Disability Discrimination Claims Dismissed Retaliation Claims Survive Summary Judgment
In Paxton v. Fluor Enterprises, Inc., No. 15-cv-3737, 2017 WL 875856 , the court granted defendants motion for summary judgment on plaintiffs Americans with Disabilities Act and New York State Human Rights Law claims, as her medical condition birth with a cleft lip and palate was not a disability within the meaning of those statutes.
It denied defendants motion for summary judgment on plaintiffs ADA and NYSHRL claims, however, since her discharge occurred merely three weeks of her protected activity.
The ADA defines disability to mean a physical or mental impairment that substantially limits one or more major life activities of such individual. Plaintiff identified three major life activities that she contends are substantially limited by her cleft lip and palate: speaking, eating, and breathing.
Addressing speaking and eating, the court explained:
As to breathing, plaintiff argued that her cleft lip and palate render her more susceptible to respiratory infections and that, as a result, she must avoid cold, drafty, or dusty environments. While there was evidence that plaintiff at times suffered from sinusitis and rhinitis, the evidence did not support an inference that these infections were caused by her cleft lip and palate.
Furthermore:
Plaintiff conceded that her cleft lip and palate do not prevent the exercise of any normal bodily function.
Retaliation
Plaintiff met this standard:
Who Is Responsible For Repairing A Cleft Palate
A specially trained cleft surgeon typically should repair a cleft palate. This may be a surgeon who is also trained as a plastic surgeon or pediatric otolaryngologist or other training prior to cleft and craniofacial training, including maxillofacial surgeons. More important than surgical specialty is the training and expertise and experience of the surgeon.
How Can The Clinical Psychologist With The Cleft Team Help
The Clinical Psychologist with the Cleft Team can use playing and talking therapies to help children feel better, behave differently, or think in a more helpful way. They are not psychiatrists and do not prescribe medication, they are cleft specialists who understand the specific support needs of people with a cleft and their families.
Treatment will vary from child to child.
First, there will be an assessment where you and your child will be invited to meet the Clinical Psychologist so you can all get to know each other and explore any issues in a safe environment. This may involve questionnaires, and the Psychologist may need to contact your childs school.
Next, the Clinical Psychologist puts all this information together to try and understand what is causing these issues.
Finally, the Clinical Psychologist decides what kind of therapy is likely to work best in this situation.
This can involve working with the child to help them feel better about themselves, coming up with strategies to deal with unwanted questions or to manage teasing or bullying, or even putting children in touch with each other so they can talk to someone else in a similar situation. The psychologist may also work with the family to help them understand how to best support their child.
Recommended Reading: Va Form 20-10207
The Day We Learned Our Son Had A Cleft Lip
One child in 700 in the UK is born with a cleft. As his son turns four, one father tells of his familys agony over conflicting medical advice, and travels to Kerala in India to see how a charity is changing the fortunes of thousands of children
In May 2011, my wife and I discovered that our first child had a cleft lip and palate. The diagnosis took place in the 22nd week of pregnancy. Unsurprisingly, the news came as a considerable shock, made worse by the fact that, just a few months earlier, wed been forced to terminate another pregnancy at 18 weeks after the foetus was discovered to have a rare and fatal disorder that meant crucial internal organs would never develop. This new diagnosis which turned out to be unrelated to what had gone wrong previously caught us wholly unawares. In common with most people, we knew little about clefts. Despite being the most common birth defect, with an incidence of roughly 1 in 700 in the UK, clefts are, particularly in developed countries, seldom discussed and largely invisible. Before hearing the sonographers verdict that day, Id never knowingly met or even seen anyone who had one. I vaguely knew that hare lips were associated with inbreeding and, by extension, were common in remote rural communities and Id read JM Coetzees Life & Times of Michael K, whose protagonist has a cleft. But that was about the extent of my knowledge.
Incomplete Or Missing Arms Or Legs
Sometimes medicines a mother takes early in pregnancy cause a child to be born with missing or incomplete arms or legs, or both.
A child born without arms but with normal legs and feet can often learn to use his feet almost as if they were hands: for eating, writing, drawing, playing games, and doing many kinds of work.
It is important to encourage the child to use her feet, or whatever part of her body possible, to do everything she can for herself.
The child who is born with incomplete arms and legs can be helped a lot by artificial arms with hooks for grasping .
We do not give instructions for making these arms in this book, as they are fairly complicated. However, try every possibility to get artificial arms for the child. They can make a very big difference in her life. If possible, the child should get her first limbs by age 3.
For ideas about aids and artificial limbs for children born with missing or defective hands and feet, see Chapter 27, “Amputations,” and Chapter 67, “Artificial Legs.”
This little girl was born with ‘rubber band-like’ constrictions in her hand and leg, and with parts of her fingers and foot missing. The deformities happened because her mother had German measles when pregnant.
Also Check: How To Calculate Disability Retirement Pay
How Can I Help Prevent Birth Defects In My Child
Researchers are trying to find ways to prevent many birth defects. Not all birth defects can be prevented. There are only a few ways currently known to help prevent certain defects. Taking steps to be healthy before and during pregnancy is important. Getting vaccinated against certain infections such as rubella can prevent birth defects caused by that infection. Not drinking during pregnancy can prevent birth defects caused by alcohol. Taking a prenatal vitamin that includes folic acid can help prevent neural tube defects such as spina bifida.
What Does A Cleft Lip And Palate Look Like
Babies can be born with a cleft lip, a cleft palate, or both.
A cleft lip may just affect one side of the lip or there may be 2 clefts.
It can range from a small notch to a wide gap that reaches the nose.
A cleft palate may just be an opening at the back of the mouth, or it may be a split in the palate that runs all the way to the front of the mouth.
Sometimes it can be hidden by the lining of the roof of the mouth.
The Cleft Lip and Palate Association has a with pictures of cleft lips and palates before and after surgery.
Don’t Miss: How Much Does Disability Pay In California
Cleft Lip And Cleft Palate Scheme
Medicare benefits to help with treatment costs for cleft lip and cleft palate conditions.
To get this you must be:
- enrolled in Medicare
- under 28
- diagnosed by a doctor with a cleft lip, cleft palate or other eligible condition and you started treatment before you turned 22.
Read the full conditions under who can get it.
You can ask your health professional if your condition is eligible under the scheme.
Ii Terms And Definitions
A. Cognition involves the ability to learn, understand and solve problems through intuition, perception, auditory and visual sequencing, verbal and nonverbal reasoning, and the application of acquired knowledge. It also involves the ability to retain and recall information, images, events, and procedures during the process of thinking. There are many impairments that can cause limitations in cognition, such as genetic disorders or brain injury.
B. Speech is the production of sounds in a smooth and rhythmic fashion for the purposes of oral communication. It includes articulation, voice , and fluency . Understandable speech results from precise neuromuscular functioning of the speech mechanism , and intact structure and functioning of the speech centers in the brain.
There are many impairments that can cause limitations in speech, such as brain lesions or cortical injury resulting in apraxia other neurological abnormalities, such as cerebral palsy producing dysarthria or structural abnormalities, such as cleft palate producing hypernasality.
Speech differs from language . Speech is the production of sounds for purposes of oral communication language provides the message of the communication, and involves the use of semantics , syntax , and pragmatics in the understanding and expression of messages.
Don’t Miss: Is A Food Allergy Considered A Disability
What Can Be Done For The Child’s Speech From The Beginning Of Infancy Until School
Most importantly early on is to treat the child as you would any other child, meaning talk to the child, expose the child to lots of good language. That is necessary for all of us to learn speech normally. Then, by the time your child is a year old, he or she will begin to produce their first words, and an evaluation by a speech pathologist is indicated. In fact, it is a good idea to see a speech pathologist earlier than that, such as during the months when the child is beginning to babble. Once that begins to happen, we can get an idea about whether the cleft is affecting the child’s speech. It is important to note that only between 20 and 30 percent of children born with clefts of the palate have speech problems requiring secondary surgery after the palate is repaired. The remaining 70 to 80 percent develop speech normally.
How Many Surgeries Is Average To Correct The Palate And Make It Not
That varies from patient to patient. At the minimum, one surgery is needed to repair the lip and a separate surgery is needed to repair the palate. However, several surgeries are needed to make the lip appear as normal as possible. And sometimes additional surgeries involving the palate are needed to improve speech.
Recommended Reading: How To Calculate Disability Retirement Pay
If You Have Questions Or Concerns Share Them
Ask for a meeting with the school and write down your questions beforehand.
Your questions might include:
- How will the school make sure that the cover staff, kitchen staff and break time staff are aware of any additional needs?
- How will the school work with external agencies such as Speech and Language Therapists?
- Who is responsible for making sure your childs support plan is carried out?
- How will the school approach studying potentially sensitive subjects, such as teeth?
- How can my child access work or catch up with the class when they take time off for operations?
Diagnosing Cleft Lip And Palate
A cleft lip is usually picked up during the mid-pregnancy anomaly scan done when you’re between 18 and 21 weeks pregnant. Not all cleft lips will be obvious on this scan and it’s very difficult to detect a cleft palate on an ultrasound scan.
If a cleft lip or palate does not show up on the scan, it’s usually diagnosed immediately after birth or during the newborn physical examination done within 72 hours of birth.
When a cleft lip or palate is diagnosed, you’ll be referred to a specialist NHS cleft team who will explain your child’s condition, discuss the treatments they need and answer any questions you have.
You may also find it useful to contact a support group, such as the Cleft Lip and Palate Association, who can offer advice and put you in touch with parents in a similar situation.
Recommended Reading: Agr Retirement Pay Calculator
K Kids Are Born With Cleft Lip Palate A Year In India
We all know that physical attractiveness is highly considered in todays society even if the concept of beauty has changed radically from what it was before. And about smile, the expression one wears on one’s face is far more important than the clothes one wears.
Usually, when a baby is about to born, the family members get elated to welcome the new member and they start guessing who she or he will look like. They wait anxiously to have a first look at the child. But in that case when the child is born with cleft, the enthusiasm instantly gets dripped. In fact, most of us are not ready enough to accept a child with cleft as same to a normal child may be attributed to our lack of understanding on cleft.
However, cleft lip and palate malformations have a global occurrence of up to 1 in 500 live births worldwide and in India, an estimated one in every 800 children in are born with cleft lip or palate. Various research studies and data reveal that about 35,000 children in India are born with a cleft lip and palate every year and sadly one out of ten of these children hardly get to see their first birthday. As a fall out of our ignorance on cleft, people face myriad of problems in their life such as social ostracization, prejudice and many more.
What is cleft lip and palateIJ
Myth versus reality on cleft
Stigma and social effects of cleft
Can they get a second chance at life after surgeryIJ
Policies covering cleft care in India
Can You Qualify For Ssdi Due To Birth Defects
Brandon and Alyssas new baby was born with a congenital heart condition. They worried about their childs health and future. However, they also were concerned about the expensive medical treatments and whether they could both continue working. They considered government benefits like SSDI and SSI but did not know if you could qualify for SSDI due to birth defects. Lets look at government disability benefits as applied to birth defects.
Also Check: How To Calculate Disability Retirement Pay
Why Do Clefts Cause Speech Problems
Children with clefts should be thought of as, with few exceptions, normal children who happen to have been born with a birth defect. Cleft palate is among the most treatable birth defects in this country. Families of children with clefts should be encouraged to learn as much as they can about clefts and then to teach those friends and family members that surround them about what they learned. This is that no one carries misconceptions about what a cleft palate is and what it means for the child. The best way for the family to acquire accurate information is to work closely with a multidisciplinary cleft palate team. You can identify a cleft palate team located near you by contacting the Cleft Palate Foundation, Cleft Line, 1-800-24cleft.
Michael Karnell, PhD
I Need To Establish A Medically Determinable Impairment
Section 1614 of the Act and 20 CFR 416.906 provide that a child’s disability must result from a medically determinable physical or mental impairment. Section 1614 of the Act and 20 CFR 416.908 further provide that the physical or mental impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings.
The discussions in this Ruling address the evaluation of the severity of impairments affecting speech and cognition. They presume that the existence of such medically determinable impairments has already been established.
Read Also: Is A Food Allergy Considered A Disability
Is There Currently Any Research Being Done Regarding Cleft Palates
Yes. There is research being done of many kinds. There is research that has to do with wound healing, genetic causes, and environmental causes of clefts, and research that has to do with the optimal means of treatment for cleft palates. The National Institutes of Health provide funds for a wide range of research projects in the area of clefts.
When Your Baby Has A Birth Defect
If your child has a birth defect, you might be feeling overwhelmed and unprepared. But you’re not alone about 120,000 babies are born in the United States each year with birth defects, according to the Centers for Disease Control and Prevention .
It’s important to know that many people and resources are available to help you and your child.
You May Like: How Much Does Disability Pay In California
Cleft Lip Abortion Done ‘in Good Faith’
Doctors and health officials will consider whether more guidance on abortions is needed following the decision of the Crown Prosecution Service not to prosecute two doctors who authorised a late abortion on a foetus with a cleft lip and palate.
Jim England, the chief crown prosecutor for West Mercia, said the doctors believed, in good faith, that there was a substantial risk the child would be seriously handicapped. “In these circumstances, I decided that there was insufficient evidence for a realistic prospect of conviction and that there should be no charges against either of the doctors,” he said.
The inquiry began after a legal challenge over a previous decision by police not to charge the doctors involved in the abortion carried out, in 2001, on an unnamed woman from Herefordshire who was more than 24 weeks pregnant.
Joanna Jepson, 28, now at St Michael’s Church, Chester, but then a trainee vicar, found out about the procedure in 2002 when studying abortion statistics and suggested that it amounted to unlawful killing.
Yesterday Ms Jepson said: “While I’m disappointed about the CPS’s decision to drop the case, I am pleased the case has raised the issue of late-term abortion and the plight of disabled babies in late-term pregnancy. It has exposed grave discrimination and I will be seeking legal advice.”
She added: “Rather than leap into court or the papers, we need to take stock of the circumstance in which women and doctors make decisions around abortion.”