TBI CONSTITUTIONAL ISSUES
U.S. Supreme Court Americans with Disabilities Act 1990 cases.
I am presently looking for an Attorney who is registered with the U.S. Supreme Court Bar Association to take over these ADA 1990 cases. Please review and contact Arlene Atherton at aarleneratherton@gmail.com
The cases are LANDMARK CASES – As Significant as the NFL Players’ Concussion Injury Case:
Federal Question
Americans with Disabilities Act 1990, U.S. Code § 12101
Discrimination & Prejudice on a protected Disability (TBI) Traumatic Brain Injury
ADA 1990 is about ACCESS. In this case its ACCESS to TBI Medical/Rehabilitation Care.
There are 2.9 million TBI survivors in Emergency Rooms a year. There are 35 million TBI survivors living in the USA including concussions. Many [i]who are falsely arrested by police and sent to mental institutions. I want to make it the standard of care to give them disability housing, and Neuropsych care. I want doctors to lose their license for putting them in a mental institution. I want the Hospitals fined for not releasing them to the community and “Independent Living”. I want Mental Hospitals to lose their license for committing ‘Medicaid/Medicare FRAUD.
There are TWO important precedents to these U.S. Supreme Court cases
The First is the NFL Concussion Injury Litigation:
NAT’L FOOTBALL LEAGUE PLAYERS CONCUSSION, 821 F. 3d 410 – Court of Appeals, 3rd Circuit (2016)
It settled with 1 Billion Dollars to Football Players who had concussions citing them Traumatic Brain Injury, and neurological disorders. The settlement agreement included medical care. Named Approved Medical Care: Neuropsychologists and Neurology based treatments. They did not offer Psychiatrists and Mental Health care with psychotropic drugs.
The second is the Olmstead Act of 1999:
Olmstead v. L.C., 527 U.S. 581 (1999), is a United States Supreme Court case regarding discrimination against people with ‘intellectual disabilities.’ The Olmstead Act says that mentally ill people can live independently and not be institutionalized. https://en.wikipedia.org/wiki/Olmstead_v._L.C.
A Traumatic Brain Injury is not the SAME as a ‘mental illness’, or low IQ.
A TBI is not a chemical imbalance. It is a ripping, tearing, and shearing of the brain tissue. It is recoverable with neuroplasticity. It takes years to heal 5-15 years or longer. TBI symptoms are similar to DMS V diagnosis of mental Illness, but those symptoms are used as misdiagnosis, which is Medical Malpractice.
Traumatic Brain Injury (TBI) is tissue damage which with Neuroplasticity the brain can grow back its neural network, and remap the brain. TBI is the only recoverable Neurological Injury in medicine. This means the symptomology of the Traumatic Brain Injury patient must be monitored in the Traumatic Brain Injury setting.
The DMS-V is based on the science of chemical reaction in neurotransmitters, Pharmaceuticals are prescribed to impact that chemical reaction. The chemical bathing of the Brain made of sensitive neurological tissue interrupts the neuroplasticity of the brain to repair naturally the Traumatic Brain Injury. The Brain is the only cellular tissue capable of self-repair.
Mental Health professionals prescribe a ‘chemical mask’ using pharmaceuticals to control the behavior of a TBI patient. These behaviors are NATURAL due to the damage from the Traumatic Brain Injury and should not be attempted to be corrected other than ‘cognitive therapy’ or C.R.A.T.E.R therapy (developed in Palo Alto Veterans Administration Traumatic Brain Injury Treatment Clinic). These pharmaceuticals prohibit trained Traumatic Brain Injury Professionals from interacting and recording the progress by the TBI survivor.
- Often mistake anger and emotional lability of the TBI survivor as ‘mood swings’ under a ‘bipolar’ diagnosis
- Loss of “working memory’ or ‘short term memory’ as ‘Dementia’ diagnosis, with an ‘early onset of Alzheimer’s Disease’.
- Cites anger outbursts as ‘impulsive behavior’
- ‘Disordered Thoughts’ of the speech of the TBI survivor rather than the ‘tissue damage’ caused by the TBI in Executive Function.
- Excessive sleep due to the brain regeneration required to heal the TBI is diagnosed as “Depressed”.
- ‘Grandiose Thinking’ is diagnosed when the TBI survivor recites their past life and desire to achieve again.
The Traumatic Brain Injured Survivor exhibits the developmental capacity of emotional control attributed to ‘children’ as measured by social knowledge found in the EXECUTIVE FUNCTION. There are non-pharmaceutical treatments for these emotional concerns in group settings.
Pharmaceuticals are not the ‘Standard of Care’, for Traumatic Brain Injury, and are medical malpractice.
The Americans with Disabilities Act of 1990 protects Traumatic Brain Injured Survivors from being Institutionalized, as unable to care for themselves.
Take a look at the INTENT of CONGRESS:
Americans with Disabilities Act 1990
Section 12101 (Section 2)
(a) Findings. – The Congress finds that-
(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
CONSTITUTIONSAL AMENDEMENT ISSUES
1st Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The right to exercise your Religious Practice Freedom. You have the right to abstain from Medical Treatment if it conflicts with your Religious Beliefs. See Cantwell.
5th Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Violations: Personal Liberty (falsely incarcerated in a Mental Institution); Freedom of Movement Involuntary commitment); Independent Living, the right to live in the community rather than isolation and institutionalization.
9th Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 9th Amendment was James Madison’s attempt to ensure that the Bill or Rights was not seen as granting to the people of the United States only the specific rights it addresses. The Right to be free from DISCRIMINATION, Right to Medical Care
14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Right to EQUAL PROTECTION under the Law.
- Color of Law – 18 U.S.C Code §242 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials.
- Protected Disability – Americans with Disabilities Act 1990 Section 12101 (Section 2)
Traumatic Brain Injury is a protected disability as “Intellectual Disability”.
Several types of brain damage can lead to an intellectual disability (ID, formerly mental retardation). These are: 1) Traumatic Brain Injury (TBI), 2) congenital brain damage, and 3) progressive brain damage. Traumatic Brain Injuries (TBI) are injuries to the brain that occur after birth (but before age 18). Many brain injuries are preventable. These injuries may be caused by an auto accident, a blow to the head, or a fall.
- Right to Refuse Mental Illness Care
“Adults in Virginia, including those in state hospitals, are generally assumed to be competent to make their own decisions such as whether to take medication. This means that as a competent adult, you can refuse to take medications even in the state hospital.” (VA Disability Law Center)
- Right to Access TBI Medical Care:
Medical Necessity -defines “medically necessary services” as those services that are covered under the State Plan and are reasonable and necessary for the diagnosis or treatment of an illness or injury, or to improve the functioning of a malformed body member.
A TBI is a ripping, tearing, and shearing of brain tissue. It is. A physical disability with neurological consequences in information processing, memory loss, concentration, speech, and motor control. Psychiatry is not a treatment for the loss of neural network or neurons. Special Neurological Treatment is required to speed rehabilitation.
- Americans with Disabilities Act of 1990 “Intellectual Disability” Rights
“(a) Findings. – The Congress finds that-
(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;”
The U.S. Supreme Court Cases
Federal Question
Americans with Disabilities Act 1990, U.S. Code § 12101
Discrimination & Prejudice on a protected Disability (TBI) Traumatic Brain Injury
ADA 1990 is about ACCESS in the USA: In this case its ACCESS to TBI Medical/Rehabilitation Care.
- Correct Medical Care for a TBI.
- Employment Opportunities with a TBI v. Mental Illness. Employment in the Private sector, Employment in the Public Sector (Federal jobs – USA.jobs), ability to represent organizations overseas (NGOs), Working VISA (Foreign Organization).
- Housing availability for a TBI disability under Permanent & Supportive Housing, rather than dependence on release from a Jail or Mental Hospital.
Causes of Action:
FEDERAL MEDICAL FRAUD (Malpractice) 42 CFR § 431.5242, CFR §447.15
FEDERAL MEDICAL NEGLIGENCE 28 U.S. Code § 7316 (Malpractice) –Disregard of Traumatic Brain Injury evaluations tools in favor of mental illness tools. 28 U.S. Code § 7316 (b)(1) Failure to meet Federal requirements for “Medical Necessity” for Acute Care Hospital.
FEDERAL HEALTH CARE FRAUD –Social Security Act §1900, Social Security Act §1936
INDEPENDENT LIVING – Social Security Act §1929, §477, §470
FEDERAL FAIR HOUSING ACT –Disability housing
RELIGIOUS FREEDOM – Constitutional 1st Amendment Right
CHARACTER DEFEMATION
Disparate Impact DISCRIMINATION – Neurological Impairment.
Discrimination:
Isolation as Discrimination
Mental Illness care v. Traumatic Brain Injury Care (Malpractice)
Discrimination against a Protected Disability “Intellectual Disability”
Discrimination in Employment under a Protected Disability
Discrimination in Housing under a Protected Disability
Discrimination in Religious Freedom – To reject Health Care not in keeping with your religious beliefs.
Constitutional Issues:
1st Amendment – Religious Practice Freedom
5th Amendment – Right to Due Process; Personal Liberty, Freedom of Movement, Independent Living
9th Amendment – Right to be free from DISCRIMINATION, Right to Medical Care
14th Amendment – Right to EQUAL PROTECTION under the Law; Color of Law, Protected Disability – Right to Refuse Mental Illness Care; Right to Access TBI Medical Care, Right to Fair Housing with a protected TBI Disability, Americans with Disabilities Act of 1990 – Disability Rights
Statue of Limitations:
2019 filed Writ of Certiorari
12/03/19 – Letter from U.S. Supreme Court not filed on time. Case #1
11/18/19 – Letter from U.S. Supreme Court not filed on time. Case #2
05/2024 – U.S. Supreme Court Clerk said, “If you have proof of mailing, the Court will accept the case and reopen it.”
Federal Grounds for (Federal) State Actors
5.1.A.2.b.i. Delegation of a Traditional State Function
5.1.A.2.b.ii Joint Activity and Pervasive Entwinement
5.1.A.2.b.iii Governmental Creation of a Legal or Procedural Framework
5.1.A.2.b.iv Government Compulsion or Significant Encouragement to Act in a Particular Way
5.1.A.2.b.v The Symbiotic Relationship Test
5.1.A.2.b.vii The Special Relationship Test
TBI Diagnosis
1/7/2011 – Pedestrian Accident – Moderate/Severe Front Left Temporal Lobe. Santa Fe, NM.
Mental Health Hospital
“Involuntary Commitment”- Unable to care for self. DANGER to SELF. Given a ‘Mental Illness’ diagnosis instead of disability TBI. 9/2011-4/2012
“Involuntary Commitment”- False report to Magistrate Office – Bizarre Behavior. DANGER to SELF. Given a ‘Mental Illness’ diagnosis instead of disability TBI. Threatened with LONG TERM Commitment. 9/2014-452015
There have been various other Mental Health Hospitalizations after an arrest for “Trespassing”, which was dismissed. NO CRIMINAL HISTORY. These hospitalizations have been for 2-3 months due to TDO (Temporary Detaining Order) by Police. Intake showed prior mental health history and chose to claim ‘Mentally ill”. Intake always claimed “if found on the street, there must be a mental illness.” Once you have a record, the cycle repeats.
These cases have a bearing on my “Mental Health” Record; When I have a verified Disability “Intellectual Disability” – TBI. “Mental Health” Record can affect: employment eligibility, Federal employment, Security Clearance, and Foreign Working VISA.
Economic Damage:
- Loss of Real Property due to the inability to work. Permanent Disability.
- Loss of Income – Unable to work while in Institution. (Previous Income).
- ARREST RECORDS Prohibit Employment: Able to work part/full time with TBI accommodation
- Past ‘MENTAL HEALTH’ Record Prohibit Employment. Discrimination against a mental illness instead of a disability.
- Presently live on Social Security Retirement.
Punitive Damages:
- Institutionalism has caused lack of knowledge in technology, knowledge of profession, and current events.
- Medical damage due to Dental work not covered by Medicaid.
- No Physical Therapy for accident injuries. Physical health sacrificed for ‘mental illness incarceration.
- Mental Hospital discharged TBI Survivor to a rural town. Found on highway enroute to a city with TBI Medical Care. Discharged to the place of origin. No jobs. No quality medical care for TBI with Medicaid.
- Unable to return to education: School loan in default. Submitted ‘Loan Forgiveness’ to Department of Education 4/2013, 5/2016. They never forgave my loan. Finally LOAN FORGIVEN 12/2023. (U.S. Department of Education requires 3 years to elapse before offering FASFA funds for tuition.)
- Job UNEMPLOYMENT: Over-qualified on resume for simple jobs to return to work. No TBI accommodation given. Arrest record prevents employment (In process of expungements, No Criminal History).
- Mental Health Record may prevent Working VISA overseas to International Consulting.
We must win this case to prove that the TBI Survivor has a legitimate Permanent Disability, not a ‘mental illness’.
We can’t let the psychiatry, who has had the domain of the brain; overstep neurology who have studied the physiological aspect of the brain function to the body and the mind. Neuropsychologist are the experts at Traumatic Brain Injury. We can’t let the Mental Health Community which has dominated the ‘thinking’ aspect of the brain since the 3rd Century BCE in India and Greece, continue its hold on Brain Health. Neurology was founded by 18th century by Jean Martin Charcot. Charcot is a French neurologist, also who helped distinguish organic diseases from those of hysteria or other psychiatric origin.
All of America’s Brain Health services are managed by the Mental Health Community. We must fight for modern science under Neurology with Neuropsychs for TBI survivors to gain cognitive care, memory care, mental and brain function stimulation, learning experiences, ability to recall acquired memories.
[i] https://www.michiganmedicine.org/health-lab/us-failing-care-traumatic-brain-injury-survivors-experts-say
https://www.cdc.gov/traumatic-brain-injury/health-equity/index.html