Incitement
Volume 16 No. 1 A Publication of ADAPT Spring 2000
MiCASSA Kickoff & June Rally for Real Choice
Over 47 sites, with well over 1,000 individuals, participated in the MiCASSA S. 1935 Kickoff Event on Wednesday May 3rd. Thanks to a national phone hook up folks from Alaska to Florida, from Arizona to Vermont took part. Senators Harkin and Specter addressed the group as did several other individuals including Paul Spooner, NCIL President, and Ken Kendall from Iowa who had just avoided being forced into a nursing home. The Senators were presented with MiCASSA Real Choice in the New Millennium T-Shirts which they vowed to wear on the Senate floor. Senator Harkin said this is one of the most important pieces of legislation and that he is committed to the bill, but he added that many important bills are stalled in Congress and that he and Specter will need all our help to see MiCASSA through. He encouraged the grassroots to contact their Senators and Congress people to co-sponsor and support the bill.
The next step will be a 1:00 rally in Washington DC on Sunday June 18th in Upper Senate Park, just west of the Capitol. This is part of ADAPT’s next national action which will run from June 17 - 23rd. Join us for the action but even if you can’t stay the whole time, join us or the Rally.
Attacks on Our ADA
Ironically, on the 10th Anniversary of the Americans with Disabilities Act, ADA, we are seeing a steady stream of attacks on this critical law. As the old millenium ended several states took aim at their disabled citizens by questioning the Constitutionality of our civil rights law. Two cases were accepted for the Spring session of the Supreme Court, the Alsbrook case and the Dickson case. Both were employment related. Alsbrook was a police officer who was let go because of a minor visual impairment after he had qualified for service and been employed for some time in that capacity. Dickson was a prison guard in a Florida prison who was not promoted because of his heart condition. In both cases the State was arguing that Congress had overstepped its bounds when ADA Title II was applied to the States. Both cases were settled this spring, before the Supreme Court heard them. Also settled was the Amos case out of Maryland which was another states rights case regarding treatment of prisoners with disabilities.
States rights is a big constitutional issue related to how much control the federal government has over what individual states do. Nationally there is a pro-states rights mood in the country today, and the National Governors’ Association and similar state associations are milking this for all they can get.
Despite the settlement of these cases, the threat to the ADA remains very real. There are at least 30 more cases in the pipeline to the Supreme Court questioning the constitutionality of the ADA from a states’ rights perspective. As of this writing the Court has taken up the Garrett case for their fall session, and more are expected. Adding to the tension, this winter the Supreme Court ruled in a case regarding age related employment discrimination, that Congress HAD overstepped its bounds with this law and that states rights prevailed.
Groups are working again to get their individual states to support the ADA, and the more work of this kind the better. First it impacts what happens at the national level, but also in those states where advocates are working to cement the support for the ADA, especially Title II, they are building insurance that the state will be supportive of the goals of the ADA no matter what happens at the federal level. And advocates have made some real advances with this. If you remember in the Olmstead case we were able to reduce the number of states supporting this state’s rights position from 26 to 7. Unfortunately, Texas, home of one of the Republican Presidential nominee to be, Gov. George Bush, was one of the seven states which refused to drop the states’ rights position.
While the ADA Torch makes its way across the County, and while dealing with state leadership, advocates should take every opportunity to get the leadership to commit their support of the ADA and our civil rights.
A national campaign to “Renew the Pledge” that will continue throughout the year. Since the rallies these cases have been settled, but the threat to the ADA remains strong.
States Challenging the Constitutionality of the ADA as of February 2000:
Alabama - 2
California - 4
Colorado - 1
Connecticut - 1
Florida - 3
Illinois - 2
Indiana - 1
Kansas - 1
Louisiana - 1
Maryland- 1
Michigan - 1
Minnesota - 1
North Carolina - 3
Nebraska - 1
New Jersey - 1
New Mexico - 1
Ohio - 1
Pennsylvania - 1
Puerto Rico- 1
Tennessee - 4
ADAPT/Incitement
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Incitement is produced from the offices of Topeka Independent Living Resource Center (TILRC). Articles, letters, compositions, displays and photos are encouraged. Please contact Tessa Goupil for deadlines for submission of materials. The Editor reserves the right to edit or omit any material that is submitted. For more information, contact Tessa Goupil at TILRC or Stephanie Thomas at ADAPT.
Topeka Independent Living
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501 SW Jackson St., Suite 100
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Olmstead and the Campaign for Real Choice
Across the nation more and more advocates are joining the push to get their states to implement the Supreme Court’s Olmstead decision and the integration mandate of the Americans with Disabilities Act, ADA. People are pushing for their states to start planning and move people out, they are filing ADA Title II Complaints when people who are in nursing homes and other institutions want to get out but are not getting help from their state. Over 100 complaints have already been filed with the feds, but we know there are hundreds of other people who need to file these complaints. States want to drag their heels, but the pressure is mounting. You need to help keep the momentum going and join the Campaign for Real Choice. Below is a letter from the Feds to the States telling them they need to get going on this. Here also is a checklist to get you started. And a Title II Complaint form people who want out can use.
The following excerpts are from a letter to the State Medicaid Directors, regarding implementing the Supreme Court Olmstead decision and providing services in the most integrated setting. To see the complete letter visit the ADAPT website bullitens section. http://www.adapt.org
DEPARTMENT OF HEALTH & HUMAN SERVICES
200 Independence Avenue, SW
Washington, D.C. 20201
January 14, 2000
Dear State Medicaid Director:
The recent Supreme Court decision in Olmstead v. L. C., 119 S.Ct. 2176 (1999), provides an important legal framework for our mutual efforts to enable individuals with disabilities to live in the most integrated setting appropriate to their needs...
This decision confirms what this Administration already believes: that no one should have to live in an institution or a nursing home if they can live in the community with the right support. Our goal is to integrate people with disabilities into the social mainstream, promote equality of opportunity and maximize individual choice.
The Department of Health and Human Services (DHHS) is committed to working with all affected parties .... This letter conveys our initial approach to Olmstead and outlines a framework for us to respond to the challenge.
The Olmstead Decision
.... The Olmstead decision interpreted Title II of the ADA and its implementing regulation, which oblige States to administer their services, programs, and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” (28 CFR 35.130(d)). In doing so, the Supreme Court answered the fundamental question of whether it is discrimination to deny people with disabilities services in the most integrated setting appropriate. The Court stated directly that “Unjustified isolation . . . is properly regarded as discrimination based on disability.” It observed that (a) “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and (b) “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”
Under the Court’s decision, States are required to provide community-based services for persons with disabilities who would otherwise be entitled to institutional services when: (a) the State’s treatment professionals reasonably determine that such placement is appropriate; (b) the affected persons do not oppose such treatment; and (c) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others who are receiving State-supported disability services. The Court cautioned however, that nothing in the ADA condones termination of institutional settings for persons unable to handle or benefit from community settings. Moreover, the State’s responsibility ... is not unlimited.
Under the ADA, States are obliged to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.” (28 CFR 35.130(b)(7)). The Supreme Court indicated that the test as to whether a modification entails “fundamental alteration” of a program takes into account three factors: the cost. ... ; the resources available to the State; and ...affects the [State’s] ability ... to meet the needs of others with disabilities. Significantly, the Court suggests that a State could establish compliance with title II of the ADA if it demonstrates that it has:
v a comprehensive, effectively working plan for placing ... in less restrictive settings,
v and a waiting list that moves at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.
Olmstead and the Medicaid Program
Olmstead challenges States to prevent and correct inappropriate institutionalization and to review intake and admissions processes to assure that persons with disabilities are served in the most integrated setting appropriate. Medicaid can be an important resource to assist States in meeting these goals. ... an example of the interface between Olmstead’s explanation of the State’s ADA obligation and your Medicaid program we would point to the State’s responsibility, under Medicaid, to periodically review the services of all residents in Medicaid-funded institutional settings....
Comprehensive, Effectively Working Plans
...The Department believes that comprehensive, effectively working plans are best achieved with the active involvement of individuals with disabilities and their representatives in design, development and implementation.
The Court’s Olmstead decision regarding the integration requirement applies to ALL [emphasis added] all individuals with disabilities protected from discrimination by title II of the ADA... not limited only to such individuals [with mental disabilities], nor ... to Medicaid beneficiaries or to services financed by the Medicaid program... [not only] to persons already in institutional settings but to those being assessed for possible institutionalization.
... Federal financial participation will be available at the administrative rate to design and administer methods to meet these requirements...
The ... DHHS Office for Civil Rights’ (OCR) ... has responsibility for investigating discrimination complaints involving the most integrated setting issue. OCR also has authority to conduct compliance reviews of State programs and has already contacted a number of States to discuss complaints. OCR strongly desires to resolve these complaints through collaboration and cooperation with all interested parties.
...Conclusion
The Administration and DHHS have a commitment to expanding home and community-based services and offering consumers choices in how services are organized and delivered... The Olmstead decision affirms that we are moving in the right direction and we intend to continue these efforts.
We recognize that this interim guidance leaves many questions unanswered; with your input, we expect to develop further guidance and technical assistance. We recommend that States do the following:
v Develop a comprehensive, effectively working plan (or plans)
v Actively involve people with disabilities, and where appropriate, their ... representatives, in design, development and implementation; ...
We look forward to working with you to improve the nation’s community services system.
Sincerely,
Timothy M. Westmoreland Thomas Perez
Director Director
Center for Medicaid and State Operations Office for Civil Rights
Health Care Financing Administration
CAMPAIGN FOR REAL CHOICE
MOST INTEGRATED SETTING
ADAPT’S RESPONSE TO OLMSTEAD
The Supreme Court ruling in Olmstead gives us a timely opportunity to work
with our State to assure that EVERY individual who is in or is
in imminent danger of going into a nursing home or other institution gets
the REAL CHOICE to live in the community.
Below are suggestions of how to make Olmstead work for us:
l Demand a meeting with the Director of your Medicaid Agency.
l Have your State create a “Most Integrated Setting” committee to develop a Community Integration plan that will implement the Olmstead decision. The committee should have a majority of people with disabilities, family members and advocates.
l The “Community Integration” plan should include:
__ Assurances that all individuals applying for support services receive information on ALL home and community services options. The individual should sign that they have received the information and it should be put in their case file.
__ Recognition that “reasonable pace” should be no longer than 90 days.
__ Identification of All individuals who want out of nursing homes and other institutions by contracting with advocacy groups throughout the State to: 1) develop information on home and community options; 2) to go into the nursing homes and other institutions to inform people of their home and community service options.
__ Specific timetables for: 1) getting people out, 2) expanding service capacity by increasing waivers, Personal Care option or other programs, 3) developing of new services such as Medicaid waivers and Personal Care option.
l Individuals who have been identified in nursing homes and other institutions who choose to live in the community should immediately file or you should assist in filing ADA Title II complaints in HHS-OCR stating violation of the most integrated setting requirement in the ADA.
l Set up meeting with HCFA Regional Manager to implement Olmstead decision.
Set up meeting with HHS-Regional OCR to implement Olmstead decision.
Filing an ADA Integration Mandate Complaint with Health and Human Services’ Office of Civil Rights
One: Explain that you are filing a complaint because the state is failing to provide the following individuals with appropriate home and community based services. This failure will cause the person or persons (use names) to have to go into a nursing home or other institution or be at risk of going into such a place. State that this is a violation of his/her/their right -- under the ADA and its implementing regulation [28.CFR 35.130(d)] -- to live and get services in the most integrated setting.
Include the following information about the person/people the complaint is for:
l name(s)
l address(es)
l phone number(s) with area code
l age(s)
l type(s) of disability
l type of facility the individual(s) live in (for example: psychiatric hospital,
nursing home, ICF-MR, personal care home, homeless shelter, etc.)
l if the injured party has a representative, tell OCR if you want them to
send copies of all future correspondence to that person. Also identify for
OCR who is the best person to contact for more information
l if you file on behalf of someone besides yourself include your name,
address, phone number and what your relationship is (for example:
friend, advocate, family member, attorney, etc.)
l a signature of the person who the complaint is for is not required, but it is
better to include that if you can.
Two: Explain why you think this person is best served in the community, and where possible include other people who think the same thing. Any documentation you can include will help.
Three: Send the complaint to: Sheila Foran, Special Assistant to the Director, The Dept. of Health and Human Services, Office for Civil Rights, Room 509F, 200 Independence Ave, SW, Washington DC 20201. The HHS national office will forward the complaint to the appropriate regional office.
Send a copy to ADAPT: 1339 Lamar SQ DR #101 Austin, TX 78704
512/442-0522 fax
People with Disabilities Sue Chicago Transit Authority
CHICAGO (Feb. 8, 2000) - A suit was filed in U.S. District Court on behalf of Access Living of Metropolitan Chicago and nine individual plaintiffs with disabilities against the Chicago Transit Authority, CTA, for the system’s failure to provide equal access to public buses and trains for people with disabilities as required under Title II of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. Individual plaintiffs include Chicago ADAPT members: Larry Biondi, Carol Cleigh, Mary Delgado, Rene David Luna, and Fred Stark, among others.
Over the past two years, Equip for Equality and Access Living have received more than 350 complaints from people with disabilities who have been denied equal access to the CTA. A system-wide review of CTA public documents confirmed the violation of federal law. Progress Center also helped with the survey.
Specific examples cited in the lawsuit of CTA fixed route violations are: frequent malfunctioning or nonfunctioning of lifts and doors, inadequate driver training in lift operation, the frequent failure to pick up passengers with disabilities at bus stops, and routine failure to make next-stop announcements.
Examples of the CTA’s trains violations are: failure to implement a safe system for mobility-impaired riders to embark and disembark, inadequate training in the use of the gap-filler between the platform and car, consistently broken or turned off elevators that strand disabled riders on the streets or platforms, and unsanitary elevators.
For further information, contact Barry C. Taylor, Equip for Equality, at 312/341-0022, 800/537-2632 or TTY 800/610-2779.
ADAPT Protests New System of Evaluating Needs.
Denver, CO -- ADAPTers took on their state’s Medical Services Board this fall to protest a new system of evaluating people’s needs for assistance. The change would means cuts in service, and force people into institutions activists asserted “the proposed [change] for bowel care is 10 minutes duration. How many people can do a bowel program in ten minutes?” asked Joe Ehman of ADAPT “and who will stand by with a stop watch?” The state’s own Medicaid report states that in home services cost about $11,189 per year per person, while nursing homes cost $23,255; forcing folks into nursing homes will skyrocket costs by 200% the protesters pointed out.
Down and Dirty in the District of Columbia
Protesting deaths and abuse of folks with mental retardation in city group homes Capital Area ADAPT organized a vigil Dec. 8th vigil in DC. Other disability advocacy groups and individuals joined ADAPT in calling for justice and reform in the situation which entailed the deaths of 116 residents of these “homes” — many of whom were buried in shallow graves on the properties. Extensive press coverage included television and radio as well as an article in the Washington Post on the group homes that had a paragraph or two about the vigil and photo of the 116 cardboard gravestones with the names of our brothers and sisters who died. Since then the Department of Justice have closed four group homes and some DC Health and Human Services staff were fired. Two who left their jobs testified before the DC City Council that the Mayor had been informed of the situation. Capitol Area ADAPT has vowed to continue until they can FREE OUR PEOPLE!
ADAPT of Georgia
In the state that started the Olmstead case, ADAPT of Georgia has filed several Title II complaints with HHS on behalf of individuals in nursing homes or other institutions who wish to get out. Among these was one on behalf of a deaf woman who had been inside over 30 years without anyone to communicate with her. The Governor’s Blue Ribbon Task Force on Community-Based Services, implementing the Olmstead decision, was appointed in January and their report is due in June. In addition ADAPT of Georgia, in partnership with other disability groups, made many advances with the legislature on increasing support for community based services using tobacco settlement dollars as a state match for more federal dollars. These advances include: services for 100 people with severe physical disabilities and/or traumatic brain injuries ($2.1 million state dollars), 300 people with mental retardation ($5 m), 3800 seniors and people with disabilities ($8 m).
In addition Georgia passed a statewide Visitability bill for single family housing built with state or federal dollars! Check out the Concrete Change website for details!
Maryland ADAPT
Maryland ADAPT planned a great action for Feb. 25th against Maryland’s Attorney General as part of a massive coalition using ADAPT’s 5-pronged Pitch-Fork approach to systems change. We were trying to force the state to settle a lawsuit called AMOS because the A.G. had turned it into an attack on the ADA. The court was scheduled to hear arguments on the 29th and had shown a strong bias against civil rights. Maryland was on record as opposing our rights, and had asked the Court of Appeals to hold the ADA unconstitutional.
All stops were out. The “professionals” said settlement, the only thing that could get us out of the court’s clutches, was impossible! Then the miracles around the country started. The biggest miracle was that DC “intelligence” found out about our impending action on AMOS, and the state quickly settled!
Because we were already set for action, we just switched targets ... MTA! On Feb. 25, Maryland ADAPT had a spirited action at the Mass Transit Administration’s HQ in the heart of downtown Baltimore. MAJOR gripes with MTA’s paratransit and buses, brought us to the streets. Posters, human door jams and an abbreviated Mobility Van blockage got us gains at the bargaining table, including a more specific response for late-ride calls. We are planning even bigger MTA actions against the miserable system, but for an impromptu event, we accomplished more than we expected.
We’re working to move freedom issues forward on Olmstead and transportation. MD ADAPT, People On the Go, SABE and MDLC (our P&A) are cosponsoring a rally/petition/ADA Pledge Drive called “Let Freedom Ring”. We’re working to identify freedom seekers -- nursing home and other institutionalized captives.
New Hampshire
People First of NH has written a bill HCR 24, sponsored by state Rep. Tom Salatiello, that mandates the State to provide integrative and inclusive services and supports for people with disabilities. It also underscores the State’s support of the integration requirement of the ADA. The NH House has sent the bill to the Senate Committee on Public Institutions, which will hold a hearing on April 18th. Thanks to NH ADAPT’s Tom Cagle for this info! For more info contact: peoplefirstofnh@egroups.com.
Move Over Toto, Here Comes Flipper, Namu and Willy
Western “Water Babies” Kansas ADAPT struck another local victory which is causing nationwide ripples with their Accessible Water Park Campaign! After a two hour session with these sharks even the Hays City commissioners seemed to agree that access to the water slides at the new Hays Municipal Pool was the way to go. The new complex, with two pools and the lazy river recreational feature, is scheduled to open this summer, and was funded by voters with a sales tax raise. At issue is access to two slides located on an island surrounded by a “lazy river.” One is a 38-foot straight slide, and the other is a higher, curly-cue slide. The original design gave access to the slides via a flight stairs, then cross a bridge, then up another set of stairs. Various access options include use of elevators and ramps to provide access to the slides.
Ironically the architect who swore it was impossible to provide access, works in the same firm as another architect who had just finished designing ... an accessible water park.
Commissioner Henry Schwaller IV told the Hays Daily News “The cost is reasonable. It’s not excessive... We’ve put in all sorts of other features that cost much more than this to make it accessible to people who don’t have disabilities, to make it pretty.”
Advocates Rally
in Support of ADA
Disability rights advocates from across the nation gathered together in support of the Americans with Disabilities Act (ADA), a 10 year old civil rights law that was being challenged by the state of Arkansas before the U.S. Supreme Court earlier this year. On Friday February 11, hundreds of people from 13 states rallied on the steps of the Arkansas State Capitol in support of civil rights for people with disabilities. They also challenged state and local officials to sign a pledge to renew their support of the ADA.
At the same time in Saint Louis, which is in the same court circuit as Arkansas, a “sister” rally was held on the steps of the Missouri Federal Court House. There the group braved lousy winter weather to show that across the Eighth Circuit Court of Appeals district people with disabilities and their supporters were outraged by the district court’s ruling. They too challenged Missouri officials to renew their support of the ADA.
FREEDOM DAY:
Calling All Nurses to Support MiCASSA
ADAPT picked Dr. Martin Luther King Jr.’s birthday to pay a house call on Nurses Associations across the nation to try and enlist their support for MiCASSA! Results were varied but generally positive. In Pennsylvania the nurses tried to hide and then had ADAPT members who entered their offices arrested. In Colorado, Kansas and Wisconsin the nurses associations set up follow up meetings. In Texas the TNA met with ADAPT and set up meetings with their legislative committee and Board of Directors and had agreed to sign on as supporters by the beginning of February. Colorado nurses were next then Kansas, then Wisconsin. Except for the Pennsylvania folks, the nurses generally seemed supportive of MiCASSA’s goals of increased choice and changing the institutional bias in long term care.
In many states the nurses associations and ADAPT group also agreed to discuss nurse delegation and assignment, a legal term for the practice in which nurses give the OK for certain attendants and unlicensed health and/or personal care workers to do certain health related tasks for individuals, under the supervision of the nurse. This allows for less medical daily living for the disabled person and for less costly services. Doctors can similarly delegate or assign such tasks. Usually it involves changing state law, often called the Nurse Practices Act or something similar to that.
ADAPT is also meeting with the national American Nurses Association to get their support for MiCASSA.
Do you know of a professional association that would like to become a MiCASSA Supporter? We need all kinds of folks on board. Let us know c/o MiCASSA Supporter 512/442-0252 or adapt@adapt.com.
Where are the Candidates on MiCASSA, S. 1935?
March 15th found ADAPT groups across the country stopping in at Bush and Gore Campaign headquarters or Republican or Democratic Campaign headquarters to drop off copies of MiCASSA and see where those good ole boys stand on the issue. Both have been coy to say the least.
In Texas, Bush’s headquarters were his usual armed camp, and that was the day they were shifting from state funded Department of Public Safety officers to Secret Service officers. Looking though their dark, mirrored shades they finally agreed to find the head staff person on hand and she agreed to get the staff person in charge of long term care for the campaign to set up a meeting. The brand new head of the Democratic party, on the other hand agreed to meet, to forward the information to Bush and to follow up about ADAPT’s presenting at the National Convention.
In Pittsburgh Southwestern Pennsylvania ADAPT (SWPA) found that while the Republicans were willing to meet and talk about the bill the Democrats were another story. When they arrived SWPA found the Democratic Party headquarters were up a flight of stairs. They buzzed the office and were told someone would be right down. After 10 minutes of waiting, they sent a runner up to fetch someone. Instead they found the staff had turned out all the lights, locked the door and snuck out the back. In Missouri, Saint Louis ADAPT found that the Candidates had only opened offices for a couple of weeks and everyone had packed up and gone!
Philadelphia ADAPTers were all business, as usual. They went to both Republican and Democratic Committees to present the demands and a copy of MiCASSA. The Committees took the info and their Heads signed letters stating that they received the copy of MiCASSA, the demands, would read through it and schedule a meeting within two weeks time.
Debbie Bonomo and “Wrong-Way” Bruce Darling got Rochester ADAPT folks to both party headquarters. The Republican staff person who had not returned calls on support for MiCASSA found herself facing people who didn’t like having calls left unreturned. The staffer mentioned that she recognized our group. “Hadn’t we protested Hillary Clinton?” We responded that THEY could be next. They agreed to contact Bush’s campaign headquarters and expected Republican Senatorial candidate Guilianni. While at the Democratic Headquarters discussing our concerns and faxing our demand list to the national office, we got an emergency call to negotiate the release of one of our group from a nursing home. They couldn’t believe the hassle we were being put through in order to get our friend out and back into his own home.
NY Test of Olmstead Supports Community Based Services
Without specific evidence of program-wide difficulties in providing services, New York City and State officials may not deny accommodations to a disabled person eligible for access to a public benefit, Manhattan Supreme Court Justice Karla Moskowitz ruled. The decision in Matter of Sanon v. Wing, 402855/98 requires State and City officials to allow three disabled people to continue using Medicaid-funded in-home care. It is the first interpretation in New York State of the U.S. Supreme Court’s Olmstead decision. Olmstead, Moskowitz reasoned, effectively raised the level of proof needed by the State and local officials to justify denial of a requested accommodation under the ADA.
The NY court ruled that the ADA guaranteed access to the in-home care program for three petitioners, each of whom had several disabilities, rejecting the claims by City and State officials that to do so would “fundamentally alter” administering the program.
Moskowitz’s decision annuls those by the State Department of Health and two City agencies to terminate Medicaid home care services and place the petitioners in nursing homes. The administrative agencies’ rulings were challenged under Article 78 of the Civil Practice Law and Rules.
The case was filed after the City Human Resources Administration (HRA) decided in 1996 to terminate in-home personal care services to three disabled persons. The termination decision came after the City Department of Social Services (DSS) made a fiscal assessment that it was no longer “cost effective” to provide in-home care on a round-the-clock basis to the disabled persons. The City DSS took the position that continued home care to the petitioners would substantially alter or modify the State’s Medicaid program. But Moskowitz said that the DSS position was unsubstantiated, with no factual inquiry as to the effect of any ADA modification.
Moskowitz adopted the Olmstead decision’s “balancing test” for use by New York courts, weighing the effect of ADA accommodations requested of State and local officials running public services. In their cost analysis the City did not “demonstrate that there would be a ‘massive’ change in the program,” Moskowitz pointed out. Nor did it consider what would be the most integrated setting for the petitioners, she added. “The focus is ... not only on the impact on the State’s budget of providing the services, but also on the competing demands of others requiring services and the State’s available resources,” she wrote.
Moskowitz said that the City and State, in order to prove its defense, must demonstrate that the costs of accommodating disabled eligible persons would “fundamentally alter” the program as a whole; stating the comparative costs with regard to the individual seeking the accommodation is not enough. Commenting that a mere allegation by the government officials that the public would be required to pay for 24-hour personal care whenever a Medicaid recipient “prefers” home care was not enough to justify termination, Moskowitz annulled the termination of in-home services decision and sent the issue back to the City and State agencies for further evaluation.
For more information contact Lawyers from New York Legal Assistance Group Inc. See also Michael A. Riccardi’s article of 2/28/00 in the New York Law Journal.
ADAPT SHUTS DOWN
WI. ASSEMBLY
By Lynn Peterson.
With personal attendant care agencies going out of business at an alarming rate, over 100 since 1997, due to low Medicaid payments, things were looking bleak. The fact that the two year legislative session was about to end, only added fuel to the fire. So Wisconsin ADAPT made a house call on their state Assembly. On Thursday, March 23rd, 22 ADAPTers from across WI shut down the State Assembly Chambers demanding that the Assembly Leader Scott Jensen bring AB 630, a bill that would raise personal care rates by $3.25 an hour, to the floor for a vote. Several members got into the Assembly before security alerted Capitol Police and the chambers were locked down. The media, out in force to cover the “important” issue of a new multi-million dollar football stadium, were surrounded by the protesters.
“If you loose an [attendant], you could end up in a nursing home, and it’s very hard to get back out” Steve Verriden Wisconsin ADAPT organizer explained. We were not moving until we see Rep. Jensen. The entire Assembly membership, out for lunch, was now locked out of its own chambers! After a short, tense period in which arrests seemed likely, Mr. Jensen appeared and informed us that there was only $900,000 for personal care worker issues. He said over the weekend they would be looking for more. In short order, a secretary appeared and penciled in a meeting time for the following Monday. Only then, did ADAPTers relinquish their hold on the Assembly Chambers. In WI, low rates (the lowest in the midwest) have forced over 100 providers to close their doors, causing a personal care availability and recruiting crisis.
The Monday meeting brought another $4.1 million for personal care - not enough!
We now needed to keep pressure on a Senate rate increase companion bill to get it moving. To stay alive, we needed bills passed in both houses, to force future rate negotiations between houses. ADAPTers, targeted key Senator’s offices; the Joint Finance Chair, Co-chair, and the Senate leader Chuck Chvala. Filling a Senate scheduling session with ADAPT crips, Senators were put on notice “Its your turn!” We hadn’t been recognized an “important issue to people” until one of us spoke up and asked, “what about personal care?” Only then did Chvula even recognize us as “the home care people,” commenting that these folks had shut down the assembly last Thursday. After some legislative sleight of hand, SB 397 was pulled from committee and passed a Senate vote within two days.
A recent Update: the bill has passed! Wisconsin ADAPT won the pay raise!!
Flyin Blues?
Here’s Some News
As part of its congressional mandate, the Department of Transportation’s Office of Inspector General (OIG) is collecting data from consumers regarding their experiences with flight overbooking and access to lowest fares. You can relay your complaint or concern about these two issues via the OIG Web site at . For other airline-related gripes, the DOT’s Office of Aviation Consumer Affairs is listening at . The OIG’s interim report to Congress is due June 15, with a final report due by the end of the year.
A little reminder of why we are ADAPT,
and why it is we do the things we do.
Another One Closes
IN MY OPINION
by Michael Bailey
In the end it was just green grass and
vast, empty buildings. The mass of
humanity going about its business; the smell, the bedlam, the shrieks, the love and the drama of human life are gone. In a moment all of that became history; a part of our collective memory.
Last Thursday, a small group of staff, state officials and advocates met informally in front of LeBreton Hall on the grounds of the Fairview Training Center. Some stared into space, their minds occupied with memories, some joked, some dabbed at moist eyes, some took pictures. Over all of us lay the anticipation of a once-unimaginable and long-awaited event. It happened, finally, at 1:15 p.m.
A green minivan pulled up in front of LeBreton and stopped. No one seemed to know what to do. A few of us waved to the occupant in the front passenger seat. He smiled and waved back. For him a new life was beginning as another, older and more ordered life came to an end.
The van pulled out and disappeared. Leaving in it was the last, the very last, resident of the Fairview Training Center.
In the superintendent’s office we examined the entries in the large, musky, leather-bound ledgers, their endless sheets filled with careful renderings, the pages yellow and stiff from age and from the dried ink so painstakingly applied by generations of clerks. On the pages are columns marked “inmates”.
Here are the daily counts. “February 24, 1917, 371 inmates.” Soon their number would exceed 3,000. The names of new “inmates” were carefully recorded and each assigned an “inmate number”. Also entries such as this: “March 16, 1921, inmate #. . . died. Remains shipped to family in Cave Junction.” The ledgers are an archive not only of an institution but also of the meticulous detail attended to by the keepers of these “inmates.”
There are scrapbooks of clippings from newspaper stories. Aging photos of goofy kids dressed up for a parade. Construction of the pond. Later, newsworthy pictures of young people bowling “in the community.”
There are also stories of lost “inmates,” of fires, murder and death. Images of faces smiling and laughing, a lasting testament to human spirit and resilience. I see that face every morning: My daughter has one just like it.
In 1981 the clippings began to tell another story; one of lawsuits, investigations, charges and counter-charges. That ended on Feb. 24, 2000, at 1:15 p.m. There will be no more clippings.
Slowly we walked around the silent and empty campus with two former “inmates” who remembered their lives at Fairview Training Center. The infirmary where one went for a knee operation only to learn that they operated on her healthy hip by mistake. Another pointed out the spot where she was run over by a staff vehicle. To save money her knee was fused, rather than repaired. Thirty years later it still will not bend.
We walked into the empty “cottages,” now smelling of cleaning products and echoing the sound of our footsteps. “Oh, no, it wasn’t like this when I lived here," our commentator said. “Then there were no partitions of any kind. All of us girls slept on cots next to one another. There was never any privacy.” She remembered how as a child she was frightened of “the big heads,” the ones with hydrocephalus who leaned on the wall and groaned.
Finally, we passed the plaque on the wall of Fairview’s first building. It commemorates the names of the superintendent, state officials and architect responsible for completing this project for the “Oregon Home for the Feeble Minded -- 1919.”
We walked back to LeBreton and got into the van. We drove off with one of the former “inmates.” She had to return to her full-time job and at the end of the day would go home to her own apartment. There she would be alone with the memories of a life that had once labeled her a “victim of . . .” and an “inmate” and now, finally, to that of a respected, financially independent and successful professional woman.
Farewell Fairview Training Center. You were born of a bad idea in 1908. You left us on a brisk and shining afternoon in the midst of an Oregon winter. Rest in peace.
May your kind never pass our way again.
Passages
We lost Joel D, a professional clown and corny comedian, always first in line to be arrested (pic on the web was one he was most proud of). A strategist and great activist whom we will sorely miss.
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