OLRS Annual Report
Part 3 - Protection and Advocacy
Contents
Ohio ranks near the bottom of the states in the proportion of individuals placed in nursing homes compared with individuals served in Ohio communities. Enforcement of the community integration mandate of the Americans with Disabilities Act (ADA) remains a pressing issue in Ohio for people with disabilities, older adults, and their advocates. The U.S. Supreme Court's decision in Olmstead v. L.C. held that unnecessary segregation of people with disabilities in institutions is a form of discrimination that violates the ADA. Community integration work was a high priority for OLRS throughout 2006 and will remain so in the future.
"Over the last 2 years the Ohio Legal Rights Service has been there for me so very much! In a world of endless bureaucratic corruption, your office has been there to stand up for me in the face of a system that eats up little guys like me for breakfast. I can not thank you enough for all of the fine work that your agency has done. You are truly the Robin Hoods of the modern age." (Email from a former client)
Martin: Class Action for Community Integration
The federal class action Martin litigation has been a significant priority for OLRS and its clients since its filing in 1989. OLRS filed Martin to create community options for thousands of people with mental retardation and/or developmental disabilities confined to nursing homes and developmental centers, who might choose to move to an integrated community setting and assume control of their lives. The class action is a debate over the sequestration of people with disabilities away from their communities in intermediate care facilities (ICF/MR). While many changes in Ohio's MRDD system have occurred since the case was filed, the overarching goal of the litigation, allowing people with disabilities to choose services in a home like setting rather than an institution (ICFs/MR or NF), has remained vital. Since 1993, the thrust of the case has been related to the community integration mandate of Title II of the Americans with Disabilities Act, and later the interpretation of that mandate by the United States Supreme Court in the case of Olmstead v L.C.
A tentative settlement was reached in Martin v. Strickland. The proposed agreement will result in state funding for home and community based services over the next two state fiscal years for 1500 additional individuals who are currently in an institution and choose to move, or who will be at risk of being institutionalized but who would choose to be served in a community setting. In addition, the agreement will result in the release to county boards of Mental Retardation and Developmental Disabilities (MRDD) of 4.2 million dollars of state capital funds for housing development for the class. The settlement also calls for surveys of those residing in ICFs/MR (intermediate care facilities) and NFs (nursing facilities) to assist in evaluating the need for additional community based services.
The suit has gone through several phases and many participants. While other states settled similar cases, the Ohio state defendants twice sought (unsuccessfully) to have the case dismissed on jurisdictional grounds, resulting in two published court opinions and an appeal to the United States Court of Appeals for the Sixth Circuit. Four trial dates were set and then vacated by the court, and several court initiated, monitored, or mediated settlement negotiations were unproductive. The most recent was in 2004 when a settlement proposal tied to the ill-fated ICF/MR waiver proposal of the Taft administration was ultimately withdrawn by the plaintiffs, after the state defendants withdrew their support for a class based settlement. A court appointed special master determined in 2005 that the class should remain certified and that OLRS attorneys remain as class counsel.
OLRS views the proposed agreement as an important step forward in implementing the Olmstead decision in Ohio. The proposed settlement will provide much needed services in the community to those individuals with mental retardation and developmental disabilities who have waited years to receive them. If approved by the Court and implemented by the state, it will defer the need for further litigation on this issue over the life of the settlement.
Early in the Martin deliberations, a named plaintiff made the following observation,
"I want control over my life. I've had depression when I had no control. I'm excited about the lawsuit for other people, too. I pray we won't lose the lawsuit. I pray all the time that we won't lose the lawsuit. I'm proud of the lawsuit and want people to know about it." (Plaintiff and class member Nancy Martin, Born Jan 23, 1949 - Died Sept. 21, 2006)
The Ohio Olmstead Task Force
OLRS continued as a member of the Ohio Olmstead Task Force (OOTF), a cross disability, collaborative coalition formed to advance Olmstead rights. During FY 2006, OLRS provided technical assistance about advocating for Medicaid Buy-in, in providing input to the state human services agency in the administration of Olmstead-related infra-structure grants, in monitoring the proposed reengineering of the state Medicaid plan, and in monitoring the impact of the state biennium budget changes on Ohio Access (Ohio's Olmstead plan). OOTF was active in providing information about disability issues to the gubernatorial candidates during midterm elections.
Representing Individuals for Community Integration
A state operated psychiatric hospital staff requested OLRS' assistance to discharge a client who was deaf, mentally ill and mentally retarded, and ready to leave the hospital. The client's community mental health agency was opposed to the client's discharge because it was unable to locate appropriate housing or to provide the supportive services they believed the client would require to live in the community. OLRS investigated and determined that the client wanted and was eligible for an array of services in the community. Following negotiations, the client was discharged to an apartment with the necessary services.
OLRS represented an individual whose guardian disenrolled him from a waiver supporting the client in the community, and moved him into an Intermediate Care Facility for the Mentally Retarded (ICF/MR) facility. The individual wanted to remain in his home. OLRS litigated replacement of the guardian and filed for a state Medicaid hearing on the loss of the waiver. The guardian resigned and OLRS negotiated for the client to get a new waiver. The client moved into his own apartment, with support services, a new case manager and a new psychologist, and was appointed a guardian of his choosing.
A client requested that OLRS investigate his placement in a nursing home. He did not want to live in the nursing home and did not have a guardian. OLRS investigated and negotiated with residential and treatment service providers for services in a less restrictive setting. The client subsequently moved to a group home with supportive services.
A child with a Medicaid waiver received 4 hours of skilled nursing service each day. The contract agency determined that the child no longer needed this level of service and that her care could be provided by aides. OLRS investigated and prepared for a Medicaid appeal hearing. The Hearing Officer ruled in the child's favor and ordered nursing services to continue at the skilled level.
"I wish to take this opportunity to express my heartfelt thanks to Ohio Legal Rights for their help in protecting my son's rights after he unexpectedly received an eviction notice from the provider after 19 years of residing in the same residence…. I feel very fortunate in having the help of [OLRS advocate]. He supported me through a mediation and also a state hearing. He made me understand that I was not fighting this battle alone, and that my son is just as important and deserving as any other individual and should be treated with respect…. This agency should be commended for their outstanding work." (Letter from a parent/guardian)
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People with disabilities are unduly segregated in institutions in violation of Title II of the ADA, as interpreted by Olmstead. Others are living in the community but vulnerable to institutionalization because of inadequate services and supports that are not available in the most integrated setting possible. OLRS is charged with acting upon complaints concerning institutional and hospital practices and conditions. OLRS protected individual rights, worked to eliminate abuse and neglect in institutions where people with disabilities reside, and advocated for individuals who could benefit from living in the community.
"I wanted to tell you that it was … the 12 year anniversary of me getting well. To remind you and to thank you and OLRS, as you will recall it was the 20-some point grievance hearing that you mediated for me … that has made the past 12 years possible…. That has enabled me to be really getting somewhere in a remarkable recovery, I want to update you on this, and again thank all of you there, for without your help over those years, none of this would be possible." (Email from a former client)
Court Rules Again in Favor of OLRS' Access to Records
OLRS' access to clients and records in institutions is guaranteed by state and federal law - this access is essential to the agency's ability to protect individuals from abuse and neglect. For the second time in less than a year, a court upheld OLRS' statutory authority to obtain access to restraint and seclusion logs kept by a children's mental health facility. On February 9, 2006, in Ohio Legal Rights Service v. St. Vincent Family Center, the Court upheld OLRS' statutory authority to ready access to records. The Court ruled that under state law, OLRS had the right to access all records related to the care and treatment of persons receiving services in the Center, which was licensed and certified as a mental health provider. The Court rejected an argument that such access was limited to those clients "represented" by OLRS. The Court also ruled that OLRS access was not prohibited by the federal privacy regulations under HIPAA. OLRS access is allowed because it is "required by law," and because OLRS is a "health oversight agency" as those terms are defined in the federal regulations. The St. Vincent court affirmed the right of OLRS to issue a subpoena for records if a facility denies a request. This allows OLRS to enforce its authority to access records without the delay and expense of court action.
This ruling mirrors the holding of the United States District Court for the Southern District of Ohio in the case of Ohio Legal Rights Service v. Buckeye Ranch. That decision (April 2005) was not appealed and the records were provided to OLRS.
OLRS won a second access dispute with St. Vincent Family Center. A second federal district court judge upheld OLRS access under the federal Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act and state law. OLRS' investigation of two incidents of substantiated abuse of a child receiving services at St. Vincent Family Center was impeded when the facility refused OLRS' request to interview the child. OLRS immediately filed a complaint and request for a temporary restraining order. The court quickly concluded that OLRS does have authority to interview an alleged victim of abuse under the PAIMI Act and the OLRS state statute. On May 15, 2006 the court issued an order which granted OLRS the right to see the child immediately, with no requirement under these circumstances to first contact the child's parent.
Nursing Home Placement of Individuals with Mental Illness
OLRS remains concerned about the numbers of adults with mental illness of all ages who are placed in nursing facilities. OLRS' investigation found systemic deficiencies that reflect the warehousing of people with mental illness in Ohio's nursing homes and the State's failure to provide them appropriate community alternatives in violation of Olmstead. Through representation and reviews of facilities OLRS found failures of the Pre-Admission Screening and Resident Review (PASSR) process to appropriately screen individuals, failure of state departments to address longstanding issues regarding Institutions for Mental Disease, known as IMDs, and concerns about the community mental health Medicaid program.
OLRS staff worked with staff from the Hawaii P&A to return to their homes several individuals who had been "placed" in Ohio nursing homes from Hawaii without informed consent. The Hawaii P&A later successfully worked for legislation to prevent such transfers.
Locked Behavioral Units in Nursing Homes
OLRS continued its investigation of nursing facilities with locked behavioral units. The agency will press its concerns as Ohio engages in discussions about Medicaid, accessible and affordable community housing and services, and meeting the spirit of the ADA and Olmstead on behalf of people with significant behavioral health needs.
A client on a nursing home locked behavioral unit requested assistance to be discharged; however the guardian would not consent. OLRS investigated and advocated for the client to be moved from the locked unit onto an open unit, and for appropriate mental health treatment, including for Post-Traumatic Stress Disorder. The client remains on the open unit, is doing volunteer work in the community and continues with therapy.
Abuse and Neglect in Psychiatric Hospitals - Advocacy Results in Increased Safety
OLRS negotiations with the Department of Mental Health (ODMH) resulted in the department banning the use of TASERs in hospital settings.
A private hospital's seclusion room had a mattress on the floor with the bed frame removed, and no policy addressing this issue. Following OLRS' investigation, the hospital agreed to change its seclusion room procedures.
ODMH revised state regulations on "Special Treatment and Safety Measures," regulating the practice of restraint and seclusion in state licensed residential treatment facilities to incorporate OLRS language on the adoption of individual crisis plans to reduce the use of restraint and seclusion.
OLRS staff developed an "Alternative Dispute Resolution" training to provide facility and community providers with alternative strategies to the use of restraint. Thirteen trainings were provided to advocates, behavioral health organizations, children's residential mental health treatment facilities and public children services personnel. OLRS' training was developed based on recommendations from the federal Substance Abuse and Mental Health Services Administration's National Training Assistance Center.
"I knew the Conflict Resolution training, provided by OLRS, was successful when I started to read in Incident Reports that a restraint was avoided because 'I used my Conflict Resolution training to resolve the issue.'" (CEO, Behavioral Health Organization)
A private psychiatric hospital adopted a written policy that required hospital-supplied garments only during the first 24 hours of admission and then allowed patients to have their personal clothing for the remainder of their admission.
Institutional Death MUI Reports and Investigations
OLRS reviewed Major Unusual Incidents (MUIs) reporting deaths from the mental health and developmental disabilities systems, and investigated when indicated by case facts.
OLRS continued as a member of ODMRDD's Mortality Review Committee, meeting on a quarterly basis to review deaths that occurred in the previous quarter. The Committee makes recommendations to physicians to develop statewide health alert information. OLRS also participates in ODMRDDs committees for Major Unusual Incident Trends and Patterns, and review and revisions of the department's MUI rule.
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OLRS advocated for children to be free from abuse and neglect, to receive the supports and services they need to remain with their families and in their communities, and to receive a free appropriate public education in the most integrated setting possible.
Children's Health: Legal Action for EPSDT Services
OLRS took action in federal court on behalf of children who are eligible for but are not receiving needed medical services under the state's Medicaid program. The class action complaint, filed on October 26, 2005 in United States District Court in Columbus, is brought against the director of the Ohio Department of Job and Family Services (ODJFS) on behalf of a class of Medicaid eligible children who are being denied the benefits of Ohio's Early Periodic Screening Diagnosis and Treatment (EPSDT) program. Many of these children had previously received services under the Community Alternative Funding System (CAFS) program, which the state voluntarily ended on June 30, 2005. The purpose of the lawsuit is to assure that Ohio has a well-designed, fully implemented system in place where children with disabilities can apply for and receive needed treatment under the EPSDT program.
Federal law requires that state officials periodically screen Medicaid eligible children for health problems. If a child's screening identifies health problems, the law also requires the EPSDT program to provide necessary health care, diagnostic services and treatment that will correct or improve the health problems, even if the services are not routinely covered by Ohio's Medicaid plan.
The class action alleges that the ODJFS violates federal law because it does not have a system in place that allows Medicaid eligible children to apply for and receive necessary treatment services from EPSDT.
OLRS filed the class action with the consent of its governing Commission after concluding that this violation of federal law significantly impacts health care for Ohio's children with disabilities, particularly in light of recent developments in health care service provision in this state, including elimination of CAFS funding.
The complaint asks the judge to order the director of ODJFS to provide medically necessary services for the named plaintiffs in the case, three children who have disabilities and, on behalf of the class, to develop policies and procedures that set up an effective and reasonable method for eligible children to access medically necessary services under EPSDT.
Empowering Childrens' Families
OLRS joined the Ohio Legal Assistance Foundation and the Equal Justice Foundation in filing a "friend of the court" (amicus) brief in the case of Winkelman v. Parma City School District in the United States Supreme Court. The brief supported parents' right to represent their child "pro se" (without a lawyer) to enforce the child's rights under the Individuals with Disabilities Education Act (IDEA) in federal court. The Supreme Court decided to hear the case because lower federal courts disagree on that issue. The amicus brief focuses on the fundamental constitutional right of parents to raise their children and make decisions about their education. It argues that a ruling against the parents in this case would interfere with that right, and argues that no state interest, including the state's interest in prohibiting the unauthorized practice of law, is important enough to interfere with the parents' right.
OLRS advocated for parents' rights to continue to make decisions about Early Intervention (EI) services for their child, even though the child is in temporary custody of the Childrens Services Board (CSB). The Ohio Department of Health Help Me Grow/EI section acknowledged the parents' rights. OLRS also advocated for training and technical assistance for CSB staff on EI rules and procedures.
Special Education: Exclusionary System on Trial
In Doe v. State of Ohio, OLRS represents eight students with disabilities, their parents, and a plaintiff class of over 250,000 Ohio students with disabilities. OLRS brought the case to ensure that state officials were meeting their obligations of ensuring that children with disabilities receive a free appropriate public education 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. The plaintiffs and the class seek relief under the IDEA and the U.S. Constitution because Ohio has failed to adequately fund the special education services to which the students are entitled.
On April 17, 2006, thirty-five members of the Ohio General Assembly's minority caucuses, the state's largest teachers' organization, and the coalition that originally brought the DeRolph school funding case filed friend of the court (amicus) briefs in support of the OLRS special education funding lawsuit. The state defendants had moved to dismiss the case, and in response OLRS filed a memorandum opposing the motion and arguing that under federal law the case should be allowed to go to trial. The state of Ohio filed a reply on June 16, 2006. A decision of the court is pending.
Enforced IDEA and Section 504 of the Rehabilitation Act
OLRS advocated for a child who had multiple disciplinary actions and been placed in a juvenile court operated alternative school at the school's recommendation. The custodial grandmother complained that this program was abusive and was causing the child to become suicidal. The school failed to meet the required time lines for completing the evaluation. The grandmother filed a complaint with the state Department of Education. OLRS negotiated for the child's release from the alternative center. A multi-factored evaluation was completed and the child was found eligible for special education. OLRS negotiated a settlement with the district to reimburse some of the grandparent's costs of the alternative center placement.
A student had a chronic illness which caused her to miss school frequently. The school had not addressed this issue and the child continued to miss school. The student's physician recommended a combination of home tutoring and enrollment in an on-line course of study. OLRS provided advice to the parent on how to advocate for these services including developing an appropriate transition plan and obtaining assistive technology. The parent negotiated successfully and the school agreed to provide compensatory tutoring for the days that the student missed school due to her illness, home instruction/tutoring, and the on-line course of study.
Use of Restraints in School
A school used a wheelchair with straps to restrain a child who is mobile and did not need a wheelchair. Use of the wheelchair was not included on the child's IEP and there was no behavior plan. The parent asked that the chair not be used; the school refused. OLRS negotiated and a functional behavioral analysis and assistive technology evaluation were completed, goals were revised to promote progress, and the parent reports the situation has improved.
Rights in Foster Care
A child received Early Intervention (EI) services. After being placed in temporary custody in foster care EI services were discontinued. OLRS intervened at the state and local levels. The parent received notice from the Ohio Department of Health's Help Me Grow program (administering the EI program) confirming that the Children Service Board (CSB) acknowledged that the parent continues to be able to make decisions regarding services while her child is in substitute care with CSB. The parent was assured that EI services will continue while her child remains in CSB care.
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OLRS enforced, monitored and promoted the rights of persons with disabilities to live in safe, affordable and accessible housing without discrimination under the Fair Housing Amendments Act of 1988 and other applicable state and federal laws. Housing is essential to community integration of people with disabilities. The ADA recognizes that discrimination against individuals with disabilities persists in such critical areas as public accommodations and education. OLRS responded to complaints about discrimination and program access.
"My wife … was being denied a reasonable accommodation by a homeowner's association…. I am extremely pleased to inform you that [OLRS attorney] conduct of this case was exemplary in every manner. His diligent and extensive research clearly established a firm foundation of legal merit sufficient to prompt the [association] to capitulate without the necessity of Federal Court proceedings." (Email from family member to the Executive Director regarding an OLRS attorney)
In Housing
A client who had accumulated funds under the Housing and Urban Development (HUD) Family Self-Sufficiency (FSS) program had to leave work because she became disabled due to intensified symptoms of her mental illness, but managed to remain independent of public benefits. The FSS program is designed to assist public housing participants to return to work and become independent of public benefits. The client wished to use her FSS funds to buy a house, but the public housing authority refused to disburse the funds claiming breech of her FSS contract. OLRS researched federal regulations regarding the FSS program and found that the program makes exceptions in some cases when individuals can not meet their FSS contract obligations. OLRS advised the client, she negotiated with the housing authority and the authority agreed to disburse funds from her FSS account to cover her bills. She continued her search for her own house and prepared for purchase.
A client who needed extra room for medically necessary equipment requested transfer to a two bedroom apartment. The landlord (metropolitan housing authority) denied the request. OLRS requested reconsideration and provided medical documentation. On reconsideration the housing authority granted the request based upon the Rehabilitation Act's accommodation principles.
A Township Board of Trustees filed a complaint in the court of common pleas seeking to enjoin parents of a client from keeping two goats on the property in violation of zoning ordinances. OLRS represented and filed a complaint alleging discrimination based on disability under the Fair Housing Amendments Act in that it was necessary to have goats on the property to treat the client's disability. The client's pediatrician fully supported the need to have goats on the property. OLRS negotiated a settlement in the case which permitted the client to keep the goats on the property until he graduates from high school or turns eighteen years of age.
OLRS continued to collaborate with multiple cross-disability agencies on housing-related issues and participated in multi-agency conferences to share information and to develop housing resources. OLRS attended meetings of the Ohio Access Housing Work Group, which grew out of Ohio Access and Governor's housing work group to monitor and provide input to revisions of Ohio's Olmstead plan. OLRS participated in two sub-committees on housing initiatives under the Ohio Access report and collaborated with a variety of disability and housing advocates, including the state Department of Aging, Coalition on Homelessness and Housing in Ohio (COHHIO), and independent living centers. OLRS also attended a meeting of housing disability advocates with the Statewide Independent Living Council (SILC) to discuss the grant evaluation process (the "GAP") of the state housing finance agency, ways to bring local metropolitan housing authorities to address disability housing issues, and ways to impact the state human services agency's use of Money Follows the Person (MFP) grant dollars.
The American Red Cross of Central Ohio agreed to refer clients with disabilities to OLRS to address housing issues they encounter as a result of emergencies like fire and other disasters.
OLRS further empowered clients to advocate for their housing by publishing a FAQ document about "Housing Accommodations for People with Disabilities: Service and Support Animals and Other Things."
For Reasonable Accommodations
OLRS represented a student with Cerebral Palsy who was prescribed a service dog to assist him to be more independent. The student uses a wheelchair and the dog would assist in moving the chair long distances, opening doors and helping to carry school books. The school refused to allow the dog in the school. OLRS negotiated with the school which agreed to allow the dog on the bus and in the school and make accommodations so that the student could incorporate the dog in the school environment. The student and dog are having a successful school year.
For Basic Human and Civil Rights
An individual with guardianship sought to get married. The guardian refused to allow the marriage. OLRS represented the client at a probate court hearing to establish competency to marry and the court agreed to dissolve the guardianship. The client is free to marry.
Group home staff developed a behavior plan for an individual with behavioral issues due to his disability that included calling the police. Police intervention resulted in a psychiatric hospitalization. The client requested OLRS assistance with developing a plan that addressed behavioral issues with treatment instead of jail. OLRS negotiated, the client moved to a new home and reported that he is happy and staff treat him well.
In Higher Education
A university gave a college student 24 hour notice to vacate the dorm room after the student required emergency psychiatric hospitalization. The student's mental health case worker and doctor requested that the student be allowed to remain in the dorm room as a reasonable accommodation. The university denied this request and upheld the eviction. OLRS filed an administrative complaint with the U.S. Department of Education, Office of Civil Rights. As a result of this complaint, the university agreed to mediation and settled the complaint. The settlement cleared the student's record and refunded housing costs. The university reviewed its procedures and made changes to policies. The student successfully completed the school year, despite the eviction.
In Public Services
OLRS represented two individuals and one organization in litigation to require transit authority bus drivers to announce bus stops as required by the Americans with Disabilities Act. OLRS negotiated with, and then filed suit in federal district court against the transit authority. The case was settled favorably to passengers who are blind and have visual impairments. Among the settlement provisions, the transit authority agreed to install technology to announce stops, take disciplinary measures against drivers who did not, and install a monitoring system for determining whether drivers were calling stops consistently. The transit authority has installed enunciators in the buses which automatically call the stops and bus operators can not turn off the enunciators.
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Among adults with disabilities of working age (18 to 64), three out of ten (32%) work full or part-time, compared to eight out of ten (81%) of those without disabilities, a gap of forty-nine percentage points. The more severe the disability, the less likely a person is to be employed. People with slight disabilities are 8 times more likely to be employed than people with very severe disabilities, 64% versus 8% respectively (National Organization on Disability/Harris Poll, 2000). In March, 2006, OLRS published "The State of Ohio's Needs and Resource Assessment of Individuals with Brain Injuries and Their Families." OLRS found that individuals with brain injuries are frequently unemployed or underemployed as a result of their injury. 86% of respondents reported that employment was affected by their injury. Of the 301 adults of typical working ages 22 - 55 who lived in a house or apartment, 70% were unemployed - only 9% were employed fulltime and 15% part-time.
Enforcement data from the U.S. Equal Employment Opportunity Commission reported that the types of discrimination with the highest rate of increase in FY 2001, compared to the prior year, were allegations of discrimination based on age and disability. Individuals with disabilities face discrimination and other obstacles to employment.
OLRS protected the rights of people applying for or receiving vocational rehabilitation (VR) services from the Rehabilitation Services Commission (RSC) and its agencies and from Independent Living Centers through its Client Assistance Program. OLRS PABSS program advocates for Social Security beneficiaries to secure or regain employment.
VR Training Rule: Challenging Denial of Tuition
OLRS filed a class action, Jackie S. v. Connelly, to stop the Rehabilitation Services Commission (RSC) agency's denials of education funding, through a new training rule, in violation of federal statute and the U.S. Constitution. The new rule effectively denies vocational rehabilitation (VR) services to clients whose job plan calls for higher education funding by requiring VR clients to apply through the Free Application for Federal Student Aid (FAFSA) process, which attributes family income and assets from the previous year to determine the VR client's ability to pay. OLRS sued on behalf of nine individual clients in FY 2005, and in FY 2006 OLRS requested that the case be given class action status, and responded to the Defendants motion to dismiss. In July 2006 the Court granted the motion to dismiss but gave OLRS permission to file an amended complaint. The motion for class action is stayed pending determinations of all motions to dismiss. OLRS filed an amended complaint and the Defendants have filed another motion to dismiss, and in FY 2007 OLRS will be responding to their motion to dismiss. In the meantime, OLRS negotiated an agreement with the Defendants whereby the named Plaintiffs will be provided with money for training without regard to their financial status through the fall 2006 term.
OLRS Advocates for VR Services that Support Education
Education is a key to success in the work force and OLRS advocated for vocational rehabilitation services necessary to pursue employment opportunities. In one case, a client who was interested in becoming a cameraman had difficulty obtaining payment for college tuition from a VR agency. OLRS staff obtained an agreement to supply the needed funding. The client completed an internship doing camera work with a major national sports league. The league was pleased with the quality work and their working association continues.
OLRS represented an individual at a formal fair hearing in a dispute over whether the VR agency should provide reimbursement for expenses incurred while pursuing an advanced law degree. The hearing officer ruled in favor of the client, but the VR agency disputed certain elements of the submitted expenses, including books, maintenance, and travel. OLRS negotiated a resolution whereby the consumer received over $6000 in expenses from the VR agency.
RSC implemented a rule imposing a financial needs test and requiring an "expected family contribution" from most individuals served. Clients unsuccessfully appealed this issue to RSC. During FY 2006, OLRS began preparing a legal action to challenge the legality of a rule which mandates that VR services be paid for by family members. That legal action has the potential to benefit clients of VR services who are pursuing educational degrees leading to employment.
VR Agency Again Refuses OLRS' Requests for Mediation
Federal law clearly mandates mediation or other forms of alternative dispute resolution before VR clients pursue a formal or legal remedy. Again this fiscal year, as in past years, OLRS asked RSC's VR agencies to engage in mediation in numerous cases on appeal. As in past years, RSC's VR agencies refused mediation in every case.
Appeal Standard "Too Disabled to Benefit from Services"
A client appealed a decision by the Bureau of Services for the Visually Impaired (BSVI) to close her case for being too disabled to benefit from services and failure to progress in VR services. OLRS CAP staff represented the client at an informal resolution meeting with BSVI administration. An agreement was reached whereby BSVI opened a new case with a new counselor to serve the client's VR service needs. The client accepted the resolution and dismissed her appeal.
Accommodations for Higher Education
The Bureau of Vocational Rehabilitation (BVR) had assisted a woman who is quadriplegic to obtain an undergraduate degree. The client wished to pursue a law degree with BVR's continued assistance. The client also needed van modifications in order to drive to school. BVR was concerned that the client's goals were not realistic and closed the case. OLRS negotiated, BVR reopened the case and the client was accepted into law school. BVR agreed to pay tuition and a new Individual Plan for Employment addresses needed services and vehicle modifications.
Accommodation to Prepare for Employment
A local human services office denied accommodation for the client's disability by providing foster care training closer to his home. OLRS contacted the human services worker and the local prosecutor to whom the human services worker had referred the issue. The client received the requested accommodation and continues to prepare and train to serve as a foster parent.
National Protection and Advocacy
OLRS collaborated with the National Disability Rights Network and state affiliates in their employment law suit against a large, national franchise.
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OLRS enforced access to assistive technology devices and services under the ADA, and Technology Related Assistance for Individuals with Disabilities Act of 1994, which provides for rights protection and advocacy to access assistive technology (AT), and the rights of students with disabilities under the IDEA and section 504.
Education and A.T.
Under the federal Individuals with Disabilities Education Act (IDEA), an "AT device" is one used to maintain or improve students' functional capabilities; an "AT service" is one that assists in the selection, acquisition or use of an AT device. IDEA's legislative history emphasizes the importance of AT in the lives of students, noting that advances in AT provide new opportunities for students to participate in educational programs. If students need AT to fully participate in school activities, Section 504 of the Rehabilitation Act may also require the school to provide the device or service.
AT can provide students with disabilities equal opportunities to learn and participate. AT can redefine the IDEA's requirement for "appropriate placement in the least restrictive environment." OLRS advocated on behalf of a student who was enrolled in a county board of MRDD education program. OLRS negotiations resulted in the student's enrollment in a local high school with needed related services, including a computer to use at school and home, computer training, and a Hoyer lift.
A suburban school district refused to enroll a child and advised the family to enroll the student in a nearby large urban school district. OLRS intervened and the IEP team determined that the child could be served part day in a regular education class with appropriate supports and services, and part day in a specialized education setting for mobility training. The local district agreed to provide a Braille note taker and related equipment to translate his work into Braille, and provided a laptop computer allowing the student to complete homework and access the general curriculum.
OLRS negotiated for a school district to complete a multi-factored evaluation resulting in the student being eligible for special education. The district's hearing impaired program provided tutoring services as well as a new FM system. The student's pediatrician, a BCMH provider, processed paperwork for eligibility and requested hearing aides. This was necessary as the family's private insurance company threatened to deny the claim because the hearing loss was not the result of a traumatic brain injury, per the Medicare standard.
Informing People about Hearing Aids
Approximately ten percent of the individuals OLRS served during the fiscal year had hearing impairments. OLRS developed an advocacy handbook called "Information About Hearing Aids." The handbook helps the reader make decisions about hearing aids by providing information about hearing loss, how a hearing aid can help, how to choose and buy a hearing aid, how to pay for a hearing aid, and legal rights when buying a hearing aid. The handbook also alerts the reader to other help for hearing loss, including other kinds of assistive technology. With financial support from AT Ohio, OLRS intends to print and distribute 5,000 copies, and the document will be available on the OLRS web site.
For more on assistive technology: Assistive Technology.
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In passing the Help America Vote Act in 2002, Congress recognized the difficulties encountered by individuals with disabilities that can jeopardize voting rights and authorized funding for the Protection and Advocacy for Voting Access program (PAVA). OLRS served Ohio voters with disabilities by providing rights protection and advocacy and legislative monitoring to assure access and reasonable accommodations, and investigate complaints of discrimination. OLRS operates a Toll-Free Voter Hotline on general election days to address voter concerns.
Voting Rights
An individual under involuntary commitment to a psychiatric hospital was denied his right to vote. OLRS alerted the client's case manager and confirmed with the facility client rights advocate that the hospital had an absentee ballot policy and procedure. OLRS will continue to monitor clients' voting rights.
OLRS continued to attend monthly meetings of a committee formed by the Ohio Secretary of State to improve the accessibility of polling places throughout the state.
Informing Voters
OLRS developed a series of Voter Alerts for dissemination by an e-mail distribution list containing 130 interested individuals with disabilities and agency advocates for wider dissemination to their constituents. The Voter Alert topics included voter registration, voting by absentee ballot, voting accessibility and equal access, and learning about the candidates and the issues. OLRS presented updates on the Help America Vote Act (HAVA) implementation and on Ohio House Bill 3 amending state voting laws. An article titled, "House Bill 3 and Voting Procedures for People with Disabilities Who are Unable to Sign Their Name," was posted on the web site from January to July 2006.
OLRS consulted and assisted the Nisonger Center of The Ohio State University, in collaboration with county boards of mental retardation and developmental disabilities, to develop materials and design a training program for voters with cognitive disabilities.
Advocating for Access: Polls and Technology
During FY 2005 the Ohio Secretary of State promulgated a rule that requires county boards of election to purchase voting machines that are not accessible to many people with disabilities in possible violation of ADA and Section 504, though possibly not in violation of HAVA. OLRS continued in FY 2006 to review the proposed rules, and monitored the rule process and controversy regarding machine accessibility. OLRS focused on the need for the Secretary of State to provide clarity and standards to county board of elections.
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Ohio's traditional systems of supports and services often fail to include services and supports for individuals with brain injuries. While families with children who have brain injuries face difficulties obtaining adequate supports, individuals sustaining brain injuries after the age of 22 may be found ineligible for and excluded from service systems.
Advocating for Services, Representing Individuals
A large city public school district launched a Traumatic Brain Injury (TBI) screening pilot project for the 2006-2007 school year to better identify and serve students with TBI, and consequently implemented additional requirements in the identification and evaluation of students with TBI.
OLRS advocated with the Ohio Department of Health, and the department revised their statewide school health screen to include TBI.
With funding from RSC's Ohio Brain Injury Advisory Committee (OBIAC), OLRS conducted and published "Ohio's Needs and Resource Assessment for People with Brain Injuries and Their Families." The purpose of the needs assessment and report was to provide Ohio policymakers with the information they need - first and foremost, the ideas and experiences of individuals with brain injuries and their families - to plan for and fund an efficient, effective, ability-based, inclusive system of supports and services. The report is available online at http://olrs.ohio.gov/TBIReport/tbireport.htm. OLRS assisted the Brain Injury Advisory Committee in the development of its three year action plan to begin to address the concerns raised in that assessment. Highlights of the assessment were presented to state agency leaders in June to educate them on the needs of individuals with brain injury and their families.
OLRS is an ex-officio member of RSC's OBIAC. OLRS is active in an education workgroup consisting of OLRS, the Ohio Department of Education, the Brain Injury Association of Ohio and the Ohio Center for Autism and Low Incidence. This workgroup has collaborated to present a state-wide conference on TBI and education and works to identify opportunities to raise awareness among educators about TBI. Through trainings presented by the education workgroup, over 100 participants received training on TBI and education and received educational materials.
OLRS represented a student with TBI who was not receiving appropriate educational services. The student was denied necessary assistive technology and speech and occupational therapy. OLRS determined that the school district lacked the expertise in TBI necessary to address the student's needs. OLRS assisted the client to get an appropriate Individualized Education Plan (IEP) and placement in another district with experience dealing with children with orthopedic and TBI disabilities. The parent received compensation to provide additional private therapy to the student.
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OLRS continued its collaboration with Ohio's DD Network Partners: the Ohio Developmental Disabilities Council, the Ohio State University Nisonger Center UCEDD, and the University of Cincinnati, Children's Hospital UCEDD.
OLRS participated in a national invitational meeting convened by the Department of Homeland Security and the Administration on Developmental Disabilities regarding the vulnerability of people with disabilities during emergencies and disasters. OLRS worked with Ohio Emergency Management Agency, the Ohio Departments of Health and Aging, and DD Network partners on a statewide group to improve emergency management and people with disabilities. "Be Prepared" packets were developed for individuals and families for personal preparedness, and a state conference is planned for December. OLRS advocated for rights protections, accommodations and accessibility in all phases of emergency management: mitigation, preparedness, response, and recovery.
OLRS partnered with Marietta College to help meet the needs of families in that community who have children with disabilities. OLRS provided direct assistance to families through counseling, negotiation with school districts and other representation in special education matters, as well as on-going training on special education topics. OLRS provided training opportunities and individual technical assistance to a local attorney who represents children in special education matters.
OLRS continued its collaboration with parent advocates from the Ohio Coalition for the Education of Children with Disabilities (OCECD) in reciprocal referrals, special education advocacy and training. OLRS and OCECD consulted with and advised families about their rights and about filing complaints with the Ohio Department of Education and with the federal Office of Civil Rights.
OLRS continued its work with the Office of the Ohio Consumers' Council, a state agency that advocates, mediates and receives complaints about public utilities in order to improve the access of people with disabilities to utility services.
OLRS sits on the Developmental Centers Direct Stakeholders Committee, providing input on the role and function of Ohio's developmental centers.
OLRS has a longstanding and well established relationship with the state Long Term Care (LTC) ombuds program. OLRS and the LTC program collaborate on areas of mutual concern. OLRS routinely trains new long-term care staff in OLRS' mission and services. State law provides for a mechanism for reciprocal referrals. Staff from both agencies also collaborate on legal committees and health task forces.
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In many situations, with information, people with disabilities and their families can advocate for themselves. People need information about advocacy and rights that is accurate, usable and readily available. OLRS provides information through publications, its web site and e-mail lists.
"Thank you for sending such valuable advice in your publications….We will be able to share with so many groups and interested parents we serve. It feels like I won the lottery!" (Postcard from a Parent Mentor)
OLRS' Web Site: A Tool for Clients and Families
OLRS web site, http://olrs.ohio.gov, is a useful place for OLRS clients and constituents to find timely information. Organized by disability-related topic areas, the web site provides OLRS' position on matters of importance to Ohio's disability communities, the status of critical cases,agency publications and resources, as well as resources from other organizations. A site map and a search engine assist web users to find the information they seek. The web site received nearly 2 million hits in FY 2006, averaging 144,300 hits per month.
OLRS ensures that its web pages are accessible to people with disabilities who use assistive technology. The agency follows the single-A (priority 1) Web Content Accessibility Guidelines (WCAG) 1.0 of the World Wide Web Consortium's Web Accessibility Initiative. OLRS complies with the Web-based intranet and internet information and applications requirements of Section 508 of the Rehabilitation Act.
Publications and Newsletters
OLRS' catalog of rights publications includes over 80 titles in booklet, pamphlet and other print formats available to the public at no charge. OLRS disseminated 24,344 print items during FY 2006. OLRS also disseminates time sensitive rights information and news of agency activities in its OLRS Quarterly newsletter, which is available in print, via e-mail distribution list and as pages incorporated into the DD Quarterly, the Ohio DD Council's quarterly newsletter. This multichannel distribution provided timely rights information and education to over 21,500 print readers (both individuals and organizations) and many more through e-mail distribution lists and web readers in FY 2006.
New Title Released in FY 2006
- What If? Workbook: How to Make Decisions about your Mental Health Treatment Ahead of Time
- Service Coordination: A Guide for Families
- Advance Directives for Mental Health Treatment in Ohio
- Important Benefits for Medicaid Eligible Children: Early and Periodic Screening, Diagnosis and Treatment (EPSDT)
- FAQs About Your Right to a Sign Language Interpreter During Appointments with Medical and Other Treatment Providers
- Children's Rights: The Rights of Children and Their Families Who Need or are Receiving Community Services
- Family Opportunity Act and Other Family-Friendly Provisions of the Deficit Reduction Act of 2006, Opportunities for Ohio
OLRS publications are available online and in alternative formats upon request. See Ohio Legal Rights Service Publications for a list of publications.
The annual report is also available in PDF: OLRS Annual Report for Fiscal Year 2006 (PDF file)
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