The U.S. Supreme Court Cases
"Will the U.S. Supreme Court give
TBI Survivors Justice?"
Federal Question
Americans with Disabilities Act 1990, U.S. Code § 12101
Discrimination & Prejudice for a Protected Disability (TBI) Traumatic Brain Injury
ADA 1990 is about ACCESS in the USA: In this case its ACCESS to TBI Medical and Rehabilitation Care.
- Correct Medical Care for a TBI.
A TBI requires special Rehabilitation care. Beyond the physical needs from the injury to the body, it is imperative to have “Cognitive Therapy” to aid the TBI Survivor learn how their brain is processing. These areas are the domain of Neurology. A Neuropsych is assigned to the patient.Mental Illness is a combination of emotions, socialization, moral reasoning and mood. The Mental Health Industry focus on the “Control of BEHAVIOR” and “Stable MOOD.” OUTSIDE of those goals the Psychiatrist prescribes CHEMICAL TREATMENT – Pharmaceutical Drugs to trick the brain into the desired behaviors. For a Psychiatrist ‘walking in a stupor’ or suffering ‘tardive dyskinesia’ is an acceptable to OUTBURST of Protest by the TBI Survivor.
The NFL Concussion Case (2016) proved that the medical care for TBI or Concussion is Neurology using Neuropsychology for treatment.
- Employment Opportunities with a TBI Disability.
Employers can accommodate a disability, whereas a mental illness gives them a fear of lack of reliability, and potential problems with co-workers. Discrimination exists in employment.
- The Private Sector Employers shy away from the TBI Survivor. The Private Employer does not want to offer accommodations. They are fearful of the TBI Survivor’s ability to work with a TEAM, their ability to co-ordinate with other associates. Due to its commerce orientation in the Private Sector meeting “deadlines” is a critical issue. Private Employers frequently chose to take an alternate candidate. They have met the Federal Hiring requirement of disclosure of a disability. They simply respond: “The Candidate is not a “Good Fit”.” The employer no longer has to offer accommodations as there is “NO OFFER.” This leaves the TBI Survivors “out of the job market.
- In the Public Sector (Federal jobs – USA.jobs) accommodations are required due to Federal Law. Here is one finds discrimination in level of work responsibility, and security clearances required. Human Resources question the ability to manage departments, or hold responsibility of an organization regardless of the Candidate’s past experiences prior to the TBI. For TBI candidates that have had International Careers a TBI Disability can affect their ability to represent organizations overseas (NGOs, INGOs). In addition, each country has their own requirements to obtain a “Working VISA”. Sovereignty of a Foreign Nation requires the applicant to be subject to that Nation’s laws on Neurological Disability, Mental Illness, Developmental Disability, and NeuroDiversity Issues.
- Discrimination for housing availability: Mental Illness is a covered disability for Affordable Housing Programs such as “HUD”, “Low-Cost Housing”, and “Permanent & Supportive Housing.” A Traumatic Brain Injury (TBI) a disability is not listed as an eligible disability. This demonstrates the DELAY from Federal Law to the integration of the State Actor (State, City, or Local Provider). Federal Law requires any State or Local Agency, Department, or Organization who receives Federal Funding, the MANDATE to provide Federal Civil Rights protection and relief to a TBI Disabled Survivor. Some States hold a requirement for housing program eligibility by a TBI Survivor ONLY upon 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 evaluation tools in favor of mental illness tools. 28 U.S. Code § 7316 (b)(1)
FEDERAL HEALTH CARE FRAUD –Social Security Act §1900, Social Security Act §1936
INDEPENDENT LIVING – Social Security Act §1929, §477, §470
RELIGIOUS FREEDOM – Constitutional 1st Amendment Right
CHARACTER DEFAMATION
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 against a Protected Disability “Intellectual Disability”
Disparate Impact DISCRIMINATION – Neurological Impairment.
Discrimination in Religious Freedom – To reject Health Care not in keeping with your 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, 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. Atherton v Parker et al
11/18/19 – Letter from U.S. Supreme Court not filed on time. Atherton v New York Police et al
05/2024 – U.S. Supreme Court Clerk said if I have proof of mailing, they 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 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.
These cases have a bearing on the “Mental Health” Record.
This record does NOT SHOW a verified Disability: “Intellectual Disability” – TBI
OLMSTEAD ACT 1999
1/26/2012 Department of Justice Settlement Agreement with the State of Virignina for failing to release “intellectually disabled” individuals into the community for independent life. The Mental Hospital violated the Olmstead. We are stating OLMESTEAD ACT applies to “Intellecturally Disabiled” ADA 1990 – Brain Injury disability.
- We must win this case to prove the defendant has a legitimate Permanent Disability from Neurological Processing, not uncontrolled behavior from a ‘Mental Illness’.
- TBI Survivor wants to return to International Consulting – She is America’s 1st Cultural & Visual Anthropologist using Technology to “preserve” Culture in the AGE of GLOBALIZATION.
What is the BRAIN…? What is the MIND…? What is BEHAVOIR…?
The Mental Health Community has dominated the ‘thinking’ aspect of the brain since the 4th Century BCE (India & Greece) examining mental state, mood, and behavior (Hippocratic Treatise: The Nature of Man – The Four Humors: blood, phlegm, yellow bile, black bile). Freud’s work on psychoanalysis led to the 1911 International Psychoanalysis Association led by President Carl Jung. These theories are currently held firm by the American Psychiatric Association who continues its control of Brain & Mental Health clinics and Psychiatric Hospitals.
Yet, Jean‑Martin Charcot at the Hôpital de la Salpêtrière in Paris – the Father of MODERN NEUROLOGY distinguished organic diseases from those of hysteria, or other psychiatric origin. Over 160 years ago he proved the brain operations are separate from emotional behavior. Neurologists are the biological experts of brain operations: cellular functions, brain circuitry, and neural network formations. Neurology studies the physiological aspect of the brain function in relation to the body and the mind.
21st Century Modern Brain Research:
The BRAIN Initiative (Brain Research through Advancing Innovative Neurotechnologies) was officially launched by President Barack Obama on April 2, 2013.
New Discoveries:
- Advanced Diffusion MRI Uncovers Invisible White‑Matter Injury: Using high‑angular resolution diffusion tensor imaging (DTI) and neurite orientation dispersion and density imaging (NODDI), researchers mapped microstructural axonal damage in patients with “normal” conventional MRI, correlating these findings with persistent cognitive deficits.[i] (May 2017) Churchill NW, et al. “Neurite orientation dispersion and density imaging and conventional diffusion MRI in sport concussion.” Rep. 2017 May;7:13335.
- PET Ligands to Visualize Tau Pathology in CTE The development of the [^18F]flortaucipir (formerly AV‑1451) PET tracer enabled in vivo imaging of tau protein aggregates characteristic of chronic traumatic encephalopathy (CTE), marking the first step toward a living‑diagnosis of CTE pathology.[ii] (July 2019) Stern RA, et al. “Tau positron‑emission tomography in former National Football League players.” Engl. J. Med. 2019 Jul;380(18):1716–1725.
- Neuroinflammation as a Therapeutic Target: PET Imaging of Microglial Activation. Use of the TSPO PET ligand [^11C]PBR28 revealed widespread, prolonged microglial activation in moderate–severe TBI patients months to years post‑injury, identifying chronic neuroinflammation as a modifiable target.[iii] (March 2021) Traum A, et al. “Longitudinal PET imaging of microglial activation in TBI patients.” Brain 2021 Mar;144(3):569–582.
[i] Churchill NW, et al. “Neurite orientation dispersion and density imaging and conventional diffusion MRI in sport concussion.” Sci. Rep. 2017 May;7:13335.
[ii] Stern RA, et al. “Tau positron‑emission tomography in former National Football League players.” N. Engl. J. Med. 2019 Jul;380(18):1716–1725.
[iii] Traum A, et al. “Longitudinal PET imaging of microglial activation in TBI patients.” Brain 2021 Mar;144(3):569–582
Which Science has control over BEHAVIORAL HEALTH?
All of America’s Brain Health services are managed through the Mental Health Community called “Behavioral Health”. 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, the ability to recall acquired memories. It is critical that there is funding for RESEARCH into TBI based dysfunction. The pathologies of brain care for degenerative disease such as Alzheimer’s, Parkinson, Stroke, and ALS have treatments that are currently applied to Traumatic Brain Injury.
TBI has a SEPARATE CONFIGURATION based on the destruction of the brain tissue, introduction of neuroplasiticity, and impact of long-term inflammation on the brain. These factors are NOT in the PRESENT BRAIN or NEURO THERAPY RESEARCH. The applied therapies DO NOT WORK on the TBI brain. TBI needs DEDICATED RESEARCH for the issues that affect the 65 million Americans with at least one Traumatic Brain Inijury.
Best Regards,
Arlene R. Atherton Director Traumatic Brain Injury Recovery Association
aarleneratherton@gmail.com
