LRS Newsletter - May 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:

LRS raises privacy issues regarding remote monitoring
LRS increases capacity to provide special education services
LRS delivers Senate budget testimony
LRS staff appear on children's rights talk show
Action and results: Case summaries
No Check - Go Direct! Federal benefits payments now sent electronically

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LRS raises privacy issues regarding remote monitoring

LRS submitted comments to the Ohio Department of Developmental Disabilities (DODD) questioning how proposed rules that establish the remote monitoring of people with disabilities on the Individual Options (IO) waiver would impact a person's right to privacy. LRS stated that while an individual may prefer remote monitoring instead of homemaker/personal care services, he or she should understand the level of intrusiveness and the impact on his or her privacy before consent is granted.

LRS recommended that the consent be granted in writing only after detailed information about remote monitoring is provided in a form of communication that the person can understand. Furthermore, the person should be notified if the remote monitoring will occur in particularly sensitive living areas, such as bathrooms and bedrooms.

Under state law, R.C. § 5123.62(G)-(H), people with developmental disabilities have a right to "receive appropriate care and treatment in the least intrusive manner" and the right to "privacy, including both periods of privacy and places of privacy." Also, courts have recognized that the privacy rights of people with disabilities may, in some circumstances, outweigh the assertion of First Amendments rights, even matters of public concern.

Recommendations were also provided on how to reduce the risk of undesired disclosure of information, records retention of the remote monitoring videos, training of monitoring staff and the required participation of monitoring staff with the individual's team meetings and individual service plan.

The rule recently cleared the Joint Committee on Agency Rule Review. A recommendation by LRS was included, which strengthens consent requirements for remote monitoring services. The rule now provides that, before consenting, the individual must be informed "where in the residence the remote monitoring will take place, and whether or not recordings will be made."

Read the comments: Letter to DODD on Remote Monitoring Rule (PDF file)

LRS increases capacity to provide special education services

With over 250,000 students receiving special education services in Ohio, the demand for assistance when problems arise can overwhelm advocacy organizations. Recognizing this demand, LRS increased its capacity to assist parents and students and has not closed special education intake as in past years.

Two important changes have improved and increased LRS' capacity to assist parents and students: More attorneys are responsibile for special education cases and an experienced special education resource advocate is assigned full-time to LRS' Intake Unit to provide referrals, advice and short term assistance.

Providing short-term assistance

During the past year, LRS received 571 special education services requests. The special education resource advocate provided assistance to 368 of those requests. The resource advocate's interventions have included:

making phone calls to school officials;
assisting parents with filing a complaint with the Ohio Department of Education, Office for Exceptional Children (OEC) about a school district's failure to implement a student's Individualized Education Program (IEP);
assisting parents with writing formal complaints to the OEC to remedy violations of the Individuals with Disabilities Education Act (IDEA);
assisting parents with writing formal complaints to the U.S. Department of Education, Office for Civil Rights (OCR) to remedy disability discrimination under Section 504 of the Rehabilitation Act of 1973; and
providing advice to parents on how to request initial evaluations for eligibility for special education, how to request independent evaluations when the parent disagrees with the school's evaluations, and how to provide documentation to support parents' requests for services (such as a classroom aide or transportation).

Providing this type of assistance by the Intake Unit and resource advocate has led to many successful resolutions. Here are a few examples:

A school district identified a student as needing speech therapy only, while the parent had information that the student had a learning disability. LRS advised the parent of possible eligibility categories and the criteria for those categories that could qualify the student for additional services and supports. Armed with this information, the parent attended a meeting with the district. The district agreed to reclassify the student and provide additional goals, objectives and services to address the student's needs.
A parent contacted LRS on behalf of her daughter, who was on a Section 504 plan but was not receiving appropriate accommodations for her disabilities. LRS advised the parent about filing a complaint with the OCR and getting documentation from an expert to support the additional accommodation requests. After the parent followed LRS' advice to document the request, the district provided the student the requested accommodations.
A parent contacted LRS after a teacher grabbed her son during a behavioral outburst. The student was being educated in a classroom for students with emotional disturbances. The parent found marks on her son's arm after the incident occurred. After receiving advice from LRS, the parent successfully advocated for a functional behavioral assessment and the development of a positive behavior intervention plan for her son. The district also agreed to provide occupational therapy services to the student.
A school district provided transportation to school but not to a student's home after school because no van was available. Also, the school provided only 2.5 hours of instruction per day instead of the full day that other students received. After LRS contacted school officials, the district agreed to provide the student with a full day of instruction and specialized transportation to and from school.

Providing representation

When a matter can not be resolved through telephone negotiations, advice or short-term assistance, and the issue falls within LRS' priorities for representation, the case is assigned to one of the program attorneys or advocate. This might involve the attorney or advocate conducting an in depth investigation, appearing in person at an IEP meeting or mediation and, in some cases, representing in an impartial due process hearing. In each case, LRS staff and the client consider the options and make an individualized decision about the best course of action.

LRS recognizes that every student with a disability has important rights, whether or not the issues fall within the agency's priorities for representation. LRS strives to provide services to every person who calls LRS for assistance. Given information and the right tools through LRS' special education intake, many parents successfully and quickly resolve their dispute with their school district.

For advocacy information about common problems with special education services, visit LRS' Special Education section.

LRS delivers Senate budget testimony

LRS Executive Director, Michael Kirkman, provided testimony in early May before the Senate Finance Committee on Substitute House Bill 153. Kirkman's testimony provided members of the Committee with a brief history of the agency and explained the statutory framework needed to transition LRS from an independent state agency to a non-profit corporation. Kirkman stated that the statutory language in the bill reflects the consensus of the Administration and LRS.

Read LRS' testimony to the Senate Finance Committee (PDF file)

LRS staff appear on children's rights talk show

LRS staff participated on an online talk show, Spotlight on Youth, to discuss breaking the school and delinquency connection for youth with special education needs. LRS Chief Legal Counsel Sue Tobin and LRS Supervising Attorney Kristin Hildebrant discussed how the special education system can work to divert youth from the juvenile justice system and how schools can better support the behavioral needs of students and appropriately use the disciplinary process.

Tobin and Hildebrant outlined advocacy strategies for the legal community working with these youth to ensure that students receive appropriate educational services and stay in school. An overview of these strategies is provided in LRS' online tutorial, Special Education and the Juvenile Justice System.

To listen to the recorded broadcast, go to Youth with Special Education Needs: Breaking the School and Delinquency Connection.

Spotlight on Youth is a radio show focused on social and legal trends impacting the rights and well-being of youth across the country. The show is hosted by the Children's Law Center, Inc., a not-for-profit legal services organization dedicated to children's rights issues.

Student receives supports and services rather than expulsion

A student was arrested at school for attempting to go to a quiet room, an option included in his Individualized Education Program (IEP). The school's failure to follow the IEP resulted in the student's arrest and ten day suspension from school. Following the arrest, the school wanted to expel him.

LRS represented the student at a manifestation determination meeting and expulsion hearing and was successful in stopping the expulsion. LRS negotiated for an appropriate behavior plan for the student and he returned to school with additional supports and services.

Client asserts right to bring service animal into exercise facility

Building stamina and her overall health is the goal of a woman who continues to recover from a traumatic brain injury. She decided to join a fitness center, but was not allowed to bring her service dog with her. In addition, the facility charged a fee for a day pass when she brought an aide. Without the assistance of her service dog or aide, she could not safely access and work out at the facility.

LRS contacted the facility's manager, informing her that this conduct violated Title III of the Americans with Disabilities Act. The facility agreed to allow the service dog into the facility. The facility also agreed to waive the fee for the aide as long as the aide did not use the facility's equipment for his or her own enjoyment or benefit.

Employment discrimination: Clients win at hearings with assistance from LRS

An employee who does not drive due to his disability explained to his employer that he needed a modification in his schedule when he was required to work the late shift twice a month and did not have a way to get home. The employer not only refused this accommodation, but also prohibited the employee from asking others for rides. On one occasion, he was to work the late shift and wanted to go to a restaurant to get food, but the closest place was nearly a mile away. While waiting for the elevator he casually asked if anyone could give him a ride to get something to eat. Someone offered to give him the ride; however, he was fired after his employer learned of this, claiming that the client had created a hostile work environment. Because he was fired, he was denied unemployment compensation.

LRS represented the client in an appeals hearing before the Unemployment Compensation Review Commission. The hearing officer decided in favor of the client, citing that his employment termination was not his fault as the company did not restrict others from asking for rides and there was no evidence that his asking for rides created a hostile work environment. LRS also filed a discrimination complaint with the Ohio Civil Rights Commission (OCRC).

In another case, a client informed his employer at the time he was hired that he needed to attend regularly scheduled therapy appointments. The employer asked for documentation, which he provided, and agreed that the time off was permissible. After working for two years with the company and without warning, the client was fired for missing too much work. LRS filed a charge of discrimination with OCRC on the client's behalf. He represented himself at a mediation hearing and was awarded half of his back pay.

No Check - Go Direct! Federal benefits payments now sent electronically

Effective May 1, 2011, applicants for federal benefit and non-tax payments, such as Social Security and Supplemental Security Income (SSI), are required to sign-up to receive payments electronically. Beneficiaries have the option to receive payments by direct deposit to a bank or credit union account or to a Direct Express® Debit MasterCard®.

People already receiving benefit payments by mail have until March 1, 2013 to sign-up for electronic payments. For those who do not sign-up by that time, the Department of the Treasury will issue a Direct Express® debit card to avoid an interruption in payment.

For more information, including how to change to electronic payments, go to the Go Direct website.

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