November 11, 2013

Court Finds NYC Disabled Not Adequately Protected After Sandy; Disaster Planning Must Include Vulnerable Populations

By Lewis Milford

Like the proverbial canary in a coal mine, the well being of the most vulnerable in our population—the disabled—during severe weather events may serve as an indicator of how well we are planning to protect the general population.  And confronting our shortfalls should motivate us to more effectively plan our response for future disasters.

A New York court decision last week should prompt cities and states to ask if they are doing enough under existing law to protect vulnerable populations from the impacts of extreme disasters.

Last week, a federal court decided that New York City did not do enough to protect the disabled during Superstorm Sandy, now a year ago. While praising the city generally for its post -Sandy relief actions, the court found that the city specifically violated the Americans with Disabilities Act or ADA by not adequately protecting the vulnerable disabled population during that disaster—the first such ruling in the country.

Legal groups brought suit soon after Sandy on behalf of the disabled in New York City, more than one-tenth of the city’s population, arguing that the city had not done enough to give them access to emergency services following the disaster.  They brought the case on behalf of the “889,219 individuals with disabilities, making up 11% of the population. . . . [Of these,] 183,651 individuals have a serious hearing difficulty, 210,903 have serious vision difficulties, and 535,840 individuals have difficulty walking or climbing stairs.”

The court found that the City failed to provide reasonable accommodation to protect these citizens during and after Sandy, to make sure the blind, deaf and physically disabled were able to get access to post-disaster services, like emergency shelters and transportation, which were available to the able-bodied of the nation’s largest city.

This decision, if upheld, could have national implications for how cities and states plan for disasters in the future.  While many argue about imposing new legal obligations for climate impacts on government agencies, the court decision says the current law compels communities to do more. It highlights the legal obligations already on public agencies across the county to provide for better adaptation requirements in planning, electric power, and transportation after future disasters to help their most vulnerable populations.

This is how the court described the situation facing the disabled during Superstorm Sandy.

The question in this lawsuit…is whether in planning for, and responding to, emergencies and disasters, the City has adequately addressed the needs of people with disabilities—a segment of the population for which emergency planning is even more challenging…These Plaintiffs contend that the City’s emergency preparedness program fails to accommodate their needs by, among other things, inadequately planning for the evacuation of people with disabilities, from multi-story buildings and generally; failing to provide a shelter system that is accessible within the meaning of the ADA; ignoring the unique needs of people with disabilities in the event of a power outage; failing to communicate adequately with people with special needs during an emergency; and failing to account for the needs of people with disabilities in recovery operations following a disaster.

In this class action on behalf of the entire disabled population in the city, the court found that the City violated the ADA when it failed to ensure that the disabled had access to these basic city services.

Most significantly, the City’s plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services.

Among the many issues at trial was problem of power outages. The lack of reliable electricity alone prevents the disabled from getting the protection of public services in a severe storm—from emergency shelters without power to stalled elevators in public housing to a lack of charging stations to power up wheelchairs and ventilators.

On that issue, the court’s finding could be an important legal precedent that might lead cities to provide more reliable power to serve vulnerable populations. And if they don’t, they might well face lawsuits like this successful one in New York.

The individuals harmed by lack of power gave powerful testimony to the court.

Class member Joyce Delarosa testified that although she has informed Con Ed that she relies on an electricity-powered oxygen machine, Con Ed did not notify her in advance of Hurricane Sandy that it would be shutting down power in her neighborhood. Because of the power outage, she was unable to use her oxygen machine. As a result, her health deteriorated and she was in serious pain, leading her to require emergency medical attention for oxygen deprivation.

Class member Melba Torres relies on electricity to power her wheelchair, the air mattress she uses to reduce the pain caused by a curve in her spine, and the lift she uses to get in and out of bed. Torres testified that, because of the power outage during Hurricane Sandy, she was unable to evacuate her building and was unable to inflate her bed for a week, leaving her in severe pain.

When electric power goes out, many disabled are severely affected, the court noted.

People with disabilities often depend on access to electricity. For example, some people depend on electricity to power life-sustaining equipment, such as ventilators. And people with mobility disabilities often rely on power wheelchairs or scooters that need to be recharged. In addition, some shelters are only accessible if the elevator is working, and thus if the shelter has power. For many people with disabilities, then, their ability to stay in a shelter depends upon the availability of electricity at the shelter…Another essential element that ensures people with certain disabilities are included in general population shelters is the ability to access power (when necessary via generators) for: charging power wheelchairs, scooters and other essential devices, and refrigerating certain medications.

[The Court also noted the] guidance from the Federal Emergency Management Agency (“FEMA”) stating that emergency plans “should include strategies to provide power for services that require a back-up power system in an emergency or disaster.”

The court went on:

The City’s shelter plans do not include strategies to provide back-up power generators at shelters or to otherwise ensure that electricity will be available at shelters for those who depend on it. (Nothing in the City’s written emergency plans “addresses the issue of providing power for people who use medical devices powered by electricity”)….During Hurricane Sandy, however, most evacuation centers lacked generators and some, therefore, at times, lacked power.

The court explained that the ADA requires that public agencies can’t just offer services on equal terms to the disabled, which would fail to accommodate their special needs. Rather, agencies must make affirmative accommodation to ensure that the disabled can access public services in a usable way—so that the emergency services actually reach the disabled. The court found that New York City did not accommodate enough to ensure that the disabled had access to the same services as the able bodied.

The testimony and findings in this case also have significant implications for how cities plan to protect their general populations during disasters.  If shelters don’t have electricity, are they capable of truly functioning as shelters for the general population, for example in conditions of extreme heat or cold?  What about those who are considered able bodied, yet rely on rechargeable electronic medical devices and medicines that must be refrigerated?  If the disabled cannot access shelters, what about members of the general population who may have been injured during a natural disaster?  What about those who are not classified as “disabled” but are elderly or ill?  As with many other aspects of our society, our failure to adequately plan for its most vulnerable members exposes our shortfalls in planning for all.

The decision only held the City liable under federal ADA law. It did not impose any remedies, nor did it provide any findings as to how the city could offer emergencies services in areas like power and transportation that would satisfy the law’s requirements. That will be addressed in the next stage of the case. And, of course, the City could always appeal and try to block the order.

Whether more planning is enough, or whether the city should start to install more protective local power equipment at most shelters to accommodate the disabled, will likely be one of the questions facing the court going forward.

But whatever the remedies reached, the decision finding the city liable should be a warning now to other communities facing disaster and emergency planning decisions— especially as they assess their responses in areas of power and electricity, transportation and recovery. This is no small problem. The disabled population in the U.S. is much larger than most think. According to most recent census, almost 20% of the total U.S. population – or 73 million people – are considered disabled. And among the elderly, the percentage of disabled rises to 30% to 40% in most states.

These people are most at risk from severe weather events, from excessive heat and other disasters. Many people have written about how climate emergencies in the future will disproportionately harm these vulnerable populations.

Now, for the first time, those warnings are backed by legal obligations that cities and states ignore at their peril.

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