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Saturday, March 4, 2017
ARE FORENSIC EVALUATIONS OR PSYCHOLOGICAL EVALUATIONS LEGAL IN FAMILY COURT PROCEEDINGS? "WONDER WOMAN" OF THE GOLDEN LASSO BLOG SUGGESTS THAT THEY ARE NOT!
USC 42 § 12101 – 12203 and the NPRM and Judicial Conferences have provided functional regulations re: confidentiality, all of which impacts the legality of the decision to conduct forensic evaluations and psychological evaluations and how the results of those evaluations will be used.
1. Threats to disclose, or disclosure of, disabled litigants’ confidential information is a form of discrimination and violates the Constitutional right to privacy. The Constitution also provides that no state shall deny to any person within its jurisdiction the equal protection of the laws and provides for Due Process of law. Disabled litigants’ right to confidentiality is inherent in the entire ADAAA statutory scheme as well as protected under several federal and state laws, including the Health Insurance Portability and Accountability Act (“HIPAA”). The ADAAA applies in conjunction with other federal and states laws, provides protection at a level greater or equal to that provided by other federal and state laws, and prevails over any conflicting State laws. ADA Title II Technical Assistance Manual, II-1.4200.
2. Threats to disclose, or disclosure of, disabled litigants’ confidential information is also a type of retaliatory and coercive conduct which is illegal under the ADAAA’s anti-retaliation, anti-coercion, and anti-intimidation provisions. 42 U.S.C. § 12203. See also 28 C.F.R. § 35.134; ADA Title II Technical Assistance Manual, II-3.11000.
3. Without ADAAA accommodations, disabled litigants’ cannot engage in equal participatory and testimonial access in court proceedings on the same footing as other litigants.
4. The foundation of many of the specific requirements in the ADAAA regulations is the principle that individuals with disabilities must be provided an equally effective opportunity to participate in or benefit from a public entity's aids, benefits, and services. ADA Title II Technical Assistance Manual, II-3.3000.
The Federal Guide for Judicial Policy, a policy manual for the US Courts has many of the authorities on the ADA and methods of implementation of auxiliary aids. The most recent one that I am aware of is Volume 5 issued in 2012. The Authority of the GJP is based on the 28 USC 604, 1827 & 1828 (infra).
"These guidelines are promulgated by the Director of the Administrative Office (AO) as authorized by 28 U.S.C. §§ 604(a)(14), (15), and (16) and 28 U.S.C. § 1827 and § 1828. The guidelines incorporate references to Judicial Conference policy and case law related to the use of court interpreters. Under 28 U.S.C. § 602(d), the Director may delegate any functions, powers, duties, and authority to other officers and employees of the judicial branch of the government, subject to such terms and conditions as the Director may consider appropriate." GJP §120 Authority
The Federal Guide to Judiciary Policy is applicable generally to the Federal Courts of the United States:"Applicability This volume applies to the federal courts as defined in 28 USC §610. It does not apply to the Supreme Court of the United States." GJP §130
DRE, designated responsible employee: each Court is supposed to have an ADA Administrator.
"Each court is required to identify a specific office or individual(s) to serve as access coordinator from whom participants in court proceedings may request auxiliary aids or services. The access coordinator must be familiar with the judiciary's policy of providing reasonable accommodations to persons with communications disabilities to ensure that the policy is properly implemented. The access coordinator must have a ready working knowledge of the types of auxiliary aids and services available to serve the needs of disabled persons and of the local sources from which auxiliary aids and services may be procured. Personnel in each court are to be instructed as to the judiciary's policy and the identity and location of the access coordinators in their particular court. Each court will appropriately publicize the identity and location of its access coordinator through, for instance, courthouse signs, bulletin board announcements, pamphlets, and announcements in the local press." GJP §255.40(a)
They are supposed to have a process of appeals as well:
"Courts may, but are not required to, establish specific procedures through which requests for auxiliary aid services are to be submitted, such as requiring that they be submitted to the access coordinator in writing or that they be submitted in advance of the court proceeding involved. Courts may also establish procedures through which persons dissatisfied with the court's proposed provision of auxiliary aids and services may seek review or reconsideration. Any such procedures must be appropriately publicized. These guidelines are not intended to extend or modify existing law." GJP §255.40(b)
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