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Copyright © 2008 Ohio Legal Rights Service. All rights reserved.
OLRS Commissioner Wayne Cocchi was honored at the August 13, 2008 Ohio Governor's Council on People with Disabilities Annual Awards Ceremony at the Statehouse Atrium. Former OLRS Commissioner Bill Bauer presented the Maureen Fitzgerald Leadership Award to Cocchi for his contributions to the Ohio Youth Leadership Forum. Bauer, when presenting the award, stated that Cocchi exemplified many of the positive qualities and attributes of Fitzgerald.
This leadership award is given annually to an individual who empowers youth with disabilities to accept the challenges of life and provide them with the determination and tools to make a change in their lives and in the lives of others.
State Senator Ray Miller (D-Cols.) presented resolutions on behalf of the Ohio Senate and House acknowledging Cocchi's contributions and receipt of the award.
Cocchi, director of Disability Services at Columbus State Community College, is serving a second term as an OLRS Commissioner.
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The president of the Ohio Senate has appointed Sandra Stern to serve as a member of the OLRS Commission (OLRSC). Stern's appointment runs through April 2010. She succeeds Commissioner Bill Bauer.
Stern brings many years of professional and personal experience to the OLRSC. She is a former educator in the fields of special and vocational education. "I am pleased to be appointed to the Commission, and excited to work with Ohio Legal Rights Service in its mission of advocacy for Ohio's citizens with disabilities," said Stern.
"I look forward to working with Commissioner Stern, and value the perspective she will bring to the Commission," added Michael Kirkman, OLRS executive director.
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Community integration and access to the courts are two important priorities driving OLRS' legal advocacy. Often, people with disabilities must call upon the courts to assure that government and public officials abide by laws guaranteeing their right to be included in all aspects of community life. Access to the courts is vital to aligning reality with law, and for ensuring change in our nation's culture of exclusion of people with disabilities.
OLRS is committed to advocacy that opens the courtroom doors for people with disabilities, and uses all the resources the courts have to support their inclusion in society. OLRS recently advocated in the courts to protect rights that support community integration.
Receiving needed services can mean the difference between life in the community or life in an institution. OLRS took legal action after receiving complaints from families about proposed administrative rule changes that would have discontinued services to children in inclusive settings.
A federal judge issued a preliminary injunction to prevent the implementation of proposed state rules that would have eliminated Medicaid reimbursement for medically necessary services to children with autism and other conditions that cause severe or intense behavior. "Without these critical services, the children were at risk for regression in their skills, increased unwanted behavior, and an increased chance of being placed in an institution or segregated classroom," said OLRS attorney Michelle Atkinson. "The injunction was a necessary legal protection for them now, so they could stay at home in their communities," added OLRS managing attorney Sue Tobin. The injunction is in effect until further order of the court.
The lawsuit began on May 2, 2008, when OLRS filed a motion and complaint in the U.S. District Court, Southern District of Ohio, seeking a temporary restraining order and declaratory and permanent injunctive relief prohibiting the Defendants, officials at the Ohio Department of Job and Family Services (ODJFS), the agency responsible for the administration of the Medicaid program in Ohio, and the Ohio Department of Mental Health (ODMH), from enforcing the proposed rules that would have gone into effect on July 1, 2008.
OLRS filed the lawsuit on behalf of three children with autism and the Parents' League for Effective Autism Services (PLEAS), an association of parents and families who are receiving Medicaid services.
OLRS requested the injunction, an extraordinary remedy that courts use in special cases, to prevent the harm that would occur to the children if the Defendants implemented the rules and discontinued payment for the children's services. A court hearing was held in late June, a few days before the rules would have gone into effect.
Parents of children with autism and a psychologist familiar with the children gave powerful testimony about the children's need for intensive behavioral services and the harm they would suffer without such services. They told the court the children had no other options for services and risked substantial regression in their behavior and skills.
Federal Judge James L. Graham viewed the proposed rules as an effort to avoid having to pay for certain services under the federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) requirement, and concluded that the Defendants had interpreted the federal Medicaid law too restrictively.
The court also denied the Defendants' motion to dismiss the case and ruled that the Plaintiffs had properly brought a claim under federal law for violations of their rights under Medicaid, that OLRS lawyers could represent the PLEAS association, and that the association has standing to sue as a Plaintiff.
ODJFS and ODMH have appealed the case to the U.S. Court of Appeals for the Sixth Circuit. Judge Graham denied their request to stay the injunction during the pendency of the appeal, and also delayed the proceedings of the district court during that time.
OLRS represents an individual who was not hired because of his disability in Doe v. The Salvation Army. After a district court judge dismissed the case, holding that there were no genuine issues of material fact, OLRS successfully appealed the case to the U.S. Court of Appeals for the Sixth Circuit. OLRS argued, on behalf of Doe, to the appeals court that the district court erred by analyzing Doe's present mental health, rather than his record of mental illness, in deciding whether he had a claim under the Rehabilitation Act of 1973. OLRS also argued that the district court applied the wrong standards in deciding whether the Salvation Army discriminated against Doe.
During Doe's job interview with the Salvation Army, the interviewer asked about medications he was taking. Doe answered he was taking psychotropic medications. The interviewer ended the interview shortly after, and the Salvation Army did not hire him.
The court of appeals overturned the decision, holding that the lower court dismissed the case inappropriately.
The appeals court's decision, which sends the case back to district court for trial, is an important victory because it opens a door to the judicial system for Doe and is a step toward supporting people with disabilities to work in the community.
OLRS will continue advocating for Ohioans with disabilities to have access to the courts, and full inclusion in community life.
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Consistent with OLRS goals to ensure access to the courts, OLRS Executive Director Michael Kirkman serves on the Steering Committee of the National Campaign to Restore Civil Rights housed at the New York Lawyers for the Public Interest. This group provides education and information to citizens about the importance of the federal courts in enforcing a variety of civil rights and environmental laws. For more information, go to the National Campaign to Restore Civil Rights Web site.
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OLRS attorney Jane Perry knows the discrepancy between the promise of disability law and the day-to-day life of her clients. "They are not living with the protection the law is designed to give them," said Perry.
In cases like D.M. v. Butler County Board of Mental Retardation and Developmental Disabilities (see OLRS Litigation Update) and Doe v. The Salvation Army, in which Perry serves as lead attorney (see Accessing the Courts to Support Services, Community Integration), Perry uses the facts her clients relate to her to pursue legal action. In these two cases, Perry advocates to vindicate her client's rights under laws supporting inclusion in their home community. Her goal is to assure that people with disabilities are provided what the law entitles them.
"When you are the voice of a person who, just because of their disability, has to live in a congregate setting with people who are strangers, or who is summarily dismissed from a job opportunity because they are taking medicine, you want to speak up — loud and clear — and say the law doesn't allow this," said Perry.
Perry, who has represented OLRS clients for many years, admits there are challenges. "You don't always get what you know a person is entitled to," said Perry. "But when you do, that's a great day."
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OLRS represented an individual with a disability at an Unemployment Compensation Review Commission (UCRC) hearing, successfully appealing a denial of unemployment compensation. The Ohio Department of Job and Family Services (ODJFS) had denied the individual's request for unemployment compensation, after determining she was "not able to work and not available to work" as required by law because she could not work full-time. Previously she worked part-time as a substitute teacher and as a telemarketer in the summer.
OLRS attorney Jane Perry filed an appeal on the client's behalf with UCRC, which reviews ODJFS unemployment compensation decisions. OLRS argued (1) Ohio law does not require a person to work full-time in order to receive unemployment compensation — this client has always been able to and available to work part-time, and (2) denying her unemployment compensation was discriminatory under Title II of the Americans with Disabilities Act because the client, due to her disability, could not engage in full-time work. The UCRC ruled in the client's favor and determined that she is eligible to receive unemployment compensation.
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Jason Boylan joined the OLRS legal staff in June 2008. Boylan clerked for the agency since June 2007.
Prior to joining OLRS, Boylan was a law clerk for the Ohio Ethics Commission. He also worked for the American Institute for Research, and was a page in the Ohio Senate.
Boylan received his law degree from Capital University Law School, and is admitted to practice in Ohio and both the Northern and Southern U.S. District Courts of Ohio.
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OLRS, with the support of the OLRS Commission, has started a strategic planning process for creating a long range plan for the agency. The intent of the planning process is to systematically identify strategies and activities to achieve OLRS' vision and mission and, ultimately, to improve client directed protection and advocacy services for Ohioans with disabilities.
A critical first step to effective strategic planning is to gather information from stakeholders, especially those who use or are eligible to use OLRS' services. OLRS is implementing an information gathering initiative to receive input from a large sampling of people who represent Ohio's disability community.
OLRS is meeting with governing boards of organizations of people with disabilities to provide an overview of OLRS and to receive information from board members about major issues facing people with disabilities. Knowing their perceptions of and satisfaction with OLRS' role in addressing those issues is necessary for strategic planning.
A primary tool developed by OLRS to collect input from the members of governing boards and the general disability community is an online survey. OLRS is sending notices about the survey to a variety of individuals, agencies, and organizations and asking them to forward it to their contacts, such as through their email distribution list or posting a link to the survey on their website.
The survey results will help OLRS understand what programs need to be developed, how the agency can improve its service delivery, and whether changes are needed in the agency's priorities. This information will be used to shape the long range plan for the agency to more effectively address protection and advocacy needs for people with disabilities in Ohio.
[Survey closed on September 19, 2008]
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OLRS and other advocates are increasingly concerned with the use of prior authorization by the Ohio Department of Job and Family Services. Ranging from durable medical equipment to early periodic screening, diagnosis and treatment to developmental disabilities profile to atypical psychoactive medication, state officials are now routinely requiring additional justification for what are, almost without a doubt, medically necessary and legally entitled services. OLRS is actively seeking cases where prior authorization has been used to deny services.
The following case is an example of OLRS' advocacy to assure that prior authorization does not limit access to services.
OLRS represented an individual with a disability who was denied Medicaid payment for homemaker/personal care services at home during the day. Both the Ohio Departments of Mental Retardation and Developmental Disabilities and Job and Family Services refused to approve the services, contending that the individual should attend a traditional day program rather than be at home.
The individual, who does not function well in group settings, appealed the denial and OLRS attorney Jane Perry represented him at his state Medicaid hearing. The individual's records presented at the hearing included a psychological evaluation stating it would be detrimental to the client's mental and emotional health if forced to attend a traditional day program. The hearing officer denied the appeal. OLRS then filed an administrative appeal on the client's behalf.
On administrative appeal, the decision of the hearing officer was reversed and the client received prior authorization for the services.
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This class action case seeks to provide choice of setting for residential services to the residents of Fairfield Center, an intermediate care facility for the mentally retarded (ICF-MR), which is slated to downsize or be closed in the near future due to numerous citations and violations. The defendants, the county board of mental retardation and developmental disabilities and a private Medicaid provider, have filed motions to dismiss the case, in part based on the Martin v. Strickland consent order, and OLRS agreed to transfer the case to the Martin judge for consideration of the motions. OLRS argued that the defendants have obligations to comply with the community integration mandate of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 that are independent of the state's obligations under those laws and the Martin settlement. The case is stayed pending the court's decision on the motions.
This class action seeks injunctive relief to require Ohio to comply with federal laws related to the Early Periodic Screening, Diagnosis, and Treatment (EPSDT) program, a child health component of Medicaid. At the request of the judge hearing the case, OLRS continues to meet with the defendants under the supervision of the mediator for the U.S. District Court for the Southern District of Ohio.
This class action seeks full and equitable funding for children receiving services under the Individuals with Disabilities Education Improvement Act. Mediation under the supervision of Judge Robert Duncan is ongoing.
An individual found not guilty by reason of insanity and acquitted, was denied conditional release by a trial judge, who also placed restrictions on her association with a male friend at the hospital. OLRS worked with the county public defender to protect the individual's rights in the institution, and to preserve the issues for appeal. OLRS also worked with the Ohio Department of Mental Health to assure that protected medical information was not released to the press. At a hearing last month, the individual was released without restriction on her personal activities.
OLRS received $1000 in attorney fees as a result of its representation of a student who was out of school for 80 days due to behavioral issues. OLRS filed a due process hearing for the student, and negotiated a favorable settlement that included the student's return to school and compensatory education. In another case, OLRS resolved, through early complaint resolution, a complaint involving the use of a service dog by a child with a disability in school. In a third case, OLRS attorneys assisted a non-profit legal organization with a claim against a community school that resulted in a dispute with the Ohio Department of Education (ODE) over its role in enforcing settlements reached in due process, and a federal restraining order against ODE.
OLRS filed a case in state court seeking an accommodation (closer parking space), after a company refused to negotiate with the employee. OLRS is also conducting discovery in another case seeking accommodations for a hearing impairment, which was originally filed pro se by the plaintiff in the U.S. District Court for the Northern District of Ohio.
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As part of its protection and advocacy activities under the Help America Vote Act program, OLRS co-sponsored the non-partisan National Forum on Disability Issues held on July 26th in Columbus, Ohio. It was estimated that over 400 people attended the event on the 18th anniversary of the passage of the Americans with Disabilities Act.
OLRS sponsorship was a historic opportunity to educate individuals and the community about the candidates' positions on issues affecting people with disabilities.
The forum, hosted by the Ohio Disability Vote Coalition and the American Association of People with Disabilities provided the presidential candidates, Republican Senator John McCain and Democratic Senator Barack Obama, with the opportunity to present their visions for the future of disability policy.
Senator McCain spoke from Arizona by satellite while Senator Obama arranged for Senator Tom Harkin of Iowa to represent him and speak on his behalf.
Moderator Judy Woodruff, of PBS' NewsHour with Jim Lehrer and the parent of a young adult with a disability, posed questions on issues such as the Americans with Disabilities Amendments Act and the Community Choice Act, bipartisan legislation that allows individuals who are eligible for nursing facility services or intermediate care facility services for the mentally retarded (ICF-MR) the option to receive community-based attendant services as an alternative to institutional or nursing home care.
The candidates' responses revealed how they would lead the country on issues affecting people with disabilities. For example, Senator McCain, does not support the Community Choice Act, while Senator Obama does.
View the webcast on theAmerican Association of People with Disabilities (AAPD) Web site.
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After receiving a complaint, OLRS investigated the accessibility of Veterans Memorial Hall in Columbus where the National Forum on Disability Issues originally was scheduled to be held.
OLRS requested and reviewed documentation of the building's accessibility, visited the facility, and met with organizers of the event, the building administrator, and several disability advocates.
Based on the investigation, OLRS determined the building was not in compliance with the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG), national standards developed to ensure equal access for all persons. The primary concern was that restrooms were not ADAAG compliant.
After OLRS' investigation and despite assurances from the building administrators that issues would be addressed, the sponsors of the event chose to move the event to a facility that was accessible.
OLRS continues to monitor compliance of the facility to assure that accessibility issues are addressed.
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OLRS recognizes the value student interns contribute to an organization. OLRS taps the diversity of talent and interest among students by providing meaningful work activities that match their interest and skill level. Students gain work experience while the agency benefits from their efforts.
McQuetta Williams, from the WrightChoice, Inc. Project Reach intern program, a mentoring and internship placement program for college students with disabilities and minority students, brought a social work perspective to the agency during her internship. She provided intake support during her internship this summer.
WrightChoice, Inc., in turn, honored OLRS for promoting Williams' talents and complementing her educational experience with on-the-job training. Executive Director TyKiah Wright presented OLRS with the WrightChoice Business Partner award, and recognized OLRS on its commitment to accommodating the work-related needs of Williams, who has a vision impairment. OLRS also has participated in the WrightChoice Pre-Professional Law "shadowing" program.
Williams is one of several who have served internships at OLRS during the past months. Interns from various educational institutions and programs provided legal research, intake, administrative, and other support. OLRS will continue to provide internship opportunities that support the agency's advocacy for Ohioans with disabilities.
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OLRS is funded by grants from:
And also funding from the State of Ohio General Revenue Fund.
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This newsletter is published by the Ohio Legal Rights Service. For a free copy, contact OLRS at:
Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, Ohio 43215-5923
Telephone 614-466-7264
Toll Free 800-282-9181
TTY 614-728-2553
Toll Free TTY 800-858-3542
FAX 614-644-1888
OLRS Web site: http://olrs.ohio.gov
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