The DRO Blog
Aug 30, 2014
The Agreement is really two related agreements. One is about police policies and practices and is enforceable. One is about adequate community mental health services and is "aspirational." All agree that the aspirational parts are necessary for the enforceable parts to work.
It’s been almost two years since the US Department of Justice (USDOJ) and the City of Portland reached a tentative agreement to reduce police use of unnecessary force against individuals with mental illness. Yesterday (August 29), Judge Michael Simon ruled that the settlement is fair and should be implemented.
Part of the delay was the result of a successful effort to intervene in the case by the Portland Police Association, appointment of special status to the Albina Ministerial Alliance Coalition (of which DRO is a member), and an open and robust process for public input. The judge also had to decide how to monitor the settlement and whether police should be required to wear body cameras.
Judge Simon ultimately required annual reviews but no cameras. He thereby set in motion the agreed processes for implementing new rules and procedures for use of Tasers, evaluation of officers’ use of force, organization of the police behavioral health unit, and police training, discipline and public accountability.
The agreement states that use of force should be lawful, no greater than necessary, properly documented, reported, investigated, evaluated and, if necessary, remedied. The police are to “ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function.”
If you’re still with me, you may have noticed that all of these requirements address police behavior. Somewhat sadly, the agreement acknowledges that the underlying culprit behind the escalation of police violence in Portland is our dysfunctional mental health “system.” The agreement sets out a number of proposals for fixing the system but, as both USDOJ and Portland have pointed out, these are merely “aspirational.”
The agreement notes that police are often the first-responders to people in mental health crisis due to the lack of adequate community mental health services. It mention that, in another case, the USDOJ is working with Oregon’s state government to identify and address “gaps” in community mental health services that result in over-reliance on institutional care. But it acknowledges that in Portland case, neither the state nor the local agencies that are responsible for community mental health services are parties to agreement and required to obey them.
So what are the steps that the USDOJ cannot enforce but “expects” the city’s partners to do? (By “partners,” they mean the state, local Community Care Organizations -“CCOs”-, the County, local hospitals, health insurance providers, commercial health providers, community-based mental health providers, and other stakeholders.) Here goes:
CCOs will establish, by mid-2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. They will also immediately create addictions and mental health-focused subcommittee(s) to pursue immediate and long-term improvements to the behavioral health care system, including:
a. Increased sharing of information,
b. Creation of rapid-access clinics,
c. Enhanced access to primary care providers,
d. Expanded options to divert crisis calls to qualified civilian mental health providers as first responders,
e. Expanding and strengthening networks of Peer-Mediated services to develop a referral guide and expand peer services including peer guides to work in emergency rooms,
f. Pursuing tele-psychiatry.
To sum up, the USDOJ-Portland Settlement Agreement is really two related agreements. The part about police policies and practices is enforceable. The part about adequate community mental health services is aspirational. Both parties acknowledge that the aspirational parts are necessary for the enforceable parts to achieve their goal. One wonders if the Governor, legislature and CCOs understood that in embarking upon mental health integration as a part of health care reform, they were becoming a key component for civil rights protection.
A guest blog from the National Disability Rights Network about its Subminimum Wage Complaint Initiative.
Washington D.C. (August 29, 2014)-- Labor Day is a time for Americans to reflect on the centuries long struggle to achieve rights and protections for American laborers. While we celebrate the creation of laws that protect the rights of American workers, for one group of workers - individuals with disabilities, the struggle for fair compensation and employment rights continues. It is time to take a stand.
While employees’ rights are protected by various laws and authorities, workers with disabilities remain subject to antiquated labor laws dating to the 1930s. Under a legal provision in section 14(c) of the federal Fair Labor Standards Act, employers can obtain permission to pay certain individuals with disabilities less than the minimum $7.25 an hour (most other American workers have the right to receive). Employees with disabilities paid under this law may work for janitorial services, in restaurants and small retail operations, or engage in light manufacturing or production work, such as putting together packs of coffee and teas for use in hotel guest rooms. The next time you drink coffee in your hotel room, be concerned that a worker making well below minimum wage an hour may have packaged the coffee and supplies.
The Wage and Hour Complaint Initiative
In July of 2014 the National Disability Rights Network (NDRN), working with its member Protection and Advocacy (P&A) network which exists in every state and territory and includes DRO, launched a new initiative to end the exploitation of people with disabilities in subminimum wage and segregated work settings. Segregated work and subminimum wages negatively impact the productivity, success, and well-being of people with disabilities. These undesirable employment alternatives reinforce poverty, dependence on benefits, and are contrary to national disability policy which seeks to integrate individuals with disabilities as full members of society.
Section 14(c) of the Fair Labor Standards Act, originally passed in 1938, encourages lower expectations for individuals with disabilities in the workforce by allowing them to be paid wages less than the federal minimum wage. The subminimum wage law is the product of work conditions and attitudes towards individuals with disabilities which existed decades ago, and does not reflect the tremendous economic and technical advances in the U.S., and the changes in policy towards the inclusion of individuals with disabilities in society. U.S. Department of Labor records indicate that as of November 2013, over 3,045 employers held federal certificates allowing them to pay workers with disabilities a subminimum wage. Similar provisions in state-enacted minimum wage laws also allow for payment of wages less than state minimum wages.
An analysis of wage information obtained recently by a P&A from the U.S. Department of Labor about employers possessing 14(c) certificates is revealing. For the 37 employers in the P&A’s state for whom the Department of Labor provided wage data on certificates granting authority to pay less than minimum wage to people with disabilities, 23% of employees with disabilities are certified to receive less than $1 an hour, while 66% may receive less than half of the federal minimum wage, or less than $3.62 an hour. Some employees with disabilities may receive wages as low as $.01 an hour. The General Accountability Office reported similar results in 2001, finding 23% of workers paid under federal subminimum wage certificates made less than $1 an hour.
P&A Activity on Subminimum Wages
As part of the 14(c) wage and hour complaint initiative, NDRN encourages Protection and Advocacy agencies to file complaints with the U.S. Department of Labor for violations of section 14(c), or their state department of labor for any violations of state subminimum wage laws. P&A’s will also continue to monitor subminimum wage employers, seek remedies for any violation of subminimum wage and other wage and hour laws, advocate for Employment First statues and policies, and work with state agencies to encourage supported employment and reduce support of sheltered workshops.
A P&A recently filed a complaint with the U.S. Department of Labor against an employer the P&A believes failed to keep wage and hour records on the payment of subminimum wages to workers with disabilities as required under federal law. Several other P&As are looking at issues with state wage laws that impact the payment of subminimum wages to individuals with disabilities. NDRN hopes to complete a report within a year describing the advocacy of the P&As on subminimum wage issues.
Abuses of Subminimum Wage Workers with Disabilities
In 2009, widespread abuse of 21 men with intellectual disabilities was uncovered in Atalissa, Iowa. The men were employed and housed by Henry’s Turkey Service, an employer with an expired Department of Labor subminimum wage certificate, and paid $65 a month despite working 40 hours or more a week eviscerating turkeys. The decades long exploitation of these men resulted in two successful lawsuits for violations of the federal Fair Labor Standards Act and the Americans with Disabilities Act (for a recent article on this case, see Dan Barry, NEW YORK TIMES, The ‘Boys’ in the Bunkhouse, March 9, 2014). The years of abuse by Henry’s Turkey Service highlights the need for vigilance in the enforcement of labor laws which impact workers with disabilities.
According to a report by Halle Stockton at Public Source, a Pittsburgh based independent news group, in fiscal year 2013 the Department of Labor conducted 250 investigations of employers with a 14(c) certificate, and found that employees were owed nearly $1.4 million in back wages. In Pennsylvania according to Public Source, the Department of Labor conducted 29 investigations of employers with 14(c) certificates during a four year period and required organizations to pay $118,000 in back wages.
As you celebrate on Labor Day the great benefits coming from American labor ingenuity and the legal protections created by the labor movement, remember the thousands of Americans with disabilities who do not fully share the same rights. If you know of possible violations of wage and hour laws involving the payment of subminimum wages to a worker with a disability, contact Disability Rights Oregon or the P&A organization in your state.
Jul 22, 2014
Almost a quarter century later, the fight for equal rights and freedom from segregation continues.
This Saturday (July 26) marks the 24th anniversary of The Americans with Disabilities Act (ADA). In some ways, the ceremonial signing of the ADA marked the culmination of decades of advocacy to secure equal rights for people with disabilities. In other ways, it was just the beginning.
Passing a law does not automatically change pre-conceived notions of other people’s ability or worth. Economic interests in maintaining segregated environments may fight to maintain their prerogatives. Courts that are sensitive to business interests may interpret laws narrowly to limit their benefit to disabled workers. Governments that are more sensitive to public prejudice and publically-funded employees than to civil rights may be slow to act.
That is why, 24 years after the ADA became law, we are still in the thick of the fight to eliminate discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. As we do so, the stated goals of the ADA remain our vision: equality of opportunity, full participation, independent living and economic self-sufficiency.
This is a battle for all Americans and for like-minded people around the globe. The concept of “reasonable accommodation” is important for all people, not just individuals with disabilities. There may be people whose abilities perfectly match societal norms, but they are rare. Most of us need some small change in environment, policies or practices in order to function in life. Simple, individualized modifications (like alternations to a suit off the rack) let us all be more productive, involved and satisfied. The ADA is American to the core: it increases social benefit through honoring individuality.
As we near a quarter century of work to make the promise of the ADA a reality, let us rededicate ourselves to evolving our society to one that truly provides equal opportunity, access and choice.
Jun 18, 2014
The Civil Rights Act of 1964 and the Olmstead case are having anniversaries. We remember these milestones in the journey away from segregation.
The summer is beginning and it’s time to celebrate! But not just for that well-earned vacation or moments in the sun.
July 2 marks the 50th anniversary of the enactment of the Civil Rights Act of 1964. The Act bans discrimination based on race, color, religion, sex, or national origin in employment, public accommodations, and voting. The voting provisions require equal treatment but do not prohibit attempts to limit voting by imposing voting qualifications in addition to citizenship. The Voting Rights Act of 1965 eliminated most voting qualifications beyond citizenship.
June 22 marks the 15th anniversary of the U.S. Supreme Court’s decision Olmstead v. L.C. This landmark case found that unnecessary institutionalization violates the Americans with Disabilities Act (ADA).
Two women, Lois Curtis and Elaine Wilson, had been voluntarily admitted Georgia Regional Hospital in Atlanta and diagnosed as having a psychiatric condition and an intellectual disability. When the hospital found them ready for discharge, both were denied an appropriate community placement. They sued, contending that the ADA prohibited Georgia providing them only services that unnecessarily isolated them from nondisabled people in their communities.
On June 22, 1999, the Court agreed with Lois and Elaine. It held that ADA prohibits a state from offering only institution-based services to a person who is determined to be appropriate for community services, wants community services, and can be reasonably accommodated, taking into account public resources
“Unjustified isolation,” Justice Ginsburg wrote, “is properly regarded as discrimination based on disability.”
The court was very clear in saying that it was not deciding whether institutions are good or bad in general or for any specific person. It found, however, that if a state does not have an “effectively working plan” that allows people to move out of institutions at a reasonable speed, it is guilty of discrimination under the ADA.
Scholars have noted that the Civil Rights Act of 1964 created the conceptual structure for the ADA. Both prohibit employment discrimination by private employers and discrimination in public accommodations. The Olmstead decision, recognizing that segregation constitutes a civil rights violation, draws directly from earlier civil rights cases and laws.
And so lift a glass to these two anniversaries that are so important to the right of citizens to live together in the world.
May 07, 2014
At last, things are getting interesting here at the DRO Blog. Please read this and the last two blog entries and join the discussion! Your comments are welcome. (Part 3 in a series).
Let’s pretend that a group was formed during the height of the civil rights movement in the 1960s and the group decided to call itself “The Voice of the Negro.” Let’s say the group was made up of white people and a few black folks that work for them. And, finally, let’s say that their main goal was to keep segregated lunch counters in business.
Now I could imagine that such a group would claim that their desire was to protect black people’s right to choose black-only, segregated lunch counters. They might also argue that civil rights laws that prohibit discrimination also guarantee black people the right to choose such segregated lunch counters. And finally, they might go to court to assert that enforcement of civil rights laws would take away the right of black people to use black-only lunch counters.
Back here in the real world, the organization “VOR” sent me a letter that says: “Contrary to your claim, VOR has never supported only ‘institutionalization.’” To be precise, this is what I wrote: “VOR argues that it is fighting for ‘choice’. That ‘choice’, of course, is to be put in an institution… VOR is closely allied with those whose livelihood and profit come from running institutions and segregated work settings.” What I was getting at is that the choice that VOR promotes is like that of the imaginary civil rights group: the right to choose segregation.
The VOR letter and its cited “Policy and Position Statement,” clearly demonstrate that their driving force is to keep segregated, institutional settings as the dominant option for I/DD services. They do not suggest that other services should not exist, just that they should be secondary in nature, funded only if resources are left over after the segregated settings are fully supported.
Like my fictional group, VOR claims that anti-discrimination laws (in this case, the ADA Olmstead case) create a right to be segregated. Olmstead, of course, does nothing of the kind. It says that if a person with disabilities is receiving governmental services, s/he has the right to receive them in the most integrated, appropriate setting. Neither Olmstead nor other parts of the ADA create an entitlement to human services. The ADA assures equal access to available services. Olmstead prohibits unnecessary and unwanted segregation when receiving available services.
The VOR Policy and Position Statement calls for a “full array of high quality residential and other support options” including institutions. That sounds reasonable, even admirable. But, tellingly, it then describes community-based settings as having “poorly trained staff and inadequate health and safety measures in place” and claims that people with IDD “living at home or in other community settings often experience the same problems with poor care”. It doesn’t mention any problems or concerns with institutional settings.
DRO is very familiar with problems in institutions and the community. None are acceptable. We know that people need to consider various perspectives and have good information, quality options and unbiased advice when making choices. The VOR Policy and Position Statement, however, says that it “opposes efforts to remove guardianship from people with I/DD based on disagreements over the type or quality of care with government agencies, service providers, or advocates.” Concern about the views of the person with I/DD or the actual quality of care a person is receiving are not mentioned. VOR’s concern appears to be about WHO decides, not whether the decision is good, bad or indifferent.
My imaginary group, The Voice of the Negro, would have similarly changed its name to “VON” to address public appearance. Like VOR, VON is not a word and most people would assume it to be an acronym. This alteration would hide (but not change) the organization’s purpose of defending segregation.
A national group that came under criticism in this blog has asked that we publish their response. Here it is, in full. My comments will follow. (Part 2 in a series)
Dear Mr. Joondeph,
On behalf of VOR, I am writing to request that you publish this letter as a correction to your mischaracterizations of VOR in your recent blog, “Values of ADA Under Attack.”
VOR is a national, nonprofit organization advocating for high quality care and human rights for people with intellectual and developmental disabilities. We represent primarily individuals with I/DD and their families, receiving nearly all our support (more than 95%) from private contributions; we receive no public funding.
Contrary to your claim, VOR has never supported only “institutionalization.” For 30 years, VOR has consistently championed true person-centered services (support, care, residential, employment and education) based on individual choice and need [see, VOR Policy and Position Statements].
The Supreme Court recognized this in its landmark Olmstead decision, quoting VOR’s Amicus Curiae brief in support of plaintiffs Ms. Curtis and Ms. Wilson:
"As already observed [by the majority], the ADA [Americans with Disabilities Act] is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk . . . 'Each disabled person is entitled to treatment in the most integrated setting possible for that person - recognizing on a case-by-case basis, that setting may be an institution' [quoting VOR's Amici Curiae brief]." Olmstead v. L.C., 527 U.S. 581, 605 (1991)
Thus, it is unclear how you determined that VOR supports only institutional care. In our view, support for only community-based care or competitive employment, curtails the rights of individuals to choose and receive support that best meets their needs. Likewise, institutionalizing everyone would be an absurd and harmful policy, as well as a violation of individual rights. For this very reason, the Supreme Court urged balance, recognizing in Olmstead (interpreting the ADA) that while community integration is preferred for most individuals, some individuals have needs that are so great that they require facility-based care, leaving the ultimate decision of whether to leave a facility with the individual and his/her family/legal guardians.
I have two sons who have profound intellectual and physical disabilities. They have never been “institutionalized.” They presently live in the same small home where they receive care and support. Before that, they lived at home with me and our family. For at least a decade, I have been involved in VOR as a member, State Coordinator, Board Member, and most recently, as First Vice President. My involvement is motivated by VOR’s support for a full array of services and residential options to meet individual needs and choice, and VOR’s respect for individual and family decision-making, something that no other national advocacy organization supports.
Finally, VOR’s name is no longer “Voice of the Retarded.” We officially changed our name several years ago. Like The Arc (formerly, “Association for Retarded Citizens”), we are now simply called VOR.
Mr. Joondeph, thank you in advance for publishing this correction. I look forward to hearing back from you at firstname.lastname@example.org.
VOR First President and Board Member
Chair, VOR Issues Oversight Committee
Jan 23, 2014
Filed on January 25, 2012, the case asserts the right of 2700 Oregonians with I/DD who are segregated in sheltered workshops to choose employment services in the most appropriate integrated setting.
This Saturday marks two years since the filing of the Lane v. Kitzhaber case.
The lawsuit was brought on behalf of 2700 individuals with intellectual disabilities who receive services in sheltered workshops who have not been offered a real opportunity to choose integrated, supported employment services in the community.
Those individuals are asserting their right under the "integration mandate" of the ADA to choose employment services in the least segregated, appropriate setting.
It asks the court to declare that the state is violating the ADA and Rehabilitation Act by their needless segregation of class members in sheltered workshops and failing to provide them supported employment services for which they are eligible. It also seeks an order requiring the state to provide supported employment services to all qualified class members, consistent with their individual needs.
Fifteen months after the case was filed, Governor Kitzhaber issued an Executive Order that directs state agencies to take steps to achieve “integrated employment for individuals with intellectual and developmental disabilities, consistent with their abilities and choices…” While the Order has a positive goal, it makes no promises to individuals in sheltered workshops that their rights will be honored.
The Executive Order has:
• No clear definition of supported employment
• No required minimum hours of integrated work
• No required minimum wage
• No required community integration
• No required service availability
• No required schedule of implementation
• No required effectiveness in job placement
• No required funding
There has been confusion among some in the I/DD community about what the case is seeking and how it differs from other changes driven by the Executive Order, Medicaid, rate restructuring and legislative funding. Some go so far as to mistakenly claim that the intent of Lane v. Kitzhaber is to deny choice of services to individuals with I/DD. In fact, the case was filed because individuals with I/DD have been denied the meaningful choice of employment services in Oregon for years.
Lane v. Kitzhaber does not ask for an order that sheltered workshops be closed or that individuals be denied funding or supports. It does ask that the right of individuals to receive employment services in the most appropriate integrated setting be honored by the state.
Trial of the case is now scheduled for July, 2015.
Dec 17, 2013
People with mental illness are the latest target for a Congressman who wants to defund advocacy services and peer services and replace them with forced treatment. For almost 30 years, DRO has fought for better hospital care and more community services. Let your member of Congress know why the voice of service recipients should not be silenced.
DRO is a strong voice for the rights and safety of Oregonians with mental health diagnoses. For 27 years, thanks to funding from the federal PAIMI Act, we have worked closely with consumer/survivor/ex-patient groups and individuals, advocacy groups such as NAMI, MHAO, OFSN and others, to promote safe and effective inpatient services and quality community mental health supports and services. DRO has stood up to communities that have wanted to exclude people with mental health backgrounds from their neighborhoods. We have fought for improved community placements, adequate services in jails and prisons, humane police practices, timely crisis services, expanded services for children and families, and much more.
I am saddened to report that at least one member of Congress wants to silence our voice. Rep. Tim Murphy of Pennsylvania as introduced a bill that would slash DRO’s PAIMI funding by 85%. The bill is ironically called “The Helping Families in Mental Health Crisis Act” or HR 3717. Rep. Murphy contends that taking away advocacy for the desires and aspirations of recipients of mental health services will improve their lives. Our experience in Oregon shows us that nothing could be further from the truth.
People deemed to have a mental illness are often used as convenient scapegoats for social fears. Rep. Murphy has chosen to blame gun violence on those least able to defend themselves and to take away voluntary, evidence-based services and family supports that lead to recovery. In its place, the bill would heavily encourage the use of force and coercion that has been shown to be costly and ineffective. It also seeks to eliminate the voice of those who would be subjected to these misguided practices.
Help DRO to promote safe and effective adult mental health services, housing opportunities, integration of health and mental health services, child, family and preventative services, employment opportunities and peer supports. Say no to a false connection between mental illness and violence. (Study after study shows that no such connection exists. In fact, individuals with mental illnesses are 11 times more likely to be victims of violence than the general public.) Help Oregon to build on our successes, not our fears.
Please contact your representative in Congress and tell them NOT to co-sponsor HR 3717.
Sep 23, 2013
What do cell phones, flamers, Congress and I have in common?
A video is going around the internet of a comedian on a late night talk
show who explains why he doesn't want his kid to have a cell phone. He
says that when a kid tells someone else that she is fat, the kid sees
the painful reaction. But with a text, the kid only feels the
satisfaction of an act of cruelty, not the effect on the other person.
This reminded me of my own grade school experience that, yes folks, happened long before the internet was a gleam in some engineer's eye. A friend of mine convinced me that it would be fun to write an anonymous, obscene and insulting letter to a teacher we didn't like. We had a great time writing it, filling the word bomb with as much invective and ridiculous imagery as our pre-adolescent minds could muster. I don't know what we expected to happen next: perhaps some cartoonish burst of impotent anger and demands to get to the bottom of the outrage. Instead, the teacher took the next week off and we never heard mention of the letter.
My friend and I never talked about it after that. We knew we had to lay low. But when I heard that the teacher had taken time off, I had my first realization that the letter might upset a real person, not just some cardboard cutout of an authority figure. It was only much later that I could grasp that this upset may have come not from being insulted but from having to witness the unfettered cruelty of children. As for me, my feelings turned from the excitement of danger and transgression to a vague sense of shame at not only my callousness but also my cowardliness in the face of authority and my lack of integrity in acquiescing to my friend's plan.
Like the kid with the cell phone, I did not have to deliver my message face-to-face. I did not get to see a reaction. I did, however, know the teacher and was close enough to measure the impact of our attack. Perhaps my friend and I had a broader plea to send to teachers, asking to be treated better. Maybe we vaguely thought our plea justified the collateral damage of this one teacher's feelings. No, that is adult thinking.
When I read the venom of anonymous web site commentators and watch fellow citizens demand that people they don't know be rounded up and deported, denied food, cut off from medical care, excluded from decent schooling and the voting booth, I wonder if these jibes and demands are meant to apply to people the angry folks actually know. Is this "tough love" or "tough luck?" It's harder to bring hardship upon a friend than on a thousand strangers. Like the kid who doesn't have access to a cell phone, at least the tough guy has seen his friend's reaction. And like for me and my boyhood friend, maybe that sight holds a lesson.
Aug 30, 2013
Guest blog from Virginia Knowlton Marcus, the Executive Director of Maryland Disability Law Center
Originally published in the Maryland Daily Record, August 23rd, 2013.
The U.S. Senate hit a new low on Dec. 4, 2012, when 89-year-old Bob Dole, disabled war veteran and former Republican leader, was wheeled into the chamber to urge passage of the U.N. Convention on the Rights of Persons with Disabilities (CRPD), only to have it fall five votes short of the requisite two-thirds majority. Disability advocates, who had worked relentlessly to line up the necessary votes, watched in utter dismay as the coordinated misinformation campaign led by former Sen. Rick Santorum culminated in the shocking derailment of the CRPD.
The outcry was widespread and immediate:
“How those senators could look individuals who are disabled, whether by war, birth or accident, in the eye and justify their position is a mystery” (Washington Post).
“The Senate’s failure to ratify the UN Disability Treaty is a shame” (New York Times).
“The country had a solid opportunity to reclaim a position of leadership and moral authority in the world, and it lost it because of a misguided paranoia of a conservative minority” (U.S. News & World Report).
Then-Sen. John Kerry, who as chairman of the Foreign Relations Committee had successfully shepherded the treaty to the Senate floor, said: “This is one of the saddest days I’ve seen in almost 28 years in the Senate, and it needs to be a wake-up call about a broken institution that’s letting down the American people.”
This fight is not over. As CRPD supporter Sen. John McCain said after the December vote: “There are too many Americans and too many veterans’ organizations and too many people who are committed to this cause, that over time we may have every chance and every opportunity to succeed.”
With the world watching — including the 133 nations that have already ratified the CRPD — disability rights advocates, accustomed to adversity and long odds, are pressing for another vote on ratification when Congress reconvenes.
The first comprehensive human rights treaty of the 21st century, the CRPD was adopted by the United Nations General Assembly on Dec. 13, 2006. The fastest-negotiated human rights treaty in history, the CRPD received 82 signatories on the day it opened for signature — the highest number ever for a U.N. convention.
The CRPD is inspired by and modeled after the Americans with Disabilities Act, the landmark bipartisan framework signed into law by President George H.W. Bush on July 26, 1990. The CRPD sets forth the rights of people with disabilities and obligations of “States parties” to ensure those rights. It also establishes the Committee on the Rights of Persons with Disabilities to monitor and the Conference of States Parties to consider matters regarding its implementation.
This international treaty that identifies disability rights as human rights is the product of decades of work to create awareness and change attitudinal barriers that are holding the hundreds of millions of people with disabilities back from achieving their full potential. It is aimed at moving our societies away from considering people with disabilities as needing pity, protection or medical treatment toward recognizing people with disabilities as capable individuals with rights and abilities to make decisions and contribute meaningfully to society.
An all-star team of U.S. disability advocates was involved in the treaty’s development, yet U.S. leadership has notoriously lapsed in the face of this momentous opportunity, another casualty of the current political dysfunction — so far.
Last year, as the CRPD moved from Foreign Relations toward a vote before the Senate, false claims about the treaty’s impact on parents that homeschool their children created a tidal wave of opposition in conservative areas. The disability community was caught off guard and unprepared in the short run to counter the spreading fallacy and deluge of constituent contacts from homeschool educators that blanketed the Senate and caused a wavering of tenuous support, despite the fact that the CRPD does not affect these parents’ rights.
Other arguments in opposition to the treaty are similarly unfounded and largely addressed by the Reservations, Understandings and Declarations that accompany the treaty package before the Senate. The CRPD does not impinge upon U.S. sovereignty, create new opportunities for lawsuits or put a U.N. committee in charge of U.S. law.
Any guidance provided by the CRPD Committee and Conference is nonbinding; these bodies cannot compel the U.S. to take any action or change its laws. The Federalism Reservation explicitly provides that the CRPD cannot impact state laws, and pursuant to the “non-self-executing” declaration, the treaty’s provisions cannot, absent implementing legislation, be enforced in courts.
In fact, to the chagrin of those who take exception to U.S. exceptionalism, it has repeatedly been explained — very recently, in a statement issued by Secretary of State Kerry — that the purpose of the treaty is not to change U.S. behavior, but rather, to help other countries become more like us. Ratification and U.S. participation will help ensure humane treatment for people with disabilities abroad who languish in grossly substandard conditions and teach the benefits of an inclusive society.
Ratifying the CRPD is essential to asserting U.S. leadership and values, promoting equality of access and opportunity and advancing the inclusion of people with disabilities worldwide. It will protect Americans overseas, as people with disabilities and their families will be able to work, study and travel abroad assured of accessibility and dignity.
Some 660 veterans, disability and other domestic organizations support ratification of the CRPD, including business groups such as the U.S. Chamber of Commerce. The treaty will help create markets as other nations rise to U.S. standards, and we will benefit from increased entrepreneurial opportunities.
In his recent speech before the Disabled American Veterans’ convention, President Obama stated: “We’re going to keep fighting to ratify that treaty because the United States has always been a leader for the rights of the disabled. … It’s the right thing to do. We need to get it done.”
Ratification would reaffirm disability rights as a U.S. priority and re-establish our influence, leadership and credibility. A strong U.S. will not avoid the call to lead the global community of nations on human rights. Our ratification of the CRPD and ongoing leadership is crucial to eradicating disability discrimination worldwide.
Jul 24, 2013
A summary of major disability-related budgets passed by the 2013 Oregon legislature. Overall, a positive revenue projection, federal approval of the "K Plan", renewal of the hospital/nursing home tax, money from the Affordable Care Act and some PERS reforms allowed deep cuts from previous sessions to be addressed.
Addictions and Mental Health
Addictions and Mental Health (AMH) got a
total 18.4 percent increase from the 2011-2013 budget. Plus, the Affordable Care Act expansion is
expected to free up an additional $45 million in General Fund in this
budget, which can be used to expand services. The overall state mental health
budget, when you add money that goes to the Oregon Health Plan and the AMH, is
now over $1 Billion!
The Blue Mountain Recovery Center in Pendleton is slated to close on January 1, 2014. There is a reduction of $9.7 million in funding for non-direct care and administration at OSH, closing one geropsychiatric ward (an $8.8 million saving), restructuring OSH pharmacy operations (a $3.0 million saving), and $7 million reduction in overtime and non-direct care staffing costs.
Senate Bill 5507 allows up to $79,401,530 to be spent to continue building the Junction City campus of OSH. In addition, operating costs for Junction City are provided for the last three months of the 2013-15 biennium. The legislature claims that when you figure in the closure of PMRC and POSH, the switch to Junction City will only cost an additional $2.7 million in state General Fund.
The community mental health system got $26.6
million more than necessary to continue the current service level. Part of this will pay for three residential treatment homes in
Pendleton, on the site of the Eastern Oregon Training Center
(EOTC). These homes are scheduled to
open by January 1, 2014 and provide about 40 jobs.
An additional $21.8 million General Fund was approved for the expansion of children’s mental health services. This includes $1.8 million for the Early Assessment and Support Alliance (EASA) to be available statewide.
AMH plans to increase community provider rates by 2.4 percent. $4.2 million General Fund is slated for supported housing and peer delivered services, and $1.5 million is added for supported employment.
The legislature also directed DHS and OHA to create a plan for improved mental health services for seniors and people with disabilities.
DD services received $1,681,962,770 in total funds, a 15.8 percent increase over the 2011-13 budget. In addition to covering continuing service needs, it:
• Adds $1.2 million General Fund to support four additional Family to Family networks, making services available to more families across the state with a particular focus on eastern Oregon.
• As part of implementing an electronic web-based central client record and case management system, it adds $2.4 million General Fund ($4.8 million total funds).
• Adds $4.8 million General Fund ($13 million total funds) to cover roll-up costs associated a 1.25 percent wage increase for Personal Support Workers (PSW) effective April 1, 2013. The budget also includes $7.4 million General Fund ($19.9 million total funds) as a placeholder for costs that will remain indeterminate until the conclusion of collective bargaining.
• Adds $10.3 million General Fund ($25.7 million total funds) and 40 positions (26.40 FTE), for the Employment First Initiative and associated Quality Assurance efforts to carry out activities under the Governor’s Executive Order #13-04.
$29.5 million in General Fund will be used primarily to restore the six percent rate reductions taken by programs in previous years. These include group homes, specialized living, transportation, and adult foster care.
Approval of the K Plan is expected to draw down an additional $126.6 million Federal Funds for the budget.
The legislature also directed DHS to implement a
uniform needs assessment tool for individuals receiving DD services and
eliminate program wide monetary caps on brokerage consumer’s individual service
dollars. The amount of an individual's brokerage personal service budget is to
be based on needs identified through a functional needs assessment and the
individual’s goals identified through the person centered planning process.
Aging and People with Disabilities
APD received $2,425,682,990 total funds, which is 3.6 percent more than the 2011-13 budget. It includes:
• An increase of $1.6 million General Fund for research and development funding to support pilot projects to develop new approaches to long term care services.
• $9.1 million General Fund ($29.2 million total funds) to increase home and community based care rates that have been flat since July 2008.
• Funding to serve more seniors with severe mental illness in the community instead of at the more costly Oregon State Hospital, at a cost of $7.3 million General Fund ($10.7 million total funds). Another $1.9 million General Fund ($5.3 million total funds) will support community capacity needed to serve hard to place clients requiring specialized care.
• Funding for a new design and restart for the Money Follows the Person program.
DHS and OHA are directed to submit reports to the 2015 Legislature on how they have created greater access to mental health and addiction services geared to the needs of seniors and persons with disabilities.
Savings from the new K Plan will be used to increase rates, increase the in-home housing allowance to support consumers being served in their own homes, and convert the relative adult foster care program to an in-home program. A portion of the investment is also targeted for home care worker collective bargaining.
The continuation of the Long Term Care Facility Assessment allows $21.6 million General Fund to be freed up for other uses including higher reimbursement rates and outlines a strategy for helping providers reach a goal of reducing Oregon’s long term care bed capacity by 1,500 beds by the end of 2015.
OVRS received a 14.8 percent increase from the 2011-13 budget ($91,459,880 total funds of which &17,716,441 are state General Funds). The state funds are an 11.6 percent increase from the 2011-13 budget.
Centers for Independent Living received an additional $1.0 million General Fund which is expected to bring budgets for Eastern Oregon Center for Independent Living (EOCIL) and Lane Independent Living Alliance (LILA) up to minimum operating level and cover a portion of the requested increase in overall base funding to all CILs.
The Long Term Care Ombudsman received $585,488 General Fund and seven permanent positions (2.81 FTE) to support work under Senate Bill 626, which expands duties of the Long Term Care Ombudsman to advocate for residents of care facilities who have mental illness or developmental disabilities. There are about 7,600 persons living in 1,816 licensed adult foster homes and group homes in Oregon serving persons with developmental disabilities and mental illness.
The Marion County District Attorney received $200,000 General Fund to prosecute patients in OSH who assault staff.
DRO worked on a wide variety of bills this session. Here is a summary of what passed, what didn't, and what task forces were created.
Bills that Passed
Requires Oregon Health Authority to convene a committee to advise the Authority in adopting rules governing authority's on-site quality assessments of organizations that provide mental health or chemical dependency treatment. Governor signed. Effective June 13, 2013.
Revises standard for determination of whether individual is substantially limited in major life activity. Governor signed. Effective 1/1/14. This conforms state law with the federal ADA Amendments Act. The ADAAA, in essence, told courts to pay less attention to whether a person has a disability and more attention to whether a person was discriminated against on the basis of disability.
Requires Oregon Health Authority and Department of Human Services to adopt by rule, using advisory committee, uniform standards for collection of data on race, ethnicity, preferred languages and disability status in surveys and in all programs in which authority or department collects, records or reports such data.
Governor signed. Effective 6/4/13 We were able to have the bill amended to include disability.
Establishes requirements for school policies related to discipline, suspension or expulsion. Governor signed. Effective 6/4/13 Brought forward by our friends at Youth, Rights and Justice, this effectively ends "zero tolerance" policies in Oregon schools.
Adds to list of mandatory reporters for abuse of persons over 65. Governor signed. Effective June 11, 2013. Adds attorneys, dentists, optometrists and chiropractors. Also extends and expands the Elder Abuse Work Group. Adds mandate for training lawyers on elder abuse.
Allows parent or guardian of minor to file petition seeking appointment of guardian for minor as adult within 90 days before minor attains majority or such other time as court deems necessary and appropriate. Governor signed. Effective May 9, 2013. This addresses a gap that can occur when a protected person turns 18.
Removes, from health insurance coverage requirements for chemical dependency and mental or nervous conditions, exemption for treatment resulting from conviction of driving while under influence of intoxicants. Permits insured to utilize health benefit plan coverage as third party payer of costs of treatment. Governor signed. Effective June 13, 2013.
Prohibits court from considering party’s disability in determining child custody unless court finds behaviors or limitations related to party’s disability endanger or will endanger health, safety or welfare of child. Allows court to consider noncustodial parent’s disability in determining parenting time only if court finds behaviors or limitations related to noncustodial parent’s disability endanger or will endanger health, safety or welfare of child. Governor signed. Effective 1/1/14 We worked with the Oregon Law Center to amend the bill to address concerns that a parent's disability would permit them to endanger a child.
Provides that funds of person subject to protective proceeding may be used to pay reasonable fees, costs and disbursements for services related to protective proceeding. Clarifies when court approval is required for payment of fees from funds of person subject to protective proceeding. Specifies factors for court to consider in determining whether to award attorney fees in protective proceeding and in determining amount of attorney fees to award.
Prohibits reviewing court from modifying lower court decision making or denying award of attorney fees except upon finding of abuse of discretion.
Governor signed. Effective 1/1/14 This bill was brought forward by the Elder Law Section of the Oregon State Bar. Lawyers wanted more clarity about how they get paid in guardianship proceedings.
Directs State Board of Education to adopt process for by rule process to submit complaints about incidents involving use of physical restraint or seclusion in public education programs and process to investigate complaints. Directs State Board of Education to adopt by rule minimum standards for rooms used for seclusion Requires entity that has jurisdiction over public education program to submit to Superintendent of Public Instruction its annual report detailing use of physical restraint and seclusion during preceding school year and to include information about seclusion rooms. Passed House and Senate. This was DRO's top priority for the session. Now parents have a way to appeal the improper use of seclusion and restraint by their child's school. The Governor has not signed the bill but we expect him to do so.
Creates new outpatient civil commitment for individuals with mental illness. Passed House and Senate. This began as a bill to broaden the definition of who can be civilly committed. We were able to amend it to just allow a court-supervised outpatient commitment that does not involve any hospitalization. We still opposed the bill because it, in effect, allows courts to direct involuntary mental health treatment.
Expands definition of 'place of public accommodation' to include places owned or maintained by public body and services provided by public body with exceptions. Governor signed. Effective January 1, 2014. This was introduced to expand civil rights protection to parks and other publically-operated places. It may have the effect of expanding state protection against disability discrimination by local government.
Extends employee civil rights protections to interns performing work for educational purposes. Governor signed. Effective June 13, 2013. This provides the same protection against disability discrimination for interns as is presently enjoyed by employees.
Requires Oregon Health Authority to adopt standards and procedures to certify specified mental health providers to qualify for insurance reimbursement. Authorizes authority to adopt fee for such certification and for applying for such certification. Governor signed. Effective July 1, 2013.
Establishes Task Force on High School and Transition Success for Students with Disabilities. Sunsets task force on date of convening of 2015 regular session of Legislative Assembly. Passed House and Senate.
Removes sunset on use of restraint/seclusion on student in public schools. Governor signed. Effective date: 7/1/13 This was a major priority for DRO.
Prohibits public education program from purchasing, building, or using seclusion cells. Governor signed. Effective date: 4/5/13.
Creates fitness to proceed procedures for juvenile court delinquency proceedings. Passed House and Senate.
Allows student with disability to earn college credit as part of transition services. Passed House and Senate. Late in the session, this bill was amended to allow the Portland Community College to establish a public safety training facility in Columbia County without having to undergo review by the Land Use Board. Nevertheless, the disability portions survived.
Requires professional fiduciaries (people who are paid to act as a guardian) to be certified by the Center for Guardianship Certification as a "National Certified Guardian" or a "National Master Guardian." Passed House and Senate. This continues a longstanding effort to create some level of oversight for professional guardians.
Establishes pilot program to assist students with disabilities to transition to life after high school. Passed House and Senate.
Requires that parents be notified in advance of a group mental health screening of students and be permitted to opt out of the screening of their child. Governor signed. Effective January 1, 2014.
Requires Department of Human Services to develop plan for improving long term care system in Oregon. Specifies required elements of plan.
Requires department to convene committee to assist in development of plan and specifies membership of committee. Requires department to report plan to Legislative Assembly by February 1, 2015. Governor signed. Effective July 1, 2013. This bill began as mandating a plan to decrease the use of nursing homes and eliminate the right to choose a nursing home. Advocates succeeded in slowing down the planning process and not having direction on the outcome of the process.
Update of state laws regarding services for individuals with intellectual and developmental disabilities. Governor signed. Effective 4/11/13. This is a total re-write of the statutes governing DD services which were out of date. We succeeded in getting some good language included on client rights.
Adds PTSD to conditions that are appropriate for medical marijuana. Governor signed. Effective January 1, 2014.
Requires that health insurance policies cover applied behavior analysis for treatment of autism. Passed House and Senate. The bill requires coverage for screening and diagnosis of autism and medically necessary treatment for an individual who begins treatment before 9 years of age subject to certain qualifications. It also creates a Behavioral Analysis Regulatory Board.
Permits Director of Department of Consumer and Business Services to seek restitution on behalf of consumer that suffered actual damages as result of insurer’s violation of Insurance Code or breach of insurance contract or policy and to seek other equitable relief that director deems appropriate under circumstances. Governor signed.
Establishes a new civil commitment for "extremely dangerous" persons. Passed House and Senate. We worked to improve this bill and ultimately opposed it. It is designed to put people in long-term commitment who have committed violent crimes but can not be prosecuted because of psychiatric disorders.
Modernizes language in civil commitment laws. .Governor signed. Effective January 1, 2014. Puts "people-first language" in a number of statutes.
Establishes Task Force on the Delivery of Human Services. Governor signed. Effective July 1, 2013.
Authorizes health care facility, health care provider and patient to file notice of adverse health care incident with Oregon Patient Safety Commission.
Sets forth procedures by which health care facilities, health care providers and patients may engage in discussion and mediation related to adverse health care incidents. Directs commission to use information received from notices of adverse health care incidents to improve patient outcomes and reduce frequency of adverse health care incidents. Prohibits insurers from taking certain actions based on notice of adverse health care incident. Establishes Task Force on Resolution of Adverse Health Care Incidents. Directs task force to report to Legislative Assembly. Governor signed. Effective 3/18/13
Permits minor 14 years of age or older to obtain, without parental knowledge or consent, out-patient diagnosis or treatment of mental or emotional disorder or chemical dependency from professional counselors and marriage and family therapists. Governor signed. Effective 1/1/14
Requires Department of Human Services to provide adults with developmental disabilities needing comprehensive services at least three options for placement prior to initial placement or transfer, subject to exceptions. Gives adult right to choose placement option. Governor signed. Effective July 1, 2013. This was one of 4 bills brought forward by SEIU regarding DD services.
Clarifies state law regarding the use of service animals in public accommodations and state government services. Governor signed. Effective June 26, 2013. We spent lots of time on this effort to conform Oregon and federal law while maintaining existing additional rights and expanding the right to use animals in training in public accommodations and state government services.
Expands duties of Long Term Ombudsman to mental health and developmental disabilities community facilities. Passed House and Senate.
Requires Department of Human Services to assess support needs of each adult with developmental disability who is receiving comprehensive services and pay service rate to service provider that is sufficient to meet assessed support needs. Requires notice to adult and other specified persons of detailed accounting of service rate if rate changes. Requires department to conduct assessment no later than 90 days after request by specified persons based on change to support needs. Governor Signed. Effective July 1, 2013. Another SEIU bill.
Imposes on nonschool athletic teams requirements for recognizing and responding to possible concussions. Governor signed. Effective January 1, 2014. Brought forward by the Brain Injury Alliance of Oregon.
Creates Work Group on Corrections Health Care Costs. Specifies membership and duties. Requires work group to make recommendations for legislation to reduce health care costs of Department of Corrections. Governor signed. Effective June 26, 2013.
Supports adoption of State Plan for Alzheimers Disease and Related Dementias in Oregon. Signed by Speaker and President.
Bills that Died
Expands crime of assault in third degree to include, under certain circumstances, causing physical injury to person employed at state mental hospital. DRO successfully opposed the bill but the Marion County DA was given extra money to prosecute patients.
Requires Oregon Health Authority to establish system for repurposing durable medical equipment that is no longer medically appropriate for medical assistance recipients for use by other medical assistance recipients.
Modifies crimes of intimidation in first and second degree. Prohibits court from setting aside conviction for intimidation in any degree. Prohibits civil compromise of crime committed because of defendant's perception of another person's race, color, religion, sexual orientation, disability or national origin.
Includes finding of guilty except for insanity as conviction that may be expunged. A DRO bill. This was our only bill that did not receive a hearing.
Creates a State office of the Public Guardian and Conservator. DRO worked on the commission that promoted this bill. Ultimately, it failed due to cost.
Requires DHS to establish advisory committee to recommend development of general assistance program.
Funds expanded services at independent living centers.
Requires Department of Human Services to notify school district, Teacher Standards and Practices Commission and Department of Education of report of alleged abuse occurring at school. DHS agreed to meet with us to find an administrative solution. We have met but have not made progress in finding a way to assure that alleged abuse of school children is investigated.
Prohibits finding of unfitness, for purpose of terminating parental rights, based solely on emotional illness, mental illness, intellectual or developmental disability or other disability. A DRO bill that was opposed by the Oregon Department of Justice. They said that the bill was not needed because other laws do not allow discrimination. They oppose any change in the wording of the present statute.
Directs OHA to seek funds to pay for crisis intervention services and residential care for people with MI.
Requires superintendent of state mental hospital or director of facility to give notice to district attorney and counsel for defendant of court’s determination that defendant lacks substantial probability of having capacity to stand trial or that defendant is entitled to discharge. Applies only during applicable statute of limitations period for charged offense. A DRO bill that was incorporated into SB 421.
Requires superintendent of state mental hospital or director of facility to evaluate defendant for capacity to stand trial if district attorney intends to file charges against defendant after defendant is discharged by court order. A DRO bill that was incorporated into SB 421.
Authorizes court, upon finding defendant unfit to proceed by reason of incapacity, to order involuntary medication of defendant under specified conditions. The "Sell Hearing" issue prompted by the US Supreme Court case that set standards for when a person can be involuntarily medicated. It did not go forward due to technical issues but will likely re-emerge next session.
Requires Oregon Health Authority to create new programs and expand existing programs to increase capacity statewide to provide mental health services and serve individuals with mental illness.
Creates legislative Mental Health Oversight Committee. Specifies membership and duties. Requires committee to monitor implementation of and expenditures under Act and make recommendations for legislative changes. This bill failed because it relied upon an increase in the cigarette tax for funding and that increase did not pass.
Delivery of Human Services (SB 450)
Future of Public Health Services (HB 2348)
High School Transition Success for Students with Disabilities (HB 2743)
Primary and Mental Health Care (HB 2902)
Jun 15, 2013
Why is Oregon's approach to spending on mental health services like a confidence game?
I've just observed the 37th anniversary of my arrival in Oregon. It was a sunny June day in 1976 when we pulled our pickup truck into The Dalles, having driven all the way from the East Coast. After a night in a cheap motel, it was on the Portland where I would study for the Oregon Bar Exam and prepare for my first law job as a VISTA volunteer attorney in the Klamath Falls Legal Aid office.
I was thinking back to my native soil of New Jersey this week as I examined the still-developing Oregon mental health budget for 2013-15. As a teen, I would take the bus into New York and just hang out. Manhattan hadn't been neatened up back then and the streets offered lots of entertainment including the guys enticing you to play three card monte. A key to that game, for those who don't know, is the art of misdirection. The dealer gets you to pay attention to one hand while assuring your doom with the other.
So what does this have to do with Oregon and our mental health budget? Well, here in the land of "transparency," there is still a need for hard-ball politics. And here in the land of socially progressive policy, there is still a need for, well, hard-ball politics.
Consider all the hoopla that accompanied the Governor's recommendation that the coming budget include a large increase for community mental health services. Add to that the additional hoopla that surrounded a bill from the Senate President to add even more money to the community mental health coffers. Now, all this noise may have been for the benefit of the US Department of Justice that has been investigating why Oregon spends so much on its state mental hospitals compared to its community system. Or perhaps it was trading on the public's fears and remorse about the shootings in Connecticut and at Clackamas Town Center. Maybe the death of James Chasse and other death-by-police situations had caught lawmakers' attention. But whatever it was, the legislature seemed to have discovered a new enthusiasm for community mental health services.
What we haven't heard much about, either through press releases, hearings or public discussion is the legislature's quiet march to build a new state mental hospital in Junction City and to fund a new pod of group homes near the old Blue Mountain Recovery Center in Pendleton. As one long-time mental health administrator told me, no other state in the country is building new, large state hospitals. In this, Oregon appears to be unique. Other states are certainly not moving in-patient services away from their major population centers. Oregon is. Most states are working to lessen the segregation of its mental health services by moving away from the 20th century model of building big hospitals next to prisons on the outskirts of town or in rural areas where there is less public resistance. Not Oregon.
Take, for example, the plans in Pendleton. Creating a pod of group homes that are physically isolated from the town (in fact, these would be located on the site of the old Eastern Oregon Training Center) achieves the goal of segregation of mentally ill persons while cleverly leveraging federal Medicaid money by pretending that these are "community-based services." It's a perfect solution for Oregon: it avoids community resistance to having "those people" within sight, it brings a federal match for state expenditures, and it allows the state to claim that it is offering community-based residential services rather than continuing segregated institutional care.
Now that we are in the late stages of legislative budget formation, we will see whether the promises of increased funding holds up. But, at the same time, the very quiet process of approving the release of bond funding for Junction City Hospital and paying for the debt load for Oregon's new institutions is moving steadily forward. Oh, and did you know that it will cost close to $200 million dollars, vastly more than either the Governor or legislators have proposed for improved community mental health services? I bet you didn't.
So while Oregon makes lots of noise about how it wants to expand community services, the real money goes to perpetuating the segregation of people with mental health needs while paying for the jobs to build and staff new institutions. And in years ahead, those buildings will need to be maintained and there will be a strong and ongoing constituency from labor and local communities demanding that those jobs be protected and well compensated. Meanwhile, funding for community services will be subject to all the inconsistency that history has shown to plague them. It is the lack of dependability for community services that has been bemoaned for over 40 year and is generally blamed for the failings of what some call "deinstitutionalization."
But as the guy on the New York street corner of my youth would tell you, you shouldn't be looking over there. Just give me your money.
Apr 15, 2013
Empty Promises for People in Sheltered Workshops
On April 10, 2013, the Governor of Oregon issued an Executive Order on employment services for persons with intellectual and developmental disabilities. The Order comes just two weeks after the United States moved to intervene in a federal lawsuit, Lane v. Kitzhaber, that seeks to end the unnecessary segregation of persons with disabilities in sheltered workshops. While the Order tacitly acknowledges the state’s failure to provide adequate employment services over the past two decades, it also expresses a desire to have more coordinated activities between state agencies. It does little, however, to ensure that individuals with disabilities will ever be able to secure real jobs in the community or earn at least a minimum wage in an integrated employment setting.
Under the Executive Order, only 1/3 of all persons who are segregated in sheltered workshops will be provided employment services. This means that at least 1,600 individuals will have to remain in the workshops. And even for those who do receive employment services, there is no assurance that these services will be designed to enable them to ever leave the workshops, let alone to access real jobs in competitive employment settings. In fact, given Oregon’s past practice of counting individuals in sheltered workshop who receive even 1 hour a month of job counseling as getting “supported employment services”, it is possible that nine years from now, the order could result in no one leaving sheltered workshops.
The Executive Order includes no commitments about the quality, quantity, or outcomes of the employment services. Consequently, it appears unlikely to result in people with disabilities having access to typical employment settings, integrated services, or real wages. The Order also fails to address the service needs of the overwhelming majority of individuals served by the State’s system. It plans to administer employment services to only approximately 10% of the total number of people with intellectual or developmental disabilities served by the State’s day services.
Although the Order provides for “a significant reduction over time of state support of sheltered work,” it mentions no adequate or effective commitment to benchmarks, system outcomes, or re-allocating or re-distributing resources to provide individuals with disabilities access to employment services in integrated settings. In sum, the plan all but assures that the goals for delivering services to individuals in the community are advisory goals and not commitments.
The Order also considers group enclaves and mobile work crews to be “integrated employment settings,” even though people in such settings frequently do not interact with non-disabled individuals and often earn sub-minimum wages.
The Lane v. Kitzhaber class action suit and the United States’ Complaint-in-Intervention ask that Oregonians with I/DD who can and want to work in integrated employment settings have a meaningful opportunity to do so. The Governor's Executive Order stops short of giving that assurance. Instead, it sets out a policy to provide only a small fraction of the people in Oregon's employment service system with the assistance they need to achieve their goal of a real job in the community.
Mar 11, 2013
If a person with disabilities is offered to choose between an established segregated service or a poorly funded, trained or regulated integrated service, does she really have a "choice?"
The word “choice” has always been a cornerstone of disability rights consciousness. Here at DRO, our three word motto, “Opportunity, Access, Choice,” recognizes this important concept. But as the years go by, I find that the original vision expressed by the word "choice" has been co-opted by some people who tilt more toward protection than liberation and those who find it expedient and comfortable to perpetuate the status quo.
Add to that a raft of social science that has hit the best seller list demonstrating that choice can be easily manipulated. Anyone who works in advertising is probably wondering where I have been. But after quite a few government meetings discussing “opt-in” vs. “opt-out” enrollment strategies, I have gotten the message. For most of us, choices can be engineered by how the options are presented.
Advocates of large state institutions suggest that such facilities offer people with disabilities “choice” of services. In Oregon, some advocates are working to preserve the choice to live in a nursing home. In publicly-funded sectors, the right to “choose” a service that is equally (or less) effective but costs more usually results in a decrease in the total number of people who can get services. In that case, a choice is not personal, it directly affects others. But even if resources were not an issue, does an objectively inferior option truly provide the type of “choice” that disability rights advocates want?
In Sunday’s New York Times Book Review, the cover story reviews “Lean In” by Sheryl Sandberg. The book is written by a very successful businesswoman who promotes self-confidence and hard work for women who want to become powerful corporate leaders. The review includes a quote from the book that seems to be relevant beyond the corporate establishment:
For decades, we have focused on giving women the choice to work inside or outside the home … But we have to ask ourselves if we have become so focused on supporting personal choices that we’re failing to encourage women to aspire to leadership.
When DRO started investigating Oregon’s sheltered workshops, some people told me that we needed to honor the choice of those who prefer segregated services to community-based jobs. I learned that sheltered workshops are a good choice if what you want is dependability, stability and availability. After all, supported employment services in Oregon have none of those qualities.
This reminded me of the time when capable high school students of the wrong gender and color were encouraged to limit their aspirations to traditionally acceptable roles. And if this discouragement was not enough, colleges and businesses had quotas and policies that assured that few, if any, of them moved up in the social hierarchy.
And so whether you are an aspiring CEO of Facebook or a high school kid with a disability who wants to follow her dream when she graduates, choice means more than having the right to select from available alternatives. It requires encouragement, expectation, risk and real opportunity. Call it “meaningful choice.”
If a person is offered delayed access to unproven, sparsely available job training and supports, or services that may land a person in a sub-minimum wage job in an enclave for a couple of hours a week, the stability of a workshop looks pretty good. I suppose you could call that choice, but it isn't meaningful choice.
Mar 03, 2013
Not us. DRO is suffering cuts, but we know the disability rights movement remains strong. Our vision remains clear: a world that understands that people with disabilities are not "broken" and in need of fixing. Instead, our environment and attitudes are the things that need to be fixed.
I’m on a flight right now to Washington, DC for the annual meeting of directors of protection and advocacy agencies. There is a “P&A” in every state and territory as well as one on the Navaho Nation in Arizona.
It just so happens that this meeting coincides with the advent of “sequestration,” the federal government across-the-board cut in discretionary spending. Sequestration has gotten a lot of press, but it is not the only cutback happening. The federal government has been quietly tightening its belt for some time now.
For DRO, this has meant laying off six staff over the last year and not filling two vacant positions. Our staff positions have now been cut by about 1/3 over the past few years. We have had to adjust by serving less Oregonians with disabilities and focusing less on individual representation and more on individual advice and referral and legal work that may affect groups of people rather than individual cases.
DRO receives most of its funding from the federal government. Since we often bring legal actions against state and local governments, they have not seen the wisdom of providing us with resources. We do get some (much appreciated) support from the Oregon Law Foundation, but the lion’s share of state and foundation support for legal services (including court filing fees) goes to Legal Aid, which is large enough to have a well-staffed and sophisticated fundraising organization.
Despite these challenges, DRO has a very skilled and experienced staff that gets great results of our community. Whether it is legal actions, accurate and useful information, advocacy with government agencies and the legislature or investigation and prevention of abuse and neglect, DRO’s existence assures that the voice of disability rights is heard and honored in Oregon.
The disability rights movement is about much, much more than rights enforcement. It has a vision of a world that understands that people with disabilities are not "broken" and in need of fixing. Instead, our environment and attitudes are the things that need to be fixed. As a vital part of the disability community, DRO shares, communicates and applies this vision of a fully inclusive society.
There is much more to be done. Change takes time. Civil rights do not protect themselves. DRO will be here for years to come to continue our work, as part of our Oregon disability community, to have a fully accessible, safe and just society.
Jan 18, 2013
Send us your email address if you would like to receive DRO's weekly Legislative Update during the 2013 session.
The Oregon legislature is poised to begin its 2013 session. Today, I am sitting in a hearing room listening to a full day training for legislators on mental health and the criminal justice system. In the wake of the tragic shootings at Clackamas Town Center and Newtown, Connecticut, legislators are looking at better ways to keep individuals and the community safe as well as making the best use of our criminal justice and mental health resources.
DRO is participating in this discussion and is working on a number of other disability-related issues and bills. In the weeks and months ahead, we will be working on legislation to:
1. Improve communication between the state hospitals and district attorneys regarding patients who are mentally incapable to facing criminal charges,
2. Limit the transfer of seriously mental ill patients from the state hospital to jail,
3. Allow findings of guilty except for insanity for minor crimes to be expunged from a person's record,
4. Extend the law regulating seclusion and restraint of school children beyond 2017,
5. Direct schools to send seclusion and restraint reports to the state Department of Education,
6. Clarify that a person cannot lose his or her parental rights solely because of their disability,
7. Extend state law protection for the use of assistance animals to all people with disabilities,
8. Strengthen the law limiting use of seclusion or restraint on individuals with intellectual disabilities.
DRO will be involved in monitoring and commenting on many other bills affecting Oregonians with disabilities as the session moves ahead. As usual, we will send out a weekly Legislative Update during the session to our email list. If you would like to be on that distribution list, send us a request with your email address, sit back and enjoy the action!
Nov 21, 2012
Giving thanks for our community.
The Board and Staff of DRO Are Thankful for Your Belief that:
- Every Oregonian should have the opportunity to participate in society.
- No-one should be unnecessarily segregated in institutions, facilities or workshops.
- Jails and police should not be the primary social response to people in mental health crisis.
- Abuse, neglect, or victimization of vulnerable people must not be tolerated.
- A good public education should be available for all children.
- Employment at a fair wage should be attainable for all.
- Physical or mental disability should not condemn a person to poverty and dependence.
- Strong and persistent advocacy is necessary to realize these beliefs.
We Are Thankful for your support for Disability Rights Oregon!
Nov 20, 2012
It's been many years since Senator Avel Gordly asked the Department of Justice to look into shameful conditions at Oregon State Hospital. She started a series of events that no-one could have predicted and may possibly transform Oregon's behavioral health system and police services.
Back in 2004, State Senator Avel Gordly sent a letter to the U.S. Department of Justice (USDOJ). She asked that it investigate possible civil rights violations of past and current patients at the Oregon State Hospital (OSH) caused by "serious overcrowding and understaffing.” Almost two years later, the USDOJ notified Governor Kulongoski that it was initiating an investigation of conditions and practices at OSH.
Concerned about a federal take-over of the hospital, the state took major steps to improve OSH including legislative approval of $458.1 million to replace OSH with two new state hospitals, one in Salem and one in Junction City.
In January 2008, USDOJ delivered its finding to the Governor. It found that Oregon was violating the civil rights of OSH residents because of:
- Inadequate protection from harm
- Failure to provide adequate mental health care
- Inappropriate use of seclusion and restraint
- Inadequate nursing care
- Inadequate discharge planning and placement in
the most integrated setting
To this day, the state and USDOJ have not come to terms on a settlement of all these findings. State officials say that they have improved OSH without federal interference. Since they released the findings, USDOJ has told the state about its concerns that OSH patients are not getting adequate physical health care. It has also warned the state that building additional hospital beds at the expense of community services would be viewed as a problem.
Meanwhile, in 2009, President Obama launched “The Year of Community Living” in recognition of the tenth anniversary of the Supreme Court’s decision in Olmstead v. L.C. He directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. The USDOJ responded by making enforcement of Olmstead a top priority. In 2010, it announced a national initiative to investigate ADA complaints and enforce the Olmstead "integration mandate" of the ADA.
Then, in early 2011, USDOJ lawyers met with Oregon officials and community partners to renew its investigation of whether Oregon was violating Olmstead. Later that year, it also opened an investigation into the use of force by the Portland Police Bureau (PPB) against people living with mental illness.
This month, both of these investigations have been settled. The Portland settlement contains over 100 changes in policies, practices and procedures that affect police use of force, police training, access to community mental health services, crisis intervention resources, officer accountability, and community oversight. Police are to use more de-escalation techniques and less tazers, a new Crisis Intervention Team and more Mobile Crisis units will be created, and local CCOs are to create new “drop-off centers” for individuals in crisis, and new addictions and mental health-focused subcommittees to pursue long-term improvements to the behavioral health system in seven specified areas, including the expansion of peer services. The settlement also mandates improved investigation and oversight of police use of force and swifter disciplinary procedures.
The USDOJ settlement with the state also addresses crisis intervention, but affects a wider scope of mental health services. Remember that the Olmstead case says that individuals with disabilities have the right to receive public services in the least segregated setting that is appropriate to their care. In a settlement that is as unique as Oregon’s health care transformation process, USDOJ agreed to work with the state “by embedding reform in the design of the State’s health care system.”
This agreement calls for Oregon to collect statewide behavioral health data about services currently being provided in order to assess the nature of those services and the outcomes they achieve. A comprehensive list of data “metrics” are to be collected, reviewed and evaluated by the parties to identify gaps in services and how those gaps can be filled. This process will continue through 2015.
The USDOJ settlements, together with Oregon Health Care Transformation and implementation of the Affordable Care Act, offer a rare opportunity to make major reforms to how the state funds and delivers behavioral health and police services. Success will require full ongoing engagement of advocates, consumers, providers, and public officials as well as lawyers and the judiciary. We need to keep at it over the long haul. According to the agreements, if all goes well, their work will be fully completed in 2017, a mere 13 years after Senator Gordly sent her letter.
Sep 30, 2012
Recent events highlight how Oregon officials use their authority to forcibly hold and control individuals with serious mental illness. Jails, police, DAs, and hospital staff all complain that they don't have the tools to keep people safe. It's clearly time for a change.
A week ago, last Friday morning, I was sitting in a meeting of the Oregon Health Plan's Metrics and Scoring Committee. We were considering how to use data to create fiscal incentives for Community Care Organizations (CCOs) to improve public health. This is, frankly, a bit over my head, but I'm sticking with it. Oregonians with disabilities are depending on health care transformation to improve their access to medical services and to help them stay healthier in general. Finding ways to reward CCOs for doing a good job seems like, well, a good job.
While I pondered all of this, I received a text message from a reporter at Oregon Public Broadcasting. The message asked if I would be on the call-in show that day at noon. The topic was whether more nurses are needed at Oregon State Hospital. I agreed, thinking that I would say: "Yes! More nurses would be very nice."
Two hours later, when the radio show got underway, a nurse from the hospital spoke about the need for more staff. Fine. But she went to say that the patients are dangerous and that staff are unfairly hamstrung by investigations of patient abuse and by limits on how often staff can tie down and lock up patients.
I know that there are some patients that can be very challenging, and even dangerous, to staff. But I also know that these are a very small percentage of the residents. (I’ve got the data.) It seems, however, that some hospital workers cannot resist the temptation to paint all the patients as dangerous and to use this claim to excuse unprofessional and sometimes bullying conduct. The hospital superintendent (i.e. "Management") was also on the show. He sidestepped the abuse and restraint issues, saying that the hospital has enough staff but that they need more and better training.
Fast forward a few days to a report in The Oregonian (http://www.oregonlive.com/aloha/index.ssf/2012/09/oregon_state_bar_to_prosecute.html) that a district attorney and criminal defense attorney are being prosecuted for ethics violations by the Oregon State Bar. They are accused of having a mentally ill man committed to the state hospital from his jail cell using a fictional law. DRO had earlier investigated this situation because it appeared that the man had been discharged from the state hospital directly to jail where he languished for months without treatment. We wanted to know why. You can read our conclusions at: http://www.droregon.org/THE%20INCARCERATION%20OF%20DS%20-%20AN%20INVESTIGATIVE%20REPORT.pdf
It's common these days for newspaper stories to have a place for the public to comment. After this article, I noticed that a number of people thought that the mentally ill man was not entitled to any rights, treatment or safety because he was accused of murder. I also heard from a district attorney in another county who implied that it is unfair for lawyers to be held accountable for their actions when their intentions are good. The intention here, he submitted, was to keep the public safe.
In today’s Oregonian, we have a third case involving a man with mental illness who gets caught in a dangerous custodial situation. http://www.oregonlive.com/news/oregonian/steve_duin/index.ssf/2012/09/steve_duin_business_as_usual_a.html
This one involves a man who turned himself in to the authorities because there was a warrant for his arrest. He had not appeared at a hearing because he was too disorganized to get there. The authorities put him in jail and would not let him have his medications. He went into crisis and was beaten and tazered. Efforts by DRO to work with the county jail to find ways to avoid a recurrence were brushed aside. It costs too much, they said. Don’t blame us for a broken mental health system, they said. You guys threatened to sue us, they said.
These recent events - as well as the recent US Department of Justice condemnation of Portland Police tactics - lead me to a modest (or so I think) suggestion. Let’s all recognize that mental illness is, and always has been, a part of the human experience. Let’s admit that this fact will not change by improving some “mental health system” that nobody can describe. People will continue to have mental health needs and some will go into crisis for a variety of reasons. So, I think, we must be prepared to respond in the most safe and humane way.
What if health insurance and providers, public human services, schools, police, jails and unions consider how to modify their practices toward a common goal of heading off crisis and minimizing the risk of injury and trauma that comes with crisis? Oregon’s health care reform efforts are, at least, talking about this. If this conversation can expand beyond Medicaid to our public and private institutions, we could establish a coordinated approach that not only recognize the reality of mental illness but sees the human, community and fiscal benefits of minimizing the violence, trauma and stigma associated with crisis.
There is no doubt that working in a state hospital is a demanding job. The responsibility that a district attorney has to maintain public safety is not an easy burden. The same can be said for operating a county jail. While these individuals must not avoid accountability for how they use their power over others, they must also be given the tools to use their authority wisely and safely. Broad systemic reforms that reward outcomes, not defense of funding silos and special interests, are needed. More money for the "same 'ol" just ain't gonna cut it.
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