Diabetes Spectrum
Volume 12 Number 4, 1999, Page
From Research to Practice/Diabetes Advocacy

The Age of Legal Advocacy for Diabetes

Michael A. Greene, JD

  In Brief

Since 1990, the American Diabetes Association has embarked on a course of aggressive, result-oriented, and visible legal advocacy to benefit people with diabetes in the workplace and in school and day care settings. Its advocacy strategies have included creating policy and position statements, building cooperative relationships with other organizations, and creating and revising agency regulations. The Association has used a variety of legal tools, including appearing as amicus curiae, being a party plaintiff, and providing a lawyer referral service. Its commitment to legal advocacy has been institutionalized through strategic plan outcomes, a staff director of legal advocacy, a lawyer referral network, current educational materials, a tracking system for advocacy requests, and a legal advocacy subcommittee.

This article explains the historical evolution of legal advocacy for diabetes by the American Diabetes Association (referred to throughout this article as "the Association"). Legal advocacy is the use of the legal process and attorneys to further an organization's mission, policies, and position statements. Legal advocacy efforts include both the use of the judicial process and the agency administrative process. However, legal advocacy does not include legislative advocacy.

The Dawning of the Age of Legal Advocacy for Diabetes
The enactment of the Americans With Disabilities Act (ADA) in 19901 was the sunrise of legal advocacy for diabetes. The ADA is the most comprehensive statute to provide legal protections and remedies for people with a disability who are discriminated against in the workplace and in public accommodations, including educational and day care environments for children. The ADA revolutionized employment opportunities and greatly expanded educational opportunities.2

The Association was one of the groups in the forefront of the lobbying efforts to gain the passage of the ADA. The legislative history is replete with medical and scientific references to diabetes.3 After enactment, the Association continued to provide expertise to the Equal Employment Opportunity Commission (EEOC), the administrative agency given the responsibility for interpreting and applying the employment portion of the ADA. Consequently, agency interpretations about the application of the ADA contain many references to diabetes.4 Diabetes was one of the primary disabilities in the minds of Congress and various administrative agencies when the ADA was enacted and implemented.

Before the enactment of the ADA, the legal protections and remedies for people with disabilities were fragmented through a wide variety of cases and statutes that provided a patchwork quilt of rights and remedies without uniformity or much predictability. Before 1990, the legal protections for people with diabetes were largely ad hoc and varied widely throughout the United States. In the workplace, protection was limited and dependent on the employer being a governmental entity under the Rehabilitation Act. In educational settings, the ADA built on the foundation of the Rehabilitation Act and Individuals With Disabilities Education Act to expand protection for students. After 1990, the ADA provided a rallying point for the uniformity and predictability of the legal rights and remedies of people with diabetes.

Interestingly, the evolution of general civil rights laws into the ADA to protect people with disabilities and, in particular, people with diabetes, paralleled the scientific and technological breakthroughs for the treatment and care of diabetes in the late 1980s and early 1990s (e.g., human insulin, home blood glucose monitoring, the Diabetes Control and Complications Trial). There was a reciprocal reliance between these breakthroughs and the increased visibility and demands of people with disabilities for equal opportunity and treatment.

The rising sun of the age of legal advocacy for diabetes also coincided with efforts by President Bill Clinton to enact health care reform. The public debate concerning health care reform during the period from 1992 to 1994 dramatically increased the visibility of health care problems and the economic impact of chronic diseases such as diabetes. Participation in the public debate concerning health care reform gave the Association the impetus to increase its advocacy efforts on behalf of people with diabetes. Indeed, as a result of those discussions and debates, the Association renewed its commitment to do whatever was necessary to benefit people affected by diabetes. Since 1994, the Association has focused its advocacy efforts on the question: What is in the best interests of people with diabetes?

With a sharpened focus on the real-world impact of its mission and with an effective tool to protect the legal rights and remedies of people with diabetes, the Association galloped into the age of legal advocacy for diabetes. It launched an aggressive legal advocacy campaign, which included efforts that were deliberately aggressive, poignantly result-oriented, and highly visible. The remainder of this article explores the impact and makeup of this legal advocacy effort.

The Function and Role of Legal Advocacy for Diabetes
Why have a legal advocacy program? The purpose of any legal advocacy effort is to implement the mission of the organization that undertakes it. For the Association, the specific focus of legal advocacy is on that part of the mission that seeks "to improve the lives of all people affected by diabetes."

A. Protect equal opportunity for people with diabetes.
One of the primary functions of legal advocacy is to maintain and protect equal opportunities for people with diabetes, i.e., to allow a person with diabetes to walk to the plate with a bat in hand, and, once at the plate, to swing and get a hit. This function is to guarantee an opportunity for a person with diabetes to receive fair and equal treatment. Historically, people with diabetes, because of stereotypical thinking and mythology about their disease, were not allowed to even leave the dugout. It was assumed that if you had diabetes, you couldn't or shouldn't be allowed to get near the plate. It is the critical function of the Association's legal advocacy program to give a person with diabetes an "at bat."

This primary function of the Association's legal advocacy program focuses on people with diabetes rather than merely on the disease itself. Each individual should be allowed a fair opportunity to show what he or she is qualified to do and capable of doing, despite having diabetes.

B. Stand as the recognized advocate for people with diabetes.
Another function of the legal advocacy program is to show that the Association will stand up with and for people with diabetes who are subjected to unfair treatment because of their disease. Since approximately 6% of the population has diabetes5 and since the economic impact of diabetes is so enormous both in terms of medical costs and lost work productivity,6 the legal advocacy program must be both aggressive and visible.

The prevalence and economic impact of diabetes compels the Association to reassure its membership and the public that people with diabetes are fully productive and safe citizens. It is not enough to lead in the areas of the medicine and science of diabetes; the Association must also be the leader concerning the protection of the legal rights and remedies of people with diabetes. In this sense, the Association is not only an advocate for employees and students, but also an information resource for employers, school administrators, and teachers. The legal advocacy efforts of the Association must be prominently visible in order to protect and preserve the employment and educational opportunities of people with diabetes.

C. Preserve the legacy of hope for people with diabetes.
Since diabetes is a noncurable, life-threatening disease, a primary role for legal advocacy is to brighten the light of hope for people with diabetes. This is the hope that people with diabetes can live relatively normal and fully productive lives in spite of diabetes. From the medical/science perspective, the Association's message is to keep yourself well because there is a cure ahead. That message has little meaning if people with diabetes are overwhelmed with living lives deprived of reasonable and fair opportunities for employment and education because of diabetes.

Hope is only meaningful if a person can not only live well with diabetes but also have reasonable opportunity to be a productive and contributing citizen in spite of diabetes. An aggressive and visible legal advocacy program is a beacon of hope to people with diabetes that sustains them through their daily struggles until there is adequate science to find a cure and eliminate the complications of diabetes.

D. Follow an incremental approach to achieve effective results.
Although effective legal advocacy needs to be aggressive and visible, it also needs to be anchored in reality. The dose of reality is understanding why people with diabetes are treated differently. The biggest hurdle and most formidable enemy for people with diabetes is ignorance. Based on this reality, an effective legal advocacy program must be able to engage in an incremental manner, i.e., to first educate, then negotiate, and finally litigate.

This incremental approach to legal advocacy has many and varied advantages. The Association has a formidable and well-recognized position from which to educate based on its medical and scientific base. It is the most prominent publisher of authoritative medical and scientific literature about diabetes research.7 It is also the recognized medical/scientific authority concerning the treatment of diabetes.8 Additionally, since the Association is so large,9 it can be a formidable negotiator to persuade others that people with diabetes are qualified and capable of performing in an effective and safe manner, if only given a chance.

To enhance its negotiation posture, the Association is involved in many cooperative relationships with public interest law groups, industry, other voluntary health agencies, and various government agencies. It has organized coalitions and nurtured relationships to garner effective negotiating leverage from a variety of perspectives.

Finally, the Association is willing to turn to the judicial process to litigate, if necessary. The recognized capacity and willingness to litigate is the critical ingredient to help open minds with education and open opportunities with negotiation. Unless the Association is perceived as having the fortitude and resources to go to court, it cannot be successful in achieving any meaningful and lasting protection of the rights and remedies of people with diabetes.

As will be illustrated in the following examples, this incremental approach to legal advocacy works because it is inexorable yet flexible. It helps to create ownership by all involved that the protection of the legal rights and remedies of people with diabetes is good for business, because people with diabetes are reliable and effective workers who appreciate the opportunity to work and understand safety in the workplace. The organizational skills necessary to effectively manage diabetes are precise skills that are highly valued in the workplace.

Strategies and Tools for Legal Advocacy for Diabetes
How do you accomplish effective legal advocacy for diabetes? An effective legal advocacy program requires many different strategies and tools, i.e., the larger the quiver of arrows, the more likely it is that you will hit the target. These strategies and tools must be both diverse and flexible. The Association has used a variety of different strategies and tools to better protect the legal rights and remedies of people with diabetes.

A. Legal strategies for diabetes
The Association has created and employed a variety of legal strategies with a number of salient characteristics that have proven to be effective in achieving legal advocacy goals.

1. Create and maintain policy and position statements.
It is important that the Association speak authoritatively and clearly on issues involving the protection of the legal rights and remedies of people with diabetes. To this end, there must be authoritative and clear policies and position statements.

Since 1984, the Association has had an employment policy that states:

"Diabetes as such should not be a cause for discriminating against any person in employment. People with diabetes should be individually considered for employment, weighing such factors as the requirements or hazards of the specific job and the individual's medical condition and treatment regimen (diet, oral hypoglycemic agents, and insulin). Any person with diabetes, whether insulin-dependent or noninsulin-dependent, should be eligible for any employment for which he or she is otherwise qualified."

In 1985, the Association adopted another helpful policy concerning drivers' and pilots' licenses. It states:

"Any person, whether insulin-dependent or noninsulin-dependent, should be considered for any drivers' or pilots' license for which he or she is individually qualified."

Finally, in 1990, the Association approved a position statement on hypoglycemia and employment/licensure, which elaborated and reinforced the above employment policies.10

In 1998, the Association adopted a position statement concerning the care of children with diabetes in the school and day care setting.11 This position statement is particularly helpful because it outlines a protocol approach as to how a child with diabetes should be reasonably accommodated and provided for in a school or day care environment. This protocol approach has the power of a philosophical statement along with the reality of specific and definite implementation methods.

The combination of the above policies and position statements provides a solid foundation for the Association to go into any court or administrative agency to seek a change in law or regulation to be consistent with and to further those policy and position statements.

Interestingly, the evolution of the employment policies and position statements was significantly different from the development of the educational position statement. The employment statements were developed primarily from judicial decisions and statutes, whereas the educational statement was developed principally from medical and scientific authorities. Although these statements were developed through different means, their authoritative impact cannot be understated. These statements constitute a solid foundation for any effective legal advocacy effort for employment and education opportunities for people with diabetes.

2. Build cooperative relationships.
Since 1994, the Association's legal advocacy efforts have included, wherever possible, efforts to build cooperative relationships with and to provide medical and scientific expertise to other entities and organizations. The purpose of this relationship-building is not only to collect more resources to apply to a particular legal advocacy goal, but also to create legal leverage from a variety of perspectives. This coalition creates a legal advocacy program that has breadth, depth, and power.

This cooperative strategy has garnered dramatic results on both the employment and educational battlegrounds. On employment issues, the Association has appeared as amicus curiae in cases involving the EEOC, including Arnold v. UPS and Graham v. Connies, Incorporated. Each of these cases will be discussed in more detail below. Now the Association is reaching out to collaborate with the National Employment Lawyers Association (NELA) to provide the Association with a nationwide referral network of private attorneys who are experts on employment issues and who are willing to take on employment cases involving diabetes issues. This type of network will create a workable referral service from the Association to competent, qualified attorneys who can handle employment problems anywhere in the country.

In the educational area, the Association has engaged in particularly vibrant coalition efforts with the Disability Rights Education & Defense Fund (DREDF)12 in matters also involving the Department of Justice (DOJ) and the Department of Education (DOE). These coordinated efforts have been notably successful in Stuthard v. KinderCare and Davis v. LaPetite Academy. Again, the details of these legal advocacy results will be discussed below.

This cooperation strategy collects resources and legal advocacy clout beyond the capacities of the individual teammates. The legal advocacy efforts of the Association are tremendously enhanced and empowered by participation in such efforts.

3. Create and revise agency regulations.
Administrative agencies are a part of the executive branch, which is empowered to supervise the enforcement of the laws enacted by Congress. Providing medical and technical expertise to help these agencies develop and revise their regulations, guidelines, and policies is a particularly effective way of protecting the legal rights and remedies of people with diabetes. Most courts will look to an agency for the interpretation of how certain statutes should be applied in given situations. For example, courts will frequently look to the EEOC regulations and guidelines for how to apply the ADA in employment situations. Also, courts will look to DOJ and DOE concerning the application of certain regulations and guidelines to protect the educational rights of children with diabetes.

The Association has been active with particular administrative processes to achieve its legal advocacy objectives.

a. Creation of regulations. The Association provided medical and scientific expertise on diabetes to the EEOC as that agency developed the regulations and guidelines to interpret and implement the ADA. The EEOC regulations and guidelines are replete with references to diabetes in areas that are critical to interpretation and application of the ADA. Frequently, the EEOC has used diabetes as an example to help define the kind of disability that is protected by the ADA.13

b. Revision of regulations. The Association has been an active advocate in situations in which various administrative agencies revised their regulations and guidelines to overcome positions that undercut the legal rights and remedies of people with diabetes.

1) FAA pilots' ban. The best example of this effort is the Association's work in seeking to have the Federal Aviation Administration (FAA) overturn the 1959 blanket ban on eligibility for any pilots' license if a person took any insulin. Under the rationale of safety, this blanket ban stayed in place until 1996, when the FAA announced that any prospective pilot who took insulin would be individually evaluated for a Class 3 medical certificate to recreationally fly an airplane. This revision occurred because of a protracted and continuous legal advocacy effort by the Association to convert a blanket ban into an individualized assessment, subject to an elaborate screening and monitoring protocol.14 Comprehensive eligibility and monitoring protocols minimize risk and enhance opportunity for pilots who have well-controlled diabetes.

The Association's legal advocacy effort rallied substantial medical/scientific input to achieve this result. After instituting a program to permit air traffic control specialists who took insulin to continue their safety-related duties in 1992, the FAA established, with input from the Association, a panel of medical experts to develop a medical protocol to allow for an individualized assessment of recreational pilots. The initial medical guidelines were released in late 1994 for public comment, and after public comment, the FAA policy was changed in late 1996.

This is a classic example of the value of advocacy perseverance and the inexorable power of the applied medical and science authority of the Association. The FAA protocol offers a template that can now be used to help eliminate other blanket bans for jobs in transportation that require a federal license, e.g., commercial truck drivers.

2) Federal Highway Administration (FHWA) commercial drivers' ban. Current legal advocacy efforts involving an administrative agency focus on the commercial drivers' license issued pursuant to regulations of the FHWA. No licensing restriction has caused more problems for more people with diabetes than this blanket ban on commercial drivers' licenses for people who take insulin. It has been applied well beyond its original purpose. The ban has been used to restrict many people with diabetes from jobs other than interstate truck driving, e.g., truck mechanics, utility service people, school bus drivers, public transportation drivers, and law enforcement officers.

Since 1970, FHWA regulations prohibit all individuals who take insulin from operating a commercial motor vehicle in interstate commerce.15 The ban ignores the medical history, abilities, and capacity of individuals seeking the license. It is the classic blanket-ban approach to dealing with employment opportunities for people with diabetes. As a result, people who take insulin may not apply for or receive commercial drivers' licenses even if they are otherwise qualified to operate a commercial motor vehicle and can demonstrate the ability to control their diabetes.

As a result of legal advocacy efforts by the Association, the FHWA enacted a waiver program in 1993 to allow a limited number of individuals taking insulin (approximately 116 by the end of the program) to obtain commercial drivers' licenses under a screening protocol similar to that now used by the FAA for pilots.16 When the waiver program ended in 1996, the evaluation showed that drivers with diabetes who took insulin experienced a lower accident rate than the national average. The FHWA concluded that "these drivers are not a high-risk group"17 and grandfathered all diabetes-waiver drivers into eligibility for continuing commercial drivers' licenses.18 Nonetheless, the FHWA was not willing to eliminate the blanket ban and move to an individualized assessment approach similar to the one adopted by the FAA.

In 1998, the Association obtained, with the help of the Congressional Diabetes Caucus,19 a legislative mandate requiring the FHWA within 18 months to:

"determine whether a practicable and cost-effective screening, operating, and monitoring protocol could likely be developed for insulin-related diabetes mellitus individuals who want to operate commercial motor vehicles in interstate commerce that would ensure a level of safety equal to or greater than that achieved with the current prohibition on individuals with insulin-treated diabetes mellitus driving such vehicles.20"

At the end of the 18-month period, the FHWA must report to Congress. If, as appears likely, the FHWA determines that such a protocol could be developed, the report must contain a description of the elements of the protocol, and the agency must promptly initiate rulemaking and seek public comment.

The thrust of this legal advocacy strategy is to educate FHWA that its blanket ban is not only illegal but also unnecessary because people with diabetes can be effective and safe drivers, particularly with appropriate screening and monitoring protocols. This particular effort highlights the powerful interaction of legal and legislative advocacy. The 18-month period expires in December 1999. The FHWA has advised the Association that it is on target to meet that deadline.

The FHWA effort is designed to eliminate a regulatory blanket ban that is frequently exploited by employers to justify either not hiring or firing people with diabetes who take insulin rather than individually assessing those people's abilities and capacities to do a particular job. Implicit in this effort is the ability and willingness of the Association to file a lawsuit to challenge the legality of the FHWA ban.21

B. Legal tools for diabetes
In addition to the legal strategies discussed above, there are a variety of specific legal tools available to the Association to help further its legal advocacy efforts. These legal tools allow the Association to play a variety of different roles in judicial proceedings. The following are the particular legal tools the Association has used to litigate an issue that has not been improved through education or negotiation.

1. The Association as amicus curiae
The function of an amicus curiae (friend of the court) is to provide a court with the perspective of an organization that has particular knowledge and authority in a given area under consideration by that court. An amicus can appear in a case only with the consent of all parties or by court order.22 The specific role of the amicus is to be an advocate for a particular issue rather than a specific individual. It is a role of indirect participation that is issue-focused, not party-focused. An amicus carefully selects those issues and cases in which it will participate to create the most significant impact. The role of amicus must be nurtured and carefully guarded from overuse.

To date, the Association has participated as amicus curiae in 11 cases on a variety of diabetes-related issues in a number of different courts, including four times in the U.S. Supreme Court. Although amicus efforts cannot guarantee a certain result and have not always been successful in affecting the outcome of a particular case, the amicus efforts have usually had an educational impact.

The following is a synopsis of the cases in which the Association has participated as an amicus curiae.

a. Davis v. Meese23 concerned the failure to hire a person with type 1 diabetes as a special agent for the Federal Bureau of Investigation (FBI). The court sustained the FBI's blanket exclusion policy against employing people who use insulin as special agents or investigative specialists without any individualized assessment. This case was decided under the Rehabilitation Act of 1973,24 which was the limited predecessor to the ADA of 1990. Since Davis v. Meese, the FBI has adopted an individualized assessment approach to evaluating candidates who take insulin to treat their diabetes. The Association entered the case as amicus in the trial court before any opinion.

b. Bombreys v. City of Toledo25 involved the failure to hire a person who was using insulin as a police officer. The court determined that an individualized assessment was necessary and that the city's blanket exclusion was not legal. The court refused to follow Davis v. Meese, and its opinion contained a lengthy discussion about diabetes and the ability to control diabetes in a law enforcement environment. This is the leading case on the employability of a person with diabetes who takes insulin for a law enforcement job. The Association entered the case as amicus in the trial court before any opinion.

c. Wood v. Omaha School District26 involved the firing of school bus drivers who took some insulin to treat their type 2 diabetes. The court concluded that reasonable accommodation was not possible for such employees and that, therefore, the employees were not "otherwise qualified" to be school bus drivers. The Association entered this case as amicus in an unsuccessful effort to obtain a rehearing after the court's opinion was published. However, based on continuing and growing efforts to educate DOJ about diabetes, DOJ appreciated the unfair and illegal restrictions on bus drivers and negotiated settlements with North Carolina and Arizona to stop this automatic ban on school bus driving.27 DOJ's settlements undermine the continuing persuasiveness of the Wood decision.

d. Chandler v. City of Dallas28 concerned the firing of a primary utilities driver who used insulin. The court relied on the FHWA blanket exclusion instead of requiring an individual assessment by the employer. From the perspective of the Association, this is the most misdirected and stereotypical approach concerning commercial driving restrictions on people with diabetes. The Association entered this case as amicus after the decision by the Court of Appeals in an unsuccessful effort to have this case heard by the U. S. Supreme Court. However, this decision has been substantially eroded and limited by the same court's decision in Kapche v. City of San Antonio, discussed below.

e. Daugherty v. City of El Paso29 involved the discharge of a public bus driver who used insulin. The court extended the blanket exclusion of Chandler and FHWA. This case is viewed as the twin sibling of Chandler v. City of Dallas. The Association entered as amicus after the decision by the Court of Appeals in an unsuccessful effort to have this case heard by the U. S. Supreme Court. Again, this case has been substantially undercut by Kapche v. City of San Antonio, discussed below.

f. Siefken v. Village of Arlington Heights30 concerned the firing of a probationary police officer who used insulin. The court affirmed the firing because the individual did not make any reasonable efforts to try to control his diabetes. The Association entered as amicus after the trial court decision to successfully persuade the Court of Appeals to require an individualized assessment.

g. Lane v. Peña31 involved the successful reinstatement of a student with type 1 diabetes to the U. S. Merchant Marine Academy. The court determined that the academy could not use a blanket exclusion and must provide an individualized assessment. The Association entered this case as amicus in the U.S. Supreme Court to unsuccessfully urge the imposition of damages for violating the civil rights of the cadet.

h. Arnold v. UPS32 concerned the failure to hire a person with type 1 diabetes as a truck mechanic. The court reversed a trial court's decision, concluding that "Arnold's diabetes makes him just the type of person the ADA was designed to protect." From the perspective of the Association, this is an authoritative and well-reasoned opinion supporting an individualized assessment of a person who takes insulin to treat diabetes. The Associa-tion appeared as amicus in the Court of Appeals along with the EEOC.

i. Graham v. Connies' Incorporated33 involved the firing of an intrastate truck driver with type 1 diabetes. The court eventually upheld the discharge on factual issues unrelated to diabetes. The Association appeared as amicus in the Court of Appeals along with the EEOC in an unsuccessful effort to get the court to adopt the reasoning of Arnold v. UPS.

j. Kapche v. City of San Antonio34 involved the failure to hire a person with type 1 diabetes as a police officer. The Association entered this case as amicus to try to convince the Court of Appeals to change the Chandler and Daugherty decisions. Specifically, the effort was to persuade the court that the evolution of technology and science now allows for greater safety screening and monitoring for people who take insulin and use the highways as an essential function of their job. Recently, the Fifth Circuit Court of Appeals issued its opinion retreating from Chandler and Daugherty in reliance upon the Association's argument that technological and scientific improvements have significantly increased the ability of people with diabetes to monitor their blood glucose levels and thereby prevent or avoid hypoglycemic reactions. To date, this case represents the most successful and influential amicus effort by the Association.

k. Murphy v. UPS35 concerned the definition of "disability" under the ADA. A recent opinion by the U.S. Supreme Court significantly narrowed the definition by focusing on the disability only after mitigating or corrective measures. Additionally, this decision emphasizes the requirement of an individualized assessment of any person with any disability. The Associa-tion was asked to enter this case as amicus in the U.S. Supreme Court, even though the case did not involve diabetes, because of the strength and prominence of the Arnold decision.

As is evident from the above descriptions, the effectiveness of the Association as amicus frequently depends on how early the Association enters the case. Whenever the Association has entered a case before a written opinion (e.g., Bombreys, Arnold, Graham, and Kapche), the court's eventual opinion has reflected the participation of the Association. However, whenever the Association has entered into a case after an opinion (e.g., Wood, Chandler, and Daugherty), the court's opinion has shown a lack of understanding about diabetes.

The success and maturity of the amicus curiae legal advocacy efforts of the Association is best reflected by the Murphy and Kapche cases. In Murphy v. UPS, the parties requested the participation of the Association as amicus in the U. S. Supreme Court even though Murphy does not involve diabetes specifically, but rather, the definition of a disability that is critical to the application of the ADA to people with diabetes. The Association was the only disease-specific organization to appear as amicus in the Murphy case.36

More recently, in Kapche v. The City of San Antonio, the court highlighted the influence and authority of the Association's amicus efforts. The court relied on the Association's amicus brief to change its position on how to evaluate the safety risk posed by people who use insulin who drive as an essential function of their job and to re-evaluate its prior decisions concerning the safety risk of drivers who use insulin. Kapche represents the most significant amicus impact by the Association in persuading a court to do an individualized assessment of people with diabetes concerning suitability for a particular job.

Finally, although there have been mixed results in the various amicus curiae efforts by the Association, it is evident that when the Association effectively participates, the courts' decisions usually display a better-educated view of diabetes, the role of diabetes in the workplace, and the ability of someone with diabetes to perform as an effective and safe worker with only minor, reasonable accommodations.

2. The Association as a party plaintiff
The legal advocacy efforts of the Association in the employment area have been limited to participation as an amicus curiae. By contrast, in the school and day care area, the Association has appeared as an actual party plaintiff. In the educational area, the Association has taken a different legal advocacy approach using a different legal tool to directly participate in lawsuits. As a result, it has been able to have greater impact as an actual party than it would have as an adviser, consultant, and expert.

School and day care problems lend themselves to more direct participation because of the ability of the Association to be an authoritative resource for workable guidelines and protocols to help manage diabetes in the educational environment. The Association does not have similar guidelines and protocols for the employment environment because of the tremendous variety of employment situations. However, because of its strong medical/scientific base in guidelines and protocols, the Association has been able to catapult itself into a primary party role in educational matters.

Following is a brief summary of the matters in which the Association has appeared as a party plaintiff.

a. Stuthard and the American Diabetes Association v. KinderCare Learning Centers, Inc.37 concerned the refusal to admit a child with type 1 diabetes to a day care center if that child had to do any blood testing while at the day care center. Jesse Stuthard was 2 years old and not able to test his own blood glucose level. KinderCare, the nation's largest private day care provider, would not allow any of its employees to do the testing, and the family could not do the testing because they were working. The Association, represented by DREDF and an Ohio law firm, in combination with DOJ, negotiated a comprehensive settlement that awarded damages and established a comprehensive blood testing protocol for all of the KinderCare facilities nationwide (some 1,200 centers). This was an example of the power of a cooperative effort with the Association providing the medicine/science and DOJ and DREDF providing the legal muscle. As stated by Attorney General Janet Reno, in announcing the settlement: "Children with diabetes shouldn't be left on the sidelines. We hope that other child care facilities will do the right thing and follow KinderCare's lead."

b. Davis and the American Diabetes Association v. LaPetite Academy, Inc.,38 involved a day care center's refusal to allow 7-year-old Calvin Davis to perform glucose blood tests on its premises. The Association again worked in combination with DREDF, an Arizona law firm, and DOJ. LaPetite Academy, the nation's second-largest private day care provider, agreed to an award of damages and a comprehensive protocol for blood glucose testing that was modeled on the KinderCare settlement. This protocol, largely negotiated by DOJ, affects all of the LaPetite facilities (some 750 day care centers nationwide) and includes provisions dealing with other chronic disabilities for children.

c. Holloway and the American Diabetes Association v. California Department of Social Services39 concerned the mistaken opinion of the California Department of Social Services (DSS) that blood glucose testing was a medical procedure that required administration by a medical professional. The effect of this opinion was to restrict and limit the application of the KinderCare/LaPetite Academy settlements. The Association, along with the affected families, brought suit against DSS. DOJ, acting independently but in concert with the Association, persuaded California not to enforce its misguided interpretation of the law pending a result in the case. In order to avoid the embarrassment of continuing the lawsuit, California passed legislation declaring that the blood glucose test did not require a nurse and could be administered in a day care/school environment. This particular legal advocacy effort highlights the powerful interaction of legal and legislative advocacy.

Each of these direct party cases brought legal and political leverage in a legal advocacy effort on behalf of children against formidable and reluctant opposition. The educational authority of the Association, along with the leadership and support of DREDF and the participation and muscle of DOJ, were an unbeatable combination. Another result of the direct party involvement of the Association is the clear message that the Association has the resources and the willpower to participate directly as a party in cases where the issues are significant for many people affected by diabetes. This impression has significantly enhanced the credibility of the Association to be a strong legal advocate for children with diabetes.

3. The Association as a lawyer referral service for diabetes
The Association receives numerous telephone calls each day from around the country concerning particular employment or educational problems related to diabetes. The Association does not have the resources to handle or become directly involved in each of these many situations. Historically, the Association has tried to set up and maintain a specialized network of attorneys nationwide to provide local legal services to particular individuals for legal problems involving diabetes. The viability of this network has ebbed and flowed along with the commitment of resources to create and nurture an attorney referral network. However, a sustainable referral capacity is essential in order to provide effective legal advocacy for many people who have problems related to their diabetes.

Rather than create a network, the Association is committed to aligning itself with existing networks of attorneys who concentrate their practice in areas related to particular problems.40 Although these attorneys do not necessarily have any particular expertise with diabetes, they do have the knowledge and experience to deal with employment problems under the ADA or other civil rights laws that protect the rights and remedies of the disabled. The Association is committed to supporting these networks by providing information concerning diabetes through seminars and written materials.

This referral network approach recognizes both the limitations and capacity of the Association's legal advocacy efforts. By partnering with existing attorney networks, the Association can guarantee to people with diabetes access to knowledgeable and experienced attorneys to help solve specific problems in particular locations.

The Institutionalization of Legal Advocacy
A durable legal advocacy program requires resources to institutionalize its continuity and vitality. The Association's institutionalization of legal advocacy is happening in a number of ways.

A. Strategic plan
The Association's permanent commitment to legal advocacy is underlined by a nationwide strategic plan that lists as an advocacy outcome: "Discrimination against people because of their diabetes has been eliminated." Basing the legal advocacy efforts on this nationwide strategic plan outcome is the essential objective for a legal advocacy approach that is focused on the mission and follows the policies and position statements of the Association. This strategic plan commitment to legal advocacy is essential to drive a budget commitment of resources to the advocacy effort.

B. Director of legal advocacy
In March 1999, the Association hired its first national Director of Legal Advocacy to ensure that its commitment to legal advocacy will be sustained and supported. Previously, all legal advocacy efforts by the Association were done only on a volunteer basis using attorneys around the country in various roles and capacities. As legal advocacy opportunities increased, coordinating these efforts became unmanageable and inefficient. The principal functions of the director are to develop, implement, and manage all legal advocacy efforts.

C. Lawyer referral network
The creation and maintenance of an effective lawyer referral network for employment problems concerning diabetes is essential. As discussed above, the Association's goal is to form partnerships with existing organizations such as NELA or the American Civil Liberties Union, which have existing nationwide networks of qualified attorneys. The Association can support these networks by providing appropriate diabetes materials, information, and expert witnesses.

D. Educational materials
An effective legal advocacy effort requires the creation and periodic updating of educational materials concerning the legal rights and remedies of people with diabetes. Some educational materials already exist for employment and education-related problems. These materials include not only the Association's policy and position statements, but also a table of diabetes cases, model briefs and court pleadings, and pamphlets explaining various legal rights and remedies.

E. Tracking system
It is important to the long-term viability of the legal advocacy program that all requests for help be recorded, organized, and tracked in a systematic way. The Association needs to know what people are asking for and to capture statistics on demands for the various legal advocacy services. This database is now being created from the numerous daily phone calls to the Association. This tracking system will give the Association the ability to allocate its advocacy resources more effectively based on the demand and need for particular legal advocacy services.

F. Legal advocacy subcommittee
The organization and maintenance of a volunteer legal advocacy subcommittee as part of the National Advocacy (formerly Government Relations) Committee is necessary to make tactical legal advocacy decisions concerning how to involve the Association and in what legal issues in what circumstances. This subcommittee's decision-making process will be driven by the Association's mission, policy and position statements, strategic plan, and budget. Such a subcommittee will create an institutional memory for decision-making on legal advocacy issues.

This article has outlined the past, present, and future of an effectively aggressive and highly visible legal advocacy program for the American Diabetes Association. The Association's mission commits it to go the distance to improve the lives of all people affected by diabetes. Such a legal advocacy program has tremendous potential for the Association and for all people affected by diabetes. With limited but sharply focused resources, the Association can make a significant impact on a variety of legal issues and on the lives of many people with diabetes.

Indeed, the resources and energy devoted to legal advocacy can outperform the resources and energy devoted to many other programs of the Association. For example, the energy, financial commitment, and time line for accomplishments in the judicial process can be more immediate and results-oriented than many of the accomplishments in the legislative process. Although all politics are local, the politics of legal advocacy are more malleable and less subject to local variations. This is not to say that legal advocacy should replace legislative advocacy, but rather that the two should work hand-in-glove to achieve the overall advocacy goals that will improve the lives of all of those affected by diabetes.

The legal advocacy program of the Association is a formidable weapon in the war against diabetes. It is the Association's muscle to protect the legal rights and remedies of all of those affected by diabetes.

End Notes

142 U.S.C. § 12101 et seq.

2Before 1990, the Rehabilitation Act of 1973 (29 U.S.C. § 791 et. seq.) (Rehabilitation Act) and originally the Education of the Handicapped Act of 1975, now the Individuals with Disabilities Education Act of 1990 (20 U.S.C. § 1400 et. seq.) (IDEA) provided significant but limited protection for the rights and remedies of students.

3See, e.g., HR Report No. 101-485, PII at 52 (1990); S. Report No. 101-116, at 23 (1989).

4Now in excess of 16 million Americans have diabetes. See, e.g., 45 C.F.R. Part 84, App. A., pg. 334; EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630, App. § 1630.2, pg. 360.

5Harris MI: Summary. In Diabetes in America. 2nd ed. Harris MI, Ed. Bethesda, Md., National Institutes of Health (NIH Publication No. 95-1468), 1995, p. 1-13.

6In 1997, $44.1 billion in direct medical expenditures and $54.1 billion in indirect costs of premature mortality and disability, for a total economic impact of $98.2 billion. American Diabetes Association: Economic consequences of diabetes mellitus in the U.S. in 1997. Diabetes Care 21:296-309, 1998.

7Diabetes (original scientific research about diabetes); Diabetes Reviews (invited reviews on selected topics for research-oriented health professionals).

8American Diabetes Association: Position statement: Standards of medical care for patients with diabetes mellitus. Diabetes Care 22 (Suppl. 1):32-41, 1999; Diabetes Care (original human studies about diabetes treatment); Clinical Diabetes (information about state-of-the-art care for people with diabetes); Diabetes Spectrum (review and original articles on clinical diabetes management).

9The Association is made up of more than 375,000 general members, more than 16,000 health professional members, and more than 3,000,000 contributors.

10American Diabetes Association: Position statement: Hypoglycemia and employment/licensure. Diabetes Care 22 (Suppl 1): S103, 1999.

11American Diabetes Association: Position statement: Care of children with diabetes in the school and day care setting. Diabetes Care 22 (Suppl 1): S94-97, 1999.

12The Disability Rights Education & Defense Fund (DREDF) was established in 1979 as a legal defense fund for people with disabilities, with offices in Berkeley, Calif., and Washington, D.C. DREDF is one of the foremost national advocates for disability rights.

13See, e.g., 29 C.F.R. § 1630.

1414 C.F.R. § 67.401 and 61 Fed. Reg. No. 226, pgs. 392828-9 (11/21/96).

1549 C.F.R. § 391.41 (b)(3).

1657 Fed Reg. No. pgs. 48011-15 (10/21/92).

1761 Fed. Reg. No. 5, pg. 609 (1/8/96).

1849 C.F.R. § 391.64.

19The Congressional Diabetes Caucus in 1998 consisted of approximately 250 members of the House of Representatives.

20Congressional Record Conference Report, H.R. 2400, § 4018 (5/22/98).

21School Board of Nassau Co. v. Arline, 480 U.S. 273, 107 S.Ct. 1125, 94 L.Ed.2d 307 (1987); 29 C.F.R. § 1630.2(r).

22Federal Rules of Appellate Procedure, Rule 29 & Rules of the Supreme Court of the United States, Rule 37.

23Davis v. Meese, 692 F.Supp. 505 (ED Pa. 1988), aff'd without opinion 865 F.2d. 592 (3rd Cir. 1989).

2429 U.S.C. § 791-96.

25Bombreys v. City of Toledo, 849 F.Supp. 1441 (ND Ohio 1993).

26Wood v. Omaha School District, 784 F.Supp. 1441 (D Neb. 1992), aff'd 25 F.3d 669 (8th Cir. 1994).

27Settlement agreement between USA, Arizona, Arizona Department of Transportation, and the Yuma Elementary School District No. 1 dated 7/28/98 (EEOC Charge Nos. 350-93-0335 & 350-93-1557) and Settlement Agreement between USA and North Carolina Division of Motor Vehicles dated 7/28/98 (EEOC Charge No. 140931019); 147 B.N.A. Daily Labor Report a-1 (7/31/98).

28Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), cert den 114 U.S. 1386 (1994).

29Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), cert den 116 S.Ct. 1263 (1996).

30Siefkin v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995).

31Lane v. Peña, 867 F.Supp. 1050 (DC 1994), aff'd 116 S.Ct. 2092 (1996).

32Arnold v. UPS, 136 F.3d 854 (1st Cir. 1998).

33Graham v. Connies' Incorporated, unpublished opinion (9th Cir. 1999) (Case No. 98-35242).

34Kapche v. City of San Antonio, opinion pending (5th Cir. 1999) (Case No. 98-50345).

35Murphy v. UPS, opinion pending (USSC 1999) (Case No. 97-1992).

36The Association's amicus briefs from the Graham, Kapche, and Murphy cases are available on the Association's website: www.diabetes.org/advocacy/discrim_lawyers.asp.

37Stuthard v. KinderCare Learning Centers, Inc., Case No. C2-96-0185 (USDC So. Ohio, 1996).

38Davis v. LaPetite Academy, Inc., Case No. CIV 97-0083-PHX-SMM (USDC Ariz. 1997).

39Holloway v. California Department of Social Services, Case No. C-96-03622ME (USDC No. Cal. 1996).

40For example, both the National Employment Lawyers' Association (NELA) and the American Civil Liberties Union (ACLU) maintain large, nationwide networks of attorneys with particular knowledge and experience in employment and civil rights matters.

Michael A. Greene, JD, is volunteer chair of the Legal Advocacy Subcommittee of the American Diabetes Association and an attorney with Rosenthal & Greene, PC, of Portland, Oreg.

Return to Issue Contents

Copyright © 1999 American Diabetes Association

Last updated: 12/99
For Technical Issues contact