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Rohr v. Crime Victims Compensation Commission

United States District Court, D. Hawaii

November 23, 2016

CLAUDIA ROHR, Plaintiff,

          Leslie E. Kobayashi United States District Judge


         On July 6, 2016, Defendant Crime Victim Compensation Commission of the State of Hawaii (“Defendant” or “the Commission”) filed its Motion to Dismiss Amended Complaint Filed on June 6, 2016 (“Motion”). [Dkt. no. 17.] Pro se Plaintiff Claudia Rohr (“Plaintiff”) filed her memorandum in opposition to the Motion on September 12, 2016, and Defendant filed its reply on September 19, 2016. [Dkt. nos. 24, 25.] On September 27, 2016, this Court issued an entering order finding this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). [Dkt. no. 26.] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendant's Motion is HEREBY DENIED for the reasons set forth below.


         Plaintiff filed this action on April 5, 2016. She filed her Amended Complaint on June 6, 2016, and an errata to the Amended Complaint on August 10, 2016. [Dkt. nos. 14, 21.] Plaintiff states that she is bringing this action as the “sole beneficiary and legal representative of Scott Andrews' estate.” [Amended Complaint at ¶ 1.] Plaintiff is Andrews's widow. [Id. at ¶ 9.] Plaintiff brings this action pursuant to: Title II, Part A of the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Amendments Act of 2008 (“ADAAA”), 42 U.S.C. §§ 12131-34; and its implementing regulations, 28 C.F.R. Part 35. [Id. at ¶ 1.]

         According to the Amended Complaint, the Commission “was created by the Hawai`i Legislature to alleviate the physical, mental and financial hardships suffered by victims of violent crime. The Commission provides compensation to victims of violent crimes for their crime-related injuries and losses.” [Id. at ¶ 10 (internal quotation marks omitted).] Plaintiff alleges that the Commission is a “public entity, ” as defined in 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104, and therefore it is subject to Title II of the ADA, and its implementing regulations. [Id. at ¶ 11.]

         Plaintiff alleges that Andrews was seriously injured when he was the victim of criminal assaults on January 28, 2007, April 21, 2008, and December 12, 2008. He suffered a concussion on January 27, 2007; a concussion, tachycardia, and “a hypertensive episode” on April 21, 2008; and a “first degree heart block” that “was documented [on] December 12, 2008.” [Id. at ¶ 14.] According to the Amended Complaint, Andrews “suffered psychological trauma from being a victim of crime with posttraumatic stress (PTSD) issues.” [Id. at ¶ 15.] In addition, he had a preexisting condition - “reoccurring major depression or bipolar disorder and anxiety.” [Id. at ¶ 13.] As a result of this combination of impairments,

Andrews experienced extreme emotional distress, hypervigilance, nightmares, trouble sleeping, loss of concentration, and he had to endure intense anxiety when he left his house for any reason, as compared to most people in the general population - mental impairments which substantially limited the major life activities of sleeping, concentrating, thinking, working and interacting with others.
16. April 21, 2008 Andrews developed reoccurring, episodic physical impairments - hypertension, vertigo, and breathing problems that substantially limited the major life activities of breathing, walking, taking care of the house, working, concentrating, and driving a car, among others, as compared to most people in the general population. Andrews had a series of falls and injuries often hitting his head and receiving gashes to his legs. Andrews' mental/emotional impairments interacted with his physical impairments synergistically.

[Id. at ¶¶ 15-16.] Plaintiff alleges that, at all relevant times, Andrews was an “individual with disabilities” under ADA Title II and its implementing regulations. [Id. at ¶ 19.]

         Plaintiff asserts that “Andrews met all the formal legal eligibility requirements to qualify for participation in the [Commission]'s program, with reasonable accommodations.” [Id. at ¶ 21 (citing 42 U.S.C. § 12131(2)).] On December 7, 2009, Andrews submitted an application for victim compensation for the April 21, 2008 assault (“Case No. 09-0857”), and another application for the December 12, 2008 assault (“Case No. 09-0858”). According to Plaintiff, both applications were complete, but only the application for Case No. 09-0858 was timely. She asserts that the application for Case No. 09-0857 was “untimely due to PTSD, ” because his “ability to think and communicate about the assault incidents and the steps needed to apply for crime victim compensation was substantially limited by posttraumatic stress issues, reoccurring major depression and anxiety.” [Id. at ¶¶ 21-22.] Both applications noted that Andrews “was disabled by posttraumatic stress.” [Id. at ¶ 22.] Andrews submitted letters, dated February 15, 2010 and March 22, 2010, from his treating psychiatrist, explaining his condition and that he was unable to apply earlier. [Id. at ¶ 23.]

         I. Case No. 09-0857

         A Commission investigator screened Andrews's application to determine if he qualified to participate in the program. [Id. at ¶¶ 25, 28.] Plaintiff alleges that the qualifying criteria the investigator used “tended to screen out applicants with posttraumatic stress issues from crime victimization that would substantially limit the applicant's ability to think about and communicate about the traumatic incident and take the steps needed to fill out an application and file within 18 months from the traumatic incident.” [Id. at ¶ 28.] Plaintiff argues that the Commission's rules, policies, practices, and procedures regarding an applicant's proof of disability “subjected Andrews to greater scrutiny than others, public stigmatization, and loss of psychiatric information privacy rights, thereby subjecting Andrews to discrimination on the basis of disability in violation of the ADAAA.” [Id. (citing 28 C.F.R. § 35.130(b)(3), (7), (8)).]

         The Commission has a good cause exception for the application deadline, which applies if the applicant could not file the application within the eighteen-month period “‘due to a mental, physical, or legal impairment.'” [Id. at ¶ 29 (quoting Haw. Admin. R. § 23-605-2).] Plaintiff argues that this standard does not provide the protections for disabled persons that the ADA and Section 504 of the Rehabilitation Act (“Section 504”) require. [Id.] The psychologist who evaluated Andrews's materials for the Commission opined that there was not enough information to determine whether Andrews's preexisting mental impairment would cause him to be unable to submit a timely application. The psychologist recommended that the Commission require Andrews's treating psychiatrist to submit all of Andrews's psychiatric records, including the psychiatrist's notes, for the previous two years. The Commission's executive director and investigator requested these materials from Andrews's psychiatrist without notifying Andrews or obtaining a privacy waiver. His psychiatrist refused to comply with the request, invoking the Health Information Portability and Accountability Act. [Id. at ¶¶ 30-34.]

         In a July 8, 2010 Administrative Decision and Order (“Case No. 09-0857 Decision”), the Commission's executive director adopted the investigator's findings. The Case No. 09-0857 Decision found that Andrews's application was untimely and that, without his psychiatrist's notes, Andrews failed to establish good cause. The decision therefore denied Andrews's application. Plaintiff argues that the Case No. 09-0857 Decision failed to consider whether Andrews established that he had a disability under the ADA and whether waiving the application deadline was a necessary and reasonable accommodation for his disability. In addition, Plaintiff alleges that the Commission ...

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