Thursday, March 23, 2017

A Supreme Court unanimous decision on IDEA

Fire Power
Below is a news item from ACCSES, a national disability provider organization. On 3/22/17, the U.S. Supreme Court overturned a 10th Circuit Court decision on IDEA, the Individuals with Disabilities Education Act. They ruled in favor of parents who sent their child to a private school after the school district failed to provide a Free and Appropriate Public Education (FAPE), to their child. 

Neil Gorsuch, who has been nominated to the Supreme Court by President Trump, was part of the lower court decision against the parents. 

According to an article in the Los Angeles Times from 3/22/2017

"Asked about the issue on Wednesday, Gorsuch said he was a part of a unanimous three-judge panel that had sought to follow a Supreme Court standard set in 1982.

"Several liberal groups described the court's decision as a direct rebuke of Gorsuch.



"However, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) noted that Gorsuch was not part of the three-judge panel whose ruling was directly reversed in the court’s decision in Endrew F. vs. Douglas County"

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An ACCSES News Alert, 3/22/17, from Kate McSweeny, Vice President of Governmental Affairs & General Counsel:

Today, the United States Supreme Court handed down a unanimous decision in Endrew F. v. Douglas County School District, deciding that children with disabilities are entitled to an Individual Education Plan (IEP) that will provide challenging objectives appropriate for the individual. 

Many of you who came to ACCSES’s Summit in Savannah or attended ACCSES’s Education Policy Committee call earlier this month will recall that the underlying case was brought by the parents of a boy with autism, whose IEP had been virtually unchanged during the time he had spent in the school system from pre-school to the fourth grade. The parents moved Endrew to a private school that focuses on students with autism, where their son did much better. They also sued the local public school system for its failure to provide a “free appropriate public education” (FAPE) to their child as required under the Individuals with Disabilities Education Act (IDEA).

Endrew and his parents lost before an administrative law judge, a federal district court, and the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit determined that a child’s IEP is adequate so long as it is calculated to confer “an educational benefit” that is “merely more than de minimis.” By applying this standard, the Tenth Circuit determined that Endrew’s IEP had been “reasonably calculated to enable him to make some progress”; therefore, he had not been denied a FAPE. The Supreme Court granted certiorari and heard oral arguments in the case in January.

In the decision handed down today, the Supreme Court disagreed, and vacated the Tenth Circuit decision. Rather than the low de minimis standard, the Supreme Court stated:

“To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While the Court declined to establish a specific standard, it expressly stated that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when were old enough to drop out.’ The IDEA demands more.” (Citations omitted.)

You can read the decision at this link. It’s a good read.

Wednesday, March 15, 2017

The Health Care Debate and People with DD

The news on proposals to "Repeal and Replace" the Affordable Care Act (Obamacare) have been disturbing, to say the least. Potentially radical changes to Medicaid and eventually Medicare, the availability of health insurance, and how it will be paid for are being rushed through Congress apparently without due consideration for the effects on our most vulnerable populations, including those with intellectual and developmental disabilities. 

Couple that with a windstorm that swept across Michigan and knocked out electrical power to 800,000 customers in Southeast Michigan where I live, and you can imagine how difficult it has been for me to know where to start in making sense of either crisis . The best commentary I have read on the health care debate comes from the VOR Weekly News Update for March 10th, 2017:

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VOR and YOU: Health Care


Much has been said about the recent "Repeal and Replace" activities in Congress. VOR is very concerned about this as well. We have people on both sides of the aisle, and we try not to let our personal views on some issues get in the way of the issues that we have in common, the best interests of our loved ones with I/DD. We all know that the system that preceded the ACA was untenable. We all agree that there are problems with the ACA. but that some aspects of the act should be preserved. We may also agree that the current process of replacing the ACA with the AHCA has not been a smooth or reassuring one.

So what do we know? What can we agree on? 

To begin, we know that there is not enough money to properly deal with the needs of everyone with an intellectual or developmental disability. There are people on waiting lists, many of whom have been on these lists for over a decade. We have people who are receiving services that fall short of their needs. As a result, we do not have a unified community, but one in which each of us is trying to protect what we have or else trying to get what we can by taking from someone else. There is not enough to go around, yet neither party is proposing increasing the amount of money to be spent on the I/DD population.

Second, we see that not enough money is spent to provide long-term caregivers a living wage. As the minimum wage rises for many workers, many direct-care professionals are being left behind. We need to make sure that we have a well-trained, responsible, and loving workforce to look after the needs of individuals with I/DD. We can only maintain such a workforce by giving them wages that are fair compensation for the services they provide.

Third, we know that a good portion of the money that is in the CMS [Centers for Medicare and Medicaid Services] budget goes is being misspent.We believe that the best way to spend this money is make sure it goes directly to care and related services. Far too much of it goes to agencies and programs that lobby against others in the community, to P&A's and DD Councils that often spend these funds working against the interests of some in order to promote ideologies of integration and one-size-fits-all solutions that completely ignore the needs of many of the most severely disabled.

Finally, we know that choice is important to people with I/DD and their families and guardians. We believe that the I/DD population is diverse, and that their needs are too diverse to be met by any simple solutions. Our loved ones are individuals. No two are alike, and while some have similar problems, they don't always react the same to any one given treatment. We believe that residential choice in all forms is vital and we believe that individuals need a variety of employment options, that competitive, integrated employment, sheltered workshops, day programs, and farmsteads are all vital parts of a healthful and productive occupational platform. And we know that with choice comes responsibility - the responsibility to maintain each facility or program to maximize its efficiency and effectiveness, while providing a safe, comforting environment to the individual.

There are no easy solutions being proposed that would solve our health care crisis. We have a complex and underfunded system, and there will always be some people who gain and some who lose. Whatever comes in the months ahead, we know that we must continue to speak up for the needs of the I/DD community, to emphasize the true meaning of Olmstead, and to find political leaders who are willing to help us in our cause.

Wednesday, March 1, 2017

New York Minority Report on DD Services: Olmstead Misinterpretation

This is from the New York State Assembly minority task force report on the Olmstead Decision and its impact on the state's developmental disability community. The C.A.R.E.S. Plan (Championing Aid, Rights, Equality and Services) makes recommendations to correct the unintended consequences resulting from a misinterpretation of the 1999 Supreme Court Olmstead decision by the U.S. Department of Justice and the State of New York. 

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[pages 3-4 of the C.A.R.E.S. report]


OLMSTEAD MISINTERPRETATION 

On June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act (ADA). The Court held that states are required to place persons with developmental disabilities in community settings rather than in institutions when (1) such community placement is appropriate; (2) the affected persons do not oppose the transfer from institutional care to a less restrictive setting; and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

In 2009, President Obama directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. Since then, the Department of Justice (DOJ) has made enforcement of the Olmstead Decision a top priority. As such, the DOJ has created a technical assistance guide to assist individuals in understanding their rights under Title II of the ADA and its integration mandate. However, when explaining what factors are relevant in determining whether an individual does not oppose an integrated setting, the DOJ simply states that in cases where the individual wishes to stay in an institutional setting, that such individuals who have been institutionalized or segregated have been given very little information and are unable to make an informed decision. Therefore, public entities must take “affirmative steps” to remedy this history of segregation regardless of the individual’s wishes to stay in institutionalized care.

The DOJ also states that segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities. Therefore, any community service that provides day habilitation services for individuals with disabilities is considered segregation, according to the DOJ, and must be discontinued.


In October 2013, Governor Cuomo’s Olmstead Cabinet...released a report and recommendations titled “A Comprehensive Plan for Serving People with Disabilities in the Most Integrated Setting” which also ignores the second prong in the Olmstead Decision. The Cabinet made a blanket recommendation to “assist in transitioning people with disabilities into the community from developmental centers, Intermediate Care Facilities, sheltered workshops, psychiatric centers, adult homes, and nursing homes,” giving no deference to an individual’s wishes to stay in institutionalized care. In some cases, families have never been asked if moving their family member out of institutional care is even in the best interest of the individual.

This “one-size-fits-all approach” does not work in the developmental disabilities community as every person has different abilities and different wishes. Testimony was shared at each forum from people with disabilities currently employed at sheltered workshops and individuals expressed their passion for working there, seeing their friends, and receiving a pay check. If sheltered workshops are closed entirely, some parents of individuals with developmental disabilities are concerned that their child will not be able to be integrated into the community workforce since they will not be competitive with other available employees in the community. If sheltered workshops remain open, creating an integrated work environment, it will result in jobs being taken away from individuals with disabilities. At the Task Force forums, some individuals with disabilities stated that they prefer being with their friends in the sheltered workshops.


See also, "The Olmstead Decision Has Been Misinterpreted" from VOR

Tuesday, February 28, 2017

PA: Fix the Direct Support Professionals Crisis




See Fix the Direct Support Crisis

By the numbers:

  • Direct Support Professionals (DSPs) in Pennsylvania make an average wage of $11.54/hour. They provide daily support to people with intellectual disabilities and autism. 
  • $11.54/hour is $4 per hour less than a living wage for a working family in Pennsylvania. 
  • The turnover rate of DSPs is 26.9% (over 8,500 DSPs every year) and the vacancy rate for DSPs is 12.1% (over 3,500 DSPs per year). 
  • The Commonwealth of Pennsylvania is the sole funder of the wages of DSPs. The state budget has grown by over $6.3 billion since 2009, but the rate increases and DSP wages have flatlined. 
This crisis is nationwide.

Monday, February 27, 2017

VOR comments to CMS on the true costs of implementing the 2014 federal rule on HCBS

VOR is a national organization that supports a full array of services and settings to serve the diverse needs and preferences of people with developmental and intellectual disabilities. This is from pages 3 to 4 of VOR's response to a request for information from the federal agency, CMS, that regulates Medicare and Medicaid. The comments are dated 1/9/17. 

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...CMS needs to assess the true cost of implementing the 2014 HCBS [Home and Community-Based Services] rule. Complying with the rule is proving costly for the states, resulting in states cutting services and displacing vulnerable individuals from their homes. The closing of congregate settings [those serving more than 3 or 4 people with disabilities together] to comply with the new rule and so-called Olmstead enforcement activities have further harmed disability service systems in states by increasing wait lists and forcing people into inappropriate settings they did not choose, settings that are often unprepared to ensure their health and safety. The whole system of care is being undermined in the name of inclusion, integration and Olmstead enforcement, contrary to the plain language and intent of Olmstead as a vehicle for choice.


The expectation of savings from moving individuals from congregate care (ICF’s/IID) [Intermediate Care Facilities for IID] to smaller licensed group homes, or from small group homes to unlicensed community settings, is unlikely to be realized unless there is also a reduction in the quality or quantity of services needed by individuals with I/DD. These expectations are often based on faulty cost comparisons, which fail to account for the full array of public benefits accessed by individuals receiving HCBS care. Unsustainable costs have resulted in even longer waiting lists and tragic outcomes. [See VOR’s “Widespread Abuse, Neglect and Death" in Small Settings Serving People with Intellectual Disabilities”, 2016]

Often, the increase in HCBS comes at the expense of ICF/IID residents who lose their homes due to federally funded litigation. Happily situated ICF residents pressured or forced to leave ICFs through litigation receive HCBS placements ahead of individuals who have been waitlisted for years. The policy of shutting down successful residential placements is even more absurd when you consider many of the wait-listed individuals may in fact prefer and can benefit from HCBS settings. These individuals are forced to wait longer now that former ICF/IID residents move to the front of the line.

The Case for Inclusion, annual reports produced by UCP on how well state Medicaid programs serve people with I/DD, shows that with the increase in the use of Home and Community-Based Services over the last decade, waiting lists for residential and other services have increased from 74,000 in 2005 to 350,000 in 2016, an increase of nearly 400%. At the very least, it can be said that increased use of HCBS has not resulted in fewer people waiting for services.

New York: The NY Assembly Minority Task Force Report on Developmental Disabilities

The New York state Assembly, the lower house of the New York Legislature, is dominated by a 62 vote supermajority of Democrats. The Assembly Minority (Republican) Task Force on Protecting the Rights of People with Developmental Disabilities has recently issued a report based on the testimony of parents, people with disabilities, advocates, service providers and other interested parties on services for people with developmental disabilities in New York state. Forums were held at eleven sites throughout the state, attracting crowds of 25 to 85 people who came to have their say on problems they had experienced with the service system for people with DD.

The task force heard a diversity of opinions representing people with varying degrees of disability and need for services. The name of the report is C.A.R.E.S. (Championing Aid, Rights, Equality, and Services: a Report on the Olmstead Decision & Its Impact on the State’s Developmental Disability Community). A number of complaints centered on the state’s misinterpretation of the 1999 U.S. Supreme Court Olmstead decision. Many families and advocates for choice have been criticizing the use of Olmstead as a weapon to close programs and services that are considered “too institutional” by some, but are nevertheless highly valued and needed by a significant portion of the DD population and their families. The C.A.R.E.S. report addresses this issue at both the state and the federal level and calls for the state to revaluate its interpretation.

The recommendations that come out of the report are a logical and compassionate response to the problems that are heard again and again in many areas of the country: preserve, restore, and expand the services that people with DD want and need, compensate service providers with the funds they need to provide the best possible services, pay direct care workers enough to maintain a high quality and sustainable work force, and protect the rights of all people with DD to appropriate levels of service based on their needs and preferences.

I question why these recommendations come only from the minority in the legislature and why they are not at least bipartisan, if not universally supported by legislators who have surely heard from some of their constituents about the growing problems within the DD system of services. 


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The following is the Executive Summary from the C.A.R.E.S. report: 


EXECUTIVE SUMMARY

The Assembly Minority Task Force on Protecting the Rights of People with Developmental Disabilities was formed in response to numerous calls and complaints from constituents to members of the Assembly Minority Conference concerning the announcement by the governor that sheltered workshops would be closed in order to bring New York State into compliance with the federal Department of Justice’s interpretation of the U.S. Supreme Court’s Olmstead Decision. The term sheltered workshop refers to an organization or environment (typically a business) that employs people with disabilities in a “sheltered” environment. The overarching decision required states to place persons with mental disabilities in community settings rather than in institutions. However, people have argued, there were several factors to the requirement of moving individuals to community settings that state governments, including New York, have overlooked. With this in mind, the Assembly Minority Conference conducted a series of statewide hearings to gather information from parents, service providers and individuals with developmental disabilities to determine if there are policy changes that can be made or new laws that can be enacted to help provide for people with developmental disabilities in the most caring and cost-effective manner possible.

Among those with firsthand experience, the belief that there has been a misinterpretation of the Olmstead Decision has caused a ripple effect throughout the developmental disability community as it pertains to the integration of employment and how individuals will find and get to employment outside of sheltered workshops. To meet the state’s requirements, sheltered workshops have changed their business models to incorporate non-disabled individuals into the workforce. This change has raised questions as to what happens to individuals in the developmental disability community who worked in these former sheltered workshops who can no longer perform their jobs in these facilities.

The deinstitutionalization requirements of the Olmstead Decision also impact housing for the developmental disability community. While many individuals live with their families, parents are concerned with what will happen to their children when they can no longer care for them or they should die. While New York State’s Office for People with Developmental Disabilities (OPWDD) conducted a survey of individuals who contacted the agency with concerns about housing for their family members, their findings do not seem to help those who are actually looking for housing. A prominent finding in the “Residential Request List” (RRL) report by OPWDD concludes that there is enough housing for the 11,000 who want housing statewide, but this may not benefit each individual locally.

Numerous issues were raised during the Task Force’s forums. This report outlines some of the major problems that the developmental disability community is dealing with, including jobs and housing; services for families; and salaries and compensation for those who work with individuals with disabilities.

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Recommendations


This is a summary of the recommendations of the Minority Task Force from the Website of Assemblyman Clifford Crouch, Chairman of the task force:
  • Requiring the Attorney General to reevaluate the state’s interpretation of the Olmstead Decision. 
  • Working with the federal government to prevent the state from losing funding as a result of the interpretation of the Olmstead Decision. 
  • Create post-schooling training programs for individuals with developmental disabilities to better prepare them for employment. 
  • Create incentives for sheltered workshops to hire individuals without developmental disabilities. 
  • Create a Bill of Rights for Individuals with Developmental Disabilities to outline in statute their rights. 
  • Fully fund the increase in minimum wage for direct care workers employed by non-profit providers. 
  • Create a commission to study and report on what wage levels would need to be in order to recruit and retain an adequate number of qualified direct care workers in the various regions of the state, with a special focus on making sure that staffing levels are adequate for the transition to integrated employment. 
Crouch noted that New York State’s minimum wage is set to increase to $15 an hour in most parts of the state by 2021. The task force was concerned about the repercussions this could have on the developmental disability community’s direct care workforce.

Monday, February 20, 2017

Washtenaw County Elections and Elected Officials Part 2


For a complete list of all elected officials from Washtenaw County, see this from the Ann Arbor League of Women Voters. Also see Part 1.

WASHTENAW COUNTY OFFICIALS
Washtenaw County Administration Building
200 N. Main Street, P.O. Box 8645
Ann Arbor, MI 48107-8645, Phone: (734) 222-6850
Website: www.ewashtenaw.org


ANN ARBOR BOARD OF EDUCATION
2555 S. State Street, Ann Arbor 48104
Phone: (734) 994-2232, Website: www.a2schools.org/
Trustees Term Expires June

SUSAN BASKETT, Vice-President Phone: (734) 478-3338 2018
JEFFREY GAYNOR, Secretary Phone: (734) 277-2305 2018
JESSICA KELLY, Trustee Phone: (734) 707-7827 2018
SIMONE LIGHTFOOT, Parliamentarian Phone: (313) 585-1052 2020
PATRICIA MANLEY, Trustee Phone: (734) 971-1898 2018
HARMONY MITCHELL, Treasurer Phone: (734) 929-2335 2020
CHRISTINE STEAD, President Phone: (734) 717-2493 2018

YPSILANTI BOARD OF EDUCATION
1885 Packard Road, Ypsilanti 48197
Phone: (734) 221-1200, Website: www.ycschools.us
Trustees Terms Vary, Expire June 


ELLEN CHAMPAGNE, Secretary Email: echampagne@ycschools.us 2018
CELESTE HAWKINS, Vice-President Email: chawkins@ycschools.us 2018
SHARON IRVINE, Trustee Email: sirvine@ycschools.us 2018
SHARON LEE, President Email: slee@ycschools.us 2022
BRENDA MEADOWS, Trustee Email: bmeadows@ycschools.us 2020
MEREDITH SCHINDLER, Treasurer Email: mschindler@ycschools.us 2022
MARIA SHELER-EDWARDS, Trustee Email: msheleredwards@ycschools.us 2020

STATE BOARD OF EDUCATION
P.O. Box 30008, Lansing, MI 48909
Phone: (517) 373-3900, Fax: (517) 335-4575
Website: www.michigan.gov/mde
8-Year Term Expires January

MICHELLE FECTEAU (D) Secretary, Detroit 2021
TOM MCMILLIN (R) Treasurer, Detroit 2025
PAMELA PUGH (D) Detroit 2023
LUPE RAMOS-MONTIGNY (D) Grand Rapids 2021
NIKKI SNYDER (R) NASBE Delegate, Lansing 2025
CASANDRA E. ULBRICH (D) Co-President, Rochester Hills 2023
EILEEN WEISER (R) Ann Arbor 2019
RICHARD ZEILE (R) Co-President, Dearborn 2019

WASHTENAW INTERMEDIATE
AND HIGH POINT SCHOOL DISTRICT TRUSTEES

1819 S. Wagner Road, P. O. Box 1406, Ann Arbor 48106-1406
Phone: (734) 994-8100 ext.1300, Fax 994-2203
Email: wisdboard@washtenawwisd.org 
Website: www.washtenawisd.org
6-Year Term Expires June

DIANE HOCKETT, President Phone: (734) 662-8382 2019
GREGORY PEOPLES, Secretary Phone: (734) 487-5582 2017
MARY JANE TRAMONTIN, Vice-President Phone: (734) 761-2729 2019
THERESA SAUNDERS, Treasurer Phone: Not Available 2021
MARY JO CALLAN, Trustee Phone: Not Available 2017

WASHTENAW COUNTY TRIAL COURT
22nd Judicial Circuit
101 E. Huron Street, Ann Arbor 48107-8645
General information: (734) 222-3095, Scheduling: (734) 222-3270
Website: www.washtenawtrialcourt.org/
6-Year Term Expires January

ARCHIE C. BROWN, Chief Judge Phone: (734) 222-3376 2023
PATRICK CONLIN Phone: (734) 222-3399 2021
TIMOTHY P. CONNORS Phone: (734) 222-3361 2019
CAROL KUHNKE Phone: (734) 222-3386 2019
DAVID S. SWARTZ Phone: (734) 222-3392 2021

PROBATE COURT JUDGES
Website: www.washtenawtrialcourt.org/probate
6-Year Term Expires January

DARLENE A. O’BRIEN Phone: (734) 222-3006 2019
JULIA OWDZIEJ Phone: (734) 222-3351 2021

VOTER INFORMATION

REGISTERING TO VOTE

To register to vote, you must swear or affirm that you:
(1) are a citizen of the United States;
(2) will be at least 18 years old by the next election;
(3) are a resident of Michigan and the city or township where you are applying to register to vote.

NOTE: Driver's license address and registration address must be the same.

You may register at:
(a) a city, township, or county clerk's office,
(b) any Secretary of State office,
(c) the following State agencies offer voter registration services to their clients: Department of Human Services, the Department of Community Health and the Department of Career Development. Military recruitment centers also provide voter registration services. 

If you move within a city or township, you must file a change of address with the clerk. If you move to another city or township within the state, you must re-register with the clerk in your new city or township of residence.

ABSENTEE VOTING

Absentee Voter Ballots must be requested in writing. For detailed instructions phone your clerk. Registered voters may apply to vote by absentee voter ballot if they:

(1) are 60 years of age or older, or
(2) will be absent from the city (or township) on election day during voting hours; or
(3) are unable to vote without assistance at the polls, or
(4) are unable to attend the polls due to religious tenets; or
(5) are confined to jail awaiting arraignment or trial; or
(6) are appointed to work as an election inspector in a precinct outside of your precinct of residence.

POLITICAL PARTY INFORMATION

Green Party of Michigan: (313) 815-2025
Washtenaw County Democratic Party: (734) 340-2744
Washtenaw County Republican Party: (734) 996-9467

LEAGUE OF WOMEN VOTERS of the ANN ARBOR AREA
Website: www.lwvannarbor.org
Mailing Address: P. O. Box 3832, Ann Arbor, MI 48106-3832