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News from LRS - November 2011
News from LRS is the monthly newsletter from the Ohio Legal Rights Services (LRS) providing information and updates about case work and activities of LRS, and other disability-related news.
In this issue:
- LRS jointly files amici curiae brief in case involving access to education records
- Service animals publication updated
- LRS comments on rules to support people with disabilities
- Have your waiver services been reduced?
- Action and results: Case summaries
- Medicare open enrollment ends December 7
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LRS jointly files amici curiae brief in case involving access to education records
LRS, along with The Ohio School Boards Association, and Community Legal Aid Services and Northeast Ohio Legal Services have filed a brief as friends of the court (amici curiae) in the Supreme Court of Ohio in the case of State, ex rel. ESPN Inc., v. The Ohio State University, No. 2011-1177. ESPN filed the case alleging that the university (OSU) had failed to respond adequately to a request for public records, including emails, about a high-profile investigation of an athletic program. The complaint and the legal arguments ask that OSU be required to provide additional records, potentially including student educational records. Because of the arguments made by ESPN in its filings, LRS recognized that the case has implications for the privacy of every Ohio student with a disability and his or her parents, and joined in filing the brief with other Ohio-based civil justice groups and members of the education community.
The brief was drafted by LRS attorneys Laura Osseck and Kristen Henry. Other amicus briefs have been filed by the American Association of Collegiate Registrars and Admissions Officers; the American Association of Community Colleges; the American Council on Education; the Association of American Universities; the Association of Public and Land-Grant Universities; the NASPA-Student Affairs Administrators in Higher Education; and The United States of America. (Go to the Supreme Court website to download these briefs.)
The brief does not expressly support the position of any party; instead, it directs the Court's attention to issues concerning the proper interpretation of Ohio's Public Records Act in light of the confidentiality requirements of the federal Family Education Rights and Privacy Act (FERPA). A holding by the Court that "education records" covered by FERPA are subject to disclosure under Ohio's Public Records Act, as argued by ESPN, would undermine FERPA's confidentiality requirement by allowing public access to student records for all Ohio children attending public elementary, secondary and postsecondary schools. Such a ruling would potentially jeopardize continuing federal funding to Ohio schools, and could also have a broader impact on other federally funded programs with similar disclosure prohibitions, such as Medicaid, developmental disabilities, mental health, and substance and alcohol abuse programs.
Read the brief: Brief of Amici Curiae (PDF file)
Service animals publication updated
Many people with disabilities require the use of a service animal throughout their daily lives. Both federal and state laws offer protections for the use of service animals in various situations, including places of public accommodation, employment, housing, education, transportation, air travel, and state and local governments. LRS' online publication, "Service Animals: Rights and Responsibilities for People with Disabilities," provides an overview of a person's rights and responsibilities under state and federal laws when he or she has a service animal.
LRS updated the publication due to regulations issued this year under the Americans with Disabilities Amendments Act (ADAAA). The revised regulations made a number of substantive changes to the use of service animals in places of public accommodations (Title III) and public entities (Title II). A substantial change is that the ADAAA now defines service animals as dogs only, although miniature horses may be permitted under some circumstances. Emotional support animals or companion animals are not considered service animals under Title II or III of the ADAAA.
Ohio law also offers protections for people who use service animals in places of public accommodation but differs from the ADAAA in that it does not restrict service animals to dogs or explicitly prohibit emotional support animals. State law can provide broader protections than the ADAAA; however, there are also parts of Ohio law discussed in the publication which are very likely preempted by the ADAAA.
The new Title II and III ADAAA regulations do not affect the current law under Title I of the ADAAA (employment) or the Fair Housing Act. Title I does not contain a similar regulation pertaining to service animals and therefore does not contain the same restrictions. It should be analyzed like any other request for accommodation by an employee. Also, emotional support animals are still protected under the Fair Housing Act and can be animals other than dogs in this context.
Read the publication: Service Animals: Rights and Responsibilities for People with Disabilities
LRS comments on rules to support people with disabilities
Effective advocacy must embrace a wide array of strategies. One of those strategies, as identified in LRS' priorities, is to educate policy makers on the impact of proposed changes to rules, policies and laws that affect the rights of people with disabilities, such as by submitting comments on proposed rules. Doing so allows LRS and its clients to build important relationships that create opportunities for meaningful change and to protect the rights of people with disabilities. The following are comments submitted by LRS during November.
Concerns with DODD's "capped" SELF waiver
LRS provided comments to the Ohio Department of Developmental Disabilities (DODD) on proposed rules to implement the Self-Empowered Life Funding (SELF) waiver. LRS stated it supports DODD's efforts to support a self-directed waiver program, but vigorously opposes the individual cap of $25,000 for children and $40,000 for adults. LRS questioned exactly where the SELF waiver fits within DODD's overall community integration plans, pointing out that the Individual Options (IO) waiver continues to be a vehicle that provides significant "uncapped" assistance to individuals at a reasonable cost when compared to institutional settings.
While a capped waiver is preferred to institutionalization, an individual cap on home and community-based services is neither necessary nor recommended as Ohio has yet to fully rebalance the DD system. A key component of any rebalancing effort is the investment of appropriate resources into home and community-based waiver services, including to continue to support and offer uncapped waivers to individuals who require such services.
LRS recommended that DODD maintain its commitment to offering the IO waiver and to increase its enrollment to new consumers. LRS also urged DODD to take steps to ensure that the SELF waiver is not simply a mechanism to refinance those already on the IO waiver and, instead, is an expansion of the slots available for those currently waiting for community services.
Read LRS' comments: LRS comments on Self-Empowered Life Funding (SELF) waiver (PDF file)
Support for assuring a juvenile's right to counsel
LRS submitted comments to the Supreme Court of Ohio supporting the Court's adoption of proposed Rule 3 of the Ohio Rules of Juvenile Procedure. The rule would implement critical safeguards and protections concerning the right to counsel for children within the juvenile justice system. Specifically, the proposed rules would only allow a juvenile to waive their right to counsel if:
- They have consulted with an attorney who will advise them of the right and consequences of waiving; and,
- The waiver is made knowingly and intelligently after the judge has provided detailed instructions in writing and on the record.
In its comments, LRS emphasized that specialized training for representing juveniles, especially juveniles with disabilities, is an important aspect to consider as the Court proceeds with the rule process. In particular, many children with disabilities enter the juvenile justice system through the public education system and an awareness and sensitivity to the issues that students with disabilities face, as well as an understanding of special education law are critical for attorneys representing juveniles receiving special education services.
LRS joins the ACLU, Ohio Public Defenders Office and the Children's Law Center in supporting this proposed rule.
Read the comments: LRS comments on Juvenile Rule 3 - Right to counsel protections (PDF file)
Rules would establish limits on mental health services
LRS submitted comments to the Ohio Department of Job and Family Services (ODJFS) on proposed pre-clearance rules that would establish annual limits on the amount of Medicaid covered community mental health services. The proposed rules would also implement prior authorization procedures for community psychiatric supportive treatment and partial hospitalization services. LRS strongly urged ODJFS to take all necessary precautions to limit the negative impact the proposed rule's implementation may have on people with disabilities who rely on these critically important services to live, work and socialize in their communities.
Read the comments: LRS comments on proposed rule 5101:3-27-02 (PDF file)
Have your waiver services been reduced?
LRS has heard from people receiving services in the developmental disabilities system that their waiver services are being reduced or eliminated, including cases that are increasing the reliance on family members to provide supports. Have your waiver services been reduced? Have you been asked to add additional hours of "natural support" even when it interferes with employment or your own health? Call LRS Intake at 1-800-282-9181 or TTY 1-800-858-3542 with your story.
Action and results: Case summaries
LRS negotiates to resolve unhealthy living conditions
A client had to move out of her apartment and into her parents home after her apartment tested positive for an unhealthy level of black mold. Her parents live in another county and the client was not able to receive treatments from her home health nurses because she was no longer in her apartment. Arrangements were made to provide services at alternative locations, but the client preferred to receive the services in the privacy of her own home. The apartment manager agreed to have the unit renovated to resolve the mold issue, but required that the client pay to have her belongings removed to a storage unit and for any additional testing done.
LRS negotiated with the apartment manager to resolve the situation in the client's favor. The client did not have to move her belongings from her apartment while the renovations were being done and was not responsible for any additional expenses. The renovations were completed in a timely manner and the client was able to move back into her apartment and continue receiving home health services on a regular basis in her home.
LRS assists in preventing significant reduction of client's services
A county board of developmental disabilities proposed to reduce a client's services from 24 to 14 hours a day, claiming that the client's elderly mother, who has health issues of her own, could provide natural support for the remaining 10 hours a day. Since the county board waited until the end of the waiver span to propose this significant reduction, the client risked losing services immediately.
LRS assisted the client in preparing a prior authorization request for the 24-hour coverage. Since her services would have been reduced while waiting for a decision, LRS advised the family to request a state hearing to take advantage of "stay-put" which would retain the current level of services for the client until a decision was made on the prior authorization request. The client's request was granted so the state hearing request was withdrawn and the client continues to live at home receiving the level of services she needs.
Client's SSI overpayment waived
A client contacted LRS after receiving a notice from Social Security asking her to pay back for an overpayment of her Supplemental Security Income (SSI) due to insurance policies she had that were allegedly over the resource limit. The client, who has limited reading and comprehension skills, asked for assistance from LRS in understanding the notice and her responsibilities.
LRS assisted the client in preparing a waiver of the overpayment stating that collecting the overpayment would be against "equity and good conscience" because the client had told Social Security about the policies all along, had used the checks to pay her ordinary and necessary living expenses and was not told about the overpayment until months after it had happened. Social Security granted the waiver request.
Medicare open enrollment ends December 7
People receiving Medicare coverage have until December 7, 2011 to make changes to their Medicare or prescription drug plans or enroll in a plan if they missed earlier deadlines. Those who are eligible for both Medicaid and Medicare (dual eligibles) are allowed to switch plans at anytime, but those who are just eligible for Medicare can only change during the open enrollment period.
The Ohio Department of Insurance's Ohio Senior Health Insurance Information Program (OSHIIP) provides free health and drug plan counseling to assist Medicare beneficiaries to select the best option for their particular coverage needs. Call the OSHIIP hotline at 1-800-6786-1578.
For more information about open enrollment:
- Ohio Department of Insurance: Medicare Annual Enrollment Period
- Medicare.gov: Medicare Open Enrollment
- Department of Aging: It's time for Medicare enrollees to make important choices
- NAMI: Changes for Medicare Part D and Medicare Advantage for 2012