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Copyright © 2008 Ohio Legal Rights Service. All rights reserved.
OLRS filed a class action lawsuit in federal court seeking the community placement of residents living at Fairfield Center, an Intermediate Care Facility for the Mentally Retarded located in Butler County. The OLRS Commission approved the initiation of the lawsuit as a class action by a vote of 5-0 at its February meeting.
According to Michael Kirkman, OLRS Executive Director, "There is little question that many of the current residents in Fairfield Center could be and should be and want to be placed in community settings that are appropriate to their needs."
The lawsuit stems from OLRS' Ombudsman section that last year investigated the death of a Fairfield Center resident. The lawsuit was filed on behalf of the Plaintiff class, four named residents of Fairfield Center and all other residents similarly situated at the Center, against Defendants Butler County Board of Mental Retardation and Developmental Disabilities (BCBMRDD), which owns the Center, and Empowering People, Inc., the company managing it.
OLRS alleges that the Defendants have discriminated against the Plaintiffs by failing to place them in integrated community settings that reflect their choices, and are appropriate to their needs, in violation of Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.
The legal claims of the named Plaintiffs are typical of the claims of the class of individuals identified in the case. Each of these individuals would be placed appropriately in an integrated community setting. Like other members of the class, each seeks but has been denied the opportunity to live outside of Fairfield Center, and in a community setting appropriate to their needs.
Furthermore, the individuals have not been assessed to determine what is the most appropriate community placement for them, and to determine what services and supports they would need to live in a non-institutional environment.
Moreover, the individuals have not been given the opportunity to make an informed choice of where to live: they have not had the opportunity to choose between living in an institution, or living in another appropriate community setting that could be available to them.
The suit asks the U.S. District Court for the Southern District of Ohio to:
The four people named as Plaintiffs are individuals who share a common desire to live in the community. One individual, who has lived in Fairfield Center for 18 years, since her early 30s, has repeatedly stated that she wants to leave Fairfield Center and live in the community.
A second individual, a 56-year-old man, also wants to leave to move to a smaller community setting. He has been a resident of Fairfield Center for 15 years.
The youngest of the named Plaintiffs, a 22-year-old man, has lived at Fairfield Center for three years. He does not want to live there — he wants to live in the community.
Finally, the fourth individual named in the lawsuit, a woman in her 50s, has lived at Fairfield for a year. She too has expressed her desire to live in the community.
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Have your legal rights been violated because of a disability? Have you been abused or neglected, discriminated against, denied services, or unable to access public facilities? OLRS may be able to help. OLRS is Ohio's Protection and Advocacy (P&A) system with the mission to protect and advocate, in partnership with people with disabilities, for their human, civil, and legal rights.
OLRS is a part of our nation's P&A system; a system first created by Congress in 1975 after national news stories revealed widespread abuse and neglect of people with disabilities who were living in large institutions. The National Disability Rights Network (www.ndrn.org) is the non-profit membership organization for the state P&A systems. Since 1975, Congress has expanded the P&A system, and its authority to serve individuals with disabilities, regardless of the setting where they live.
OLRS provides client-directed advocacy to people with disabilities who are subjected to rights violations because of their disabilities. OLRS advocates for the client by advising and presenting options to help the client make his or her own, informed decision. OLRS believes that all people are entitled to make decisions about where, how, and with whom they live and work as full and equal members of their communities.
The following are some recent cases that reflect the work of OLRS in providing client-directed advocacy to individuals with disabilities.
OLRS helped a family have a ramp installed for their rental home, to accommodate the needs of their five-year-old child with significant physical disabilities who uses a wheelchair. OLRS explained that the landlord was not required to put in a ramp due to the age of the rental building, but must allow the family to do so at their own expense under the Fair Housing Act. With the parent's permission, OLRS contacted the county board of mental retardation and developmental disabilities and learned that the child is on a waiver, which would pay for a ramp. OLRS coordinated efforts between the family, landlord, and county board to get the ramp installed. In a little over a month, the ramp was installed, allowing the client to access his home.
OLRS also assisted a client to obtain a ramp for her apartment, assuring health and safety, and the ability to live independently. The client was unable to leave her apartment, without assistance, in case of an emergency or to go to medical appointments. OLRS intervened after the home health service provider failed to install a ramp. OLRS negotiated with the provider, who agreed to prioritize the installation of the client's ramp. OLRS continued to monitor until the ramp was installed.
OLRS negotiated on behalf of a client with a seizure disorder whose school district required him to wear a helmet in all school environments as a condition for attending school. The client's parents and physician did not support the use of the helmet in all school environments, arguing that it was too restrictive and stigmatizing. After negotiation, the district agreed to allow the client to attend school without wearing the helmet in the classroom setting and also agreed to modifications to the classroom environment to address safety concerns.
OLRS successfully assisted a client with a fair housing accommodation request. The client, who is blind and has orthopedic disabilities, asked her landlord to clear snow from her driveway. The landlord refused and also refused to allow a transportation service to pick her up on the driveway next to her front door. With direction from OLRS, the client submitted an accommodation request to the landlord. The landlord now clears her driveway when needed and permits the transportation service to use the driveway to her door.
OLRS negotiated on behalf of a 16-year-old individual who was receiving services from a County Board of Mental Retardation and Developmental Disabilities (CBMRDD). The client, upon turning 16, had been determined ineligible through the adult eligibility criteria as measured by the Ohio Eligibility Determination Instrument (OEDI). OLRS challenged the board decision through the administrative appeal process. The county board reviewed the initial OEDI supporting documentation and found the individual eligible for services.
In another situation, OLRS successfully represented a client at an administrative hearing to appeal the denial of eligibility for CBMRDD services. The client had relocated from another county in Ohio where he was eligible for services. However, the county where he moved determined that he was ineligible for services. OLRS advised the client to appeal the decision and represented him at the administrative hearing. At the conclusion of the hearing, it was agreed that the client's eligibility should be re-determined. The reassessment found the client eligible for services.
OLRS investigated and found that the Social Security Administration (SSA) was not giving credit to a client for allowable expenses, causing a reduction in the client's Social Security Income (SSI) benefit. The client, who is self employed, wanted to quit her job because her SSI benefits were reduced to an amount where she could not afford to continue working. OLRS met with SSA to correct the problem. The client's SSI benefit increased to the proper amount, she received a check for back payment, and is able to continue working.
OLRS assisted a child in obtaining a medical device to monitor the level of oxygen in his blood. Without the device, the client risked having serious respiratory problems that, when unchecked, caused him to be admitted to the hospital. Medicaid determined he no longer needed the device, and denied reimbursement. OLRS represented the child during the appeal process and the Medicaid program reimbursed the client for the purchase of the device.
OLRS assisted a client to assert her right to choose a provider who better meets her needs. The client contacted OLRS because she was concerned about the quality of care she was receiving from her Individual Options (IO) waiver provider. OLRS informed the client of her right to obtain a new provider. A meeting was held between the client, OLRS, and the client's service coordinator. The service coordinator agreed to complete a Request For Proposal and arrange for the client to interview new providers. The client interviewed and selected a new provider. In follow-up with the client, she is pleased with her new provider and the services she receives.
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Terri Brunner-Jones has lived in institutions most of her life. But several months ago, she moved into her own apartment. Her life in the community today is what she has wanted for a very long time. OLRS interviewed Brunner-Jones, who agreed to tell her story for this article.
"I have what I want here," says Brunner-Jones. Her home today is very different from the institution she lived in a short time ago. Now, home is a two-bedroom apartment, shaded by several old trees, that sits back from a winding country road. The serene country setting is punctuated occasionally by the playful noises of the children who live upstairs. Brunner-Jones says she would not change anything about her new home.
The home complements Brunner-Jones. The living room is homey and comfortable, centering around an arm chair where Brunner-Jones loves to relax and watch television. She has her favorites: Judge Judy, reruns of the Beverly Hillbillies, and just about any cooking show.
"I enjoy cooking my own food," she says, launching into a detailed account of her special recipe for chicken and dumplings. "I used to cook years ago. I make homemade pizzas and my own bean soup. I like my place smelling good. And I like a clean place," says Brunner-Jones, who keeps her home orderly and spotless.
One of the best things about being at home is "feeling safer." Brunner-Jones describes the anxiety of living in an institution with so many other people, and contrasts that with her quiet life at home today. She makes a point of saying that she has her own security and fire alarm systems.
While Brunner-Jones enjoys just being at home, she also goes into her community and is already developing routines typical of community living. Once a week she does her grocery shopping, and goes to the laundromat. Twice a week, she visits a community center to socialize and make new friends.
Brunner-Jones also goes to a community art center where she prepares wood she later decorates to make name plates. Brunner-Jones then sells the name plates, or gives them to friends. She would like to find a job - perhaps "to help older people."
Brunner-Jones is also proud to be involved in handling her own finances. She has checking and savings accounts. "I sign my own checks," Brunner-Jones adds. "And I am going to fill out my tax papers next week. I am going to get a refund."
Commenting on what it means to her to live in her own apartment, in the community, Brunner-Jones says, "It feels like I am on my own. I don't have people telling me what to do all the time. I get to do what I want. I get to eat what I want to eat. I have my own place."
Brunner-Jones waited a long time for her new home. Many barriers and set-backs kept her from leaving the institution. Until recently, there was an inability of local agencies from two systems to work together to provide her the array of services she needed. As a result, the institutions Brunner-Jones had lived in for so long struggled to develop a discharge plan that would accommodate her individual needs.
OLRS advocated for Brunner-Jones over several years to convince the various systems to work together to support her in the quality of life she wanted so badly. OLRS negotiated the components that make it possible for Brunner-Jones to live in the community successfully: a Medicaid waiver, housing assistance, and a partnership between Brunner-Jones and the systems that support her in the community.
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OLRS successfully halted the placement of several individuals that the county board of mental retardation and developmental disabilities (CBMRDD) planned to move into Broadview, a building located on the campus of a state-run developmental center. The placement at the proposed site would have required many of the individuals to leave their homes and neighborhoods in the community, and move into an institution-like building in the middle of a 76-acre campus.
OLRS filed appeals with the CBMRDD on behalf of the individuals who expressed their desire not to move into the Broadview building. The appeal process temporarily guaranteed the individuals the right to "stay-put" in their homes, as the county board heard their appeals.
OLRS also successfully negotiated with the Ohio Department of MRDD and the Ohio Department of Job and Family Services to stop them from using Individual Options (IO) waivers to fund the placements. Both agencies agreed with OLRS that IO waivers could not be used because Broadview was not "a home and community based setting." The majority of the individuals were able to continue to live in their communities. The state has not retaken possession of the building and it is being certified as an Intermediate Care Facility for the Mentally Retarded (ICF/MR).
OLRS successfully advocated for an individual with a traumatic brain injury (TBI) who wished to live in the community to receive a Martin v. Strickland Individual Options (IO) waiver.
The individual is currently living in a nursing home. The IO waiver will enable him to move, sometime in early 2009, into a home in the community. The plan is for him to return to the county where he lived prior to his injury.
OLRS continues to monitor the enrollment of individuals on Martin waivers and policy issues that impact the implementation of the Martin Consent Order.
After reviewing an Ohio Department of Health survey, the OLRS Ombudsman section initiated an investigation into the care and treatment of an individual who had been living in an intermediate care facility for the mentally retarded (ICF/MR). OLRS found that the individual had been moved to a nursing home, but that neither he nor his guardian was provided with a discharge notice or appeal rights.
Arguing that the individual was denied due process rights to notice and appeal, OLRS successfully negotiated for the individual's return to the ICF/MR, where he resumed his community life, including his day habilitation programming.
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OLRS will see the departure of three staff members: Julianne Johnson, Classie "Faye" Robertson, and Paula Smith. They are retiring after many years of state service.
"This is a time of transition for the agency. We have to say goodbye to staff members who have served the agency and Ohioans with disabilities with great dedication. We thank them and wish them well," said Michael Kirkman, OLRS Executive Director.
Julianne Johnson, a Disability Rights Advocate, will retire in the Spring. Johnson has been with OLRS for over 20 years.
Johnson's advocacy work at OLRS has taken many forms, from individual client advocacy to work on several class action lawsuits. "Julianne has made many contributions to Ohioans with disabilities," said Cathy Royster, supervisor at OLRS. "She has always been a great advocate on behalf of people with disabilities. Her work has made it possible for many, many individuals to shape the lives they want for themselves," said Royster.
Classie "Faye" Robertson, Executive Secretary, also plans to retire in early Spring. Robertson joined the OLRS staff 30 years ago as a typist and was one of the agency's first employees. For many years, Robertson managed OLRS' publications and library.
"Classie has been an asset to the agency for these many years," said Jeffrey Folkerth, Administrative Services Director.
Paula Smith, administrative assistant, recently retired from OLRS, after 25 years of service. She served as Personnel Officer, typist, secretary, and word processing supervisor. In each of these capacities, she provided administrative support functions critical to the every day operation of the agency.
"OLRS has benefited greatly from Paula's dedicated and conscientious support," said Jeffrey Folkerth, Administrative Services Director.
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The Office of the Ohio Consumers' Counsel (OCC) helps consumers who have concerns or complaints about their utility service (natural gas, electric, water, and phone). OCC works with consumers to resolve issues involving keeping or reconnecting utility services, understanding charges on a bill, the choices of utility or telephone companies, cost saving tips through energy conservation and efficiency, and learning how to apply for low-income assistance programs. To contact OCC, call (877) 742-5622, email occ@occ.state.oh.us, visit the OCC website at www.pickocc.org , or write Office of the Ohio Consumers' Counsel, 10 W. Broad Street, 18th Floor, Columbus, Ohio 43215.
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OLRS welcomes three new staff attorneys to the agency: Michelle Atkinson, Michael Jarosi, and Kevin Truitt. "The addition of these talented attorneys enhances OLRS' capacity to provide client centered and directed advocacy," said Michael Kirkman, Executive Director.
Michelle Atkinson joined the OLRS legal staff in January 2008.
Prior to joining the agency, Atkinson was an attorney for Advocates for Basic Legal Equality where she focused primarily on housing issues. She also worked for the National Center for Adoption Law & Policy, and the Consumer Protection Section of the Office of the Attorney General of Ohio.
Atkinson received her law degree from Capital University Law School, and is admitted to practice in Ohio and the U.S. District Court, Southern District of Ohio.
Michael Jarosi joined the OLRS legal staff in August 2007.
Jarosi was in private practice prior to joining the agency and has experience in general civil litigation and trial practice.
He received his law degree from Capital University Law School, and is admitted to practice in Ohio and the U.S. District Court, Southern and Northern Districts of Ohio.
Jarosi, a scholarship athlete, soccer player and marathoner, has also worked in the international sports publishing industry and as a business market analyst.
Kevin Truitt joined the OLRS legal staff in August 2007.
Before joining the agency, Truitt was in private practice and has experience in general civil litigation and public benefits law. Truitt also worked for the Civil Rights Section of the Office of the Attorney General of Ohio, and for the Ohio Civil Rights Commission.
Truitt received his law degree from Capital University Law School and is admitted to practice in Ohio.
Truitt has been published in the Capital University Law Review. He has volunteered for the Homeless Shelter Project, the Volunteer Income Tax Association, and the Capital Public Interest Law Foundation.
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OLRS attorneys are increasing their involvement with the Ohio State Bar Association (OSBA). Attorneys are actively serving on several OSBA committees, including Disability Law, Education, Elder Law, Juvenile Justice, and Access to Justice.
The Education Committee Chair noted the significance of OLRS' involvement and welcomed the public interest perspective that OLRS brings.
"Involvement with the state bar association is a great opportunity for OLRS attorneys to get information about how developments in other areas of the law affect people with disabilities. It also provides a forum for advocating the disability perspective to our peers," said Michael Kirkman, OLRS Executive Director.
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This issue of the OLRS Quarterly included a reprint of an article, "Which Should Be Defended: Inclusion or Segregation?," by Kathie Snow, founder of Disability is Natural (www.disabilityisnatural.com). To read the article, visit the Disability is Natural Web site at http://ftp.disabilityisnatural.com/email/documents/Defend.pdf .
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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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The OLRS Quarterly is published by 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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