Good morning!  It’s 8:30 am and we’re back in the House Human Services Committee.

We’ve already heard consideration of bills affecting the sharing of mental health and physical health records among providers and a proposed traumatic brain injury commission.  Now, James Toews and Richard Harris from the state Department of Human Services are testifying about the financial cost of implementing HB 3618.  This bill would provide workers compensation coverage to personal support workers who serve individuals with developmental disabilities (DD) and with mental illness (MI).  Representative Freeman is leading the charge by Republicans who are concerned about the cost of enacting the bill.

 Toews testifies that this bill would add about 8,000 new workers to WC coverage who serve about 10,000 individuals.  Democratic lawmakers ask if home care is less expensive than institutional care. (Yes) They also ask why this group of workers isn’t covered by the Home Care Commission that provides WC to home care workers for seniors and people with physical disabilities.  Toews responds that the DD brokerage system was put together as a result of the Staley law suit settlement which occurred after enactment of the state ballot measure that created the Home Care Commission.   The duties of workers who are mandated by Staley have different duties than traditional home care workers.

 Rep. Olson is concerned about public access to the names of registered home care workers.  Toews says that names are controlled by existing public records law which means that most names must be released to the public.  Olson asks if the state does a criminal records check on anyone who asks for worker names.  Toews says no.  Olson asks if the state feels vulnerable as a result.  Toews says it is a matter of general concern.  Rep. Dembrow says that the question of problems with Oregon’s public records law is a matter that goes beyond this bill.  He asks Toews if he is aware of a person being victimized as a result of having his or her name released.  Toews is unaware of such an instance.

 Rep. Olson asks how this bill will interact with HB 2442 from last session.  This bill beefed up Oregon’s protective services laws and requires exclusion of workers with certain offenses on their criminal record.  Toews says more people will be excluded under the combined effects of these bills.

 Doug Riggs from Oregon Alliance of Children’s Programs testifies.  His providers will suffer a cost impact from this bill and they are already suffering financially.  He says the legislature must increase reimbursement for his programs (present funding only covers 60% of cost) if they are to survive.  OACP does not oppose the bill’s intent but does not want to absorb additional unfunded requirements.  Rep. Tomei says this is a matter for the Ways and Means Committee.  Rep. Freeman says that while the Human Services Committee is a policy committee and not a fiscal committee, it should still be concerned about costs.

 Next up is a representative from SAIF, the workers compensation provider who is asked about costs of providing coverage to the new population.  Representative Maurer takes the lead in questioning about how costs can be controlled.  Maurer notes that the state budget is $182 million in the hole according to an upcoming state revenue report.  He is concerned about “creating a monster” that will cost the state more than anticipated.  Maurer notes the difficulty of assessing claims that occur in family homes when family members are providing services.  How, he asks, does SAIF determine when an injury happens on the job or off the job?

 Questions continue about who bears the additional costs.  Toews notes that provider agencies will not bear the fiscal risk of worker comp claims.  Rep. Freeman asks if a disabled child could end up with less services if costs are taken out of money available for those services.  The answer is yes.

 The committee adjourns for ten minutes to review the bill’s fiscal impact statement.  I go plug my meter.  When I come back, the committee approves the bill on a party-line vote.  The bill will now go to the Ways and Means Committee which will determine if the state can afford to pay for it.

I'm sitting in the House Human Services Committee where the committee just heard testimony on a bill that I can't easily explain but have worked on for the last month.  If House Bill 3618 is passed, people who are hired by folks with developmental disabilities or mental illness to provide assistance in the home or community would be registered with the Home Care Commission, receive workers compensation coverage and be allowed to vote to unionize.

My job in the hearing was to explain the latest set of amendments to the bill.  I tried to make is as simple as possible but legislative eyes were glazing over.  The upshot seemed to be that the Democrats like it and the Republicans don't.  It looks like the biggest issue will be the cost of providing workers compensation coverage to the workers.

The committee is now hearing a bill that would set up the Traumatic Brain Injury Strategic Partnership Advisory Council.  Senator Morrisette and Sherry Stock from the Brain Injury Association of Oregon are leading the testimony.  Additional testimony from General Mike Caldwell of the Oregon Military Department centers on the epidemic of brain injury that has been experienced by service members coming back from Iraq and Afghanistan.  General Caldwell notes that early identification and treatment is essential.  He adds that the military has ignored the problem of TBI until recently.  Things are now changing but the number of affected veterans has overwhelmed VA services.

HB 3692 creates information and referral services and an advisory committee that reaches across all departments of state government.  Sherry notes that 80% of homeless individuals have TBI, particularly homeless veterans.  Inmates in Oregon prisons are also affected in large numbers.  About half of those with TBI acquire their injury through auto accidents.  This is why the Advisory Council would be funded from fees charged on traffic violations.

The legislature is back in action, meeting for its second "supplemental session."  Oregon, as we know, has a biennial legislature: it officially meets every two years.  Legislative leaders feel that the state would be better served if we have annual sessions.  To test this belief, a short, 2008 session was conducted to handle matters that needed immediate action.  Most folks thought it was successful.  We are now in the middle of the second trial run.

My initial hit is:  so far, not so good.  If either Ballot Measure 66 or 67 had failed, this session would have been dedicated to cutting school and human services budgets.  Having dodged that bullet, much of the effort is directed to providing relief to those badly hurt by the continuing recession and to pushing through legislation that does not appear to need immediate action, has not had thorough stakeholder participation in its development and are products of insider interests. 

Other than actions being taken to provide economic relief, much of this session seems to be given over to paying off political debts and moving pet projects of powerful interests.  Legislators seem to be willing to look the other way in this rush to judgment while a large number of bills with emergency clauses (this means they become law immediately upon enactment rather than waiting the usual six month period) get pushed through.  Some say: "If there's a problem, we'll fix it in 2011."

I remember that the original argument in favor of annual sessions was that the legislature needed more time to carefully deliberate about important policy matters and proposed legislation.  This 2010 session is proving just the opposite.  I'm seeing less deliberation and more insider dealing. 

As a lawyer, I must attend 45 hours of “continuing legal education” every three years.  This requirement is administered by the Oregon State Bar.  It divides Oregon's legal community into three groups so that, each  year, about about one third of my colleagues get a slight look of distraction in their eyes because it is their “reporting year.”  This may be an exaggeration on my part; many lawyers are methodical people who regularly attend seminars over their three year reporting period.  But every autumn, some, like me, embark upon a couple of months (for some, weeks; for others, days) of cramming in order to satisfy our licensing requirement.  And yes, this is my reporting year.

So I’ve been doing some freshening up in my primary practice areas of health law, disability law, elder law and nonprofit law.  Part of the fun of doing this is when a presenter talks about new legislation in their field that I had a hand in moving through the legislature.  It’s a good reminder that most laws are created by a small number of people hashing things out in the Capitol in an effort to solve a problem.  How a new law will actually work in the real world is hard to fully predict.  Sometimes it will be the lawyers and judges in the room who are charged with implementing things that seemed to make sense by us advocates and lobbyists.  Sometimes they are not happy about it.

A couple of examples came up today in a seminar on guardianship.  The 2009 legislature passed Senate Bill 16 that allows advance directives for health care to be used to admit a person to a psychiatric ward for treatment of behavior caused by dementia.  Lawmakers also passed House Bill 2137 that allows the Department of Human Services to seek a guardianship for any person it believes needs a guardian to protect her from abuse.  DHS is also permitted to release otherwise confidential information to the court when it seeks a guardianship.

On the advance directive bill, a speaker commented that many users of this document would be shocked to learn that they could be slapped into a psych ward because they had signed something they thought was about end of life decisions.  On the guardianship bill, a speaker said that some judges and court clerks had complained about provisions requiring files to be sealed to maintain privacy.

Maybe they have good points, maybe not.  (I agree with the first critique and am not surprised by the second - any bill that requires someone to do something that they didn't have to do before is likely to annoy them.)  Whatever the merits, these seminars help to publicly raise issues that can be sorted out in legislative sessions to come.  In the case of the advance directive, there is already a work group slated to study how to proceed. 

Some critics of government think that legislatures meet too often and only make mischief.  I'm of the view that citizens should be in constant conversation about our mutually-agreed rules.  There should be ample opportunity to adjust, fine-tune and correct as we go.  In doing so, we have our best shot at self-government, rather than having rules that are ignored or unjustly enforced.  And even, I suppose, if I have to listen up as I scrape together my 45 continuing legal education credits by December 31.

Creating Oregon's advance directive for health care in1989 was one of the first issues I worked on in the Oregon legislature.  My role was to assure protection of people with disabilities and mental illness in "surrogate decision-making."  The bill finally passed after many, many hearings, some contentious and emotional. 

Talking about death in public, I learned, is not an easy thing.

Four years later, Disability Rights Oregon (then Oregon Advocacy Center) played a central role in drafting a bill to create an advance directive for psychiatric care.  This bill did not touch upon end-of-life decision-making, yet fears still ran high among many consumers of mental health services that an advance directive would be used to force them into treatment and institutionalization.  Many, many safeguards were put into place to allay those fears.

Since then, I've followed discussions and studies about advance directives.  In Oregon, psychiatric advance directives are hardly ever used because doctors won't accept them.  Nationally, doctors accept health care directives less than half the time.  Studies show that white, middle and upper-middle class people are far more likely to use advance directives.  One explanation is that minority and low-income individuals are less likely to trust doctors to treat them fairly and are more likely (particularly immigrants) to believe in miracle cures.

I'm sure you know where this is leading: to the present health insurance reform debate.  I'm not going to talk about the "death panel" thing.  What more can one say?  I'm more interested in the trust thing.  Why are so many people convinced that expanding health coverage through government action is a scary proposition?  Many of these folks must have had the experience of being turned down for coverage or payment by their private insurer.  Most must have had a friend or family member denied.  Why are they not upset about that?

Perhaps one answer hearkens back to those studies of advance directive usage.  Remember that minorities and low-income folks are less trusting of professionals who they feel may devalue them.  But what if the tables were turned?  What if the main proponent for changing how health decisions are funded is an African-American with a Harvard education?  Private insurance companies, in contrast, seem to have no ethnic identities or motives other than making money.  Does health insurance reform seem like just one more threat to people who are used to being in the majority but whose complacency is being eroded by increased national diversity?

People with disabilities have always been concerned that their lives are devalued by medical personnel.  The evidence to support this fear is plentiful.  In an earlier posting, I discussed the work of philosopher Peter Singer and his proposal to treat a quadriplegic's life as half as valuable as an able-bodied person's life.  (Consider the similarity with the US Constitution that originally designated slaves as 3/5 of a human being.)  The demand of any minority population is not to be judged according to standards that dismiss its equal value.  Perhaps the demand of a majority population is to retain its perceived  advantage.

Advance directives are specifically designed to give people more personal choice in how decisions are made about their health care.  But many people who came to the legislature back in the day thought that directives would do just the opposite.  In the health insurance debate, some people feel that having more choices of coverage will eventually take away their choices.  In both cases, some feel that being given a choice means that one's choice may be coerced.  They may feel that it is better to leave these decisions to some other realm.  But that is also a choice.

It took over 10 years to get a mental health parity bill through the Oregon legislature.  But it happened. 

In 2005, Gov. Kulongoski signed into law Senate Bill 1, which said that beginning on January 1, 2007 state-regulated group health insurance policies must cover mental health and chemical dependency treatment at the same level as physical health services.  

In the years leading up to the parity law, private insurers and business interests insisted that it would cause insurance rates to skyrocket, leaving business owners no choice but to drop all insurance coverage for their employees. Advocates countered that parity would in fact save money. 

How so? Because untreated mental illness and addictions result in physical health ailments, parity advocates predicted that providing treatment in a timely manner, before costly hospitalization became necessary, would be cost-effective.

Who was right?  Although it might be too soon to say for sure, a recent report from the Oregon Department of Consumer and Business Services is making the advocates look pretty good.

The report compares claims from 2006 (before parity) and 2008.  The data show that claims for outpatient mental health visits went up 17.9% while claims for inpatient mental health treatment went down 6.2% and claims for residential mental health went down 30%.  Claims for both outpatient and residential chemical dependency treatment went up but had very little impact on the overall cost of health insurance. 

According to the report, “there appears to be relatively little impact to total healthcare claims costs.  Mental health costs remained at a little over 3.1% of insurers’ total healthcare claims costs, and insureds actually saw a small decrease in the relative percentage of overall costs attributable to mental health claims.”

So the data show more outpatient visits, fewer hospitalizations and cost neutrality.  Yay, advocates!  The fears promoted by businesses and the insurance industry have, so far, proved baseless.  This is a good example for us as the broader health insurance reform debate rages on.

The 2009 version of the Oregon legislature finished business last night with a flurry of activity.  It was a characteristic end to a hard-working and productive session.  However, a quick glance at the newspapers reaffirmed my expectation that the big story would be increased taxes.  Despite the fact that the legislature made $2 billion in cuts from projected service levels, the lead stories in the Oregonian only mentioned the last-minute reduction of $11.5 million from higher education. 

The fact is, we will see significant cuts in services that Oregonians with disabilities and their families depend upon.  But it will be hard to tell that story amid the tumult of the tax debate and the inevitable ballot measures designed to wipe out the new revenue and bolster the political fortunes of their proponents.

Back in 2003, the legislature took a different approach.  It decided to decimate human services budgets in order to avoid tax reform or tax increases.  About 100,000 Oregonians lost their health insurance, the infrastructure for delivering mental health and addictions services was severely damaged, thousands of seniors lost their support services, schools went begging.  But there were no ballot measures to challenge the legislature back then. 

Although touted as the "people's voice," ballot measures cost money.  Instead, some organizations like Legal Aid and DRO filed law suits on behalf of vulnerable Oregonians to attempt to stop or slow some of the worst cuts.  While we had some small, technical victories, we were not able to stop the cuts.  Judges were hesitant to substitute their judgment for that of the legislature.  Close calls went to the elected officials.

This time around, we have three major tax increases.  They target corporations, high earners and hospitals/health insurers.  The first two are most likely to be challenged by ballot measure.  The other is really a fancy way to leverage more federal Medicaid funds and should not have a significant fiscal impact on those taxed.  You may hear differently when health insurers cite the tax as a reason to increase premiums and decrease reimbursement rates for providers.  My advice is to keep your eye on their profit margins rather than their justifications.

Overall, the legislature deserves high marks for its labors. Despite the difficult financial times, some excellent bills were sent on to the Governor and budgets were constructed in a fair and open manner.  DRO is particularly pleased that a bill to bring Oregon law up to date with the federal ADA Amendments Act has been signed into law.  We worked with the Bureau of Labor and Industries to craft and promote this legislation and received invaluable assistance from Senator Floyd Prozanski to get it through the process.

Now that the session is complete, we here at DRO are writing a summary of legislation passed this year that particularly affects Oregonians with disabilities.  We'll let you know when it is complete and is posted here on the Disability Rights Oregon website.

Many, many years ago.  Back when Vera Katz was Speaker of the House and the legislature decided to take a crack at setting new limits on gun ownership, a bill emerged that would prohibit people who had been civilly committed from buying, owning or possessing a firearm.  The country was still reeling from the acts of John Hinkley and politicians wanted to make folk feel safer, however illusory that safety might be.  I argued at the time that civil commitment was a a poor standard to use to judge ability: many people were committed who were not dangerous and the whole purpose of commitment was recovery.  To my amazement, legislators were willing to compromise the point.  A provision was added to the mental health commitment law that allowed a judge to bar gun ownership but such a prohibition would not be automatic.  A process was also put into place to allow those who had been barred to show, at a future point, that they were no longer a risk.

Four years later, I was not so persuasive (or lucky).  The legislature established a permanent ban on gun ownership in Oregon for those who are committed because of mental illness.  What most people in Oregon didn't know was that the federal government had outlawed gun possession by committed people long before any of these laws were enacted in our state.  Oregonians were not unique in this knowledge gap.  The feds had never done much to let people know.

But then came the Virginia Tech shootings and Congress decided to take stronger action.  It created a nation-wide, FBI registry for conviction and commitment information.  Law enforcement and firearm merchants will be able to use the registry to determine if a person is prohibited from having a gun.  But this won't work unless the information gets to the FBI.  And that's where House Bill 2853 and my deja vu moment come into play.

Governor Kulongoski learned that only two Oregon records were in the FBI registry and that the Oregon State Police would lose a bunch of federal grant money unless we got with the program.  This prompted a rush of work to put together a bill (sponsored by Rep. Galizio) that would require the collection and transmittal of the required data.  And when various stakeholders were brought together to discuss the bill, I was there saying the same things I had said back in the late 1980s.  Again, to my amazement, there was flexibility in the state's position and after many hurried compromises, amendments and hearings, a bill got out of the House Rules Committee.

I don't know how you feel about firearms.  They are not at the top of DRO's agenda.  But the US Supreme Court has found gun possession to be a a fundamental right and a bunch of folks in Congress have earmarked "persons adjudicated as a mental defective or those committed to mental institutions" as being unworthy of exercising this right.  The original Oregon bill would have gone further to include people who were in the state hospital for only evaluation and those found incapable of facing criminal charges due to their young age.  It did not provide a way for a person to demonstrate that he should no longer be barred, did not provide a way to expunge a commitment and did not require notice to those who might be affected.  When it came to people with mental illness or developmental disabilities, life-long incapacity and dangerousness was assumed and need not be proven. 

More will need to be done to balance public safety and individual rights in a manner that is not discriminatory. As is often the case, disability discrimination arose in Congress and in HB 2853 from unfounded assumptions about people's abilities.  Rep. Sara Gelser, a Rules Committee member, said it best: People who have never committed a crime or hurt anyone should not lose a constitutional right because they have a disability.

Representative Sara Gelser is giving a speech on the House floor in favor of House Bill 2834 which would close the Oregon School for the Blind.  "It's about holding on to the money that goes to the OSB that could be lost when OSB dies a natural death."  "Every student has a right to a free and appropriate public education. This is a very hard bill.  I wish I was not carrying this bill.  This has been discussed for two decades.  This bill contains the best plan developed."  She notes that the school does not provide an academic curriculum and its physical plant is in serious disrepair.  This bill will shift money that presently goes to OSB and put it in an account that will provide money to supplement services in local school districts.

Rep. Sprenger says she will vote yes but does not urge her fellow House members to vote one way or the other.  This is too personal an issue, in her opinion.

Rep. Boone reads a letter from a constituent who has a child at OSB and values it.  She will vote no.

Rep. Maurer speaks against the bill saying that the high cost per student at OSB is not as high as it appears when compared to some costs for students in regular school districts.  He says: "This is not over."

Rep. Clem speaks passionately against closure saying that the school was founded for use by disabled children.  It should remain so.  "I will not be an accomplice in closing this school."  He says that the state is at fault for letting the physical grounds deteriorate.  Equivalent services are not available in the community, he asserts.  He also claims, as did Rep. Boone, that OSB provides the least restrictive alternative for blind students because students in regular schools may receive services in a single school room.  He says that the bill's requirement that services in regular schools be "substantially equivalent" to OSB services is an "unfunded mandate."  Oregon, he notes, would be only one of four states that don't have a school for the blind if this bill passes.  Says that many OSB students may end up in foster care which will limit their ability to go home on weekends.  Rep. Clem agrees with Rep. Maurer that if the bill passes, "This is not over."

Rep. Barton speaks against the bill.  He says he disagrees with Rep. Gelser on this bill but he praises her for her work.  He says that signs were passed out that said "Vote no on Sara Gelser."  Rep. Barton says that this is an inappropriate personal attack.

Rep. Gelser closes, saying that funds will be available to assure that blind students will get the services they need.  She says that she has not received contact from anyone asking to buy the property.  Students, she says, should have the opportunity to learn in a fully accredited environment.  She notes that she is the parent of a child with disabilities and a special education advocate.  She knows the challenges but we must look to the future to provide the best services to blind students for years to come.  She urges a yes vote.

And now for the vote:  Wins 41 yea, 18 nay.

It's not my job to advocate on every bill affecting people with disabilities, that would be impossible.  Every bill affects folks in the disability community in some way because we are all citizens.  DRO only weighs in on legislation that directly affects people who are most likely to be our clients.  Yesterday, as most committees prepare to shut down, there was a lot to weigh in on.

At 8:00 am in Senate Judiciary, we had HB 2441 that would allow those who sexually abuse folks with developmental disabilities to be more easily prosecuted.  This bill is getting strong push-back from criminal defense and civil liberty groups.  Also on the docket was HB 2335, a bill that we don't care about except that it is being used as a possible vehicle for a variety of amendments that could be used to save the state some money.  The "-11 amendments" would eliminate client-requested hearings before the Psychiatric Security Review Board and extend a time limit for another type of hearing.  Both of these bill did not get a hearing because of time and were set over to today.

At 1:00 pm, the Ways and Means, Human Services Sub-committee heard SB 25 that would create an advisory board for Oregon State Hospital and HB 2442 that would create a Quality Care Fund to support training and technical assistance for group homes to achieve high standards of care.  Both bills were amended to remove fiscal problems and moved to the full Ways and Means Committee.

Then, at 3:00 pm, three separate committees were hearing bills that DRO has worked on.  In House Health, SB 16 was passed after last minute negotiations with the committee chair.  The original bill allowed advance health care directives to be used to authorize in-patient psychiatric care for people with dementia.  The committee chair wanted the bill to also allow any person to receive such care, not just folks with dementia (presently, the advance directive can't be used for this purpose - you have to use a "declaration for mental health treatment").  A compromise was struck to make the change only for people with dementia but to form a work group to explore other changes.

While that was going on, the House Rules Committee was hearing HB 2853, a bill that would require information about criminal convictions and civil and criminal commitments to be sent to the FBI for a national registry to prevent those convicted and committed from buying firearms anywhere in the country.  Many changes have been made to the original bill to address concerns of gun advocates and disability advocates (an interesting alliance).  Additional amendments will be needed before the committee will act on the bill.

Not to be outdone, the House Consumer Protection Committee heard SB 731.  It would assure that people who receive public benefits that are exempt from garnishment do not have to go to court to reclaim their exempt funds.  This bill would protect many of our vulnerable clients from losing access to money that they rely upon for food, housing and other essentials.  The committee adopted the bill's "-11 amendments" and passed the bill out.  [Careful readers will note the second occurrence of -11 amendments today.  Coincidence?]  This is one of those bills that will help many of our clients in a very direct way. Many thanks to Sybil Hebb from the Oregon Law Center for her skilled shepherding.

So that's enough, right?  Well, no.  Midway through the afternoon, we learned that our #1 priority, SB 874, had run into a technical problem.  This bill would conform state law to changes made by Congress to the ADA.  It has already passed the Senate and the House Judiciary Committee.  But the Legislative Council decided that the bill has to amended.  Another bill was recently signed by the Governor that changes a section of law that our bill affects.  If our bill is not amended, it will wipe out the other bill's changes.  So SB 874 is coming back to the Judiciary Committee today to be amended.  It will then go to the House floor for a vote and then go back to the Senate for concurrence (knock on wood).  Since the bill had a close vote in the Senate, we are not thrilled by this development.  But that's how things go here at the legislature.

When Max Condradt was 17, he experienced a concussion during a high school football game.  His coach cleared him to play in a game the next week.  During that game he was tackled and, moments later, collapsed on the sidelines and slipped into a five month coma.  After he awoke, Max began a long period of rehabilitation.  Max's dad discovered that the helmet the school had provided was old and did not meet minimum standards.  He and Max decided to take action to help others avoid what Max has gone through.  Max, who now lives in a group home, and his dad worked with the The Brain Injury Association of Oregon (BIAOR) to bring a bill to the state legislature to assure that coaches are educated about brain injury and protect athletes from avoidable harm.

BIAOR has developed three bills for this legislative session:
1 – HB 2413  would add a $2 fee to the penalty paid for traffic violations.  The resulting funds would be placed in a brain injury fund to provide TBI support services
2 –  SB 381  would require all state-regulated group health insurance policies to cover cognitive rehabilitation.
3 – SB 348  would require all coaches at the elementary, middle and high school levels to have annual concussion identification training.

Yesterday, the House Education Committee held a public hearing on SB 348, dubbed “Max’s Law.”   I testified briefly before the committee, recalling an incident just last year in which a lawyer friend of mind fell and hit his head while we were playing basketball.  He was knocked out but soon revived and went to the sidelines to shake it off.  He then wanted to come back in the game.  He did, but after a few minutes of his wandering aimlessly around the court, we decided to take him to the hospital.  He had experienced a serious concussion.  My point was that even old coots like my friend (and I) don’t have the good sense to stop playing when we have our bell rung.

But as entertaining as I tried to be, the star of the hearing was Max.    Whatever deficits he may experience, it was clear that Max’s exuberance and sense of humor were not affected by his injury.  He inspired laughter and admiration in committee members who were at the end of a very demanding week of lawmaking.

 Max was a victim of “second-impact syndrome.”  After the brain sustains an injury it is highly vulnerable to more severe harm until it has had time to recover.  Experts note that "concussion produces an energy crisis in the brain. A second concussion will cause such an energy demand that it will overwhelm the survival capability of the brain."  Testimony at the hearing also noted that girl athletes now have a higher incidence of concussion than boys. Female players now experience about 29,000 concussions annually. Males have 21,000.

The committee passed SB 348 and sent it to the full House for a vote.  Since it has already been passed by the Senate, it will most likely become law.  Max, who was pumped by his legislative victory, gave me a hug as we left the hearing room.  I thought: Max was probably a good football player, he’s already a great advocate.

Here I am again at the legislature.  This time its the House Health Committee.  Senate Bill 16 concerns the question of whether an advance health care directive can be used to involuntarily hospitalize a person with dementia for the purpose of providing psychiatric treatment. 

Dr. Maureen Nash is the person who brought this issue to the legislature.  She says that there is a tsunami of people with dementia coming to Oregon as we age.  There will be a 90% increase in occurence of dementia in the first 25 years of this century.  Many may need psychiatric care.  She says that sometimes family members present health care proxies so that they can admit a loved one with dementia to Dr. Nash's hospital for psychiatric treatment.  But the lawyers for Dr. Nash's hospital (Tuality) say that the law does not allow a health care representative to place a person with dementia in the hospital for treatment.  The person with dementia is often unaware of the need for treatment.  This means a person must go through civil commitment or a guardianship proceeding.

Rep. Greenlick wants to know why the bill doesn't just eliminate the provision of the law that does not permit an advance directive to be used to commit a person to a psych hospital.  Dr. Nash says dementia is different from severe and persistent mental illness.

A citizen testifies that his wife appointed him to be her health care representative.  His wife had an early onset of dementia and he was unable to admit her to Tuality Hospital because of the exclusion of mental health treatment.  He finally obtained a guardianship so that he could make this type of decision.

Dr. Tina Kitchin from DHS testifies that she worked on the advance directive laws that were passed in 1993.  She notes that it is complicated and many different perspectives were involved.  She says that dementia was very much in mind to those who crafted the law.  The law was designed to be empowering for those who wanted some control over their lives.  She was surprised when she heard that some hospitals believe that they don't have the authority to admit someone with dementia for psychiatric care.  Recently raised concerns are being addressed by amendments.

 Oops!  I'm being called up to testify.

Well, I put in my two cents along with David Nebel who was representing the Elder Law Section of the Oregon State Bar.  Rep. Greenlick wants to get rid of the prohibition of using the health care directive to put a person in a psych hospital.  I said that this will be threatening to many people with mental illness but that if he tries to do it, he should make sure that the directive contains clear information that it may be used for that purpose.   More to come soon on this.

I'm sitting in the Oregon House Human Services Committee.  The committee is conducting an informational hearing about oversight of children's mental health programs.  Representatives Kennimer and Kotek have asked for the hearing. 

The programs are here to complain about redundant, burdensome and inefficient oversight.  Kim Thomas from Trillium is testifying right now.  He mentioned DRO as one of the ten or so agencies that oversee Trillium's activities.  He is now speaking directly to seclusion and restraint oversight.  Again, DRO is mentioned as one of the 4 agencies that Trillium must report to.

Janet Arenz from the Oregon Alliance of Children's Programs notes that Morrison Center has, in the past 6 months, spent 333 staff hours on audits and reviews.  Those reviews took 20.5 days.

Donna Keddy, Mike Morris and Janette Williams  from DHS are now speaking to the issue.  237 agencies are licensed by CAF.  After getting private health care agency license, AMH can certify psychiatric programs.  Oversight presently comes from CAF for health and safety, AMH for MH clinical services, SPD for seclusion and restraint, DD Services for health and safety and individual services plans, and OIT for protective services.

Psychiatric residential programs may have numerous contracts that have separate regulatory requirements.  Bruce Goldberg has asked for an efficiency review to eliminate duplication and redundancy.  An action plan is to be completed by July 31, 2009.  OYA and DHS consult with one another but it doesn't sound like duplication in oversight is addressed.  Rep. Kotek seems to be concerned about this.

Janette Williams notes that the state must fulfill requirements of multiple funding streams and multiple program requirements, e.g. DD does not allow restraint and OYA does not allow "hands on."  Mike Morris is testifying that he worked in hospitals for 20 years before coming to DHS.  He did not like the review processes when he was in that role.  Now, as a reviewer, he always seeks efficiencies.  He notes that very serious problems have come to AMH attention and they have had to close programs who had been certified by national accredidation organizations. 

Rep. Kotek asks if a waiver can be obtained from CMS to cut back on oversight requirements.  MIke Morris notes that some CHS requirements are not tied directly to funding.  He is not sure if CHS would allow streamlining of those requirments.  Rep. Kotek notes multiple reviews by state, county and MHO at Morrison Center.  She suggests that Medicaid funding structure should be reformed to cut down on duplication of required oversight.

Rep. Van Orman notes problem of staff turnover in these programs that can cause rule violations.  All agree.  Janet Arenz is now testifying again to push back a bit.  She says that her organizations' choice of business models is not as responsible for how oversight works as DHS might suggest.  Programs have just responded to what the state has sought to contract for.  Kim Thomas again testifies to the desire to have "a more consolidated approach" to review. 

My observation: Janet and Mike were the only ones to note the problems that have occurred in these programs despite the present oversight.  It would have been nice to discuss not only greater efficiency but also greater effectiveness.  I will make sure that this message is sent.

I'm back home from a full day at the state Capitol.  We are three legislative days away from a big deadline.  Any bill that has not moved out of its original committee by the close of business on Tuesday is dead.  This deadline sets up a last minute scramble for folks to keep their bill breathing.  A bill can die for many reasons.  It may never have had a hearing or been heard and left its committee unmoved.  It may need amendments that cannot be agreed upon or cannot be produced by Legislative Council on time or in technical shape.  It may lack a Fiscal Impact Statement from the Legislative Fiscal Office because of time restraints or a the bill may just have a crippling cost (in this session, virtually any cost is crippling).

I arrived at 8:00 am in Hearing Room B for a Work Session on the ominously-named Senate Bill 911.  The committee chair promptly banged her gavel and said that SB 911 would not be heard because it lacked a fiscal impact statement.  I was then told that House Bill 2353, scheduled for a hearing that day at 1:00 pm, would not be heard because the amendments had just arrived and they also did not have a "fiscal."

These bills concern standards for secure residential homes serving mental health clients and the reporting of people who have been committed to a psychiatric hospital to the FBI in order to prevent them from having guns.

At noon, I made a half-hour report on pending legislation at the Mental Health Caucus, a bi-weekly meeting of legislators, lobbyists, advocates and bureaucrats convened by state Representative Ron Maurer.  Afterward, I worked with some lobbyists on a bill affecting the procedural rights of families in special education hearings and discussed ideas on how to improve the state hospital and to get kids in community mental health facilities the education services they need.

Then, some great news.  Senate Bill 731 passed out of its committee in its eighth amended form.  This bill will save people who receive public benefits from having those benefits garnished from their bank accounts.  Now, even though these funds are protected by law, banks have to turn them over to collectors and the person has to go to court to get them back.  This is money that people rely upon for subsistence.  Many are not able or brave enough to go to court to assert their rights.  Kudos to Sybil Hebb from the Oregon Law Center for great work!  (I helped a little.)

And so, amid all the frenzy and talking and mulling, something good was accomplished!  On to tomorrow.....

Stories circulate through the media about people who claim to need a "service animal" or "assistance animal" that paint the person as a scam artist who is trying to get around the rules.  It is somewhat like the broad public perception of the insanity defense as a means for criminals to fake their way out of going to jail.  There seems to be a natural inclination for people to feel that if they have to follow a rule, everybody should have to follow the same rule.  No exceptions.

But our disability discrimination laws recognize that some people do need to be treated differently so that they can receive the same services, benefits and opportunities as others.  This topic came up yesterday when Senate Bill 875 was heard by the Senate Consumer Protection and Pubic Affairs Committee.  The bill amends a law that presently allows landlords to charge a pet fee to blind and deaf tenants who have service animals.  Federal and state civil rights laws prohibit the charging of such a fee, and so the purpose of the bill is make the laws consistent.

At the hearing, legislators asked why these animals should be treated differently than pets.  The answer is that they are not pets.  They are an essential aid that allows a person with disabilities to function in the home and in society.  A service animal should be treated by a landlord like part of the tenant.  If the animal were to cause damage to the apartment, it would be like the tenant causing that harm.  General safety or cleaning deposits that are charged to all tenants can certainly be charged to a person with a service animal.  But the animal is not a luxury or an hobby.  It is essential to the life of the person with disabilities.

Legislators also asked about the difference between a service animal like a seeing eye dog, and an assistance animal such as a cat that provides comfort to an individual with mental illness.  There are many jokes circulating in the media about people who claim to need a "comfort ferret" or "companion horse" because of a disability.  The answer is that the law only requires "reasonable" accommodations and that if a person has a medically diagnosed disability and a clinically recognized need for a companion animal in order to remain in independent living, the law protects that need.  It should also be noted that not only the person with disabilities but society as a whole benefits when a person can remain living independently, outside of an expensive care facility.

Disability laws like the ADA and Fair Housing Act exist to allow people to share in the beneifts of society, not to let them shirk the rules.  And yes, Senate Bill 875 was passed by the committee. 

The national network of Protection and Advocacy (P&A) organizations (like DRO) is represented in Washington DC by the National Disability Rights Network (NDRN).  Recently, NDRN urged legislators, on our behalf, to support hate crime prevention legislation.  The proposed bill would grant agencies the authority to investigate and prosecute federal crimes based on the victim’s disability, whether real or perceived, and would authorize funding to states to help with the prosecution of hate crimes.

In a letter signed by almost all P&As, we reminded legislators that through much of our country’s history, people with disabilities -- including those with developmental delays, epilepsy, cerebral palsy and other physical and mental impairments -- were seen as useless and dependent, hidden and excluded from society, either in their own homes or in institutions.  Now, this history of isolation is gradually giving way to inclusion in all aspects of society, and people with disabilities everywhere are living and working in communities alongside family and friends.

But this has not been a painless process.  People with disabilities often seem “different” to people without disabilities.  They may look different or talk differently.  They may require the assistance of a wheelchair, a cane, or other assistive technologies.  They may have seizures or have difficulty understanding seemingly simple directions.

Unfortunately, disability bias can manifest itself in the form of violence.  Federal hate crimes legislation would broaden the definition of hate crimes to include disability, sexual orientation, gender and gender identity.  It would make grants available to states and local communities to combat violent crimes committed by juveniles, train law enforcement officers, or assist in state and local investigations and prosecutions of bias-motivated crimes.

 Violence against individuals with disabilities is not limited to adults.  On Monday, March 9, the Oregon House Education Committee will hold a hearing on House Bill 2599.  This bill would strengthen Oregon law that is designed to lessen the bullying of students in our schools.  It would make school districts adopt policies to train staff and students about avoiding and reporting bullying and designate a staff person to accept complaints of bullying.  DRO supports this bill that will provide a reasonable way to address the harassment of all students, including students with disabilities.