Sunday, August 30, 2009

Prevalence of the Reportable Conditions

Below is the list of conditions, their approximate prevalences during the relevant time period, and the reference where obtained. The small field of mental disorder seems to have a total equal to all combined medical/surgical conditions. ( Mental: 15%; Medical: 13.5%). Given the small threat, it is legally advisable to report all patients to get immunity.

To summarize here.

1. Vision Requirements. All states have a similar requirement.


2. ) Syncopal attack or loss of consciousness. Lifetime: 19% over age 45, or 0.5% every six months.

3. Rheumatic, arthritic, orthopedic, muscular, vascular or neuromuscular disease. Taking the middle prevalences, and adding them up, about 10%. Go to page 138 in the PDF box at the top.

4. Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in lack of coordination, confusion, loss of awareness, dyspnea upon mild exertion or any other sign or symptom which impairs the ability to control and safely perform motor functions necessary to operate a motor vehicle.

Say 1% (30% lifetime divided by 30 years from ages 45 to ages 75)

5. Epilepsy. (a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.

2%


6. Mental Disorder. Preoccupation, hallucination or delusion. Psychosis: 2%

Suicidality. 30,000 suicide a year (1 in 7000 adults, multiply by 10 for the attempt rate, 1 in 700)

(iii) Aggressiveness or disregard for the safety of self or others or both, presenting a clear and present danger, regardless of cause.

Antisocial Personality Disorder: 2% of males. Females get the diagnosis, borderline personality disorder at about 2% too. They are nearly identical.

(6) Periodic episodes of loss of attention or awareness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding, as reported by a licensed physician.

Adult ADHD: 4.4%


(7) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless whether the drug or substance is medically prescribed.

Use of marijuana 4%. Marijuana addiction 1.5%



(8) Other conditions which, in the opinion of a provider, is likely to impair the ability to control and safely operate a motor vehicle.

Alcoholim (dependence): 5%

Alcohol abuse: 7%


Wednesday, August 26, 2009

Conditions to be Reported to the Pennsylvania Department of Transportation

§ 83.3. Visual standards.

(a) Driving without corrective lenses. A person with visual acuity of 20/40 or better combined vision may drive without corrective lenses.

(1) If a person with visual acuity of 20/40 or better combined vision, however, has visual acuity of less than 20/40 in one eye, the vision in that eye shall be corrected to its best visual acuity.

(2) A person with visual acuity of 20/40 or better combined vision and who has visual acuity of less than 20/40 in one eye, may drive without corrective lenses upon determination by a licensed optometrist or ophthalmologist that the person’s combined vision would not be improved by the use of corrective lenses.

(b) Driving with corrective lenses. A person with visual acuity of less than 20/40 combined vision shall wear lenses correcting combined vision to 20/40 or better while driving, except that if correction to 20/40 is not possible, the person may drive in daylight hours only if one of the following are met:

(1) The combined vision has been corrected to 20/60 or better.

(2) Visual acuity is less than 20/60 combined vision but at least 20/70 combined vision with best correction, but only upon recommendation of a licensed optometrist or licensed physician who has equipment to properly evaluate visual acuity.

(c) Visual acuity of less than 20/70.

(1) A person with visual acuity of less than 20/70 combined vision but at least 20/100 combined vision with best correction may apply for and may be issued a restricted license only upon recommendation of a licensed optometrist or ophthalmologist or licensed physician who has equipment to properly evaluate visual acuity, and only if the following conditions or limitations are satisfied:

(i) The person takes and successfully passes a complete vision examination, including plotted visual fields, upon application and annually thereafter.

(ii) The person takes and successfully passes a driver’s examination upon application.

(iii) The person’s driving privilege is limited to roads other than freeways, as defined in 75 Pa.C.S. § 102 (relating to definitions).

(iv) The person’s driving privilege is limited to passenger vehicles weighing no more than 10,000 pounds, and excludes operation of a motorcycle.

(v) If determined by the Department to be appropriate, the person’s driving privilege is limited to driving within a limited radius of the person’s residence as recommended by a licensed physician.

(2) Violation of these conditions or limitations shall result in the recall of the restricted license. In addition, an annual review of the person’s accident and violation history will be conducted by the Department and the restricted license may be recalled if the Department determines that the person was involved in an at fault accident or convicted of two moving violations committed within a 1-year period.

(d) Visual acuity of less than 20/100. A person with visual acuity of less than 20/100 combined vision with best correction will not be qualified to drive.

(e) Vision requirements. A person shall have a combined field of vision of at least 120° in the horizontal meridian, excepting the normal blind spots.

(f) Sight in one eye. A person may be adequately sighted in only one eye and still meet the requirements of this section The person’s driving privilege will be restricted to vehicles having mirrors so located as to reflect to the person a view of the highway for a distance of at least 200 feet to the rear.

(g) Telescopic lenses. Correction through the use of telescopic lenses is not acceptable for purposes of meeting acuity requirements.

§ 83.4. Epilepsy.

(a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.

(b) Waiver. Waiver of the freedom from seizure requirement may be made upon specific recommendation by a licensed physician if one of the following conditions apply:

(1) A strictly nocturnal pattern of seizures or a pattern of seizures occurring only immediately upon awakening has been established over a period of at least 2 years immediately preceding, with or without medication.

(2) A specific prolonged aura accompanied by sufficient warning has been established over a period of at least 2 years immediately preceding, with or without medication.

(3) The person previously had been free from seizure for a 6 month period and the subsequent seizure or seizures occurred as a result of a prescribed change in or removal from medication while under the supervision of a licensed physician. This waiver will only be provided upon reinstitution of previous medication.

(4) The person previously had been free from seizure for 6 months and the subsequent seizure or seizures occurred during or concurrent with a nonrecurring transient illness, toxic ingestion, or metabolic imbalance.

(c) Reporting requirements for provider. Every provider who treats a person who has experienced a single seizure shall provide, consistent with 75 Pa.C.S. § 1518(b) (relating to reports on mental or physical disabilities or disorders), a report to the Department which shall constitute cause for the Department to direct the person to undergo an examination prescribed under 75 Pa.C.S. § 1519 (relating to determination of incompetency).

§ 83.5. Other physical and medical standards.

(a) General disqualifications. A person who has any of the following conditions will not be qualified to drive:

(1) Unstable or brittle diabetes or hypoglycemia, unless there has been a continuous period of at least 6 months freedom from a related syncopal attack.

(2) Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in one or more of the following:

(i) Syncopal attack or loss of consciousness.

(ii) Vertigo, paralysis or loss of qualifying visual fields.

(3) Periodic episodes of loss of consciousness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding.

(b) Disqualification on provider’s recommendation. A person who has any of the following conditions will not be qualified to drive if, in the opinion of the provider, the condition is likely to impair the ability to control and safely operate a motor vehicle:

(1) Loss of a joint or extremity as a functional defect or limitation.

(2) Impairment of the use of a joint or extremity as a functional defect or limitation.

(i) The provider should inform the patient of the prohibition against driving due to the functional impairment.

(ii) The provider shall inform the Department in writing of the impairment if the condition has lasted or is expected to last longer than 90 days.

(3) Rheumatic, arthritic, orthopedic, muscular, vascular or neuromuscular disease.

(i) The provider should inform the patient of the prohibition against driving due to the functional impairment.

(ii) The provider shall inform the Department in writing of the impairment if the condition has lasted or is expected to last longer than 90 days.

(4) Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in lack of coordination, confusion, loss of awareness, dyspnea upon mild exertion or any other sign or symptom which impairs the ability to control and safely perform motor functions necessary to operate a motor vehicle.

(5) Mental disorder, whether organic or without known organic cause, as described in the current Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, 1700 18th Street NW, Washington, DC 20009, especially as manifested by the symptoms set forth in (i)—(iii). While signs or symptoms of mental disorder may not appear during examination by the provider, evidence may be derived from the person’s history as provided by self or others familiar with the person’s behavior.

(i) Inattentiveness to the task of driving because of, for example, preoccupation, hallucination or delusion.

(ii) Contemplation of suicide, as may be present in acute or chronic depression or in other disorders.

(iii) Excessive aggressiveness or disregard for the safety of self or others or both, presenting a clear and present danger, regardless of cause.

(6) Periodic episodes of loss of attention or awareness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding, as reported by a licensed physician.

(7) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless whether the drug or substance is medically prescribed.

(8) Other conditions which, in the opinion of a provider, is likely to impair the ability to control and safely operate a motor vehicle.

(c) Driving examination. A person who has any of the conditions enumerated in subsection (b)(1), (2), (3) or (8) may be required to undergo a driving examination to determine driving competency, if the Department has reason to believe that the person’s ability to safely operate a motor vehicle is impaired. The person may be restricted to driving only when utilizing appropriate adaptive equipment.

§ 83.6. Providers to report unqualified persons.

Physicians and other persons authorized to diagnose and treat disorders and disabilities defined by the Medical Advisory Board shall report to the Department, in writing, the full name, date of birth and address of every person 16 years of age and older diagnosed as having any specified disorder or disability within 10 days, under 75 Pa.C.S. § 1518 (relating to reports on mental or physical disabilities or disorders).

Monday, August 24, 2009

Review of Supreme Court Cases on Suing a State

From Chemerinski, Fed Jurisdiction, 5th Ed. pp.431-478

Ways around Eleventh Amendment suits Against State Officers

1. No bar to suits against state officers to enjoin violation of fed law. No authority to violate fed law from the states, so illegal acts are stripped of state authority. State official violating fed law or con is stripped of state official or representative character. (Ex parte Young, 1908)

2. State officials may be sued for money from their own pockets, suit against officer "in individual capacity." State may indemnify officer without changing that analysis because it does so voluntarily.

3. Fed court may grant prospective relief even if costly in the future (welfare recipients from other state get benefits upon arrival in the new state.) Payment for past injury by state prohibited.

4. Ancillary relief in form of attorney fees OK under Section 1988. Ancillary to prospective relief in the injunction.

5. Hafer v Melo. Officer acting in scope of duty is not enough to bar a suit. His was in official capacity when sued, but in individual capacity when inflicted the injury. Pennhurst: suit OK if suit involves liberty or property interest protected by due process of Fourteenth Amendment.

6. Seminole Tribe. No suit against state if law has its own enforcement mechanism. Rejected federal law allowing violation of Eleventh Amendment. Fed law called for negotiation and submission of dispute to mediator. DOT reg has no such mechanism.

7. Idaho v Coeur D'Alene Tribe. May sue in fed court 1) if no state forum to vindicate federal interest; 2) need fed court to enforce or interpret federal law. In the complaint, PA is not enforcing the fed reg requiring confidentiality of substance abuse. Verizon of MD v PSC of MD. no bar to suit against officers when they violate fed law.

8. Constructive waivers will almost never work.

9. Eleventh limits judiciary, not Congress. Congress may override immunity in statutes adopted under Section 5 of the Fourteenth Amendment, "Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Hutto v Finney. Attorneys fees under Section 1988.

10. Statutes validly enacted under Section 5 of Fourteenth Amendment. City of Boerne v Flores. If government is to burden the free exercise of religion (peyote), government must show compelling government purpose and that it used the least restrictive method to do so. Congress is limited to prevent or remedy rights recognized by the Supreme Court stemming from the Fourteenth Amendment. This was done to preserve the role of the Supreme Court as the interpreter of the Constitution. A state may be sued for violation of a federal law only after meeting the stringent test in Flores. They struck down lawsuits based on federal law in 6 decisions reached 5-4. Rejected suits against states as not fitting into a Section 5 violation: 1) patent infringement suit against a state (state may infringe with impunity); 2) librarians suing for age discrimination (Kimel) barred because only rational basis used for age discrimination - all person will age. Age discrimination by states not widespread anyway; old state workers should sue in state court; 3) same logic used to bar fed discrimination claim based on disability (nurse supervisor lost job after time off for breast cancer), federal government could still sue the state, but no damages could be collected.

Permissible federal suits against states because within the scope of Section 5 of Fourteenth Amendment:

1) Hibbs. May sue state employer for violation of Family Leave Act. Gender triggers intermediate scrutiny, age in Kimel only rational basis.

2) Lane. A paralyzed criminal defendant crawled up the steps of the courthouse due to lack of access required by Title II of the ADA, that prohibits governments from discriminating against the disabled. Access to court is a fundamental right.

3) US v Georgia. Paralyzed inmate could not reach toilet in cell. Degrading conditions cruel and unusual punishment.

One may sue a state for discrimination that receives heightened scrutiny, that involves a fundamental right, or if state discrimination is pervasive.

Criticism: Sovereign immunity is not authorized by the Constitution. The above cases striking down suits against suits are conservative judicial activism.

I would add, sovereign immunity was justified by Henry of Bratton by the sovereign's speaking with the voice of God. This is a psychotic delusional justification. It violates the Establishment Clause. At the policy level, if torts are designed to improve a service and to prevent violence, there is no reason state government should be deprived of the benefits of torts.

Friday, August 21, 2009

Motion to Dismiss Filed by Pennsylvania

Here.

Here is a summary from the reply.

1. Venue in the Eastern District of Pennsylvania is improper because Commonwealth
defendants reside in the Middle District of Pennsylvania; moreover, because plaintiff is challenging a PennDOT regulation, all of the events and omissions allegedly giving rise toplaintiff’s lawsuit arose in the Middle District.
a) For venue purposes, the residence of a state agency or state official is the state
capital, even when branch offices of the state agency are maintained in other parts of the state. b) Harrisburg is the logical and administratively convenient location to have the action heard.

2. To the extent plaintiff sues PennDOT under 42 U.S.C. §§ 1983 and 1988, the Eleventh Amendment bars his claims; similarly, PennDOT is not a “person” within the meaning of Section 1983.

3. Federal regulations do not preempt 67 Pa. Code §§ 83.1 et seq. (“PennDOT
regulation”).

4. The PennDOT regulation is not void for vagueness.

5. Plaintiff lacks standing to challenge the legality of the PennDOT regulation.

Saturday, August 8, 2009

Letter to Senator Arlen Specter (D-PA)

Senator Specter: I request a list of all the medical procedures you have undergone, and their associated costs. You had headaches, dismissed by your doctors. You correctly demanded a brain scan, where a brain tumor was caught early. You had heart problems and a bypass helped you. You had Hogkin's Lymphoma. You have had two courses of chemotherapy, the last in July, 2009, at your age.

I commend you for your courage, and sympathize with your suffering.

Under Obama's Commie Care, others would be denied the care you received. At your age, you would be getting a visit from a hospice counselor and not a second course of chemotherapy. The brain scan would have been denied because no one would be getting a brain scan, or the wait would be for months. Under Obama's Commie Care you would have been long dead.

I intend to publish your procedures and their associated costs. I appreciate your help in advance.