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OLRS Ombudsperson Section Investigation Results in Licensure Revocation ProceedingOLRS' Ombudsperson section's investigation and subsequent advocacy into the death of a Fairfield Center resident has prompted the Ohio Department of Mental Retardation and Developmental Disabilities (ODMRDD) to resume the licensure revocation process for the Fairfield Center, an intermediate care facility for the mentally retarded (ICF/MR). The facility has a history of citations from the Ohio Department of Health (ODH) and ODMRDD covering medical, program and environmental issues. The OLRS Ombudsperson section issued a formal report in response to the death. The report found a pattern of inadequate care and recommended ODMRDD revoke the facility's license to operate, place monitors in the facility, conduct a facility survey, and impose other sanctions as appropriate. The report also included recommendations to other agencies responsible for oversight of the facility. OLRS sent the report to the ODH, the Butler County Board of Mental Retardation and Developmental Disabilities, the Ohio Attorney General, and Advocacy and Protective Services, Inc. (APSI) which serves as guardian to many residents of Fairfield Center. ODMRDD has attempted to address some of the issues at the facility by placing monitors in the facility. However, while ODMRDD proposed to revoke the Center's license last spring, it ultimately suspended the revocation process due to assurances that a different company would be chosen to run the center's daily operations. OLRS has called for increased action by the state and county since submitting the original report to ODMRDD. OLRS has provided ODMRDD with information gathered from on-site monitoring and on-going review of facility records, major unusual incident reports, and licensure surveys. OLRS identified problems for ODMRDD and ODH to look for during their surveys of the facility. The Ombudsperson section also issued two additional reports this summer to ODMRDD, formally documenting OLRS concerns that conditions were not improving at Fairfield Center. ODMRDD's decision to proceed with formal licensure revocation is a positive step. However, the revocation process will take a minimum of several months (longer if challenged), during which time the facility will continue to operate, potentially jeopardizing the health and safety of residents. The Ombudsperson section will be monitoring the situation closely, and has also referred the matter to the OLRS legal section for further review to protect the individuals living at Fairfield Center from abuse and neglect. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 SSI Benefits Reinstated for Former Class MemberOLRS assisted an 80 year old client with developmental disabilities with the reinstatement of Supplemental Security Income (SSI) benefits and back payments. The client, a former class member of an OLRS lawsuit challenging the placement of individuals with developmental disabilities into nursing homes not certified to provide necessary care, was placed into the community with some funding assistance from settlement of the lawsuit. The Social Security Administration interpreted the funding assistance as income and terminated the client's SSI. OLRS negotiated with the Social Security Administration for the reinstatement of the client's SSI with back benefits. The client continues to live in the community. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Martin v. Strickland Implementation QuestionedAs class counsel in the Martin v. Strickland lawsuit, OLRS has been monitoring the implementation of the Consent Order approved earlier this year by the court. OLRS has raised several issues with the Ohio Department of Mental Retardation and Developmental Disabilities (ODMRDD) over the allocation of Individual Options (IO) Martin waivers and has requested additional documentation to conduct a more thorough review. OLRS was concerned that the allocation methodology used by the ODMRDD, while considering the person's position on the waiting lists, did not adequately take into consideration the historical pattern of funding provided by the county boards of MRDD. This pattern has resulted in uneven access to waiver services across the state since some county boards have been more able, and some more willing, to provide the funding for waivers than others. OLRS also questioned the possibility that waivers allocated to one county may be reallocated the following year based on a county board's inability or unwillingness to use the waivers. OLRS stated that this would penalize the class members in that county and allow the county official to control an obligation that properly belongs with the ODMRDD. Furthermore, a waiver should not be reallocated to another county unless notice and hearing rights under Medicaid are provided to eligible individuals who are on a waiting list in the original county. Progress to dateSome progress has been made toward implementation of the Consent Order. In addition to allocating the Martin waivers by county, ODMRDD has submitted to the Centers for Medicare & Medicaid Services an amendment to the IO waiver that includes the additional Martin waivers. Moreover, county boards have begun to identify individuals for Martin waivers. The most recent update of allocations indicated that ODMRDD is on course to meet the Martin requirement for individuals moving from intermediate care centers for the mentally retarded or developmental centers (a minimum of 100 in each fiscal year), and close to the required number of individuals moving from nursing homes onto Martin waivers (a minimum of 40 each fiscal year). The Consent Order proposes that 600 of the Martin waivers will be filled in state fiscal year 2008. OLRS will continue to monitor the enrollment of individuals on these waivers and policy issues that impact the implementation of the Consent Order. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Court Rules in Favor of Children; OLRS Continues to Move Case ForwardDefendants from the Ohio Department of Job and Family Services (ODJFS) failed in their latest attempt to limit OLRS' Early and Periodic, Screening, Diagnosis and Treatment (EPSDT) lawsuit. The lawsuit, filed by OLRS on behalf of a class of Medicaid-eligible children in October of 2005 in the U.S. District Court in Columbus, alleges that ODJFS has failed to operate an effective EPSDT program which ensures that Medicaid eligible children receive medically necessary services. In July of 2007, the state filed a motion asking the Court to rule against the children based on alleged deficiencies in the case. On October 22, 2007, the Court ruled in favor of the children. ODJFS argued that OLRS tried to assert the rights of providers who are not a part of the lawsuit. The Court disagreed stating that "[P]laintiffs (Medicaid eligible children) simply allege that, because of certain systemic barriers, including the fact that their health care providers are not adequately informed about the EPSDT program and do not know how to bill Medicaid for services found to be medically necessary, Plaintiffs are being denied access to EPDST services to which they are entitled. Until those barriers are broken down, Plaintiffs will continue to be denied access to EPSDT services." Similarly, the Court disagreed with other arguments raised by ODJFS and rejected their request that OLRS' case should be limited. OLRS continues to move this case forward and at the request of the court, has agreed to participate in mediation to determine if a settlement can be reached. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Establishes Agency PrioritiesOLRS has established priorities to guide its decision-making in determining the nature of cases the agency accepts, beginning October 1, 2008. With attention to its mission, which is to protect and advocate, in partnership with people with disabilities, for their human, civil and legal rights, OLRS set these priorities to serve as the foundation for its legal and ombudsperson section work. The priorities, listed below in no particular order, focus on six major advocacy themes important to Ohioans with disabilities:
OLRS specified a group of activities to define the work in each of the six areas.
The six themes were identified through a priority setting process that reached out to people with disabilities and their families. Nearly 400 people provided direct input to OLRS about legal advocacy issues that were important to them through a "Priorities Survey." The survey results were shared with OLRS staff, the OLRS Commission, and the OLRS Protection and Advocacy System for Individuals with Mental Illness (PAIMI) Advisory Council, and served as the basis for discussions about agency priorities. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Negotiations Result in Accommodations in Rental HousingOLRS successfully negotiated for a reasonable accommodation in two cases involving rental housing. In the first case, a family asked the landlord for permission to build a fence, but the landlord refused to grant this accommodation, stating that it had a policy of no fences. The family wanted a fence because their three year old child with autism had a tendency to dart unexpectedly into the roadway. The child's pediatrician had confirmed that for the child's safety the family should have a fenced in area of their yard. Nevertheless, the landlord would not agree to an exception. Citing state and federal fair housing laws, OLRS negotiated with the landlord, who agreed that an accommodation would be required and has given assurance that the family's request will be granted. In another case, OLRS assisted a woman, who uses a wheelchair and has limited range of motion in her hands, to modify the lock on the entrance door to the apartment building she lives in. The landlord had installed a new lock system and the lock required tenants to twist a small deadbolt lever to open the door. However, this type of lock prevented the woman from opening the door. She informed the landlord of the situation, but he refused to change the lock. OLRS attempted to negotiate with the landlord for him to change or adapt the current lock. Once again, the landlord refused, but stated that the woman could purchase and install a new lock at her own expense, as long as it conformed to his specifications; or, she could move. OLRS threatened legal action against the landlord. Finally, the landlord agreed to settle the dispute prior to litigation and installed a lock with a lever handled dead bolt, which the woman can operate. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Assists Vendor to Restore His BusinessA vendor who operated the cafeteria in a state office building requested OLRS assist him in asserting his rights through the Randolph-Sheppard Act. The Randolph-Sheppard Act is a federal law that gives a preference to people who are blind to operate vending facilities on federal and state property. The vendor requested OLRS' assistance to persuade the Bureau of Services for the Visually Impaired, Business Enterprise Program to adhere to the requirements of this federal and state law in protecting the priority of vendors who are blind to operate food service establishments in state buildings and to provide him with consulting services to help him run his facility efficiently and to earn a profit. OLRS represented him in an administrative hearing and also a hearing before a federal Ad Hoc Arbitration Panel. The Arbitration Panel found that the vendor was deprived for four years of employment as a licensed vendor who is blind, partly as a direct result of Business Enterprise Program's acts and omissions. Business Enterprise Program was ordered to pay approximately $74,000 in damages, restore the vendor's status and license as a vendor in good standing with the program, and offer the vendor the first available facility that was comparable to what he was previously assigned. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Commission Meeting ScheduleThe OLRS Commission will meet one more time this year, on December 3, 2007. Meeting dates for 2008: February 4, April 7, June 2, August 4, October 6, December 1 Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 National Bus Tour Promotes Support of ADAThe Road to Freedom, a year-long, 50-state bus tour and photographic exhibit chronicling the history of the "people's movement" that lead to the passage of the ADA, stopped in Columbus recently. The Road to Freedom tour seeks to raise awareness and garner support for the Americans with Disabilities Act (ADA) Restoration Act of 2007. The Restoration Act is written to address limits that U.S. Supreme Court decisions have put on ADA protections available to individuals with disabilities. The ADA is significant to voters with disabilities because it requires accommodations in public places, such as polling places. However, not all polling places are accessible to individuals with disabilities. A 2004 Harris Poll commissioned by the National Organization on Disability found that eight million adults with disabilities in the United States were not able to vote because of barriers at, or getting to, their polling place. James Ward, Road to Freedom organizer and President, National Coalition of Disability Rights, speaking to voting rights advocates in Columbus, emphasized the ADA's guarantees of equal access. Access to the polls gives people with disabilities "the power to vote people into office and the power to vote people out of office," said Ward. The Road to Freedom is a project of ADA Watch and the National Coalition for Disability Rights. For more information visit the website: www.roadtofreedom.org . Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Supreme Court Rules on Individual Rights in Guardianship CaseThe Supreme Court of Ohio recently upheld the right of persons with disabilities to manage their own lives when they turn 18. In the case of In re Guardianship of Hollins (available on the web at www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-4555.pdf), the Court ruled that a guardianship of a minor child terminates at the age of 18. Additionally, the probate court's authority over the case ends (except for a final accounting), and it cannot resolve issues that arise out of the former guardianship. This ruling is significant for young adults with cognitive or intellectual disabilities because it reinforces the well accepted legal principle that a person becomes an adult at age 18 and can legally make his or her own decisions unless a probate court in a separate action finds the person incompetent and in need of a guardian. In the Hollins case, an application for guardianship had been filed but was never heard by the probate court because the family had moved. Parents and former guardians may be faced with a difficult decision as to whether or not they should apply for guardianship based on incompetence when a person with an intellectual disability reaches the age of 18. Guardianship is a serious step that interferes with many or all of the legal interests and rights of the person with a disability, and should be considered only as a last resort when reviewing all available options. OLRS' booklet, and fact sheets about guardianship and its alternatives, are available online: Guardianship. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Former OLRS Intern Advocates for Voter Access"When you're young, you don't know you have a right to be included in the process," said Jennifer Smith, a former Ohio Legal Rights Service (OLRS) intern and The Ohio State University Students with Disabilities Get Out the Vote Campaign Leader. Speaking to disability advocates at a voting event held by the Ohio Disability Vote Coalition, Smith talked about her advocacy activities to support college students' with disabilities right to vote. Smith also described a survey she developed to capture anecdotal information about how polling places are inaccessible to people with disabilities. She wants to use the survey results to help change the system. During an interview with OLRS staff, Smith said, "My experience at OLRS gave me an appetite for helping open doors for people. No one has the right to exclude people with disabilities from voting." Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Smoking Ban on Individuals who Receive In-Home Services ChallengedIn response to the enactment of the Smoke Free Workplace Act, the Cuyahoga County Board of Mental Retardation and Developmental Disabilities (CCBMRDD) sent all agency providers in its county a memorandum concluding that the Act bans smoking in private family homes, supported living homes, and licensed group homes while staff are present or on duty. These provisions were interpreted by the CCBMRDD to mean that an individual receiving supports or services is not permitted to smoke in his or her own home during those times a provider is present providing services. It was unclear how the Board proposed to enforce these provisions. OLRS challenged the CCBMRDD's interpretation of the Act and how CCBMRDD would enforce the ban. The CCBMRDD will defer enforcement of the Act to the Ohio Department of Health, and is urging providers to consult their own legal counsel prior to implementing the Act. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Testifies on Proposed Changes to Emergency Involuntary Commitment StatuteOLRS provided the House Health Committee with written testimony about Amended Senate Bill 53, cautioning against adding licensed professional clinical counselors (LPCCs) to the categories of professionals permitted to take custody of and to transport to a hospital a person who meets the legal criteria for civil commitment. OLRS, testifying as an interested party, emphasized that Ohio already has case law and statutory law which, taken together, work to maintain the balance between a person's liberty interests and the general public's safety and welfare when considering an emergency detention. Ohio Supreme Court decisions, including In re Miller and In Re Mental Illness of Boggs (cases litigated by OLRS), make clear that emergency hospitalization must begin with a written statement describing that there is some probable cause to support the involuntary commitment. The liberty interests protected by these cases work with the significant legal tools provided in Ohio statutes. These tools help treating professionals who believe a patient presents a danger to their self or others, and currently provide the LPCC with reasonable options to assure the safety and welfare of a person or the public. OLRS stressed that, as there is no judicial review prior to the involuntary detention, existing protections should not be reduced without strong justification. OLRS suggested that adding LPCCs could lead to more errors at a critical time in the involuntary commitment process. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Opposes Changes to Federal Regulations that Limit Medicaid Payment for Services: Submits Comments to CMSIn separate letters to the Centers for Medicare & Medicaid Services (CMS), OLRS opposed adoption of proposed federal regulations that limit Medicaid payment for specific services. The proposed regulations would affect services for many individuals with disabilities, and in particular, children. Both rules have drawn the attention of Congress, which has expressed its opposition to the restrictions by imposing a two-year moratorium on the proposed regulations. Proposed Rule Would Limit Rehabilitation Services Under MedicaidOLRS submitted comments to the Centers for Medicare & Medicaid Services (CMS) opposing a proposed federal regulations which would limit the scope of rehabilitation services available under Medicaid. OLRS noted that, as written, the proposed rule would violate the Early, Periodic, Screening, Diagnosis and Treatment (EPSDT) and other provisions of the Medicaid Act, as well as the Equal Protection clause of the U.S. Constitution. OLRS expressed opposition to language that narrows the group of individuals eligible for services (such as individuals with mental retardation, traumatic brain injury, dual diagnosis, stroke, epilepsy, autism, or cerebral palsy), and language that would limit the settings where a person can get services. OLRS stated that adoption of the proposed rule would be especially harmful to children entitled to services under the EPSDT program. OLRS also argued that the proposed rule will restrict a state's flexibility to meet the needs of its citizens with disabilities through mechanisms such as Money Follows the Person grants and New Freedom Initiatives. OLRS proposed alternative language for the rule, and urged CMS to withdraw the proposed rule and work with stakeholders to address CMS' policy concerns. Elimination of School Transportation Reimbursement Would Limit Children's Access to Health CareOLRS opposed adoption of a proposed federal rule that eliminates Medicaid reimbursement to school districts for costs they incur for specialized transportation between home and school for school-age children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP). The proposed rule would also eliminate reimbursement through Medicaid for school-based administrative activities incurred to help identify and enroll low-income children with disabilities in Medicaid. OLRS emphasized that local school districts are often the primary provider of health care services for low-income children with disabilities and play a key role in helping these children get health care and Medicaid coverage to pay for it. Furthermore, schools have utilized federal funding through Medicaid for the transportation of children with disabilities to school, where many of them receive health care services. However, the proposed rule eliminates Medicaid reimbursement to districts for costs they may incur paying for specialized transportation (accessible buses or bus aides). Under the proposed rule, school districts could not be reimbursed for other important functions they perform, such as helping coordinate the care of children who receive special education and who have special health care needs. The proposed rule would also shift costs to states, local school districts, or local communities. OLRS stated that the practical result of cutting off Medicaid reimbursement for school-based transportation and administrative costs and shifting the cost to state and local entities is that fewer children will get health care services, and some may not get any at all. OLRS also pointed out that, because of recent cuts in Ohio's Community Alternative Funding System (CAFS) spending, Medicaid-eligible children with disabilities now get less funding for many health care services provided in schools than they did before. Finally, OLRS asserted that the proposed rule effectively precludes implementation of the Ohio Medicaid Schools Program (OMSP), which affords local school districts the opportunity to receive federal funding for Medicaid services (direct and administrative services, and transportation) provided by licensed practitioners to eligible students. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Federal Court Grants OLRS Leave in Special Education CaseThe U.S. Sixth Circuit Court of Appeals has granted OLRS leave to file an amicus curiae brief (friend of the court) in the case of Deal v. Hamilton County Department of Education. In its brief, OLRS urges the Court to uphold its earlier ruling that a school district's denial of the parents' right to meaningful participation in the educational planning process resulted in the denial of the student's right to a free appropriate public education under the Individuals with Disabilities Education Act. Oral argument is scheduled for November 29, 2007. This case was brought by the parents over seven years ago as an administrative due process case challenging the school district's failure to provide a free appropriate public education under the Individuals with Disabilities Education Act to Zachary Deal, a child with autism. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 OLRS Supports Plaintiffs Efforts to Graduate from CollegeOLRS filed a federal lawsuit with nine named plaintiffs and made a motion for certification of a class of Rehabilitation Services Commission (RSC) consumers who have or will have training at a post secondary educational institution as a service on their Individualized Plan for Employment (IPE). OLRS challenged the Expected Family Contribution rule as being contrary to federal law and a violation of the RSC consumer's Due Process Rights. While the Court granted the defendants' motion to dismiss and ruled that OLRS had not articulated a violation of federal law, OLRS was able to help several of the named plaintiffs graduate from college while the case was pending because of a settlement on preliminary injunction. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 Funding for OLRS and this NewsletterOLRS is funded by grants from:
And also funding from the State of Ohio General Revenue Fund. Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007 How to Contact OLRSThe OLRS Quarterly is published by Ohio Legal Rights Service. For a free copy, contact OLRS, at: Ohio Legal Rights Service Telephone 614-466-7264 Read more articles from this newsletter Download the PDF version of OLRS Quarterly - Fall 2007
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