Sonja Kerr Hollingsworth & Zivitz, P.C. Austin, Texas An ADA Claim- Direct Claim? Associational Claim? Reasonable Modification Sonja Kerr Hollingsworth & Zivitz, P.C. Austin, Texas

Direct Discrimination Claim K.M. v. Tustin (communication) (9th Cir. 2013) (ADA separate claim from IDEA for deaf/hard of hearing) R.E.B. v. State of Hawaii, 886 F.3d 1288 (9th Cir. 4/18) (Withdrawn and rehearing); 870 F.3d 1025 (9th 2017) (ABA as superior method for teaching children with autism not in IEP and transition from private ABA center was denial of FAPE)

Modification or Accommodation Claim K.M. v. Tehachapi USD (E.D. CA 5/7/18). ABA provider paid for by insurance; access to school; ADA claim allowed to proceed. Anderson v. Franklin Institute, 185 F. Supp. 3d 623 (E.D. Pa 2016): Plaintiff had a personal care attendant and wanted to go to the Franklin Institute. The Franklin Institute said that the PCA had to pay full admission. Being deterred from visiting the Institute (because of the PCA ticket cost) is a harm; a barrier to accessing the Institute.

Anderson v. Franklin, continued Under the ADA, a nanny is to a PCA what a pet is to a service animal. Both may be accompanying a person in a public place, but the PCA and the service animal are present to enable the person with a disability to enjoy equal access to the program or service and are protected under the law. Even where pets are prohibited, the ADA requires public accommodations to admit service animals. The nanny and the pet are not protected under the law. A service animal, however, receives specialized treatment—the same specialized treatment Plaintiffs' request for PCAs who provide comparable assistance to their clients.

What is an ADA Associational Claim? Both the ADA and Section 504 prohibit discrimination on the basis of the disabilities of persons “associated” with a person who has a disability. ADA: 42 U.S.C. §§ 3604(f)(1)(C), 3604(f)(2)(C), and 12182(b)(2)(E).

Aids Healthcare Foundation v. Belshe (CD Cal 1998) The plain language of the federal regulations implementing the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12132, suggests that Congress intended associational standing under the ADA. 28 C.F.R. § 35.130(g) (1997), provides that a public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

ADA provides that it is: “discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, or accommodations, or other opportunities to an individual or entity because of the known disability” of someone with whom the individual has a “relationship or association.” 42 U.S.C. § 12182(b)(2)(E); Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47-48 (2d Cir. 1997) (drug and alcohol rehabilitation center discriminated against because of its association with its clients); Kotev v. First Colony Life Ins. Co., 927 F. Supp. 1316, 1320 (C.D. Cal. 1996) (insurance company excluded an individual from coverage based on his association with an individual who is HIV-positive).

ADAA (Title II): 42 U.S.C. 12112 (4)excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

“ANY PERSON” Language of Title II. Title II of the ADA provides: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Title II provides a remedy to "any person alleging discrimination on the basis of disability in violation of section 12132." 42 U.S.C. § 12133

K.M. v. Tehachapi (E.D. Cal 2018) Child with autism. Insurer paying for BCBA provider. Public school refuses access to the insurer. Court concludes this is like a modification of a policy for a service dog.

28 C.F.R. 35.130(g) The implementing regulations for title II of the ADA, 28 C.F.R. § 35.130(g), specifically state that a public entity cannot exclude or otherwise deny equal services, program, activity to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association with. Therefore, association claims are clearly permitted under title II of the ADA.

The Grandfather example Cortez v. City of Porterville, 5 F. Supp. 3d 1160, 2014 WL 1101228 (E.D. Cal.). Grandfather sued city because he had to carry granddaughter who used wheelchair.

BCBAs, PCAs, WONDER dog A service animal, however, receives specialized treatment—the same specialized treatment Plaintiffs' request for PCAs who provide comparable assistance to their clients.