The News From Ohio Legal Rights Service
Ohio's Protection & Advocacy System for People with Disabilities

October 2009

In this issue:

Federal Judge Approves Consent Order in Doe v State of Ohio

Federal Judge John D. Holschuh of the U.S. District Court for the Southern District of Ohio, Eastern Division, ruled the consent order in the Doe v. State of Ohio was fair, reasonable and adequate. The terms of the partial settlement of this class action lawsuit filed by Ohio Legal Rights Service are effective immediately and will benefit 280,000 children with disabilities in Ohio's schools.

This settlement brings Ohio into line with federal regulations regarding the Ohio Department of Education's (ODE) monitoring of school district special education programs and investigation of complaints filed by parents or students. The consent order includes a number of procedural safeguards resulting in transparent processes, increased notices to parents and more timely complaint decisions.

OLRS has represented plaintiffs in this case for nearly 16 years. Sue Tobin, trial attorney for the plaintiffs remarked after the hearing, "This consent order makes important changes that will greatly benefit Ohio students with disabilities by increasing the availability of information about school districts' compliance with federal law, providing for parent involvement in the monitoring process and making complaint procedures more accessible, responsive and comprehensive."

Judge Holschuh, during the fairness hearing in his summary statements said, "This agreement sets forth major improvements in the educational system for children with special needs."

Plaintiffs' Response

Jason and Lana Johnson, parents of a named plaintiff in the case, from Vincent, Ohio in Washington County attended the hearing with their children. Mr. Johnson said, "The settlement will make the process more transparent and easier to access for common people. I think this is a huge step forward for 280,000 children that the class action suit represents." Lisa Buckingham, another parent of a named plaintiff from Franklin, Ohio in Warren County said the agreement, will have minimal impact on her son with disabilities because of his age but that the settlement will, "Pave the way for other families." Lana Johnson concluded that the agreement, "Helps families get the services their children need."

Consent Order Requirements

The consent order approved and signed by Judge Holschuh requires ODE to:

• Ensure public access to information from the state's monitoring activities and to publicly post local school districts' compliance with the Individuals with Disabilities Education Act (IDEA) requirements.
• Provide oversight when waivers are requested to bypass specific special education service delivery ratios (class size, provider to student ratios, etc.). Parents whose children with disabilities may be affected by these waivers must be given notice of such requests before a decision is made on the waiver request.
• Provide additional notice to parents/guardians about the complaint process and information about advocacy resources after a state-level complaint is filed.
• Conduct a more thorough investigation of complaints about claimed violations of rights under the IDEA and ensure that violations of the law are corrected in a timely manner.
• Deny complaint timeline extensions (except in extraordinary circumstances) unless the request is agreed to by both the parent/guardian and the school district.

Case Background

In Doe v. State of Ohio, OLRS represents eight students with disabilities, their parents, and a plaintiff class of over 280,000 Ohio students with disabilities. OLRS brought the case to ensure that state officials were meeting their obligations to ensure that children with disabilities receive a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), and because of the impact that inequities in Ohio's school funding scheme have on the education of these children. Plaintiffs seek relief under IDEA, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973 and the U.S. Constitution.

Read more about Doe v. State of Ohio.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

ODE Fails to Protect Students From Potentially Deadly Prone Restraint

This article documents the lack of corrective measures taken by the Ohio Department of Education (ODE) and a local school district against a special education teacher and her aide who used a prone restraint on a student. Despite police and medical reports indicating child abuse during the restraint episode, the teacher received minimal disciplinary action. Outraged and frustrated by the lack of action by ODE and local school officials, the family contacted OLRS for assistance.

Restraint Investigated

A student from northwest Ohio with autism and moderate mental retardation was held in a prone restraint while at school. The teacher and her aide reported it was necessary to restrain the student when he tried to hit the teacher and grab her shirt.

In statements given to an investigator after the restraint, the teacher and her aide said they became entangled with the student and all fell to the floor. According to the teacher and the aide, they rolled the student onto his stomach, face down, holding him for a period of time in this prone position.

The teacher noticed a rash on the student's neck and a "heat rash of some kind with a funny pattern to it on his back" and sent him to the school nurse. The teacher stated that one of her sandals came off during the restraint and the imprint on his back probably resulted from the student lying on her sandal.

The Medical Evidence: Student was Abused

The school nurse examined the student after the restraint and identified the rash on his back and neck as petechiae. Petechiae are fl at round red spots under the skin surface caused by intradermal hemorrhage, the result of local injury and trauma. The nurse wrote in her report, "I thought it looked like the collar of his shirt might have been pulled tight against the skin of the neck as he was restrained from behind."

The family took their child to the hospital emergency room where he was examined by a physician. The physician concluded, "probable child abuse, cervical abrasions secondary to probable choking." The child was also evaluated by a doctor at a children's hospital two days after the restraint episode. This doctor found a "rust colored petechial outbreak" on the student's neck, scattered petechiae on his chest and back and a "shoe shaped patterned bruise" on his upper left back "consistent with the sole of a shoe." The doctor reported that the child:

"...is an 11 year old male who was physically abused. The teacher's story is non-sense in terms of the footprint mark. There is no way laying on a shoe would lead to capillary breakage and bruising. Based on the markings, I believe the child was placed face down, and someone placed their foot very forcibly on his back. This had to be severe force, as the petechiae on the chest and back indicate that blood flow and breathing were compromised. This is a very serious injury, in that it is unpredictable how long it would have taken for hypoxia and related organ damage or death to occur. This was a potentially fatal injury."

The doctor's report stated that the child should not be in that school, and warned that any child with special needs was at risk. The doctor concluded, "A complete investigation of the school is needed to make sure that the other children are safe."

OLRS Files Complaint of Educator Misconduct

OLRS, in consultation with the family, filed a complaint of educator misconduct against the teacher with ODE's Office of Professional Conduct (OPC). The reports from the doctors who examined the student, the nurse's report and other investigative materials, including photographs of the injuries, were included with the complaint.

Nine months after OLRS filed the complaint, the OPC investigation concluded with a Consent Agreement negotiated between the State Board of Education and the teacher and her attorney, signed by the Superintendent of Public Instruction. In the Consent Agreement, the teacher's actions toward the student are described as "an unsuccessful restraint of a student with autism."

Although the OPC can pursue disciplinary or remedial action against a teacher's credentials or application for credentials, the only disciplinary action in the Consent Agreement is a requirement that the teacher complete six hours of training on the specific needs of children with autism and to provide a copy of the Consent Agreement to her employer or to a potential employer until September 30, 2009. Under the terms of the Consent Agreement, the teacher's application for a five year teaching license will be approved once she completes this training.

OLRS Reaction

Failure of Oversight and Protection: This restraint case is a frightening and systemic example of the failure, at both local and state levels, to enact adequate legal protections for school children with disabilities and to exercise oversight of educators who victimize students by using prone restraints in schools. Must an Ohio student with a disability die or be seriously injured in a restraint before the Ohio Department of Education (ODE) develops rules banning dangerous restraints?

Governor's Restraint Task Force: ODE, despite being a member of a Governor's task force that was convened following the death of an Ohio youth after a prone restraint episode, has failed to fully protect Ohio's school children with disabilities. ODE must ban the use of prone restraint and other dangerous restraints in Ohio's schools that place a child face down, place pressure or weight on a child's back or chest or use any maneuver that restricts a child's ability to breathe. ODE's failure to develop restraint rules even though there is increased national awareness about tragedies resulting from the use of restraints in schools and the zealous advocacy of OLRS must not continue.

ODE must develop rules that promote the elimination of restraints through positive interventions that assure the rights and safety of Ohio's school children with disabilities.

The failure of ODE to act expeditiously subjects students with disabilities to the risk of injury or even death at school.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

Sjoberg-Witt Receives National Recognition

OLRS legal director Kerstin Sjoberg-Witt received recognition at the Public Justice Foundation's Annual Gala and Awards Dinner for her legal advocacy in one of the largest fair housing jury verdicts in history. Sjoberg-Witt, then of Jones Day in Columbus, Ohio and her colleagues, Reed Colfax, John Relman and Jennifer Klar of Relman & Dane, PLLC, in Washington, D.C.; Rachel K. Robinson of Equal Justice Foundation in Columbus; and Stefan Schmidt of the Office of the Attorney General of Ohio, were selected as one of five finalists for the Public Justice Foundation's Trial Lawyer of the Year Award. This award acknowledges lawyers who won or settled socially significant cases in 2008.

Sjoberg-Witt and her legal team were nominated for their representation of citizens of Coal Run, a predominantly African-American neighborhood in Zanesville, Ohio. They filed suit, Kennedy v. City of Zanesville, in the United States District Court for the Southern District of Ohio against the City of Zanesville and Muskingum County alleging that the denial of water service violated several civil rights laws, including the Fair Housing Act, Title VI, and the U.S. Constitution's Equal Protection Clause.

The case took over five years to litigate but, today the residents of Coal Run have running water and 67 of them are sharing a significant jury award. The jury awarded the Coal Run residents $10.8 million in compensatory damages.

According to the Public Justice Foundation, "This case demonstrates the important role played by creative and tenacious trial lawyers in putting a stop to discriminatory practices."

For more information about the award winners and finalists, visit the Public Justice website.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

Legal Update

by Kerstin Sjoberg-Witt, OLRS Legal Director

OLRS is litigating several class action lawsuits and representing individuals with disabilities in other cases in state or federal courts. The following is an update on selected cases.

G. D. v. Lumpkin, U.S. District Court for the Southern District of Ohio

• Class action pursuing claims on behalf of Ohio's children who have been denied access to the Early Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, the child health component of Medicaid.
• Class certification is now fully briefed and before the Court for decision. Discovery is in progress.

Doe v. State of Ohio, U.S. District Court for the Southern District of Ohio

• Class action on behalf of a plaintiff class of over 250,000 Ohio students with disabilities seeking relief under the Individuals with Disabilities Education Improvement Act, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 and the U.S. Constitution.
• Fairness hearing held on October 20, 2009 on the proposed consent decree.
• Four objections were filed with the Court regarding the proposed consent decree.
• Primary issues raised in the objections were the length of time for enforcement, the past practices of ODE on complaints and requests for additional requirements on how ODE should investigate or monitor complaints.
• A joint memorandum responding to the objections was filed on October 13, 2009.
• The Court extended the deadline for filing objections to the Doe Consent Order and will consider any objections filed in writing with the Clerk of Court on or before October 19, 2009.
• See Federal Judge Approves Consent Order in Doe v State of Ohio for most current update.

PLEAS v. Jones-Kelley, et. al, U.S. District Court for the Southern District of Ohio

• An action on behalf of Parents' League for Effective Autism Services (PLEAS), an association of parents and families who receive Medicaid services and individual plaintiff-children seeking to enjoin two Ohio administrative rules that preclude children with autism and other disabilities from receiving services paid for by Medicaid.
• Parties met prior to the pretrial conference held on September 16, 2009 and agreed to pursue settlement through the court appointed mediator.
• Mediation is scheduled for October 30, 2009.

State of Ohio v. Scott Speer, Ohio Supreme Court

• OLRS filed an amicus brief in collaboration with the National Association of the Deaf, the Ability Center of Greater Toledo, the Ohio Association of the Deaf and the Ohio School for the Deaf.
• The amicus brief presented important legal and policy considerations that the Court should consider in determining whether the appellate court erred in holding that a juror with a hearing impairment should have been excluded from the jury.
• Oral argument of the appeal before the Ohio Supreme Court is scheduled for November 17, 2009.

Rector v. Ohio Bureau of Workers Compensation, Franklin County Court of Common Pleas

• Trial court granted summary judgment to the employer on the employee's claim under R.C. 4112 for denial of a lateral transfer as a reasonable accommodation.
• OLRS appealed the decision arguing that there were material issues of fact to go to a jury and that the collective bargaining agreement permitted the requested transfer as a reasonable accommodation.
• The appellate brief was filed on October 5, 2009.

Hospodar v. Ohio Rehabilitation Services Commission (RSC), U.S. District Court for the Southern District of Ohio

• Civil action filed in August 2009 against RSC to review hearing officer's decision that upheld denial of assistance with college tuition.
• RSC filed response on October 2, 2009.

Z.R. v. Jewell, U.S. District Court for the Southern District of Ohio

• Community integration action under Title II of the ADA filed against Preble County Children Services to prevent a foster child's removal from his current foster home and placement in an intermediate care facility for the mentally retarded (ICF/MR).
• Temporary Restraining Order is in effect.
• The preliminary injunction hearing will be scheduled.

Crockett v. Connelly, U.S. District Court for the Southern District of Ohio

• RSC found a client's appeal request to be untimely and refused to send the appeal question to a hearing officer. The client attempted to appeal this decision but RSC refused to allow the appeal. With OLRS representation, the client filed a lawsuit in federal court.
• Successfully resolved with a settlement agreement that allows client to seek requested services from BVR and if denied to appeal that determination.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

OLRS Advocating and Protecting Rights in Partnership with People with Disabilities

Classroom Environment Changes Increase Safety for Student with Seizure Disorder

Students in a special education classroom in a west-central Ohio school district are no longer exposed to chemicals from spray deodorants or cleaning supply products. In addition, a medical intervention protocol is established for children who have a seizure while in the classroom.

A parent, who has a daughter in the classroom who was experiencing increased seizure activity, was concerned that chemicals in the products used in the classroom were the cause. The parent was also concerned about the medical knowledge level and care provided by staff after her child had a seizure. The parent spoke with school personnel about these issues but no action was taken. The parent contacted OLRS for assistance.

A staff member from the OLRS Ombudsperson Section met with the parent and arranged a meeting with the school staff. At the meeting, an agreement was reached where all products with chemicals in the classroom were replaced with "green" cleaning products and a medical protocol for response to a seizure was established.

Negotiation Leads to Accommodation for Employee with Mobility Limitations

A client with mobility limitations is able to get to her office easier after negotiating for an accommodation with her employer.

The client needed a parking space closer to the building because the designated employee handicap parking area is a long distance from the employee entrance. Furthermore, once inside the building, she had to walk the full length of the building to her office. Even though she provided documentation from her physician about her mobility impairment, the employer stated that the she did not qualify under the Americans with Disabilities Act and refused her request. The employer suggested the client use a wheelchair or purchase a motorized scooter.

OLRS intervened and resolved the case by a settlement agreement in which the employer agreed to purchase and maintain a motorized scooter for the client to use at work. She now accesses the scooter inside the employee entrance door and rides it to the elevator that goes to her office.

Negotiation Results in Accommodations for Client Who is Deaf

An OLRS client who is Deaf and in a prison diversionary rehabilitation program at an Ohio Correctional Treatment Facility (CTF) now receives accommodations to help her successfully complete the program's requirements. The accommodations include American Sign Language interpreter services, one-to-one staff assistance with programming and access to a computer.

Prior to contacting OLRS, the client was involved in the program for three months but struggled since the CTF refused to provide an interpreter and other accommodations. Successful completion of the CTF program is required before an inmate is released.

An OLRS attorney met with the client and the CTF's director to negotiate the client's rights to necessary accommodations and the facility's obligations to provide the needed supports for the client to complete the program.

OLRS Client Prevails in Student Loan Dispute

The United States Department of Education (USDOE) determined that an OLRS client is eligible to have her student loan discharged and garnishment of her benefits stopped.

The client was sued by the USDOE for defaulting on repayment of her student loans and her Social Security Disability Insurance (SSDI) benefits were being garnished. Because of the garnishment, she was unable to pay her bills and living expenses. She contacted OLRS to help negotiate with the collection agency and the USDOE.

An OLRS attorney researched the student loan issue and determined that a loan is discharged if a person is totally and permanently disabled. The client's physicians submitted statements to the USDOE declaring she was totally and permanently disabled due to a series of strokes. USDOE ruled that her student loan is initially discharged and will be permanently discharged if her disability does not improve after three years.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

New Staff at OLRS

Kristen Henry

Kristen Henry previously worked at the Equal Justice Foundation where she was an Equal Justice Works fellow. She represented incarcerated youth whose rights were violated in the juvenile prison system.

Henry receive her juris doctor from The Ohio State University Moritz College of Law and her bachelor of arts degree from The Ohio State University. Henry is a staff attorney at OLRS.

Ronda Cress

Ronda Cress, before joining OLRS as a staff attorney, was employed at the Ohio Legislative Service Commission where she conducted research and drafted legislation for members of the General Assembly. She also worked for a firm specializing in Medicaid and estate planning for elderly persons and persons with disabilities and served as a judicial law clerk for the Honorable Richard M. Rogers, Ohio Third District Court of Appeals.

Cress received her law degree from the University of Cincinnati, a master's from The Ohio State University, and an undergraduate degree from Otterbein College.

Jennifer Smith

Jennifer Smith is an intake specialist at OLRS. Prior to joining OLRS, Smith worked as a newspaper reporter and editor. She also was a program specialist at WrightChoice Inc. where she helped college students with disabilities and students of color secure internships. Smith interned at OLRS while at WrightChoice.

Smith graduated from The Ohio State University with a bachelor's degree in disability studies. While in college, she served on the Council for Exceptional Students, volunteered at the Office for Disability Services and founded the OSU Disability Voter Coalition. Since her graduation, she served on the Governor's Council on People with Disabilities, the Ohio Statewide Independent Living Council and the Mayor's Committee on Persons with Disabilities.

Benjamin Weisbuch

Benjamin Weisbuch represented children in the local, state and federal courts of Massachusetts since 2001. Prior to opening his own law practice in 2003, Weisbuch served as a judicial law clerk to the Justices of the Massachusetts Superior Court. In 2005 he was elected to public office and served two years as Alderman At Large for the City of Newton, a suburb west of Boston.

Weisbuch received his juris doctor from Northeastern University School of Law and a bachelor of arts degree from New York University. Weisbuch is a staff attorney at OLRS.

Interns at OLRS

OLRS welcomes Alison McKay, Barbara Schwabauer, Nicole Swift and Lindsey Watson as interns from The Ohio State University Moritz College of Law. The interns are scheduled to work at OLRS through the fall semester. Their responsibilities include research, writing and assisting attorneys with client work.

Each intern is a second or third year law student with considerable legal related work or volunteer experiences. The interns express an interest in protecting and advocating the human, legal and civil rights of people with disabilities.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

OLRS Welcomes New DD Network Partner Directors

The Ohio Developmental Disabilities Council (ODDC) and Nisonger Center, the University Center for Excellence in Developmental Disabilities at The Ohio State University recently announced the appointment of new directors.

Carolyn Knight was formally approved as the executive director of ODDC. As executive director, Knight manages a staff of 10 and the full Council of 34 members. She is also responsible for grant funded projects ODDC supports through federal dollars to create change that improves independence, productivity and inclusion for people with developmental disabilities and their families in community life.

Marc J. Tassé is the new director at Nisonger Center. Tassé will lead a program that provides assistance to people with disabilities, families, service providers and organizations to promote inclusion of people with disabilities in education, health, employment and community settings.

Both Knight and Tassé are familiar with the system and disability community in Ohio. Knight was formerly an executive director at OLRS and was the interim executive director at ODDC for the past year. Tassé's Ohio experience includes training as a postdoctoral fellow at the Nisonger Center.

Michael Kirkman, executive director of OLRS, said, "I am anxious to work with Knight and Tassé to address systemic issues important to people with disabilities. Their experience and leadership qualities will be a great asset to Ohio's DD Network Partners."

Ohio DD Network Partners

OLRS, Ohio Developmental Disabilities Council and Ohio's Centers for Excellence in Developmental Disabilities at the Nisonger Center and at the University of Cincinnati.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

OLRS is now on Facebook!

OLRS has a Facebook page designed to update readers about events, activities, publications and disability related news that is important to people with disabilities. The Facebook page also raises awareness about agency activities.

Sign up as a fan of the OLRS Facebook page.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

Funding for OLRS and this Newsletter

OLRS is funded by grants from:

• Client Assistance Program (CAP); Rehabilitation Act of 1973 (PL 93-112) as amended; Office of Special Education and Rehabilitative Services of the United States Department of Education.
• Protection & Advocacy for Individuals with Developmental Disabilities (PADD); Developmental Disabilities Assistance and Bill of Rights Act of 1975 (PL 94-103); Administration for Developmental Disabilities of the United States Department of Health and Human Services.
• Protection & Advocacy for Assistive Technology (PAAT); Assistive Technology Act of 1998 (PL 105-394); Office of Special Education and Rehabilitative Services of the United States Department of Education.
• Protection & Advocacy for Individuals with Mental Illness (PAIMI); Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PL 99-319); Center for Mental Health Services United States Department of Health and Human Services.
• Protection & Advocacy for Beneficiaries of Social Security (PABSS); Ticket to Work and Work Incentives Improvement Act of 1999 (PL 106-170); Work Incentives Planning and Assistance (WIPA) program; Office of Employment Support Programs Social Security Administration.
• Protection & Advocacy for Individual Rights (PAIR); Rehabilitation Act of 1973 (PL 93-112) as amended; Office of Special Education and Rehabilitative Services of the United States Department of Education.
• Protection & Advocacy for Individuals with Traumatic Brain Injury (PATBI); Children's Health Act of 2000 (PL 106-310); Maternal Child and Health Bureau of the United States Department of Health and Human Services.
• Protection & Advocacy for Voting Access (PAVA); Help America Vote Act of 2002 (PL 107-252); Administration for Children and Families of the United States Department of Health and Human Services

And also funding from the State of Ohio General Revenue Fund.

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009

How to Contact OLRS

This newsletter is published by the Ohio Legal Rights Service.

Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, Ohio 43215-5923

Telephone 614-466-7264
Toll Free 800-282-9181
TTY 614-728-2553
Toll Free TTY 800-858-3542
FAX 614-644-1888
OLRS Web site: http://olrs.ohio.gov

Read more articles from this newsletter

Download the PDF version of The News From OLRS - October 2009