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In this issue:
OLRS Secures Accommodation for Voters Casting Absentee BallotsOhio Legal Rights Service (OLRS), in partnership with Sandy Spater, a Columbus attorney, successfully sued in Federal court on behalf of a person with a disability who had attempted to vote but was informed there were errors in her absentee ballot. Ohio Disability Vote Coalition Coordinator, Susan Hetrick, notified OLRS of this situation, and provided advocacy with the office of the Secretary of State. An Ohio Secretary of State directive required the voter to appear in person at the county board of elections within 10 days after the election to correct errors in absentee ballots. However, the person's disabilities made it exceptionally difficult for her to leave her home. OLRS attorneys Susan Tobin and Jason Boylan alleged the Secretary's directive and the county board of elections failed to make reasonable accommodations for voters with disabilities who cannot travel to the board offices and violated the Americans with Disabilities Act and the Equal Protection Clause of the U.S. Constitution. Court Decision Results in New DirectiveJudge George Smith, United States District Court, issued a permanent injunction ordering Defendants Secretary of State Jennifer Brunner and the Franklin County Board of Elections to make all reasonable accommodations for the Plaintiff and other people with disabilities who are restricted to their homes and cannot travel to the county boards of elections to correct the deficiencies in their absentee ballots. The court recommended dispatching a bipartisan team of election employees to the home of the voter with a disability, or allowing an appointed family member or attorney to transport the absentee ballot to the voter's home and, after correction, back to the board office. The following day the Secretary of State issued Directive 2008-116 outlining reasonable accommodations for absentee voters who are homebound. The plaintiff, after notifying the board of election, successfully corrected her ballot and was able to cast her vote. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 ADA Amendments Act Expands ProtectionsThe ADA Amendments Act of 2008, an act that expands protections for people with disabilities and overturns several recent Supreme Court decisions, was signed into law on September 25, 2008. The law will go into effect January 1, 2009. Congress introduced the ADA Amendments Act to restore the original intent and protections of the Americans with Disabilities Act (ADA). When the ADA became law in 1990, Congress expected the ADA's definition of disability to be interpreted consistently with how courts had applied the definition of disability under the Rehabilitation Act of 1973. However, this has not been the case. Supreme Court decisions have narrowed the broad scope of protection intended to be provided by the ADA for people with disabilities. Restores Civil Rights ProtectionsThe ADA Amendments Act makes it clear that Congress intended the ADA's coverage to be broad and to cover anyone who faces discrimination because of a disability. The Act specifically overturns Supreme Court decisions that have caused many people with disabilities to lose important civil rights protections. The amendments also direct the Equal Employment Opportunity Commission (EEOC) to revise its current regulations to be consistent with the ADA Amendments Act. Currently, the EEOC defines "substantially limits" as "significantly restricted," a higher standard than originally intended by Congress. Redefining Major Life ActivitiesThe Act states that "major life activities" and other terms in the ADA should be interpreted broadly. Major life activities now include, but are not limited to, daily living activities such as self-care, eating, sleeping, walking, reading and communicating. Also included within major life activities are "major bodily functions," such as functions of the immune system, normal cell growth, digestive, neurological and endocrine functions. Mitigating MeasuresAn individual may now be considered disabled even if the effects of the individual's disability are corrected by mitigating measures, with the exception of ordinary eyeglasses and contact lenses. This provision overturns the Supreme Court's rulings which established that an individual was only assessed in his or her present condition. Also, an impairment that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active. The Act also states that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. Accommodations ProvisionThe bill affords broad coverage for individuals regarded as having a disability under the ADA, but includes a provision to make it clear that accommodations need not be made to someone who is disabled solely because he or she is regarded as having a disability. For More InformationRead the ADA Amendments Act of 2008. Thank Your Elected OfficialsThe passage of the ADA Amendments Act of 2008 is an important step toward securing the rights and protections of people with disabilities. The Ohio Congressional delegation and the two Ohio Senators supported the enactment of the ADA Amendments Act of 2008. Please take the time to thank the Senators and Representatives who supported this important legislation. Visit the following websites for contact information. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Presses ODE to Regulate Use of Seclusion/RestraintChildren with disabilities in Ohio's public school system are subjected to the use of seclusion and restraints, and are not afforded the same health and safety protections as those children who receive services in hospitals, agencies and residential facilities across the state. This was the conclusion of Beth Oberdier, OLRS Disability Rights Advocate from the Ombudsperson section, after investigating two complaints around the use of seclusion and restraint with special education students in two different school districts. In both cases, inappropriate behavioral interventions in self-contained classrooms were used and staff were not trained in positive behavior intervention techniques. Oberdier provided specific recommendations to the school districts; however, her investigations also noted that the Ohio Department of Education (ODE) has no specific laws or regulations to protect children from the overuse of restraint and seclusion. Oberdier stated that, "The Children's Health Act of 2000 prohibits the use of mechanical restraints in non-medical, community-based facilities for children and youth and requires a doctor's order to use seclusion or restraints with children. Similar federal regulations exist from the Center for Medicaid and Medicare Services." She added that no such laws or regulations exist to provide guidance to Ohio schools to protect students with disabilities. The OLRS Ombudsperson section reports recommended that ODE take steps to address the issue of the lack of administrative rules regarding the use of physical or mechanical restraints, seclusion and time out for classrooms in Ohio, and ODE must enforce compliance with the rules once promulgated. The reports were sent to the school districts and ODE in October. Other States Establish Seclusion/Restraint RegulationsSeveral states have recently tightened regulations or are considering stronger prohibitions on the use of seclusion and restraints in schools:
Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 Strategic Planning: OLRS Completes Information Gathering ProcessOLRS is analyzing information collected from a needs assessment survey that was implemented over a two and a half month period ending on September 19, 2008. The survey was available in online and paper formats. Survey results will guide the development of a long range strategic plan for the agency to achieve its mission and ultimately to improve client directed protection and advocacy services to Ohioans with disabilities. OutreachOLRS conducted an aggressive outreach campaign that included meeting with consumer organizations throughout Ohio to assure people with disabilities were aware of the survey. OLRS also contacted individuals, agencies and organizations by email to promote the online version of the survey. Many forwarded the survey to others or posted a link to the survey on their websites. Nearly 1,000 surveys were returned providing the agency with a rich database that includes information about major issues facing people with disabilities and their perceptions of and satisfaction with OLRS' role in addressing those issues. OLRS is encouraged that the majority of people completing the survey were those who use or are eligible to use OLRS' services. This enhances the validity of the data and the applicability of the results to the general disability community. Next StepsThe OLRS Commission and staff are planning to meet in early December with a consultant from the National Disability Rights Network. Advice and technical assistance from the consultant will aid in systematically linking the survey data results to the strategic plan by identifying how the agency can improve its service delivery and what changes are needed in the agency's priorities to more effectively address protection and advocacy needs for people with disabilities in Ohio. Future InputOLRS thanks those who completed the survey. Another opportunity to provide input into the strategic plan will be made available to stakeholders before it is finalized. Preliminary Survey Findings
Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Raises Concern over Ex Parte CommunicationOLRS recently submitted comments to a Ohio Supreme Court Task Force on proposed amendments to the Code of Judicial Conduct. The proposed rules would allow the judge of a specialty court, such as a mental health court, to "initiate, receive, permit or consider an ex parte communication when presiding over a specialized docket." OLRS argued this creates a broad exception to the rules governing ex parte communication. Furthermore, the proposed rules do not include a requirement that the defendant or defendant's counsel be notified, even after ex parte communication has occurred. Specialized CourtsWhile recognizing that specialty courts, such as mental health courts, are designed to be somewhat less formal than other dockets, OLRS stated that the courts should not negatively impact on the due process rights of the people who elect to participate in the process. Winnifred Weeks, Supervising Attorney said, "Although mental health courts in Ohio are considered voluntary on the part of the defendant, some view these courts as more coercive than voluntary, especially in those courts that require a defendant to plead to the charge as a condition of participation in the mental health court process." Due Process CompromisedOLRS maintained that if the presiding judge has solicited and/or received information without the knowledge of the defendant or the defendant's counsel, the ability to challenge at hearing whether or not the person has complied with the program or should be terminated from the program is compromised. This implicates a person's due process rights. RecommendationsOLRS recommended that the proposed rule be amended to require notification to the defendant and counsel about the potential for ex parte communication when a defendant is offered the option of mental health court participation and to have the opportunity to request or refuse the written notice. At the very least, OLRS recommended that the specialty court maintain a log of ex parte communication, which would be available to the defendant and defendant's counsel. The Task Force will review public comments and may recommend revisions to the Supreme Court. The Supreme Court will consider recommendations and all public comments before adopting the rules. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Strengthens Intake Unit to Improve Response TimeOLRS has made several improvements to its intake system to respond more effectively to client needs. StaffingThe intake unit is staffed with two professional intake specialists who answer the intake line five days per week (see OLRS Employs New Staff). Also, a special education disability rights advocate is available to provide short term assistance and counseling to parents and their children with disabilities on special education related issues. A staff attorney is available to provide information and referrals in cases that are not within the agency's priorities for investigation and legal representation. Response TimeOLRS Managing Attorney, Susan Tobin screens and assigns intakes on the same day as the intake comes into the agency. "Case assignment occurs no later than the close of business on the date of the intake and a case notification letter is sent to a caller by the next business day," Tobin stated. Requests Outside of Regular HoursWhile OLRS has increased Intake hours from 9:00 a.m. to 4:00 p.m. weekdays, clients may also access a 24-hour phone message system or send an email to OLRS. The intake coordinator follows up on recorded messages and email intakes. OLRS continues to upgrade the intake unit and is working with a technology consultant to develop a system that will allow for performance monitoring and improvement. Comments from Clients"I have contacted OLRS over the years - dramatic improvement during the last year." (2008 Strategic Planning Survey response) "I was overwhelmed, first by the follow-up letter issued by intake ... not only did his reply arrive ... the following day, the actual disability rights advocate wrote me and immediately took action." (Excerpt from a client letter, November 2008) Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Employs New StaffJohn RamseyJohn Ramsey joined OLRS as a full-time employee in September 2008. Ramsey has spent the last 30 years as a social worker in central Ohio. Most of his experiences have been in child welfare and in the drug and alcohol treatment community. Ramsey is a graduate of Columbus State Community College and Ohio Dominican University where he recently received a bachelor's degree in social work. He is involved in community mentorship activities that reach out to young males to keep them focused on developing positive attitudes and skills that will help them reach their goals in life. Ramsey is an intake specialist at OLRS. Darlene N. McDowellDarlene N. McDowell joined OLRS in September 2008. McDowell retired from the Ohio Department of Commerce in 2004 after 20 years as a customer service representative. She comes to OLRS through the American Association of Retired Persons' (AARP) Senior Community Service Employment Program. Through AARP's program, she has also worked at the Columbus Urban League and the Central Ohio Minority Business Association. When she is not traveling or volunteering in the community, her 12 grandchildren keep her busy. McDowell provides secretarial support to agency staff. Christopher L. WalterChristopher L. Walter joined OLRS in September 2008. Walter was employed for 27 years at the Ohio Public Defender Commission where he was the director of human resources. He also worked at the Ohio Department of Administrative Services during Ohio's implementation of an integrated computer system for performing some of the state's primary administrative tasks. When not at work, you can find Walter on the basketball court as an official at both the high school and college levels. Walter is OLRS' human resources director. Jason ParagonJason Paragon joined OLRS in September 2008. Prior to joining the agency, Paragon was a human resources generalist at Highlights for Children focusing primarily on recruitment and compensation. Before working in human resources, he worked at the Buckeye Ranch and Nationwide Children's Hospital conducting psychological research on treatment outcomes and social-emotional functioning. Paragon received his master's degree in labor and human resources and a bachelor's degree in psychology from The Ohio State University. He has a background in statistical analysis, recruitment and business application of employment law. Paragon is an intake specialist at OLRS. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Urges Agency to Assess and Plan for Housing Needs of Ohioans with DisabilitiesOLRS recently submitted comments to the Department of Development for Ohio's draft Consolidated Plan for Fiscal Year 2009. The Consolidated Plan describes programs and activities that Ohio will undertake using U.S. Department of Housing and Urban Development funding. Lack of HousingOLRS' comments reflect the agency's concerns that Ohioans with disabilities are not being assessed and planned for during the Consolidated Planning process. OLRS emphasized that there is an inadequate supply of safe, affordable and accessible housing for individuals with disabilities. "Due to the lack of housing, many individuals with disabilities are placed in nursing facilities or intermediate care facilities even though they do not meet the level of care provided in those facilities simply because they cannot afford to live independently. Other individuals live with their aging parents. Others may reside in homes with unsafe living conditions and/or architectural barriers that force social isolation," staff attorney Michelle Atkinson commented. Moreover, their housing needs are concealed because these individuals are living somewhere, but not in a home of their own. "Merely because an individual is living in one of these environments does not mean that their housing needs are met," Atkinson emphasized. Community Integration JeopardizedOLRS stated that the current assessment of and planning for the housing needs of Ohioans with disabilities is not meeting the requirements of federal laws and state policy. This failure to assess and plan continues to impede and sometimes reverse community integration for people with disabilities. "National and state housing statistics show that Ohioans with disabilities are underserved in the housing market and by publicly-funded housing programs," staff attorney George Cronheim stated. "They are struggling to find, afford and stay in housing that is accessible to them, within their communities, typically with incomes at poverty level. In worst, though not rare, cases, Ohioans with disabilities are segregated to institutions as a housing solution, apart from community life and at great social and economic cost," Cronheim explained. Denial of Equal AccessFederal funds for housing are bypassing Ohioans with disabilities, because their housing needs are not being identified in the same way or as effectively as the housing needs of other groups within the Consolidated Planning process. OLRS alleges that the denial of equal access to publicly funded programs because of disability violates the law. Only if their housing needs are properly assessed and planned for can Ohioans with disabilities be assured equal access to the federal housing dollars that the Consolidated Planning process is designed to disseminate, for the benefit for all citizens. Read OLRS' comments: Comments for Ohio's Consolidated Plan (PDF file). Community Integration IssuesDuring Fiscal Year 2008, over 300 individual cases fell within the housing component of OLRS' community integration program priority. Case problem areas included housing discrimination, illegal zoning, and restrictive covenants; physical accessibility issues; denial of reasonable accommodations and modifications; discriminatory rental terms and landlord-tenant disputes related to disability; public and Section 8 subsidized housing issues; and other housing issues. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 OLRS Advocating and Protecting Rights in Partnership with People with DisabilitiesTTY and Relay Services Secured in Public BuildingOLRS successfully secured TTY and relay services in a public building after receiving a complaint from a person who is deaf. The agency did not provide TTY telephone equipment in its client service center. The client had filed a complaint with the Ohio attorney general's office but had not received a response. The attorney general consumer division claimed no jurisdiction of the complaint. OLRS evaluated the legal merit of the case and advised the client of his options. OLRS also spoke with numerous state officials, requesting a response to the complaint and urging them to provide TTY phones in the client service center. Soon after the client's complaint, the service center was moved to another location. The agency eventually initiated a review of its policies and practices, sought and reviewed outside recommendations on accessible services and responded to the client's complaint by offering Internet-based relay services through three computer terminals designated for public use in the service center, and providing a TTY line for incoming customer calls to staff. Client Guided Through OEDI ProcessOLRS' technical assistance helped a client become eligible for county board of mental retardation and developmental disabilities (MRDD) services. The client contacted OLRS when she was informed that she was not eligible for MRDD services because she did not have a qualifying developmental disability. She and her family were not aware of the formal determination process or the tool used by county boards of MRDD to determine eligibility for their services, the Ohio Eligibility Determination Instrument (OEDI). OLRS disability rights advocate, David Baxter, informed the client and her family about the OEDI process. He also explained that a qualifying developmental disability must be verified before the OEDI is administered. Psychological testing was conducted and the client was determined to have a developmental disability which satisfied the OEDI requirement. Subsequent administration of the OEDI revealed that the client has at least three substantial functional limitations which makes her eligible for county board of MRDD services. Negotiation Leads to Improved ServicesClients living in a group home now have the choice to remain in their home all day, every day. This was not always the policy of a local mental health agency that administers several housing programs in northeast Ohio. A client contacted OLRS who wanted to move from her group home because the agency's policy required all residents to leave Monday through Thursday between 8:30 a.m. and 2:30 p.m. OLRS disability rights advocate, Patrick Washburn, effectively negotiated with the agency to change this policy. The agency also initiated staff education programs and increased staffing and supervision during the day. The agency agreed to review the policies applicable to all other housing programs they administer to assure they are not violating the rights of the people they serve. Washburn reported, "The agency was surprised to learn how their policy negatively affected the residents and decided to review the efficacy and impact of other policies and make changes, when needed." Washburn added, "The agency, in an effort to improve its services, also conducted resident reviews to assure people resided in homes that met their specific, individual needs." Access Ramp to Apartment BuiltNegotiations with the property manager of a Housing and Urban Development subsidized apartment resulted in the installation of a wheelchair ramp. The existing ramp at the apartment was warped and not safe. The client discussed the need for a new ramp with the property manager who submitted the necessary paperwork to the office of the corporate property manager. The client contacted OLRS when she did not hear from the corporate office for over a month after her request for the ramp was submitted. George Cronheim, staff attorney at OLRS, contacted staff at the corporate office who acknowledged they "dropped the ball" and would review the ramp request. Within the week, a concrete ramp was constructed, allowing safe access for the client. Read more articles from this newsletter Download the PDF version of the News From Ohio Legal Rights Service - November 2008 Funding for OLRS and this NewsletterOLRS is funded by grants from:
And also funding from the State of Ohio General Revenue Fund. Read more articles from this newsletter Download the PDF version of The News From Ohio Legal Rights Service - November 2008 How to Contact OLRSThis newsletter is published by the Ohio Legal Rights Service. Ohio Legal Rights Service Telephone 614-466-7264 Read more articles from this newsletter Download the PDF version of The News From Ohio Legal Rights Service - November 2008
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