.”11 Interactive Process At least as important as determining the range of reasonable accommodations is for an employer to communicate with the employee to find a consensus on the feasibility of particular forms of accommodation in the context of a particular situation. This interactive process is not just advisable. “Under the ADA, once the employee presents a request for an accommodation, the employer is required to engage in [an] interactive process so that together they can determine what reasonable accommodations might be available.”12 So the employer is not required to merely engage in the process.

The engagement must be sincere. “When an employer does not engage in a good faith interactive process, that employer violates the ADA...”13 The employee has the burden “to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”

The Internet: A New ADA Road Perhaps no ADA trend so vividly shows the relevance of Bilbo’s lyrics than enabling disabled persons to use the internet. Though the growth of internet usage in the workplace is relentless, it is not a new phenomenon. As Chief Justice Richard Posner wrote: “An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.”14 ADA website accessibility actions have recently been filed against companies such as Domino’s Pizza. A Federal Court in California rejected an argument

by Domino’s that the ADA does not apply to websites.15 On the other hand, the Court granted Domino’s motion to dismiss because the Department of Justice

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at that time had not yet promulgated regulations defining website accessibility. Various nations have developed or, as in the case of the United States, are in the process of developing guidelines to facilitate the use of the Internet by people disabled by their impaired eyesight. The US Department of Justice appears likely to adopt the Web Content Accessibility Guidelines 2.0 Levels A and AA, referred to as WCAG 2.0 AA.16 The ADA was signed into law in 1990, long before the internet became a ubiquitous part of the average workplace.

The oldest known web page appeared in 1991.17 The domain name for the Google search engine of today was registered in late 1997, and the company did not undergo immense growth until the 21st century.

Clearly, during the initial stages of the ADA, very few people connected the concept of Internet usage to the needs of the disabled. While guidelines for workplace Internet accommodation are evolving, technology is emerging to meet the need.

Today, possible means of accommodating a vision impaired employee for work involving web access can be found on the Job Accommodation Network.18 The current technology ranges from screen reading systems converting text into computer synthesized speech to Braille display applications that operate by computer generated signals raising and lowering different combinations of pins to produce Braille images of what appears on the computer screen.19 More than 240 businesses across the United States have been sued in federal courts under the ADA due to website accessibility issues.20 Most of these cases deal with customer access to Internet goods and services. For example, a class action was recently filed against Five Guys claiming the hamburger chain does not comply with the ADA for blind customers who want to order online.21 In that case, the Federal Court refused to grant a motion to dismiss. In the order, the Court referred to the Web Content Accessibility Guidelines 2.0 referred to

above as a viable consideration for the Defendant. While these cases have primarily dealt with Internet accessibility to goods and services, at a minimum, employers also need to consider to job applicants using the Internet to apply.

Employer consideration of accommodations for employees using the Internet is perhaps the most important technological ADA impact of recent decades.

We can only wonder when employment lawyers will need to be aware of accommodating the disabled for work in the greatest human adventure of our times, employees involved in both government and commercial space flight. This could be the ultimate validation of how Bilbo’s words ring true for real life: “The Road goes ever on and on... And Whither then?

I cannot say.”

Stanley Santire is the managing member of Santire Law Firm, where he focuses his litigation and mediation experience on employment matters, trade secrets, noncompetes, and construction.

Endnotes

1. 42 U.S.C. §§ 12101(b)(1).

2. 42 U.S.C. §12102.

3. E.E.O.C. v. Vicksburg Healthcare, L.L.C., No. 1560764, 2016 WL 5939424 (5th Cir. Oct. 12, 2016) (unpublished).

4. Willis v. Noble Envtl. Power, LLC, 143 F.Supp. 3d 475, 482 (N.D. Tex. 2015).

5. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015).

6. 29 C.F.R. §1630.2(m).

7. EEOC v. Exxon Corp., 203 F.3d 871, 873 (5th Cir. 2000).

8. EEOC v. E.I. Du Pont De Nemours, 480 F.3d 724, 730 (5th Cir. 2007).

9. 42 U.S.C. § 12112(b)(5)(A).

10. askjan.org.

11. https://www.dol.gov/odep/resources/jan.htm.

12. EEOC v. LHC Group 773 F.3d 688, 700 (5th Cir. 2014).

13. EEOC v. Chevron Phillips Chem. 570 F.3d 606, 621 (5th 2005).

14. Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001).

15. Robles v. Dominos Pizza LLC, U.S. Dist. Ct. North Dist. Cal. Case No. CV 16-06599 SJO. 16. https://www.w3.org/TR/WCAG20.

17. Murawski, John (24 May 2013) “Hunt for world’s oldest WWW page leads to UNC Chapel Hill” 18. http://soar.askjan.org/solution/193.

19. http://soar.askjan.org/solution/142 & https:// askjan.org/cgi-win/OrgQuery.exe?Vis19.

20. Los Angeles Times August 28, 2017 at http://www. latimes.com/opinion/op-ed/la-oe-pulliam-adawebsites-20170611-story.html.

21. Lucia Marett v. Five Guys Enter, LLC, No. 1:17-cv00788, (S.D.N.Y. 2017).

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By James Passamano, Beth Sufian and Karey Sopchak

PROTECTING INCOME AND HEALTH COVERAGE WHEN A WORKER BECOMES DISABLED:

How Short Term Disability, Long Term Disability, FMLA, COBRA and Social Security Work Together

M

ost people give little thought to the possibility of becoming disabled and perhaps less thought to the need to replace income and healthcare that may be lost with a disabling illness or injury. Yet, more than one quarter of people entering the workforce today will become disabled before they reach age 65.1 The odds are that one in four of an attorney’s clients will experience a disability in their working life.

This article will address the basics that a lawyer might need to know about disability benefits and legal protections.

First, the term “disability” has many definitions in the law. In the context of civil rights law, “disability” is broadly defined as a physical or mental impairment that substantially limits a major life activity. However, in the context of disability insurance benefits and Social Security law the term has a narrower meaning, focusing on the individual’s ability to work.

In fact, the meaning of “disability” in the context of insurance benefits is different from the meaning of “disability” in the context of Social Security.

When a worker becomes disabled two concerns predominate: (1) replacing lost income; and (2) maintaining health insurance coverage. Maintaining health insurance coverage may be the higher priority, especially when the disabled worker requires substantial, ongoing assessment and treatment.

Children with Disabilities Disability can come at any stage of life, even at birth. If a child is born with a disability—especially one that requires ongoing medical treatment—concern about health coverage and income predominate. One concern is whether a newborn child with a congenital condition is regarded as having a pre-existing condition that would preclude the child from enrolling as a dependent in the child’s parents’ group health benefit plan. At one time, group health benefit plans could exclude children born with a congenital condition from coverage. However, that

changed in 1997 with the Health Insurance Portability and Accountability Act (HIPAA), which governs group health benefit plans.2 HIPAA generally prohibits pre-existing condition exclusions for newborn children, provided the child enrolls in the plan within 30 days after birth.

A similar rule applies to adopted children. HIPAA prohibits exclusion from coverage under a group health benefit plan of adopted children, provided the child is under the age of 18 years at the time of adoption and enrolls in coverage within 30 days after the adoption or placement for adoption.

HIPAA governs group health benefit plans and the Affordable Care Act governs individual health insurance coverage. The Affordable Care Act (ACA) precludes insurers from imposing preexisting condition exclusion periods on enrollees. Consequently, a newborn—or a person at any point in life—can enroll in an ACA plan without regard to any

congenital disability or pre-existing condition.

Public health benefits programs are available for low-income households.

Children may be eligible for Texas Medicaid if they live in a low-income household. The amount of income that qualifies as “low income” for Medicaid enrollment depends upon the number of individuals living in the household. Generally, a child living in a family of three members in Texas would be eligible for Medicaid if the household income was $2,246 per month or less, which is about $26,952 per year or less.

If family income is greater than the Medicaid income cut-off, Medicaid benefits may still be available for children under the Children’s Health Insurance Program (CHIP). CHIP allows a family with children with income greater than the Medicaid income cutoff to enroll in Medicaid for a small premium. For example, a family of three in Texas that makes more than the Medicaid limit but

less than $3,353 per month may enroll in CHIP in exchange for a small monthly premium.

Disabled children living in low-income households may also qualify for Medicaid benefits through a federal Social Security program called Supplemental Security Income (SSI). Children may be eligible for SSI as early as birth if they meet both the low-income requirements and the disability requirements. A child’s income is based on the income of the household in which the child lives. For a two-parent-one-child family with all earned income the income limit is approximately $4,537. The child must also meet the disability requirements, which entail having a disabling condition that lasts (or is expected to last) at least 12 months and has symptoms at least as severe as described in the regulations and able to be shown by objective medical findings. If a child living in Texas is eligible for SSI, that child is automatically enrolled in Texas Medicaid when they are approved for SSI

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17

by the Social Security Administration. In some other states, a child eligible for SSI must be independently reviewed by the State Medicaid agency before the child may begin receiving Medicaid benefits.

Short Term Disability Insurance Benefits For those who become disabled later in life, the first potential form of assistance is short-term disability (STD) insurance.

Short-term disability insurance pays a benefit when an employee is unable to perform the material and substantial duties of their job due to an illness or injury. Short-term disability insurance is obtained either as an employer sponsored employee benefit or as individual coverage by the worker. Not all workers have an STD insurance policy, and those who do typically receive it as an employee benefit. Short-term disability policies typically pay a benefit that ranges from 40% to 60% of the covered employee’s weekly income, but the amount of the benefit depends on the policy.

Short-term disability policies are designed to assist a worker who may recover from an illness or injury in the short term and return to work. Because a return to work is anticipated, the worker typically remains an employee during the shortterm disability leave period. While on STD leave, the employee’s health benefits (if any) usually remain effective because the worker remains an employee. However, the employer has no legal obligation to maintain employment or maintain the worker’s employee benefits, unless the employer is covered by the Family and Medical Leave Act (FMLA).

The Family and Medical Leave Act The FMLA covers private employers with 50 or more employees (in at least 20 work weeks in the current or preceding calendar year); governments (regardless of the number of employees); and elementary and secondary schools (regardless of the number of employees).3 Not all employees of a covered employer are eligible for Family and Medical Leave. To be eligible, an employee must have worked for the 18

January/February 2018

employer for at least 12 months; worked at least 1,250 hours during that 12 month period; and worked at a location where the employer has 50 or more employees within a 75 mile radius.4 An eligible employee is entitled to take up to 12 weeks of unpaid leave under the FMLA to care for a serious health condition that makes the employee unable to perform the essential functions of his or her job, among other reasons.5 At the conclusion of the FMLA leave period, the employer must restore the worker to his same or equivalent job with equivalent pay, benefits, and other terms and conditions of employment. During the leave period, the employer must continue all group health insurance coverage for the employee on FMLA leave on the same terms and conditions as if the employee had not taken leave.6 The employer may require the employee to use accrued and unused paid vacation or sick leave as part of the 12-week FMLA leave.7 An employee may attempt to extend the length of the leave by first taking accrued sick leave and vacation time, and requesting FMLA leave only after paid leave is exhausted. This approach may give the employee more total leave time rather than the 12-week of FMLA leave alone (i.e., 12 weeks FMLA + x days sick leave + y weeks vacation).

However, there is a genuine risk with this approach. If the employee takes accrued paid leave first, the employee does not enjoy the protection of the FMLA right to return to the job at the end of the sick or vacation leave. Those protections are only associated with FMLA leave. If the employee is terminated during a period of sick leave or vacation leave, then the employee will be cut off from taking FMLA leave because FMLA leave is available only to current employees. Even if the employee is ultimately not able to return to work, the loss of FMLA leave matters because it is the loss of 12 weeks of employer sponsored health benefit coverage.

Long term Disability Insurance Coverage If the worker has a long term disability

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insurance policy, either sponsored by the employer or acquired individually, the next step is to apply for long term disability benefits. Long term disability insurance pays a benefit equal to a percentage of the worker’s pre-disability earnings.

While each policy has its own definition of disability, these policies generally require evidence that the worker is unable to perform the usual and customary duties of their own job because of an illness or injury.

The timing of the application depends on the terms and conditions of the plan or policy. In most cases, a worker cannot apply for long term disability until the short term disability benefit is exhausted and after an elimination period has expired. An elimination period is the period of time during which the individual is disabled but not receiving long term disability benefits. The language of the plan is the best source of details on the terms and conditions of the policy. Even when a worker is enrolled in an LTD policy or plan, the worker must still meet all other conditions to receive a benefit, such as completing any elimination period or pre-existing condition exclusion period.

Because long term disability policies have an elimination period, many employees fear that if employment is terminated during the elimination period before they have an opportunity to apply for benefits then they will lose the opportunity to apply for long term disability benefits. However, this fear is not well founded because most policies require only that the employee become disabled while employed. If the individual is terminated during the elimination period, applying for LTD benefits is not precluded as long as the disability occurred during employment.

ERISA and LTD LTD plans sponsored by an employer are employee welfare plans governed by the Employee Retirement Income Act (ERISA).8 In ERISA LTD cases, the timely development and presentment of evidence is most important. The claim ad-

ministration process with the insurance company is the only opportunity to submit evidence supporting the claim.9 The administrative record closes when the insurance company makes a decision. If the claimant later files an appeal in federal court, the court will only consider the administrative record and evidence not in that record cannot be considered.10 For this reason, representatives must be especially diligent in ERISA cases to ensure that all relevant evidence is submitted to the insurance company in the administrative phase. Counsel should appropriately document the submission to prove that it was submitted.

Also, the federal courts do not review the LTD claims de novo in ERISA matters. The federal courts apply an “arbitrary and capricious” standard.11 Under this standard, a denial of benefits may be affirmed even if the insurance carrier is wrong, but was not arbitrary or capricious in interpreting the plan and determining the claim.

Most LTD policies distinguish between mental and nervous conditions and physical condition. Benefits for mental and nervous conditions are typically limited to only two years. For physical conditions, benefits are typically paid for two years if the individual is unable to perform the duties of the position when the disability arose. After paying benefits for two years, the insurance carrier will

typically review the individual’s disability status to determine if the individual is unable to perform any occupation consistent with the claimant’s age, skill, training and experience. If the claimant is still unable to perform the duties of the position but is able to work in another occupation, then the benefits will be discontinued.

Because ERISA establishes a comprehensive remedial scheme, it preempts all state law causes of action. The only remedies under ERISA are (1) a claim for benefits under the plan; (2) a determination of rights under the plan; and (3) a breach of fiduciary duty.12 Most LTD policies offset the monthly LTD benefit by other income replacement benefits received by the claimant, such as Social Security benefits, workers compensation, railroad disability income benefits, etc. A person with a benefit of 60% of pre-disability income and an annual income of $40,000 will have a monthly benefit of $2,000 before taxes and about $1,600 after taxes. When this amount is offset by a $1,200 monthly Social Security benefit, the net LTD benefit would be only $400 in this example.

Social Security Disability Insurance Benefits Every employee receiving compensation should be contributing to the Social Security and Medicare funds with some

t he

exceptions. For example, public school teachers and railroad employees contribute to separate and different retirement and disability benefit schemes. Workers who have not paid into the Social Security system will not be eligible for Social Security benefits.

The Social Security System envisions that workers contribute funds to the system during their working life, and then pays benefits when the worker leaves the workforce either at retirement or upon disability. When a worker leaves the workforce because of disability, he or she will apply for Social Security Disability Insurance (SSDI). Eligibility for SSDI has two prongs of analysis. First, a worker must be a covered person and second, the person must meet medical criteria. To be a covered person the worker must have accrued 40 work credits, which is Social Security’s measure of the minimum contribution into the system.13 Accrued work credits expire if the worker voluntarily leaves the workforce for more than five consecutive years.14 Once work credits expire, they cannot be the basis of a Social Security Disability Insurance claim.

If a worker is covered, then the worker must meet the medical criteria. In essence, the claimant must show that because of a disabling condition he is unable to perform any job that exists in reasonable numbers in the national economy.

This is a rigorous standard—more rigor-

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ous than the standard required in most commercial LTD insurance policies.

The Social Security Administration has promulgated a list of symptoms associated with each disabling condition and the degree of severity that must be present for the Administration to find that the person is disabled.15 These listings of symptoms are more simply known as “the listing.” If a claimant’s medical record does not meet the severity stated in the listing, then the claimant is not eligible for benefits, unless the claimant can show that his condition is as severe as the listing.

The SSDI benefit has two components: (1) the income benefit, and (2) a health coverage benefit. The amount of the income benefit is based on the amount the worker has paid into the system. The higher income and the longer the work life, the higher the income benefit. The second component of the SSDI benefit is Medicare coverage. Medicare is a comprehensive health benefit program administered by the federal government.

It has several parts. Part A provides in-patient hospital coverage. Medicare Part B provides coverage for out-patient services, medical devices and prosthetics. Medicare Part D provides prescription drug benefits. Medicare beneficiaries may also enroll in Medicare Part C, which is a managed care program.

When Are Benefits Paid When a claimant is awarded SSDI, the income benefit begins five full calendar months after the onset date of the disability.16 For example, if the onset date is February 3, then the beneficiary does not begin to receive the income benefits until August. February is not counted in this example because it is not a full calendar month. March, April, May, June and July complete five full calendar months of the waiting period. The Medicare part of SSDI does not begin until 24 months after the income benefits begin.17 The five month income waiting period plus the 24 month Medicare waiting period totals 29 months after the disability onset date.

20

January/February 2018

COBRA During the 29 Month Medicare Waiting Period During the 29 month Medicare waiting period, the disabled person may experience a gap in health benefit coverage.

Typically, this potential gap in coverage is filled by electing an extension of employer-sponsored health benefits under COBRA. The employee must elect coverage at the time employment terminates. If COBRA is not timely elected, the opportunity for the COBRA extension lapses. If employment is terminated because the employee becomes disabled, then COBRA allows for a 29 month extension, which covers the SSDI and Medicare waiting periods.

Affordable Care Act Although COBRA is intended to cover the potential gap in coverage caused by the Social Security Medicare waiting period, a gap may nevertheless occur. If COBRA is not sufficient to avoid a gap in health benefits, the individual may obtain coverage under the Affordable Care Act. The Affordable Care Act makes insurance benefits available regardless of an individual’s disability status and precludes any pre-existing condition exclusion periods.18 Affordable Care Act policies are available to almost everyone, but they are not available to everyone in Texas. Individuals who are over the age of 18 and under the age of 65 with resources below 133% of the federal poverty level are not eligible to obtain an ACA policy. The reason such individuals are ineligible is that the ACA structure anticipated that these individuals would be covered by the Medicare expansion that was enacted as a mandatory part of the ACA. However, the Supreme Court held that the ACA expansion of Medicaid must be regarded as optional rather than mandatory.19 Because Texas opted not to expand its Medicaid Program, individuals between 18 and 65 with low income are not eligible for the ACA and there is no Medicaid expansion to provide them with coverage.

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Conclusion Replacing lost income and maintaining health benefit coverage are the two leading objectives when a worker becomes disabled. No single policy, plan or statute will achieve these objectives. However, by combining insurance policies, employee benefit plans, public benefit programs, and statutes a worker who becomes disabled with the help of his attorney may successfully replace income and preserve access to medical treatment.

James Passamano has practiced Social Security law and health law at Sufian & Passamano, L.L.P. for 20 years, and he is a former senior trial attorney for the United States EEOC. He received degrees in law from the University of Cambridge and South Texas College of Law – Houston.

Beth Sufian has practiced Social Security law at Sufian & Passamano, L.L.P. for 20 years. She is a graduate of the University of Texas School of Law. Karey Sopchak is an associate attorney with Sufian & Passamano, L.L.P. She is a graduate of South Texas College of Law – Houston. She was admitted to the Texas Bar in 2017.

Endnotes

1. Social Security Administration, Fact Sheet: Social Security, https://www.ssa.gov/news/press/factsheets/basicfact-alt.pdf 2. See, 29 C.F.R. §2590.701 3. 29 U.S.C. § 2611(4)(A), (B) 4. 29 U.S.C. § 2611(2) 5. 29 U.S.C. § 2612(a)(1)(D) 6. 29 U.S.C. § 2614(c) 7. 29 U.S.C. § 2612(d)(2) 8. 29 U.S.C. § 1002 (1) 9. See, e.g., Perlman v. Swiss Bank Corp. Comprehensive Disability Proteciton Plan, 195 F.3d 975, 98182 (7th Cir. 1999); Chalmers v. Family Health Plan Corp., 100 F.3d 818, 823-824 (10th Cir. 1996) 10. Id. 11. Firestone Tire & Rubber v. Bruch, 489 U.S. 101 (1989) 12. 29 U.S.C. § 1132(a)(1) 13. 42 U.S.C. § 414 14. 20 C.F.R. § 404.130 15. 20 C.F.R. Pt. 404, Subpt. P, App. 1 16. 42 U.S.C. § 423(c)1(B) 17. 42 U.S.C. § 426 18. United States Department of Heath & Human Services, About the ACA, https://www.hhs.gov/healthcare/about-the-aca/pre-existing-conditions/ index.html (Last updated January 31, 2017) 19. See National Federation of Independent Business v.

Sebulius, 567 U.S. 519 (2012)

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By Leona E. Filis

Navigating the Fight for Legal Rights of Students with Disabilities

Utilizing Section 504, IDEA, and Special Education

T

he United States Centers for Disease Control and Prevention (“CDC”) published a report in 2016 estimating that one in 68 school-aged children has autism spectrum disorder.1 The CDC has also identified that one in 323 children has Cerebral Palsy, which is the most common childhood motor disability.2 For children with these and other disabilities, many parents rely on their school districts to assess and accommodate students. The Texas Education Agency is responsible for overseeing districts and their ability to accom-

modate their students. However, parents have been alerted to a terrifying trend by investigative reporting: “Over a decade ago, Texas officials arbitrarily decided what percentage of students should get special education services —8.5 percent—and since then they have forced school districts to comply by strictly auditing those serving too many kids.”3 With a cap in place for members of the student population to receive special education services, what happened to the students who were prevented from receiving necessary services? Most parents and education advocates were left with few options, including (1) no special education services in school, (2) limited accommodations, or (3) removal from public school for private school or homeschool. For students with disabilities, their legal rights in local public schools can stem from two federal sources, Section 504 and IDEA. A. Section 504 Section 504 of the Rehabilitation Act of 1973, as amended, is first and foremost a federal civil rights law, with the goal to stop discrimination against people with disabilities: “No otherwise qualified individual with a disability in the United States... shall, solely by reason of his or her identity, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” that receives federal funds.4 The definition of a disability has been broadened under amended Section 504 to pertain to “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”5 “Substantially limits” is defined at the local education agency level, providing broad discretion to school districts to determine if a student’s impairment is at a level to allow for eligibility of services.

The Section 504 definition of disabil-

ity, when applied in the realm of public education, protects students without regard to students’ grades. Moreover, nonacademic activities such as field trips, band programs, afterschool and summer programs, and graduation are all included in the evaluation of a school’s Section 504 compliance.

To effectuate the goal of protecting children with disabilities, schools are mandated each year to locate and identify all children with disabilities who are between the ages of three and 21 in their district. This “Child Find” mandate under Section 504 applies to all children who reside within a state, including children who attend private schools and public schools, highly mobile children, migrant children, homeless children, and children who are wards of the state.6 Once a school has located in its district a child that is suspected of having a disability and potentially needing Section 504 services, public schools must provide a proper evaluation to determine the child’s eligibility for such services.7 The evaluation committee is charged with considering information from a variety of sources, including medical diagnoses, school-based data, teacher recommendations, and aptitude tests. Although the information provided by a physician is significant, the committee determines the weight of the information given the child’s circumstances. An illness must be the cause of the substantial limitation, as defined by the school district. Assuming the committee determines the student is eligible for Section 504 services, the school district has a duty to provide an “appropriate education,” which is defined as “the provision of regular or special education and related aids and services that... are designed to meet the individual educational needs...” of the disabled persons “as adequately as the needs of” non-disabled persons “are met.”8 Thus, proving discrimination under Section 504 requires a comparison of the education of students with

Resolution” to bring the parties togethand without disabilities. er to discuss a possible resolution.

With a Section 504 plan, schools If pursuing a lawsuit, to establish a are not mandated to invite parents of violation of Section 504, plaintiffs must qualifying students to meetings that demonstrate that (1) the student is disevaluate special services options. Secabled as defined by Section 504 accommodation 504; (2) the student tions can be included in For children is “otherwise qualified” a plan that is prepared with these to participate in school solely by the general edactivities; (3) the school ucation teacher and speand other or school board receives cial education teacher. federal financial assisSchools have much flexdisabilities, tance; and (4) the stuibility to create content many parents dent was excluded from for the Section 504 plan, participation in, denied with broad descriptions rely on their the benefits of, or subof accommodations, school districts ject to discrimination supports and services. A at the school. In addiSection 504 plan should to assess and tion, to be liable, defeninclude the designation dants “must know or be of the provider of the accommodate reasonably expected to supports and services students. know of” the student’s and include the staff disability, though plainmember of the school The Texas tiffs “need not establish or district who will confirm the proper impleEducation Agency that there has been an intent to discriminate mentation of the Section is responsible for in order to prevail un504 plan.

10 Advocates for stuoverseeing districts der § 504.” dents’ rights can initiRegulations under and their ability ate a dialogue with the Section 504 extend to school once a dispute provide non-discrimto accommodate arises concerning the ination protection at Section 504 plan. Medicollege. Section 504 their students. ation or alternative disregulations are to be pute resolution are available to parents complied with by universities and coland their children’s advocates when leges that receive federal funding. Adcommunication with the school fails to ditional federal education protections resolve a dispute. In the event further are available through special educaaction is needed, parents can request tion. an impartial hearing, keeping the dispute at a local level. In an escalation of B. IDEA the dispute, a written complaint may be The Individuals with Disabilities Edurequired. The U.S. Department of Education Act (“IDEA”) is a federal special cation enforces Section 504 through its education law for children with disOffice for Civil Rights (“OCR”), aiming abilities. IDEA defines the term “child to ensure students receive an appropriwith a disability” and includes the folate education in public schools. Once lowing categories of disability: autism, the OCR receives complaints from deaf-blindness, deafness, developmenparents, the OCR will investigate and tal delay, emotional disturbance, hearexamine the procedures of the school. ing impairment, intellectual disability, One option offered from OCR to remultiple disabilities, orthopedic imsolve a complaint is “Early Complaint pairment, other health impairment,

“

”

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January/February 2018

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specific learning disability, speech or language impairment, and traumatic brain injury.11 A medical diagnosis is not the sole determinative factor for eligibility for special education services.

The student’s educational performance also must be adversely affected due to the disability.

As with Section 504, IDEA utilizes the “Child Find” mandate to require schools to locate, identify and evaluate all children with disabilities from birth through age 21. Evaluation of eligibility for special education services must be comprehensive and fully evaluate any child who may need special education services “in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.”12 Parents may choose to take the initiative of having their child assessed by a professional outside of the school system to perform an independent educational evaluation.

A “Dear Colleague” letter from the U.S. Department of Education’s Office of Special Education and Rehabilitative Services acknowledges that under IDEA all students are entitled to a “free appropriate public education” (“FAPE”) and emphasizes that special education is to be “designed to meet the child’s unique needs” and “prepare the child for further education, employment, and independent living,” citing 20 U.S.C. §1400(d)(1)(A).13 This is to be accomplished by an Individualized Education Program (“IEP”).

Although the states’ educational agencies set the standard of what is appropriate under FAPE, the Supreme Court recently ruled that states cannot set low standards for school districts that yield little to no educational progress as reflected in students’ IEPs. In Endrew F. v. Douglas County School District RE-1, the Court noted that student Endrew F. was diagnosed with autism spectrum disorder at age 2, “a neurode24

January/February 2018

velopmental disorder generally marked by impaired social and communication skills, engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”14 The autism spectrum diagnosis qualified Endrew F. to receive special education services. The years following the initiation of the IEP, Endrew F.’s parents were dissatisfied with the public school’s inability to provide a new IEP with different measurable goals from any of the prior IEPs. Frustration escalated due to the lack of satisfactory results from the school district, and Endrew F.’s parents withdrew him from school. Endrew was placed in a private school that specializes in educating children with autism. There Endrew F. received superior education services that yielded significant improvement for Endrew F. Due to the apparent failures of the school district, year after year, to provide an appropriate public education for Endrew F., his parents filed a lawsuit against the school district. The Supreme Court noted that an IEP is unique for the circumstances of the child for whom it was created. The standard for the student’s educational program must be appropriately ambitious in light of his circumstances, not merely de minimis progress from year to year. Based on Endrew F., a school must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”15 In the event parents of a child receiving special education services have a dispute with the school, the initial recommendation is to request a meeting.

In Texas, the IEP team is also called the Admission, Review and Dismissal (ARD) committee. It is mandatory that parents of the student are included as part of the IEP Team, as well as at least one general education teacher, at least one special education teacher, a representative of the local education

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agency, an individual who can interpret the evaluation results, a guest of the parents, and if appropriate, the student. Parents can dispute the proposed content for the IEP and request time to review the IEP prior to signing, and set a new meeting. To maximize negotiations for goals and accommodations in the proposed IEP, options include having the IEP meeting with a trained facilitator or attending a mediation.

Escalation measures for IEP disputes include filing a notice with the school district and filing an administrative complaint with the state’s education agency.

Under IDEA, parents who allege school district violations of law can address their disputes at a due process hearing. IDEA has a two-year statute of limitations to file such disputes, from the date the dispute was known. The school district does not reimburse parents for attorney fees unless the parent wins the case.

C. Additional Protections for Texas Special Education Students Parents of students receiving special education services, or a trustee or staff member, have the right to request, in writing, the installation of video surveillance equipment in self-contained classrooms or other special education settings.16 “Cameras in the classroom” legislation is designed to prevent situations of abuse of special education students who may not be able to inform their parents of abuse suffered at school. The inspiration for this Texas legislation is due, in part, to a parent of a former student in Keller Independent School District in the special education program. According to evidence presented in the lawsuit, the student suffered a broken thumb, dislocated knee, and skull contusions, on separate occasions, while he was on the school campus, but due to his disability, he could not verbalize details of his abuse.17 This protection measure, offered to students receiving special education services,

will not be provided on campus without a proper request.

D. Are these Regulations in Jeopardy?

In response to Presidential Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” the U.S. Department of Education has begun the process of evaluating which of its regulations may be appropriate for repeal, replacement, or revision due to factors such as causing job elimination, being outdated or ineffective, or imposing costs that exceeds benefits.18 One could argue that Congress has stated that the protections provided to children through IDEA (in 1983) shall not be lessened “except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.”19 E. Where Does Texas Education Rank?

Where does Texas rank in meeting the IDEA standards of the U.S. Department of Education’s Office of Special

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Education and Rehabilitative Services?

According to the “2017 Determination Letters on State Implementation of IDEA,” Texas’s status for IDEA Part B—which serves students from ages three to 21—is “Needs Assistance.” A state receiving a “Needs Assistance” determination for two or more consecutive years is subject to the Department taking an enforcement action against the state. For IDEA Part C, which is focused on schools serving infants and toddlers up to age two, Texas’s status is “Meets Requirements.”20 With a growing number of students requiring accommodations and possibly special education services, Texas must meet the federal standards as set out in Section 504 and IDEA. It is up to parents, advocates, and attorneys to ensure that the most vulnerable of our student population have their rights protected to ensure a successful educational career.

Leona E. Filis is the managing attorney

at The Filis Law Firm, PC, a firm with a focus on helping families with children with special needs.

Endnotes

1. https://www.cdc.gov/ncbddd/autism/data.html.

2. https://www.cdc.gov/ncbddd/cp/data.html.

3. Brian M. Rosenthal, Denied: How Texas keeps tens of thousands of children out of special education, HOUSTON CHRONICLE, Sept. 10, 2016.

4. 29 U.S.C. § 794(a) (2016).

5. 34 C.F.R. § 104.3(j)(1).

6. 20 U.S.C. § 1412(a)(3) (2016).

7. 34 C.F.R. § 104.35 (2017).

8. 34 C.F.R. § 104.33(b) (2017).

9. Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380-81 (3d Cir. 1991); 34 C.F.R. §§ 104.4(a), (b).

10. Nathanson, 926 F.2d at 1381, 1384; see also Alexander v. Choate, 469 U.S. 287, 296-97 (1985).

11. IDEA 2004 Regulations, 34 C.F.R. § 300.8 (2016).

12. 34 C.F.R. § 300.304(c)(4) (2017).

13. https://www2.ed.gov/policy/speced/guid/idea/ memosdcltrs/guidance-on-fape-11-17-2015.pdf.

14. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 996 (2017).

15. Id. at 999.

16. Tex. Educ. Code Ann. § 29.022; 19 Tex. Admin.

Code Ann. § 103.1301.

17. Rideau vs. Keller Indep. Sch. Dist., 819 F.3d 155, 158 (5th Cir. 2016).

18. 82 Fed. Reg. 12285 (Feb. 27, 2017).

19. 20 U.S.C. § 1406(b)(2) (2005).

20. https://www2.ed.gov/fund/data/report/idea/idea factsheet-determinations-2017.pdf.

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January/February 2018

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By Dustin Rynders

Supporting Adults with Disabilities to Avoid Unnecessary Guardianship

J

enny Hatch is a woman with Down Syndrome who became a hero in the disability community at the age of 29 when she stood up to our nation’s guardianship system and won.

This is Jenny’s story. Jenny had built a life where she was working at a thrift store and choosing to live with friends who helped her make important decisions. In August 2012, Jenny was served with a Petition to put her in a guardianship, so her parents could make her decisions. Jenny was placed in a temporary guardianship and forced to live in a group home, where she was cut off from her friends, and removed from her job.

Jenny’s website says, “Through it all, Jenny never lost hope, never stopped insisting that she did not need a guardian, she just needed a little help. Like everyone else.”1 After a year of litigation and a six-day trial, with the help of the Quality Trust for Individuals with Disabilities, Jenny won the right to make her own decisions with help from people she selects. In the disability community, people have always known individuals like Jenny

– people with intellectual disabilities who live without guardianship by using natural support from their friends or family to manage money, go to doctor appointments, apply for jobs, and make other decisions. Still, it was somewhat revolutionary and exciting to see a court recognize the right of a person to make those decisions when someone decided to pursue guardianship.

Only a few years after Jenny’s victory, Texas became the first state in the country to embrace a Supported Decision Making legal framework as a less restrictive alternative to guardianship, and to require courts to consider it and other alternatives before placing a person under guardianship. Even in states without a Supported Decision-Making law, courts are increasingly willing to deny guardianships when less restrictive means are available to support an individual.2 This shift is consistent with international trends away from guardianship and towards less restrictive alternatives. The Convention on the Rights of Persons with Disabilities (CRPD) adopted by the U.N. in 2006 includes Article 12 requiring states to provide support for people with disabilities to make their own decisions.3 Why Have Parents Traditionally Sought Guardianship?

Many parents follow the advice they received from an educator, doctor or attorney to seek guardianship. Parents of children with disabilities must navigate so many systems, that obtaining guardianship often becomes one more thing on a long to-do list.

Many professionals advise parents to seek guardianship of their child with an intellectual disability, regardless of the person’s ability to communicate their needs and preferences. Often parents have left these meetings without a clear understanding of why guardianship was needed or what it accomplished. The assumption that people with intellectual disabilities need someone else to make decisions for them is routed in a history where people with disabilities were excluded from school and often forced to live in institutions without freedom to choose their meals, activities, or life pursuits.

Since the passage of the Americans with

Disabilities Act in 1990, we have become a society that guarantees people with disabilities the right to live, work, and engage in their communities. An entire generation of post-ADA Americans with Disabilities are now around to stand up like Jenny Hatch and stake their right to make important life decisions. Most parents do not want to force their children to live in places they do not like; they just want to make sure their children are taken care of. Parents fight for years to obtain quality special education services, access vocational services and try to build a meaningful life for their children, only to be told on their child’s 18th birthday that they should obtain full guardianships. For some of the families, they later regret that they unknowingly limited their child’s ability to work or marry or develop much needed independence. Some parents are surprised to see their son or daughter develop improved communication or behavioral skills they did not foresee when they made their initial decision to pursue guardianship. They then learn that it can be challenging to restore that child’s decision-making rights.

Is Guardianship Ever Appropriate?

Guardianship itself is not the problem; unnecessary and overbroad guardianships are the problem. Guardianship is appropriate for individuals who are not able to communicate their desires, especially those individuals who must access medical care that requires informed consent. But, traditionally, our profession has done an extraordinarily poor job of presenting less restrictive alternatives and making sure needed guardianships are as limited as possible. Nearly 90% of guardianships are full guardianships that even remove the right to vote. How exactly does a person with an intellectual disability make any worse decision on whom to vote for than anyone else? How does that overbroad order protect the person with a disability?

Most people agree that voting should more frequently be protected. But, how about other important decisions about where to live, what friends to have, how to spend their money, and whether to have a romantic relationship? Sure, a person with a disability

may make poor choices in one or more of these areas. They are human. Being allowed to make those mistakes provides an opportunity to learn. Unfortunately, guardianship laws and practices have deprived many capable individuals with disabilities of the opportunity to develop decision-making skills and maximize their independence. We need to carefully balance the risks of a poor decision with the harm imposed by removing self-determination. Studies consistently find that people with disabilities and greater self-determination are healthier, more well-

adjusted, and better able to recognize and resist abuse.4 When denied self-determination, people can “feel helpless, hopeless, and self-critical.”5 They can also experience “low self-esteem, passivity, and feelings of inadequacy and incompetency,” decreasing their ability to function.6 Taking someone’s decision making rights away should not be viewed as harmless.

Supported Decision Making as an Alternative to Guardianship On September 1, 2015, Texas became the

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first state in the nation to recognize by statute supported decision-making agreements as a less restrictive alternative to guardianship. The Supported Decision-Making Agreement Act is found in Chapter 1357 of the Texas Estates Code. The Act defines supported decision-making as “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.”7 The supported decision-making agreement act allows an adult with a disability who can communicate their desires to choose a supporter to help obtain the information needed to make a decision, understand the choices and risks, and communicate the decision to the appropriate people.8 The supporter does not make the decisions for the adult.9 The statute includes a supported decision-making agreement form.10 The form in simple terms spells out the individual’s desire to make decisions for themselves with the assistance of the person they select. Seeking advice from trusted friends and family is a normal method of decision making, utilized by people with and without disabilities before anyone coined the term “supported decision making.” In fact, many people use supported decision making naturally without any written agreement. Having a written agreement can make families feel comfortable that they know the plan their family has as an alternative to guardianship.

The document can also give peace of mind to professionals who rely on the supported decision-making arrangement, particularly in medical settings where informed consent is needed for treatment.

A supported decision-making agreement is different than a power of attorney. A power of attorney grants an agent the authority to make decisions and handle matters without input from the individual. A supported decision-making agreement does not give the supporter the power to make decisions, but only to support the person. An indi28

January/February 2018

vidual may choose to sign both a supported decision-making agreement and a power of attorney, recognizing that they will usually be present when decisions are made, but not always. Some individuals may choose to sign a power of attorney for one type of decision making, while wanting to sign a supported decision-making agreement for all other areas. Additionally, other alternatives to guardianship can be used, including joint bank accounts.

Enforceability of a Supported DecisionMaking Agreement Most businesses and professionals naturally allow a person with a disability to be accompanied and assisted by a person of their choice. Many will not even need to see a document to provide such an accommodation. Still, the Texas legislature took an extra step to encourage people to honor the agreements by clarifying that “[a] person is not subject to criminal or civil liability and has not engaged in professional misconduct of an act or omission if the act or omission is done in good faith and in reliance on a supported decision-making agreement.”11 Arguably, a request to be supported is another way to request an accommodation under the Americans with Disabilities Act. Ethical Considerations Usually, family members of the person with a disability are the ones who contact an attorney for advice regarding guardianship or alternatives to guardianship. Texas Disciplinary Rule of Professional Conduct 1.02(a) assumes that the lawyer is legally authorized to represent a client with a disability.

It is important to consider that a child and parent may have adverse interests related to guardianship or plans around less restrictive alternatives. If an attorney decides to represent the person with a disability and the supporter in entering in a supported decision-making agreement, the attorney must comply with Texas Disciplinary Rules of Professional Conduct 1.06(b) and (c). Joint representation is only permissible if the lawyer reasonably believes representation will not be affected and each client consents to such representation after full disclosure.

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Available Resources One way to avoid potential issues is to inform would-be guardians to contact Disability Rights Texas for information about supported decision making and other less restrictive alternatives. Disability Rights Texas offers online resources as well as frequent training sessions on alternatives to guardianship. With the help of 87 pro bono partners at Vinson & Elkins, Disability Rights Texas also holds free clinics to assist young adults with disabilities to execute supported decision-making agreements and powers of attorney. There is more information on the website of the National Resource Center for Supported Decision-Making and Disability Rights Texas. The goal is to make future generations of Texans with disabilities as independent as possible and not subjected to unnecessary or overbroad guardianship.12 Dustin Rynders is a supervising attorney at Disability Rights Texas. Since graduating from the University of Houston Law Center in 2016, he has dedicated his practice to representing youth with disabilities in special education, foster care, and juvenile justice cases.

Endnotes

1. Jenny Hatch. (2014). Retrieved October 31, 2017 from http://jennyhatchjusticeproject.org/jenny.

2. See, e.g. In re D.D., 50 Misc.3d 666 (2015); In re Guardian for Hytham M. G., 52 Misc.3d 1211(A) (2016); and In re Guardian for Michelle M., 52 Misc.3d 1211(A) (2016).

3. Robert Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention of the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making, 19 Hum. Rts. Brief 8, 10 (2012).

4. Ishita Khemka, Linda Hickson, & Gillia Reynolds, Evaluation of a Decision-Making Curriculum Designed to Empower Women With Mental Retardation to Resist Abuse, (2005); O’Connor & Vallerand, 1994; Michael Wehmeyer & Michelle Schwartz, The Relationship Between Self-Determination and Quality of Life for Adults with Mental Retardation. EDUC. AND TRAINING IN MENTAL RETARD. & DEV. DISAB. (1998).

5. Edward Deci, Intrinsic Motivation (1975), p. 208.

6. Bruce Winick, The Side Effects of Incompetency Labeling and the Implications for Mental Health Law, PSYCH., PUB. POL. & L, (1995). 1(1), 6–42. doi: 10.1037//1076–8971.1.1.6Winick, 1995, p. 21.

7. Tex. Est. Code § 1357.002.

8. Tex. Est. Code § 1357.003.

9. Tex. Est. Code § 1357.051.

10. Tex. Est. Code § 1357.056.

11. Tex. Est. Code § 1357.101(b).

12. National Resource Center for Supported DecisionMaking at www.supporteddecisionmaking.org and Disability Rights Texas at www.sdm.drtx.org

Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys

Hirsch & Westheimer PC

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Corporate Legal Departments

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& Tibbets LLP

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By The Hon. Josefina M. Rendón

Texas Mediation & Alternative Resolution of IDEA Disputes

T

he Individuals with Disabilities Education Act (IDEA) is a law that ensures that children with disabilities are provided a free appropriate public education (FAPE), as well as other services that “meet their unique needs and prepare them for further education, employment, and independent living.”1 The law also ensures “that educators and parents have the necessary tools to improve educational results for children with disabilities.”2 As part of the act, Congress proclaimed that the federal government has an ongoing obligation to support activities that positively impact children with disabilities. However, while recognizing the federal government’s obligations, Congress also found that both state and local educational agencies, as well as parents of children with disabilities, are in the best position to carry out these obligations.

Accordingly, Congress implemented a mandate that state or local educational agencies receiving assistance under the

IDEA “shall establish and maintain procedures... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.”3 Under the IDEA and Texas law, a child found to have special needs qualifies for special education services. The Act provides for the creation of an Individualized Education Program (IEP) committee consisting of the child’s parents, appropriate school personnel, and professionals with knowledge of the child’s needs. It is the IEP committee that, on a regular basis, discusses and plans for the child’s Free Appropriate and Individualized Education (FAPE). In Texas, the IEP committee is called the Admission, Retention and Dismissal (ARD) committee.

The IEP (or ARD) meeting is the mechanism that allows for all involved to work together for the child’s benefit.4 The IDEA on Dispute Resolution While acknowledging the benefits of

IEP meetings between parents, education professionals and school personnel, the Act also anticipates that, no matter how well intended, educators and parents may differ on what a free appropriate public education should entail and what services would best benefit a special-needs child. The act also anticipates complaints from parents regarding actual or perceived denials of services or violations of the law. Accordingly, the Act provides methods by which parents, educators and the school systems can resolve these disputes. The Texas Education Agency (TEA) and the State Board of Education (SBOE) have also implemented several dispute resolution options as follows: Meetings: Under TEA rules, parents can request more ARD (or IEP) Committee meetings to resolve their concerns.

The rules also list an array of other types of meetings with teachers, school administrators, the special education director and/or members of the board of trustees of the public education agency to resolve disputes.5 Third-Party Intervention: If meetings between stakeholders do not succeed, third-party intervention can be requested by filing a complaint with TEA, resulting in the investigation and issuance of findings regarding alleged violations.6 Similarly, parties can request a due process hearing in which a hearing officer appointed by TEA makes decisions based on the law and facts.7 These hearings can be appealed to either state or federal district court.8 Mediation & Facilitation: Finally, and perhaps preferably, two other procedures provide outside help that, rather than intervening, investigating or adjudicating, facilitates resolution. Under these two procedures, referred to as Special Education Mediation9 and IEP facilitation,10 resolution would ultimately be achieved by the parties themselves. Such procedures are required to be available on a voluntary basis and may not be used to deny or delay parents’ right to due process hearings or any other rights. They

are also to be conducted by qualified and impartial third-party neutrals.11 These alternative dispute resolution procedures have been lauded as considerably less expensive, friendlier, more positive and effective alternatives than complaints or due process hearings.

Special Education Mediation Beginning in 1996, IDEA mandated that any state or local educational agency receiving IDEA assistance shall establish procedures allowing parties to resolve disputes through mediation.12 As required, TEA provides mediation, which must be “conducted by a qualified and impartial mediator who is trained in effective mediation techniques and who is knowledgeable in laws and regulations relating to the provision of special education and related services.”13 Though paid by TEA and generally chosen from a list created by TEA, special education mediators cannot be employees of the agency.14 They are selected on a “random, rotational, or other impartial basis”15 by TEA or by the parties themselves upon notification to TEA.16 Special education mediation is similar to court-based mediation in that what transpires in mediation is confidential and may not be used as evidence in a hearing or court. Also, if a settlement is reached, it is reduced to writing, signed by the parties and enforceable in any “court of competent jurisdiction.”17 Special education mediation differs from court-based mediation because the parties cannot be compelled to attend.

TEA strongly encourages all parties to consider mediation. According to TEA’s handbook: “Parties are more likely to have a good working relationship in the future if they can agree on how to solve a disagreement.”18 Other benefits of mediation include less formality, less cost, and less time consumed than in other dispute resolution processes. Also, there is generally greater party satisfaction, since the parties themselves decide the outcome. The handbook also attests that, at a nearly 80% resolution rate, TEA’s

mediation program is very successful at resolving special education disagreements.19 TEA attributes part of the mediation program’s success to the fact that special education mediations are conducted by a neutral third-party that treats everyone fairly and allows them to express their concerns. “The mediator listens to each party and provides feedback and suggestions to help the parties communicate more effectively and reach a common solution. In addition, the questions that a mediator asks may encourage new thoughts and ideas for resolving disagreements.”20 IEP Facilitation In many ways, IEP Facilitation goes back “full circle” to the very first services offered to special-needs children. The IEP meeting is considered to be the “cornerstone of a quality education for each child with a disability.”21 It is the initial procedure that plans the child’s appropriate and individualized education. It is where the parents and school personnel first gather together to address the child’s needs and education. The presence of a neutral facilitator in the IEP meeting can help the parties better communicate and work towards a resolution.

In fact, a school district may choose to use facilitation from the very first IEP meeting and before any conflicts emerge.22 As such, facilitation may not only help resolve conflicts but prevent them before they happen. Such early action probably makes IEP facilitation more effective than any other dispute resolution method available for parents and the schools.

Conclusion The IDEA begins with these words: “Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of

ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”23 Providing means for resolution of any disputes regarding these issues would be a great endeavor for all of us in the legal profession to undertake.24 The Hon. Josefina Rendón is a mediator and Associate Municipal Judge. For several years, she mediated special education and Americans with Disabilities Act cases for the Texas Education Agency, U.S. Justice Department & others. She is an editorial board member of The Houston Lawyer.

Endnotes 1.

2.

3.

4.

20 U.S.C.A. §1400(d)(1)(A).

Id. §1400(d).

Id. 1415(a).

A Guide to the Individualized Education Program, U.S. DEP’T OF EDUC., https://www2.ed.gov/parents/ needs/speced/iepguide/index.html (last visited Dec. 8, 2017).

5. TEX. ADMIN. CODE §89.1150 (b)(1)−(3).

6. Id. at §§89.1150(b)(6), 89.1195; TEX EDUC. CODE, §§29.001, 29.019, and 29.020; 34 C.F.R., §§300.151−300.153.

7. See generally, 20 U.S.C. 1415.

8. TEX. ADMIN. CODE §§89.1150(b)(7), 89.1151, 89.1165; 34 C.F.R. §§300.507, 300.508, 300.509; TEX. EDUC. CODE §29.001.

9. TEX. ADMIN. CODE §§89.1150(b)(5), 89.1193; TEX. EDUC. CODE, §29.001; 34 C.F.R., §300.506.

10. TEX. ADMIN. CODE §§89.1150(b)(4), 89.1196; TEX. EDUC. CODE, §§29.001, 29.019; 34 C.F.R., §§300.151−300.153.

11. TEX. ADMIN. CODE §§89.1193(b), 89.1196(d).

12. 20 U.S.C.A. §1415 (a).

13. TEX. ADMIN. CODE §89.1193(b); see Office of Legal Services, Special Education Mediation, Program, TEX. EDUC. AGENCY, http://tea.texas.gov/About_TEA/ Legal_Services/Special_Education/Office_of_ Legal_Services,_Special_Education_Mediation_ Program/.

14. TEX. ADMIN. CODE §89.1193(d).

15. Id. §89.1193 (f).

16. Id. §89.1193(f).

17. Id. §89.1193 (k)− (l).

18. TEXAS EDUCATION AGENCY, SPECIAL EDUCATION DISPUTE RESOLUTION SYSTEMS HANDBOOK, 9, available at file:///C:/Users/User/ Downloads/SE%20Dispute%20Resolution%20 Handbook%20March%202017.pdf.

19. Id. 20. Id. 21. A Guide to the Individualized Education Program, U.S. DEP’T OF EDUC., https://www2.ed.gov/parents/ needs/speced/iepguide/index.html (last visited Dec. 8, 2017).

22. TEX. EDUC. CODE §29.019(e).

23. 20 U.S.C.A. §1400(c)(1).

24. For more information regarding these issues, please visit Consortium for Appropriate Dispute Resolution in Special Education at www.directionservice.org/cadre.

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By David T. Lopez

Houston’s Prelude to the ADA

F

ew people know that a case in Houston indirectly influenced the enactment of the Americans with Disabilities Act (ADA).

Charlotte Smith earned a master’s degree in physiology, and her adviser wanted her to go for a Ph.D. But she wanted to be an astronaut. Polio had rendered her a paraplegic, and she reasoned that in weightless space, her disability would disappear. So she joined NASA. As a result of funding cutbacks, however, she was demoted from her position and assigned a menial job, mainly answering the telephone and handling the mail. She sued, alleging unlawful discrimination because of her sex and her disability.

At trial, her supervisor rationalized her demotion testifying, “I know it would be very difficult for a young woman to travel all over the country, getting in cabs, airplanes, with a wheelchair.” In turn, Smith’s graduate adviser testified that a male who had graduated at about the same time as Smith and was hired

by NASA after Smith, had been denied admittance to the same doctoral program that had accepted Smith. Yet, un-

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like Smith, and despite apparently lesser qualifications, he was not reassigned and demoted. Smith testified that her hobby was flying, she was a longtime member of a flying club and had flown commercially to the French Riviera, where she rented an auto and affixed a device that permitted driving without use of her legs and feet. The district court had little problem entering judgment in her favor.

NASA appealed, arguing that Smith failed to establish sex discrimination and there was no similar relief available for physical handicap discrimination. The difficulty with that argument, the Fifth Circuit held, was that “sex and physical handicap discrimination occur in the instant case not separately, but intertwined.” The Court affirmed the judgment in favor of Smith for restoration of grade, lost pay and attorney’s fees. See Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977).

The Fifth Circuit noted that Smith proffered “an interesting theory” that federal employee claims of physical handicap discrimination were comparable to claims of racial discrimination.

The district court accepted that argument and ordered the U.S. Civil Service Commission to handle those claims under the same set of regulations. However, the Fifth Circuit reversed that portion of the judgment, finding that it was not necessary to grant Smith full relief and observing, “We refuse the opportunity to create unnecessary dictum.”

The case drew national attention and provided significant impetus to the consideration of disabled worker’s rights.

The Americans with Disabilities Act was enacted in 1990.

David T. Lopez, is FCIArb, practices domestic and international arbitration and mediation from his office in the Museum District. He represented Charlotte Smith at trial and on appeal and received the Ronald D. Secrest Outstanding Trial Lawyer’s Award from the Texas Bar Foundation in 2007. He serves on The Houston Lawyer editorial board.

By Mary Flood

Handling Special Needs Cases with Special Care

W

John Keville

inston & Strawn LLP’s Houston Managing Partner John Keville has long been an advocate for special needs clients. The firm’s Houston office regularly works with pro bono partners, including Disability Rights Texas, assisting the organization with up to 10 cases a year.

“We’ve had several cases where schools failed to accommodate disabled children, and others where disabled vets with special needs are not accommodated,” said Keville, a lead trial counsel in patent litigation matters who previously served on the board of directors of the Houston Volunteer Lawyers.

Most recently, the Winston team worked with Disability Rights Texas and the Texas Legislature to put an end to Texas’s 8.5 percent cap on the number of disabled students served. Governor Greg Abbott signed the bill to end the cap once and for all.

“There is a whole lot of law about how schools should provide a free and adequate public education for disabled students,” said Keville. “Nevertheless, in some cases, parents have to get involved and sometimes get at loggerheads with the school, and then lawyers have to get

involved to help these families.” He added that typically, the school cases settle and most students are given the education they deserve and are guaranteed by law.

“I grew as a lawyer through the experience of co-counseling a case with [Winston], and we look forward to continuing to work together for the benefit of children with disabilities,” said Disability Rights Texas lawyer Dustin Rynders, who worked on a pro bono case with Keville and the Winston team on behalf of a disabled child who had been segregated from others.

Through Disability Rights Texas, the Winston team also helped a decorated U.S. Army veteran injured in Operation Iraqi Freedom II persuade a Houston leasing company to rework policies and procedures to allow disabled people with special needs to live with their service animals. The settlement that was negotiated included training sessions to educate rental agents on the needs of disabled veterans, including the assistance of service animals.

“We are often dealing with smaller corporations that have policies that can be rather unfair to these individuals. It’s gratifying to be able to sort out these issues and get people the accommodations they need,” said Keville.

In 2016, the Winston team was recognized by Disability Rights Texas as Law Firm Pro Bono Partner of the Year.

“In a lot of these cases, be it in workplaces, schools, or housing, we’re dealing with people on the other side who are just doing things the way they have always done them in the past, and don’t realize there are better options,” said Keville. “We can help them find ways to help those who face significant challenges. It’s often not a uniform solution, but always the human-friendly one.”

Mary Flood is a lawyer and former journalist who works at Androvett Legal Media & Marketing. She previously wrote legal stories for the Houston Chronicle and Wall Street Journal.

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By Daniel Goldberg and David Berk

Helping Homeowners Enforce Contracts in a Post-Storm Era

I

n the aftermath of Hurricane Harvey, many emergency restoration and construction businesses will face the dilemma of how best to balance their desire to serve the community with the necessity of securing payment for their work.

Fortunately, Texas law gives businesses the means to protect their fiduciary interests while still allowing them a level of flexibility.

The damage inflicted on the greater Houston area is staggering. Over 100,000 homes were destroyed, while hundreds of thousands were rendered temporarily uninhabitable. Infrastructure collapsed.

Tens of thousands of businesses were similarly damaged and face serious obstacles as they work to re-open.

Houstonians long for a day when we can say “Houston has recovered.” We know homes will be rebuilt and busi-

nesses will re-open. However, that recovery will consist of tens of thousands of individual projects—whether a home, a strip mall, or a church—and each project will require skilled businesses and individuals investing time, using equipment, and supplying materials. And for each project, those businesses and individuals must be paid. Only liquid currency can grease this epic reconstruction.

Unfortunately, one cannot always count on insurance carriers or the National Flood Insurance Program to be timely, trustworthy, or competent paymasters. When payment comes late or not at all, the ripple-effects can be severe. After all, the businesses that are rebuilding and restoring face costs of their own: crews expect their paychecks; vehicles and equipment must be bought and maintained; and vendors must be paid for materials.

Game Plan for All Jobs Always Businesses and individuals should always ensure their investment of time, materials, and equipment is well documented. Especially in the frantic wake of natural disasters, when projects abound and time is limited, businesses and individuals often neglect to document their work contemporaneously. This is unwise.

Follow these four steps for each and every project: 1. Put initial quotes and estimates in writing and do so well in advance.

Make sure your clients are aware— and have plainly accepted in writing—the initial estimate before the first nail is hammered or the first shingle is delivered. a. To the extent possible, include the project name and address with the quote or estimate.

This will be essential, even for material suppliers, to collect. b. If it is impossible to state the total price (e.g., it is unknown how many days the dehumidifier needs to run to dry a building),

then state the costs per unit.

2. Dispatch invoices in a timely manner and at regular intervals, and keep copies of all invoices.

3. Keep receipts for supplies and materials as well.

4. Take pictures of the work being performed at various stages of completeness. This is an easy step and can be important in proving what was done and when.

What About Non-Payment?

What can be done when a client or customer does not pay those invoices for work performed or for materials provided? How can businesses or craftsmen protect their economic interests without hounding clients who are in the midst of their own difficult recovery process?

The legal options available now are no different than the legal options available before the storm.

Protecting Your Business by Securing the Debt, or Just Being a Jerk?

Especially in the aftermath of a disaster, some unpaid businesses, subcontractors, and contractors are hesitant to file a statutory lien against a non-paying client or customer. After all, no one wishes to kick customers while they are down.

And as members of the community themselves, these contractors and subcontractors appreciate and have sympathy for the non-paying client. These are important considerations, and certainly valid.

You May Already Have a Lien These unpaid businesses, subcontractors, and contractors are likely unaware that they may already have a lien under the Constitution of the State of Texas. In Texas, if work is done or if material is furnished for a home or business (limited to the buildings associated with that home or business), “[m]echanics, artisans and materialmen of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or

material furnished.”1 These “Constitutional liens” are automatic and require no notice or documentation. However, such a lien is not enforceable to subsequent purchasers of the property subject to the lien, so long as those subsequent purchases had no notice of it.2 To File a Lien or Not to File, That is the Question Therefore, the question for an unpaid contractor or subcontractor is not whether to seek a lien—but rather, whether to secure the rights provided in the Constitutional lien by filing a statutory lien. Failing to file a statutory lien gives no benefit to the property owner who did not pay his or her debt.

Instead, it merely deprives the contractor or subcontractor of further security.

Given that a lien already exists against the property where the work was performed, those who performed that work should feel no hesitation about further securing their rights through a statutory lien.

Under the Texas Property Code, contractors and sub-contractors, suppliers of materials to specific projects, and anyone who “labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of (A) a house, building, or improvement; (B) a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or (C) a railroad... by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor,” are able to file statutory liens on properties.3 This applies to large businesses and individual craftsmen alike. A statutory lien offers a lienholder the additional protection of knowing the lien runs with the property; the nonpaying customer may sell the property, but the lien will remain in place.

A statutory lien is a powerful tool. As a result, businesses should ensure they follow the requirements precisely. An experienced attorney can help ensure all the requirements are met.

How to File Lien Properly (Without a Trusty Attorney by Your Side) Whenever a contractor, sub-contractor, or supplier of materials encounters a nonpaying customer, it should take the following steps. The first step is notice: 1. If the unpaid party is a subcontractor, the subcontractor first must provide notice to both the owner and the original contractor before filing a lien. The subcontractor must provide this notice on or before the 15th day of the second month following first delivery of materials or the performance of labor.4 The process of actually filing a lien is subject to strict deadlines as well: 2. For a residential project, liens must be filed with the County Clerk’s office no later than the 15th day of the third calendar month after the day on which the indebtedness accrues.

3. For all other projects, liens must be filed with the County Clerk’s office no later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues.5 A lien takes the form of an affidavit, by which the lienholder swears to certain facts; to ensure a lien is enforceable, the lienholder must: 4. Sign the lien, and ensure the lien contains: a. A sworn statement of the amount of the claim; b. The name and last known address of the owner or reputed owner; c. A general statement of the kind of work done and materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested; d. The name and last known address of the person by whom the claimant was employed or

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January/February 2018

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to whom the claimant furnished the materials or labor; e. The name and last known address of the original contractor; f. A description, legally sufficient for identification, of the property sought to be charged with the lien; g. gThe claimant’s name, mailing address, and, if different, physical address; and h. For a claimant other than an original contractor, a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.6 Once the lien is filed, the lienholder must take certain steps to ensure proper notice is provided: 5. A copy of the lien must be sent by registered or certified mail to the property’s owner or reputed owner at the owner’s last known address, not later than the fifth day after the date the affidavit is filed with the county clerk.

6. Additionally, if the lien was filed by a subcontractor, a copy of the affidavit must also be sent to the original contractor at the original contractor’s last known address.7 The process is different for projects on public lands, and it is advisable to engage the help of an experienced attorney to secure the debt in those cases, which will usually require chasing after a bond.

With the Debt Secured, the Lienholder Can Choose to Be Patient, or Not By filing a lien, the contractor, subcontractor, or provider of materials has now protected its ability to collect a debt.

This does not mean, however, that the debt must be pursued immediately. As Houstonians work to repair their lives and businesses, many professionals may choose to give their clients and customers additional time to satisfy their obligations.

This is commendable, and certainly en36

January/February 2018

couraged. However, in many instances, there will come a time when this is no longer an option.

If a lienholder wishes to file and (especially) foreclose on a lien, he or she should consider hiring an attorney.

Foreclosing on a lien requires a lawsuit, and business owners may find it is more practical, more efficient, and ultimately more economical to leave that task to experienced attorneys. However, if a lienholder chooses not to retain an attorney and instead chooses to pursue the matter himself or herself, there are important deadlines with which the lienholder must comply.

Unless the property is a residential property, a lienholder must file a lawsuit to foreclose on the lien by the latter of either: a. two years after the last day he or she could have filed the lien affidavit (see Nos. 3 and 4 above); or b. one year after completion, termination, or abandonment of the work under the original contract.8 If the lien is against a residential property, the contractor must sue to foreclose by the latter of either: a. one year after the last day the lien could have been filed; or b. within one year after completion, termination, or abandonment of the work under the original contract.

If a lienholder fails to abide by these deadlines, the lienholder may find himself or herself unable to foreclose on the lien. However, foreclosing on a lien is not the only remedy for an unpaid party. A lawsuit for breach of contract is an available option until the expiration of four years from the breach of the contract.9 The same is true for a suit on sworn account.10 Our region was changed by this devastating storm. But our laws and solid business practices have not changed.

The reconstruction efforts could represent some of the most profitable years

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for many local companies, or it may be a period of over-extending credit, cashheavy projects, delayed billings, and ultimate loss. To avoid the latter, proprietors and firms must stay organized and disciplined, and they should utilize the remedies available, such as the lien. It will then be for them to choose whether to be aggressive about the enforcement and collection, or be patient.

Daniel Goldberg, a trial lawyer focusing on commercial and property-related disputes, is the founder and a partner at The Goldberg Law Office, PLLC, which just celebrated its 10th anniversary.

David Berk, an associate with The Goldberg Law Office, is a civil litigator licensed in three states.

Endnotes

1. Tex. Const. art. XVI, § 37.

2. Cont’l Radio Co. v. Cont’l Bank & Tr. Co., 369 S.W.2d 359, 362 (Tex.Civ.App.—Houston 1963, writ ref’d n.r.e.).

3. Tex. Prop. Code § 53.021(a).

4. Tex. Prop. Code § 53.252.

5. Tex. Prop. Code § 53.052.

6. Tex. Prop. Code § 53.054.

7. Tex. Prop. Code § 53.055.

8. Tex. Prop. Code § 53.158.

9. Tex. Civ. Prac. & Rem. Code § 16.004 (a)(3).

10. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). gary

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HOUSTON LAWYERS WHO MADE A DIFFERENCE

World War I SERIES

Edwin Parker and Robert Lovett N

By The Hon. Mark Davidson ot everyone who makes a difference during wartime wears a uniform. In every war, the men and women who never leave the shores of our nation have made invaluable contributions to the effort. No better example of this maxim can be found than in the efforts of Edwin Parker during World War I. When President Woodrow Wilson sought and got a declaration of war against Germany in April of 1917, America was simply not ready to fight a war. We had one of the smallest armies per capita in the world. We had fewer soldiers than Portugal. Our military had not fought a significant war for 52 years, and many of the weapons our soldiers had dated from that time. In the fervor of patriotism that followed the declaration of war, thousands of young men enlisted. Many of them were welcomed, and then asked to return in a few months. The problem was that there were no uniforms, no weapons, and no army bases sufficient to clothe and arm the volunteers, and no place to put them.

President Wilson invited a group of distinguished Americans to come to Washington to organize an industrial response to war. Their compensation was to be one dollar a year. Roberts S. Lovett had been a partner of Baker, Botts, Baker & Lovett until he resigned to become General Counsel, and later president, of the Union Pacific Railroad Company. Edwin Parker left a

lucrative partnership at Baker, Botts, Parker & Garwood.

Both helped organize and serve on the War Industries Board.

The board’s assigned task was to increase industrial production, and to do so in areas that Edwin Parker would help the war effort. They were asked to prevent strikes at a time in which full mobilization of every factory in the nation was essential. The nation had few highways or even paved roads, and efficient transportation on the railroad system was a priority. Parker and Lovett, along with legendary businessman Bernard Baruch, worked tirelessly and accomplished their mission. Within a year of the declaration of war, the military was armed, clothed and fed better than either their allies or their enemies. Industrial production increased by 20 percent, and was reprioritized from making civilian goods to military essentials.

After the war, Parker continued his service.

He was the chair of the Liquidation Commission, who was given the task of selling the military hardware the nation thought it would never need again. He also served as umpire for the Mixed Claims Commission for the United States and

Germany in 1923, and was commissioner of the Tripartite Claims Commission for the United States, Austria, and Hungary in 1926. Recognizing that the world was tired of war, Parker also served on the Robert Lovett board of trustees of the Carnegie Endowment for International Peace.

Parker and Lovett were too old to be allowed to volunteer for military service, but their contributions to the war were the equal of anyone’s.

To the American soldiers who were properly supplied, they made a difference. To the speed of the Allied victory and the shortening of the war, the difference they made saved thousands of lives.

Photos: Robert Scott Lovett, Library of Congress, Public Domain; Edwin B. Parker, courtesy of Baker Botts L.L.P.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.

Harris County Bench Bar Pro Bono Awards

Did you, your firm or your corporate legal department perform outstanding pro bono work during 2017? If so, submit a nomination!

Large Firm Mid-Size Firm You may self-nominate or Small Firm nominate another firm or Corporate Legal Department individual.

Individual Nominations are reviewed and selected by a committee of Harris County judges and members of the bar, co-chaired by Harris County Administrative Judge Robert K. Schaffer and HBA President Alistair Dawson.

Award winners will be recognized at the 2018 Harris County Bench Bar Pro Bono Award Luncheon on April 30, 2018 at the 1910 Courthouse.

For nomination forms, visit www.hba.org.

Nominations due by 5:00 p.m. Friday, March 16, 2018.

Questions? Contact Kay Sim or Tara Shockley at (713) 759-1133. thehoustonlawyer.com

January/February 2018

37

COMMITTEE SPOTLIGHT

Law Week Fun Run Breaks Sponsorship Record

T

The Houston Lawyer

By Zach Wolfe

he Houston Bar Association proudly sponsored the 33rd John J. Eikenburg Law Week Fun Run on February 17. This annual event takes place at Sam Houston Park in downtown Houston. Runners, walkers, and wheelchair riders follow an 8-kilometer course (about five miles) up and down Allen Parkway, finishing with the famous after-race party at Sam Houston Park.

And it’s all for a good cause. The Fun Run raises money for The Center (thecenterhouston.org), a nonprofit dedicated to empowering Houston individuals with intellectual and developmental disabilities to live meaningful, dignified lives filled with opportunity. Through innovative programs and services in areas like employment training, community living, and day habilitation, The Center helps clients develop the skills and tools necessary to grow as individuals and participate fully in their community. It currently serves over 450 adults in the Houston area.

Since 1986, the Fun Run has raised over $1.3 million for the Center. And 2018 was a record-breaking year, with over $94,000 in sponsorships contributed by Houston area law firms, businesses, judges, and other members of the community.

In addition to raising money for this great cause, the Law Week Fun Run is a major event in Houston running circles.

Each year, the Fun Run attracts hundreds of runners from the Houston area and beyond, including three-person teams. The event includes the 8K chip-timed race, a children’s run, and a 38

January/February 2018

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one-mile family walk.

While it’s a “fun run,” runners with a competitive streak enjoy the prizes for 1st, 2nd, and 3rd place in 15 categories for men and women. The Fun Run also gives area law schools a chance to compete for bragging rights for the fastest all-law-student team. But the most coveted honor may be the “Traveling President’s Trophy,” awarded to the 1st place law firm team.

If competing for the fastest time is not your thing, don’t worry. The after-race party in the park offers food, drink, live music, and lots of great door prizes.

Of course, all of this takes a lot of planning and hard work. The event could not succeed without the active participation of volunteers on the Fun Run committee and the HBA staff. This year’s committee co-chairs are Kimberly Chojnacki, Cassandra McGarvey, and John Strohmeyer. The Fun Run also enjoys the support of community leaders like Constable Alan Rosen, whose office generously provides security and traffic control for the event.

There are just too many people to thank here, but visit the Fun Run Facebook page for more information: facebook.com/LawWeekFunRun. And if you couldn’t participate in this great race this year, don’t miss it next time.

Zach Wolfe is a trial lawyer with Fleckman & McGlynn, PLLC. His practice focuses on non-compete and trade secret litigation.

He often writes about trade secrets issues at his weekly blog www.fiveminutelaw.com.

A Profile

in pro f e s s i o n a l i s m

The Hon. Gregg Costa U.S. Court of Appeals for the Fifth Circuit

J

Be Grateful For Being a Lawyer

udges are often asked to swear in new members of the bar. Those occasions are one of the only times we show our appreciation for being members of this profession. More often we like to complain about being lawyers.

Those complaints are about how much we have to work, our pay, opposing counsel, clients, and even— believe it or not—judges. Some of us warn our children not to go to law school. To be sure, there are frustrations and annoyances in the practice of law.

What important work doesn’t involve challenges?

But no lawyer I know works harder than the people I see building houses from sun up to sun down, six days a week, in the sweltering Houston heat. What those people would give to go to work each day, even with the late nights, in air-conditioned office build-

ings and courtrooms. And how many in any line of work have the privilege we enjoy of getting to do intellectually challenging work that helps people solve their problems, all the while making a good living that provides a comfortable life for our families?

There are a number of ways to express the gratitude we should feel for being lawyers. Practice law with enthusiasm. Mentor younger lawyers. Set a standard of excellence that asks not “is this good enough” but rather “is this the very best I can do for my client.”

Be civil and honest in dealing with opposing counsel and the courts. Commit to pro bono work and being leaders in bar, civic, and charitable organizations.

And, of course, stop the whining and remember how fortunate we felt when we first swore the oath to become part of this honorable profession.

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39

LEGAL TRENDS

Texas Supreme Court Narrows the Potential Recovery for Injured Employees

I

The Houston Lawyer

By Preston Hutson

n the 26 years since its release, Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) has been the standard by which premises liability claims are adjudicated. Presumably, most lawyers should be capable of reciting its basic principles—persons injured while upon another’s property have two potential claims against the property’s owner.

When the individual’s injury resulted from contemporaneous, negligent activity on the property, negligence principles apply. Alternatively, when the injury arose out of a condition upon that property rather than an activity, premisesliability principles apply.

In the intervening years since Keetch, Texas Courts have repeatedly admonished practitioners that negligent activity and premises-liability claims are independent theories of recovery requiring plaintiffs to prove different elements to prevail. As the authors of the Texas Pattern Jury Charges caution, “Because the elements of these two premises liability theories are different, it is important to submit the questions, instructions, and definitions that are applicable to the particular theory.”

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January/February 2018

But Keetch applies only to claims Supreme Court agreed, ruling that the against the property owner. Indeed, it only claim Levine could advance against has long been the standard that injured United Scaffolding sounded in premises plaintiffs may recover against others for liability. their independent negligence in creating Next, the Court assessed whether Unitthe resulting hazard.1 A June 30, 2017 ed Scaffolding reserved a right of control opinion of the Texas Supreme Court over the scaffold, even after tendering it raises considerable doubt as to whether to Valero. After reviewing the relevant this remains true, at least in those limcontractual provisions, the Court ruled ited circumstances in which the injured and, as a result, United Scaffold owed person is an employee working on anLevine no duty. The Court then reversed other’s property. and rendered judgment against Levine.

United Scaffolding, Inc. The original plaintiff v. Levine, No. 15-0921, Alternatively, filed a Motion for Re2017 W.L. 2839842, hearing with the Texas when the injury (Tex. 2017) involved a Supreme Court, in AuValero employee injured gust 2017 but the petition arose out of a when he fell through a was denied on January scaffold built by United 26, 2018. condition upon Scaffolding, a Valero One need not be an that property subcontractor. The scaferudite legal scholar to fold had been finished a grasp the implications rather than week earlier at the Valero of the Levine opinion. refinery and United ScafIn practicality, Levine’s an activity, folding then tendered its only legal recourse lay in possession and control premisespremises-liability against back to Valero. Levine the property owner, i.e. liability sued United Scaffolding, his employer. Because claiming that the compaUnited Scaffolding had principles ny’s negligence in buildnot been present—and ing the scaffold caused apply. therefore could not be his injuries. Consistent found to have committed with Levine’s pleadings, the trial court negligence contemporaneous to Levine’s submitted the case under a general neginjuries—Levine had no negligence ligence question, whereupon the jury claim against the scaffolding contractor. found the scaffolding company negligent A word of caution; nothing within and 100% responsible for Levine’s injuthe opinion indicates that the Supreme ries.

Court intended its reasoning to apply beOn appeal, United Scaffolding argued yond the employee context. For the mothat the trial court had improperly subment, one presumes that the Court only mitted the case under a general-negliintended Levine to apply within this limgence theory rather than a premisesited context. liability theory—the argument being that one’s duty under a premises-liability Preston Hutson is of counsel with the law theory runs with possession of the propfirm of MehaffyWeber and is an associate erty. Thus, because United Scaffolding editor for The Houston Lawyer. had released possession of the scaffold, it no longer owed Levine any duty of care Endnotes 1. See Pattern Jury Charge 65.2. under traditional negligence theory. The

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”

Media Reviews

Business and Commercial Litigation in Federal Courts, Fourth Edition

By Robert L. Haig, Editor in Chief Thomson Reuters 2016

A

Reviewed by Jill Yaziji*

nyone who’s had the benefit and pleasure of owning past editions of Robert L. Haig’s Business and Commercial Litigation in Federal Courts would greatly appreciate the additions made in the Fourth Edition. The Third Edition of this work, published in 2011 and reviewed in the pages of this journal,* was already a significant undertaking. It had 11 volumes, 12,742 pages, with remarkably detailed analysis across the different areas of business law. The Fourth Edition, published in late 2016, is 14 volumes and contains 17,142 pages of text. The Fourth Edition has a separate appendix with an index and tables of all laws, rules and cases discussed in it. Editor-in-Chief Haig adds 25 new chapters in the Fourth Edition. He also expands the chapters of the Third Edition with recent material.

The new chapters reflect litigation areas whose “importance has dramatically increased in recent years.” Some of these areas are: “Fiduciary Duty Litigation,” “Advertising,” “Civil Rights,” “Effective Trial Performance,” “Teaching Litigation

Skills,” and “Fashion and Retail.” Other chapters navigate the new terrain of online litigation and social media, such as “Media and Publishing,” “Social Media,” and “Marketing to Potential Business Clients,” among others.

Like its predecessor, the Fourth Edition reflects the tremendous trial and litigation experience of the 296 practitioners (including 27 federal judges) who contributed to the oeuvre’s 153 chapters.

This Edition discusses the interconnections between procedure and substantive law, and lays out the dos and don’ts of legal battles. The Fourth Edition, however, does more than discuss business legal tactics: It has entire sections dedicated to discussing how to build the strategy and vision of a successful business lawyer, and how to advocate, market, and benefit from social media. One of the new chapters, for instance, is entitled “Teaching Litigation Skills.” This conceptual chapter spurs thoughts and considerations in the mind of the litigator. The theme here is that effective litigation can and must be taught, by learning the canons of advocacy, from invention and arrangement of argument, to style, delivery, and memory.

The chapter describes how these skills can be learned, starting with fact retrieval, analysis, framing, storytelling, and empathy. Even for a reader well familiar with the art of storytelling, the insights in this seemingly simple chapter are quite remarkable.

Another new chapter is “Media and Publishing.” This chapter discusses the litigation world opened up by the Internet: jurisdictional issues in online publishing cases; claims against new media outlets who track user information, biometric data, and other profile information; copyright; and the infringement of privacy. It also discusses the circuit split on the states’ anti-SLAPP litigation and the advantages and disadvantages of using the statutes’ special motion to dismiss in federal court.

The new chapter on “Social Media” discusses the evidentiary importance of social media and ways to get social media content in discovery. Nuanced legal analysis abounds in this chapter, as in many others. For example, Fed. R. Civ. P. 26(a) requires litigants to disclose, sua sponte, “all documents[] [and] electronically stored information” in the possession of the disclosing party. The chapter explains that the Rule “does not obligate the litigant to turn over evidence that might undercut its case.” A discussion of recent case law considering discovery requests regarding social media helps the litigant determine the kind of social media requests likely to be held relevant by the courts, and hopefully avoid drafting overbroad requests. The chapter discusses subpoenas on social media sites, such as Facebook and MySpace, and how to avoid being quashed by the privacy requirements imposed by the Stored Communications Act. The Fourth Edition is a complete law practice treatise. It offers insight to practitioners before litigation begins in order to minimize exposure and damages in case of litigation. It is an impressive compilation of legal knowledge, an idea book, filled with tactical considerations beyond the substantive scope of any one area. In many cases, the insights gained can be easily transferred to state courts, making this compilation equally compelling for the non-federal litigator.

Business and Commercial Litigation in Federal Court, Fourth Edition is a valuable tool to any litigator and any attorney interested in building an impressive repertoire of business litigation knowledge.

Jill Yaziji is the Principal of Yaziji Law Firm, a civil litigation firm, and past Editor-in-Chief of The Houston Lawyer. *See, Jill Yaziji, “Business and Commercial Litigation in Federal Courts, Third Edition,” The Houston Lawyer, January-February 2013.

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Media Reviews

The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself

By Stephen Martin Kohn Globe Pequot Press 2017

P The Houston Lawyer

Reviewed by David T. Lopez

resently available online for about $5, The New Whistleblower’s Handbook by Stephen Martin Kohn is an irresistible bargain for any lawyer who might encounter a claim arising from exposure of unlawful conduct. At more than 500 pages, it is up-to-date, comprehensive and practical, loaded with advice from a nationally recognized lawyer in the field.

There are dozens of state and federal laws that protect employees or reward individuals who reveal fraud, inherently dangerous conduct or governmental misbehavior, each with particular characteristics, enforcement mechanisms and time limitations. After a general introduction,

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the book presents more than 30 “rules” that address the most significant statutes and provides guidance on how to disclose the information, sue, conduct discovery and present claims for reward or damages and attorney’s fees.

Primarily directed at the claimant’s side, the information also would have value to defense lawyers and in-house counsel.

There are also useful checklists for various types of claims, a chart listing common law provisions by states, and another chart showing significant cases and the recovery achieved.

There is even an interesting historical note. Just six months after the signing of the Declaration of Independence, ten revolutionary sailors submitted a petition to the Continental Congress, supported by individually signed affidavits complaining of the Chief of the Continental Navy, his incompetence and bad character. The petition instigated an investigation that resulted in action by the Congress to remove the officer from his command and to discharge him from the Navy. The officer retaliated by getting the sailors punished through a court martial and suing for damages.

In the end, the sailors prevailed through legal representation funded by the Congress.

The story was rediscovered when recounted in the first edition of the book, leading the U.S. Congress to proclaim July 30 as National Whistleblower Appreciation Day, recognizing that whistleblowers “risk their careers, job and reputations by reporting waste, fraud and abuse to the proper authorities.”

Kohn notes that the First Congress recognized the value of whistleblowers to fostering a democratic society, enact-

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ing 18 qui tam laws to provide monetary rewards for disclosing violations of law, bribery, conflicts of interest and other governmental misconduct. Whistleblowing has also been recognized by justices of the U.S. Supreme Court as essential to the creation and continuing application of the First Amendment. As Justice Brandeis is quoted as stating, “The dominant purpose of the First Amendment was to prohibit the widespread practice of government suppression of embarrassing information.”

That resonates as very timely today.

David T. Lopez is a board member of The Houston Lawyer and concentrates his practice in domestic and international arbitration and mediation.

The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption

By Brian Cuban Post Hill Press 2017

O

Reviewed by Raymond L. Panneton

scar Levant is credited with saying there is a fine line between genius and insanity.

In the legal profession, some would say there exists a fine line between genius and addiction.

Media Reviews

No matter what area of law one practices, pressure and stressors exist. Whether the pressure comes from the job or internally, it is ever-present. As a result, instead of identifying and treating the underlying cause of the stressors, many in the profession turn to drugs or alcohol to cope with the stress.

In his book The Addicted Lawyer, Brian Cuban takes the reader down his road of addiction and recovery. Part cautionary tale, part biography, Cuban provides the reader with a blunt and honest appraisement of his journey into addiction, his triggers, and how his journey to rock bottom, which he hit multiple times, bounced him into recovery.

As Cuban points out many times in his book, addiction and recovery looks different for everyone. To capture this, Cuban includes anecdotes and stories of others who struggled with addiction and how they finally clawed their way out of the darkness of addiction to find a successful career.

The Addicted Lawyer should be required reading for every law student (and even every lawyer). Cuban’s approach to a difficult, and often overlooked, aspect of the practice of law, sheds the stigma and educates the reader about the reality of addiction—not the dramatized Hollywood version. As a result, after reading Cuban’s book, the reader, while not a trained professional, is better informed to spot and potentially curb addictive behavior in not only others, but also themselves.

A Special Day at the Courthouse

M

ore than 260 students enjoyed “A Special Day at the Courthouse” on February 9 at the historic Harris County 1910 Courthouse. The program, part of the Houston Bar Association’s Law Day programming, provides a unique civics education learning experience designed to give high school students with intellectual disabilities a basic understanding of what lawyers and judges do.

Members of the bar and the judiciary introduced students to the legal system, including guardianship and what students can expect if they go to court for a guardianship proceeding. The Hon. Kem Thompson Frost, Chief Justice of the Fourteenth Court of Appeals, each year organizes and leads the program with volunteer assistance from the HBA Law Week Committee, co-chaired in 2018 by Luke Gilman, Jason Muriby and Bryon Rice.

Thank you to the volunteers who made helped bring the law to life for students and their teachers.

Front row, from left: Marie Jamison, Justice Jane Bland, Molly Wurzer, Christine Harvat Ng, Michelle Fraga, Jillian Beck, Karen Lukin and Justice Kem Frost. Back row, from left: David Furlow, Jason Muriby, Joshua Smith, Greg Moore, Austin Priddy, and Alistair Dawson, HBA president.

Raymond L. Panneton is a board member of The Houston Lawyer and practices business litigation with Hendershot, Cannon, Martin & Hisey, PC. He can be reached at ray@hcmhlaw.com.

Need help or information? Contact the Texas Lawyers’ Assistance Program at tlaphelps.org or 1-800-343-8527 (TLAP)

Justice Kem Frost organizes the annual event, which draws students and educators from throughout the Houston area.

Students with intellectual disabilities from 12 Houston-area high schools learned about the legal system.

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January/February 2018

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