LRS Newsletter - July 2011

News from Legal Rights Service is LRS' monthly newsletter providing information and updates about case work and activities of LRS, and other disability-related news.

In this issue:

21st anniversary of the ADA
LRS asks court to consider PASRR brief
Supreme Court adopts court interpreter rule
RSC provides information to LRS about office closures, hearing officers and mediators
LRS conducts outreach to Centers for Independent Living
Action and results: Case summaries
Beat the summer heat with cooling assistance

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21st anniversary of the ADA

Today marks the 21st anniversary of the passage of the Americans with Disabilities Act (ADA). Enacted by Congress and signed into law on July 26, 1990, the ADA instituted a wide range of reforms that were designed to prohibit discrimination against people with disabilities in employment, transportation, public accommodations, communications and government activities. The ADA was reauthorized in 2008 as the Americans with Disabilities Act Amendments Act (ADAAA). While we have far to go before the goals of equal rights and full equality are realized, 21 years later the ADA has greatly improved the lives of countless people with disabilities by advocating their unalienable rights to fully participate in the community.

Envisioning the Future

While July 26th marks an important date in the history of the disability rights movement, the future is uncertain for many people with disabilities, due to reduced budgets that will result in cuts to services that support people to live, learn and work in the community. In this climate it is crucial that the voices of people with disabilities be heard in order to fully realize the ADA.

Many federal and state agencies are rethinking their missions and services, based on lower levels of funding. The federal Administration on Developmental Disabilities (ADD) is one of several agencies that has strengthened its commitment to lead into a positive future by listening to the voices of those the agency serves.

ADD convened an "Envisioning the Future" listening series to collect as much information from people with disabilities, family members, advocates and professionals about their visions of the future for people with disabilities so ADD could use the information as it revises its strategic plan. The ADD gathered comments from nearly 4,800 people through regional listening summits and comments submitted online at ADD's website.

ADD Commissioner Sharon Lewis noted that, " there are a tremendous number of competing priorities, a few foundational topics emerged as recurring themes during the regional sessions." Many of the comments, including those submitted by LRS, focused on community inclusion. LRS stressed the importance of protecting the right of people with disabilities to community access and integration and urged ADD to advocate with its federal partners to change the Medicaid program's funding of long-term care for institutions, such as nursing homes and developmental centers, and fund self-determined outcomes for people with disabilities.

ADD also convened regional self advocacy summits (see Regional Summit focuses on building stronger future for self advocates) to elevate the importance of the ideas and work of self advocates. Ohio delegates noted that people with disabilities should be paid a fair wage for their work, and they are creating a broad coalition of self advocacy organizations to work on this and other matters of importance.

People with disabilities must remain vigilant in advocating for and ensuring that their rights are protected as intended by the ADA.

LRS asks court to consider PASRR brief

LRS requested permission from the U.S. District Court for the Southern District Court of Ohio to consider its Brief of Amicus Curiae (friend of the court) in the case of McKenzie v. Kasich. The issue before the court involves Ohio's Preadmission Screening and Resident Review (PASRR) program. LRS wants to inform the federal court that PASRR, if administered properly, plays an important role in preventing the unnecessary institutionalization of people with mental illness in nursing facilities and therefore can assist states in complying with the integration mandate of Title II of the Americans with Disabilities Act and the U.S. Supreme Court's decision in Olmstead v. L.C.

The amicus brief noted that Level Two PASRR evaluations, in determining whether a nursing facility is an appropriate setting for a person with a mental illness, must first take into account whether an individual can live in a more independent, community setting. Furthermore, the federal law creating the PASRR program creates a strong presumption against people with mental illness in nursing facilities.

LRS expects the court to decide on its Motion for Leave to File Brief of Amicus Curiae soon.

Read the court documents:

Supreme Court adopts court interpreter rule

The Ohio Supreme Court adopted a new rule that requires courts to provide people who are deaf or who speak limited English with certified sign language or foreign language interpreters in court proceedings, ensuring meaningful participation during the court process. The rule, which is effective January 1, 2013, includes comments made by LRS when the rules were originally proposed by the Court (see LRS Submits Comments on the Rules of Superintendence).

When the proposed rules were reviewed, LRS commended the Ohio Supreme Court for sending a clear message that persons who are deaf or hard of hearing must be included and accommodated in courtroom proceedings. LRS also provided suggestions for changes or clarifications to certain areas of the rule which the Court incorporated in the final rule, such as:

Adding "oral interpreters" to the definition of "sign language interpreters."
Including language stating that courts must give primary consideration to what a person who is deaf or hard of hearing wants in keeping with the American with Disabilities Act regulation 28 C.F.R. Section 160(b)(2).
Requiring two or more interpreters when the court function will last two or more hours.
Using an interpreter to ensure reliability during examinations to determine whether an individual who is deaf or hard of hearing needs an interpreter.

For more information read the Supreme Court Adopts Court Interpreter Rule.

RSC provides information to LRS about office closures, hearing officers and mediators

An updated Field Office Directory (PDF file) was released by the Ohio Rehabilitation Services Commission (RSC) and includes contact information for RSC's central and regional offices, as well as a county phone listing of RSC's field offices. The updated directory reflects the changes made as RSC closed many of its Bureau of Vocational Rehabilitation (BVR) and Bureau of Services for the Visually Impaired (BSVI) field offices across the state as a budget reduction measure. Included in the directory is a list of the offices that are now closed and where the telephone numbers have been redirected.

The RSC's updated directory was just one document released as a result of a public records request made by LRS. Another document provided listed the names of the four hearing officers and two mediators who will provide their services for consumer appeals.

RSC's consumer appeals process is governed by Ohio Administrative Code 3304-2-62. Part of the consumer appeals process includes mediation as a dispute resolution mechanism involving vocational rehabilitation (VR) services through BVR or BSVI. LRS has long advocated with RSC to develop a mediation process to conform with federal law. Last year, LRS participated in RSC's mediation workgroup to develop a mediation policy.

RSC's appeals process

When a consumer wants to file an appeal, he or she should write a letter of appeal within 30 days of learning of the decision. The letter should be sent to:

Kevin L. Miller, Executive Director
400 E. Campus View Blvd.
Columbus, Ohio 43235
kevin.miller@rsc.state.oh.us

Once filed, the consumer should be contacted about scheduling an informal meeting to discuss the appeal with BVR/BSVI staff to resolve the issue unless there is documented evidence of meaningful contact between RSC and the consumer regarding the subject of the appeal prior to the appeal and no resolution could be reached.

If the appeal is not resolved at the informal meeting, the consumer can request mediation prior to a formal hearing. Both the consumer and BVR/BSVI must agree to mediation for it to be scheduled.

If the issue is not resolved at mediation, the consumer then proceeds to a formal hearing on the appeal. In any event, federal law requires that the formal hearing take place within 60 days of the date the appeal was filed.

It should be emphasized that consumers have the right to have all VR services continue pending the resolution of an appeal.

LRS conducts outreach to Centers for Independent Living

LRS conducted informal phone interviews with staff from Ohio Centers for Independent Living (CIL) to determine if CIL clients receive information about LRS. LRS was particularly interested in determining if CILs referred clients to LRS and if they provide clients with information about the Client Assistance Program (CAP).

The phone interviews were designed to share information about services LRS provides and for LRS to learn about the CILs, its clients and what services they offer. Overall, many CIL personnel were familiar with LRS; provided clients information about CAP; and referred clients to LRS. LRS gained an appreciation of the valuable services CILs provide to people with disabilities. Through its outreach efforts, LRS distributed to the CILs over 500 agency brochures and information about CAP.

CAP is a federally mandated program administered by LRS that advocates for and protects the rights of individuals with disabilities who are applying for or receiving services from CILs and/or rehabilitation services from the Ohio Bureau of Vocational Rehabilitation or the Ohio Bureau of Services for the Visually Impaired. Read more about the CAP program.

Employment discrimination case resolved with settlement

A settlement agreement in an employment discrimination case resulted in the client receiving $22,000 in back wages and his employment separation status changed from termination to retirement. LRS represented the client in negotiations with the employer prior to the termination and during the conciliation process between the client's employer and the Equal Employment Opportunity Commission (EEOC).

The client, who worked for his employer for 27 years, began having problems when he was assigned a new supervisor. He used JAWS, a screen reading software used by people who are unable to read a computer screen, to access all of the programs he needed to use to complete his job tasks. His supervisor complained about his lack of understanding about the "whole picture" of the department where he worked and consistently failed to fully identify what computer programs he would need to use. When programs were identified he was given training on using those programs but several programs needed further study to determine if they could be made accessible. The supervisor never permitted such further study and after numerous threats to do so, terminated the client's employment.

After a charge of discrimination was filed, LRS obtained documents indicating that his employer had not chosen to train him on certain job tasks and programs because he was blind. LRS submitted these documents to the EEOC as proof that he was treated differently than other employees.

Client successfully moves back into the community

A client's perseverance resulted in the reality of his desire to move out of a nursing home and into the community. Although it took two years to complete the process, the client, with assistance from LRS, now lives in the community where he is quite self-sufficient and has become a strong advocate for himself.

After living in a nursing home for several years, the client contacted LRS because he wanted to move out of the facility and back into his own home. LRS assisted him with applying for Medicaid waiver programs which also involved appealing denials and representing the client at Medicaid state and administrative appeal hearings. Finally, the client was approved for a Home Choice Program and a Home Care Waiver and LRS advocated for a transition coordinator to assist in his move back into the community. Now that he is living in the community, he continues to find and apply for services on his own to further support his needs.

LRS assists with ensuring student's access to oxygen

LRS assisted a student with a disability who requires access to oxygen at school due to medical issues. The parent was told by a counselor that oxygen use at the high school was prohibited because of liability issues. The student had access to oxygen when he was in middle school.

After LRS contacted the special education coordinator and legal counsel, the 504 coordinator conducted an investigation and agreed to conduct a Section 504 meeting at the beginning of the school year to ensure that the student has access to oxygen in the high school pursuant to his 504 plan.

Note: The "504" in "504 plan" refers to Section 504 of the Rehabilitation Act which is commonly called Section 504. It is a federal law which prohibits schools and other agencies that receive federal money from discriminating against people with disabilities.

Beat the summer heat with cooling assistance

Need help with winter cooling bills? The Office of Community Services of the Community Development Division of the Ohio Department of Development offers a Summer Crisis Program that provides summer cooling assistance for Ohioans with qualifying medical conditions and to low-income elderly households. The program applies to electric utilities only and is available July 1 through August 31, 2011.

The program provides one-time payment assistance of up to $175 toward an electric bill payment, air conditioning unit or fan. If a local designated agency is providing air conditioners as a benefit, there is a limit of one air conditioning unit per household, if the household has not received an air conditioning unit in the last three years.

Who is eligible?

Households must have a gross annual income of 200 percent of the federal poverty guidelines and meet one of the following criteria:

Have a member of the household who is at least 60 years old; or
Provide physician documentation of medical necessity.

You do not have to be enrolled in the Percentage of Income Payment Plan or have received a disconnection notice to be eligible for the Summer Crisis Program.

How to apply

Download an application (PDF file) or contact your local community action agency.

For additional information: Summer Crisis Program

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