The DRO Blog
Sep 26, 2011
By Guest Columnist Bob Joondeph, Executive Director of Disability Rights Oregon
Published: Sunday, September 25, 2011
The insanity defense has been part of Anglo-American law for centuries. An English legal treatise from 1581 noted that if "a madman or a natural fool, or a lunatic in the time of his lunacy [commits a crime] this is no felonious act for they cannot be said to have any understanding will." While the diagnosis and treatment of mental illness has changed tremendously over the years, our sense of justice has consistently recognized that punishing a person for actions she cannot control is wrong.
When a defendant is found "guilty except for insanity" in Oregon, she is usually committed to the state hospital for custody, care and treatment for a period of time that is necessary to control the person's symptoms and return her safely to society. The maximum period allowed for this commitment is the longest a defendant could have been put in prison if she had been convicted. The vast majority of successful insanity defenses are agreed to by the district attorney handling the case.
The state hospital hires psychiatrists, psychologists, nurses and a variety of other professionals and skilled workers to restore the mental health of patients. The hospital has security staff to assure that treatment can be provided in a manner that is safe for patients, staff and the community. Patients are not in the state hospital to "do time." They are there to get well.
Recently, one patient ran away from a supervised walk on hospital grounds and jumped into a waiting car to make his getaway. He was captured 17 days later in Sandy, the same town where his 2009 auto wreck caused the tragic death of two people and resulted in his commitment for two counts of second-degree manslaughter.
Some have questioned whether patients at the state hospital should be allowed to walk outside the facility walls and whether they should be permitted to have uncensored communication with others. If the goal of the hospital is to return its patients to health, the answer is a resounding "yes!" This is, in fact, what the hospital is licensed and staffed to do and what it is asked to do by the criminal justice system.
Mental illness can be effectively treated and the majority of patients in the state hospital will recover and be reintegrated into society. Punishing them with long years of languishing behind high walls is bad for the patients, bad for the hospital environment and financially wasteful. It also violates patients' civil and legal rights to safe and effective treatment that is not unduly isolated from society, and it undermines hope for patients and staff alike.
We at DRO think the hospital has taken appropriate steps to review the individual security assessments of other patients to assure that they are up-to-date and accurate. The actions of one patient should not harm the treatment of others. A thorough investigation should be completed to determine if criminal prosecution is appropriate for those who planned and executed the escape.
Bob Joondeph is Executive Director of Disability Rights Oregon.
Jul 26, 2011
The ADA is 21 years old. Here's a short history of its young life.
The roots of the ADA are imbedded in the civil rights struggles of the 1960s.
Martin Luther King wrote in his Letter From A Birmingham Jail on April 16, 1963:
All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation … ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful.
Overcoming disability-based discrimination has required, and continues to require, "struggle." Every step toward equality has been hard-fought against entrenched interests and attitudes. Each victory has needed to be defended. This experience is common to all civil rights movements. Disability rights may, however, demand a particularly large change in thinking, both about disabilities and about society. This new way of thinking is imbedded in the ADA.
The first major step toward the ADA occurred in 1973 with the passage of Section 504 of the 1973 Rehabilitation Act. Section 504 banned discrimination on the basis of disability by recipients of federal funds. It was modeled after other civil rights laws that banned discrimination based upon race, ethnic origin and sex by federal fund recipients.
This represented the first time federal law recognized the exclusion and segregation of people with disabilities as "discrimination," and the first time people with disabilities were legally recognized as a class, in effect a minority group.
In 1973 the State of Oregon also passed its first law prohibiting discrimination against people with disabilities.
The Federal Department of Health, Education and Welfare was tasked with developing regulations to implement Section 504. Only after numerous demonstrations and political actions did that job get done: four years later. The regulations enacted on May 4, 1977 formed the basis of the ADA. Disability advocates fought successfully to keep the regulations from being revoked in the early 1980s when business interests wanted to be free from federal interference.
During the 1980s, there was also resistance from the US Supreme Court. Disability rights advocates joined in the effort to pass the Civil Rights Restoration Act which overturned a Supreme Court decision that had severely limited the reach of all statutes prohibiting discrimination by recipients of federal funds. (Grove City College v. Bell).
Legislation was also enacted to overturn Supreme Court decisions and reinstate prohibitions against disability-based discrimination by airlines, reinstate the right to sue states for violations of Section 504, and reinstate the right of parents to recover attorney fees under the Education for Handicapped Children's Act (now called IDEA).
In 1988, the Fair Housing Act was amended to prohibit discrimination against individuals with disabilities and the first version of the ADA was introduced in Congress.
The version of the ADA that passed on July 26, 1990 was introduced Senators Harkin and Durrenberger and Representatives Coelho and Fish (father of City Commissioner Nick Fish). Justin Dart, Chair of the Congressional Task Force on the Rights and Empowerment of People with Disabilities, traversed the country holding public hearings which were attended by thousands of people with disabilities, friends, and families documenting the injustice of discrimination in the lives of people with disabilities.
The ADA has five sections, or "titles" which are regulated by different federal agencies:
- Title I - Employment - directed by the U.S. Equal Employment Opportunity Commission (EEOC); and the U.S. Department of Labor (DOL).
- Title II - Public Services - (and public transportation) directed by the Federal Transit Administration (FTA); U.S. Department of Health and Human Services (HHS); U.S. Department of Education (ED); U.S. Department of Housing and Urban Development (HUD).
- Title III - Public Accommodations - directed by U.S. Department of the Interior (DOI); U.S. Department of Agriculture (USDA).
- Title IV - Telecommunications - directed by the Federal Communications Commission (FCC).
- Title V - Miscellaneous Provisions.
Some of the key Findings and Purposes set out in Section 2 of the ADA are:
- Some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
- Historically, society has tended to isolate and segregate individuals with disabilities, and, this continues to be a serious and pervasive social problem;
- Discrimination against individuals with disabilities persists in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
- Individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
- Individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
- People with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
- Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
- The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
- The continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.
It is the purpose of this Act--
- to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
- to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
- to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and
- to invoke the sweep of congressional authority to address the major areas of discrimination faced day-to-day by people with disabilities.
With passage of the ADA, Americans with disabilities had a new civil rights law and regulations, but again the US Supreme Court, in a series of cases, began to chip away at their protections. And again, disability rights activists fought back and were able to obtain passage of the ADA Amendments Act of 2008.
The ADAAA makes four major adjustments to how the ADA is to be applied:
- The term “disability” is to be construed in favor of broad coverage of individuals protected by the Act;
- An impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability;
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
- The determination of whether an impairment substantially limits a major life activity is to be made without regard to the positive effects of mitigating measures.
Not to be overly negative about the US Supreme Court, it has made some positive decisions for disability rights over the years. One was the case of Olmstead v. L.C. and E.W. in 1999. By a 6-3 vote, the Court found that the 'integration mandate' of the ADA requires public agencies to provide services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." In this instance, the Court told Georgia's department of human resources that it could not segregate two women with mental disabilities in a state psychiatric hospital long after the agency's own treatment professionals had recommended their transfer to community care.
At the beginning of this short history, I said that a new way of thinking about disabilities and society are imbedded in the ADA. In short, the ADA recognizes that:
Disability is a natural and normal part of the human experience that does not limit the right to:
- Live independently
- Enjoy self-determination
- Make choices
- Contribute to society
- Pursue meaningful careers and
- Enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.
Rather than focusing on “fixing” the individual, actions must be taken to “fix” or modify the natural, constructed, cultural, and social environment.
Attitudinal and institutional barriers that preclude persons with disabilities from participating fully in society’s mainstream must be changed.
Jul 07, 2011
The Governor and legislature show that compromise is not a naughty word.
The 2011 version of the Oregon legislature has closed to rave reviews. All of the major news outlets and commentators have congratulated the Governor and legislative leadership for their cooperation, willingness to compromise and progress on many important issues. Oregon, we are told, is once more leading the way by demonstrating that, even in tough economic times, representative democracy can work and government can solve problems. So how did we get here? Masterfully.
When the legislative session opened, the general understanding among lobbyists was that the budget process would be a bloodbath and that very few bills would pass. On the budget side, fiscal projections had us in a $5 billion hole. As for bills, the House of Representatives was evenly split between Republicans and Democrats who would therefore have to agree for any bill to pass. Given the partisan resentments of past years, few thought that cooperation would be forthcoming. But it was. Here are some possible reasons.
1. Lowered expectations: The legislature always engages in the psychological tactic of getting people ready for something awful and then delivering, to everyone's relief, something that is merely bad. Even in the richest of years, we are always told that there is not any money. This, of course, was not one of those years.
2. Unsustainability: Most policy makers realize that our aging demographics have made the structure and financing of government services unworkable for the next twenty years or so.
3. Willingness to innovate: When cuts in services are inevitable, it encourages new ways to doing things. For example, a person may insist that having a cappuccino every day is essential until the money to pay for it must come out of his beer budget.
4. Forging new commonality: Many have observed that all three legislative leaders come from rural Oregon and share a small town willingness to get along. Whatever the merits of this suggestion, the urban/rural divide is as traditional in politics as the liberal/conservative one.
5. Taxes off the table: Ballot measures that increased tax rates for businesses and the more wealthy were behind this legislature. This assured that tax reform would not be on the agenda, creating opportunities for discord. With only so much money, even big campaign contributors could be told that their interests would have to wait. Most would understand that Grandma should not be thrown under the bus to maintain the status quo.
6. Shared reasons to gamble: Despite all the highly charged national rhetoric on health care reform, it's well understood that the driver of reform is cost. The balanced budget passed by the legislature is gambling that publicly-funded heath care costs can be dramatically lowered in the years ahead. Most folks can agree to this because it delays big cuts throughout the budget and the reform strategy is to bring down high-expense care by keeping people healthier, rather than throwing them off insurance. To go back to the beer analogy, this approach has something for both sides: tastes great (healthy), less filling (costly).
At the end of the session, legislators were willing to hold hands and jump off the cliff. They began a number of reforms that will have to be implemented and tested. Business as usual was not a winning formula. Doing this required veteran leadership and, fortunately, it was there. Oregon has chosen not to go down the road of Wisconsin or Minnesota which have opted for confrontation rather than innovation.
We are nowhere near being out of the economic woods, and more needs to be done to correct some misguided policy directions, but Oregonians should be proud of what their government accomplished in this legislative session.
Jun 02, 2011
The Supreme Court found California prison overcrowding to be unconstitutional. But what the justices argued about was states' rights.
Each country has its own history, customs and internal arguments. Americans have argued about the proper balance between states’ rights and individual rights since colonial times. The first sentence of the US Constitution begins: “We the People of the United States.” It does not say “We the States.” The Constitution is an agreement among individuals, not states, to form a federal government with limited powers. A Bill of Rights was added to protect individuals from unrestrained governmental power. Some would have preferred the pact be more like the Articles of Confederation that had come before. It was basically a written alliance of independent states. It isn’t a coincidence that in 1861, when those who promoted states’ rights chose to secede from the Union, they named their new country “The Confederacy.”
Things didn’t go so well for The Confederacy but their argument for states’ rights is carried on today in politics, including the courts. And so the big question in a recent Supreme Court case is whether a federal court should have the power to change a state policy which is causing a large number of citizens to be denied constitutional rights. In other words, what prevails: the rights of the individual or the power of the state?
Last week, the US Supreme Court decided that California is operating a prison system that is cruel and unusual. But it was a close decision. Following its well known ideological divide, the four liberals voted yes, the four staunch conservatives voted no and the moderate conservative (wait for it) voted…..yes!
Why? 1. Because the 8th Amendment of the US Constitution outlaws cruel and unusual punishment. 2. Because California prisons don’t provide health and mental health care for many inmates due to severe overcrowding. 3. It is cruel and unusual to withhold health and mental health care from prisoners.
So, the five yes votes – "The Yeses” – agreed that California should bring down the population of its prison system from 200% of its designed capacity to 137.5% of that capacity. The four no votes – "The Nos” – were not happy.
Were they unhappy because California had been taken by surprise? No. The California prison population has been double the size that its buildings are designed to hold for over 11 years. The state has been under court orders to improve mental health services for 12 years and to improve health services for 5 years. Instead, the Nos were fuming because they believe the standards of a federal law were not met. That federal law forbids local courts from ordering states to reduce prison populations without convening a three judge panel and meeting very high standards. This law, the Prison Ligation Reform Act of 1995 (PLRA), was not followed, say the Nos. The Yeses said it was.
There was no disagreement about overcrowding or lack of health and mental health services. After all, in 2006, former Governor Schwarzenegger declared a state of emergency in the prisons, stating that “immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.” The Governor was concerned about the “increased, substantial risk for transmission of infectious illness” and a suicide rate “approaching an average of one per week.”
The three judge panel heard evidence that, because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. Other inmates are held for months in administrative segregation waiting for limited mental health services. Wait times for mental health care can be as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations, and 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”
Prisoners with physical illness don’t fare better. California’s prisons have only half the clinical space needed to treat the current population. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. The number and competence of staff is inadequate, and prisoners face significant delays in access to care. Adequate housing for the disabled and aged does not exist. The medical facilities, when they exist at all, are in disrepair. Basic medical equipment is often not available or used. Medications and other treatment options are often not available.
Prisons have backlogs of up to 700 prisoners waiting to see a doctor. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. Urgent specialty referrals at one prison had been pending for six months to a year.
The Nos didn’t deny these facts but choose not to mention them. Instead, they challenged the idea that overcrowding results in lack of care for all inmates. The Yeses set out lots of expert testimony that crowding is the primary cause of the constitutional violations. For example, the former warden of San Quentin and former acting secretary of the California prisons testified that crowding “makes it virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.” The Nos were not impressed. They also doubted the three judge findings that many prisoners can be safely released and that imprisonment in overcrowded conditions can increase the risk of prison violence and re-offending upon release.
The Yeses stressed the misery of the inmates, the years of failed attempts to address that misery and the integrity of the legal process that brought three judges together to consider how to responsibly address the problem. They supported the judges’ decision to allow California to decide the best way to bring down the prison population so inmates will have a chance to get at least minimally adequate health and mental health services.
The Nos think that prison overpopulation should not be linked to the constitutional violations. In their view, if a physically or mentally ill individual is subjected to cruel and unusual punishment due to lack of proper care, that inmate can go to federal court to request services. The federal courts, the Nos contend, should only order a remedy for the harsh consequences of severe overcrowding if every inmate cannot show that the overcrowding makes his or her punishment cruel and unusual.
They give the example of a prison that is too cold. In that case, the federal court would be justified in ordering the heat to be turned up. In sum, they believe that running an inherently unsafe institution is a state policy option that the courts should not presume to overrule. They also find that releasing any prisoner before his or her sentence is completed will always result in unreasonable jeopardy of public safety. The Nos seem to not trust state officials in only this one area: deciding how to make safe release decisions.
From my perspective, the Nos have an almost cartoonish view of prison inmates and are either totally unconcerned with the quality of their confinement or ignorant about the realities of administering a state institution. Their primary concern seems to be the age old debate about states’ rights as it manifests itself in constitutional jurisprudence. In aid of that argument, they are not afraid to throw in some fear and prejudice to spice things up. As the director of an agency that promotes and defends individual rights, I find this all, shall we say, a bit academic.
May 10, 2011
Waiting between meetings, I reflect on (and worry about) the legislative process.
I'm sitting in a basement room of the state capitol building called the Lobby Message Center. Somehow, I was scheduled for an 8:00 am meeting with a senator to discuss our bill to regulate seclusion and restraint of school students and then a 3:30 meeting with the Co-Speakers office to talk about our opposition to building a new state hospital in Junction City. With seven hours in-between, I thank heavens for the internet!
The legislative session is starting to lean toward the finish line. Key legislators met in private with the Governor yesterday to hammer out a budget deal. Rumor has it that they succeeded. The next month will be filled with attempts to get surviving bills heard by committees and to get the big deals done. The last two weeks of the session are when the amateurs stay home and the powerful converse and resolve.
On the state budget front, everyone knows there will be major cuts in services and benefits. Oregon is slated to have the shortest period of public assistance in the nation, to make deep cuts in senior and disabled care, eliminate support for the families of people with intellectual disabilities, cut in-home supports for all populations, and more. Schools are already laying off teachers and some have announced cuts to special education services.
Meanwhile, on the federal level, the Speaker of the House is demanding "trillions" of cuts to the federal budget. This apparently includes shifting the costs of many human services programs to states. It isn't hard to do the math on that one. Bottom line: elimination of human services because states can't afford to provide what they are now.
Are we witnessing the break down of the social compact? Will we go back to the 1930s when 80% of the elderly were poor and only the children of the well-to-do get a decent education? I think very few people in this building would like to see that. It should be interesting to see how we can avoid it.
Apr 10, 2011
A bill about special education hearing procedures provides a forum for legislators to debate the merits of public education and trial lawyers.
So there I was: sitting in the audience at the Oregon House Committee on
Education, watching all the action. The last item on the agenda was a
bill that would establish who has the “burden of proof” in special
education administrative hearings.
When a family thinks a school district is not properly serving its child
and the district does not agree, the family can ask an administrative
law judge to decide if the district has met its legal responsibilities
under the Individuals with Disabilities Education Act (IDEA). This bill
will decide whether the family must prove that the district is out of
compliance or, instead, the district has to prove that it is following
the law. Who, that is, has the “burden” of proving their case?
The bill, House Bill 2296, would place the burden of proof on school
districts. It was given a public hearing a few weeks ago but most of us
advocates thought the committee would take no further action. Two
years ago, there was a similar bill that died in committee because of
opposition by school districts. Although some changes were made to
address those concerns, the districts opposed the bill this time as
well, saying that if schools were required to prove that a child with
disabilities is receiving proper services, it would encourage parents to
file more complaints and ask for more hearings.
But, to our surprise, the bill was being given further consideration and
so I stopped in to see what would happen. The hearing opened with an
explanation of what the bill does. Rep. Sara Gelser, who sponsored the
bill, said that it would not make a big difference in terms of how the
hearings are decided but would “send a message” of support for parents
who are unhappy with the special education services being offered their
child. Rep. Gelser has a child with disabilities and relates a few
instances in which her child did not receive proper services.
Rep. Jason Conger said that he is concerned that parents will “lawyer
up” if the burden of proof is changed. He said that a plaintiff’s
attorney can “come in and shake down a defendant.” He likened this to
employment cases where lawyers make frivolous demands on businesses
which settle in order to avoid the costs of litigation. He said
opportunistic attorneys do “shakedowns,” and that this bill won’t affect
schools that are “bad actors.” Needless to say, he is opposed.
Rep. Gelser responded, saying that there are bad actors on all sides of
education hearings. But, she continued, money is not at stake here, it
is educational placements. She gave examples of hearings that resulted
in no relief or minor relief and says she likes the bill but hasn’t
prioritized it. She then talked about closure of school for the blind
and how this bill can send a message to those parents who feel the
legislature has ignored their needs.
Rep. Julie Parrish then spoke, saying that kids need better options.
She was troubled that parents have to sue schools to have schools do the
right thing. She thought this demonstrates the need for choice of
schools. She said that a parent has to sue because the local school is
the only option. The parent should be able to shop for someplace
better. She thought this bill will cost schools more and she does not
want to put a burden schools to spend more and thereby take away
services from others. But, she said, this bill is not really about
disabled children. It’s about school districts having too much power
because they have a monopoly. She concluded, saying that this is why
she “may be a yes vote. Something’s got to change!”
The next speaker was Rep. John Huffman who said he wants to send a
message of affirmation to parents but wants to do it like they did it
for the School for the Blind. He said the legislature expects districts
to listen to parents and do the best they can. “Every child is a TAG
child. We pay teachers good money to find how to stimulate children.
Parents shouldn’t be forced into the situation of filing a lawsuit.”
Rep. Betty Komp then spoke, saying that this is a highly charged topic
on which she “goes back and forth.” She said that she believes in
public school education and that the best way to support it is to pass a
decent budget. This bill, she said, is contradictory to this
message. She will be a no vote.
Rep. Michael Dembrow was then recognized to speak. He thought that most
districts are trying to do the right thing but problems do arise. He
wished there could be a neutral 3rd party or ombudsman that parents
could go to and hoped this is something that will be pursued. He will
support bill because he respects Gelser and his belief that a strong
message needs to be sent. The legislature, he said, wants school boards
to protect all children. Rep. Lew Frederick appeared to agree with
Rep. Dembrow, but chose not to speak.
Committee co-chair Matt Wingard had the last word. He said that the
kind of frustration that parents experience drive this type of bill. He
had heard many stories from parents of special needs children. It
“breaks my heart,” he says, “that parents can’t get the sense they are
being listened to.” He is proud to support bill.
Then came the very interesting vote. Republicans Huffman and Conger
vote no. Democrat Komp voted no. Republicans Wingard and Parrish voted
aye. Democrats Gelser, Dembrow and Frederick voted aye. HB 2296 is
moved out of the committee with a “do pass” recommendation by a 5-3
My analysis, for what it’s worth, is that since the bill was viewed as being largely symbolic, many legislators looked at it exactly that way and chose to make their own symbolic points. Wingard and Parrish promoted their view that parents should have more choice in schools. Conger used the opportunity to slap trial lawyers. Komp spoke to the issue of adequate funding for public schools, thereby countering the Wingard and Parrish position that the problem is not lack of funding but lack of choice. The remaining committee members pretty much addressed the merits of the bill itself. If only they had counted, HB 2296 would still have passed, but by a 3-1 vote.
Mar 14, 2011
For advocates, it's our values that count. They must inform the decisions that legislators make in Salem and DC.
I’m on a flight from Portland to DC to meet with other P&A directors from around the country to discuss issues of mutual concern.
Oddly enough, while I’m doing this, Congress is trying to decide if and how our funding will continue for the next six months. P&As are not slated for elimination in any of the proposed budgets, but if a budget is not agreed upon soon, DRO may run out of reserves and be forced to temporarily close our doors. I don’t expect that to happen, but it does get one’s attention.
Imagine that. Even though all legislators agree that we should continue to receive federal funding, the overall budget battles may mean that we are unable to pay our staff and provide some services to our clients and potential clients. I say “some” because, as a law office, we have an ethical obligation to continue to serve our existing clients whether we are paid or not.
Perhaps this trip is a costly excess right now. I know that if I didn’t take the trip, it would solve less than 1% of next month’s payroll cost and I really do need to know what’s happening in Washington. So here I am in my cramped seat thinking back to yesterday at the state capitol where I had yet another discussion about the budget and service cuts that are looming. Which programs will be eliminated? Which services will be scaled back? Whose salaries and provider rates will take a hit? Is this trip taking me from the frying pan to the fire, or the reverse?
Troubling questions, indeed. But I remind myself that we in the disability rights movement are warriors. We have seen tough times before and have learned that though we may face hardships, we can never give ground on our values. More than ever, this is a time emphasize support of integrated, community-based services that promote choice, independence and self-direction. It is clearly a time to put aside old institutional models because they are expensive, ineffective and repressive.
In DC, I will be hearing about the many exciting initiatives happening around the country to further our values. From this comes energy and inspiration, things that some would discourage us from expecting in our capitols.
Feb 20, 2011
Why Oregon needs to keep its schools healthy, safe and inclusive.
DRO regularly receives call from parents who have just learned that their son or daughter has been involved in a physical incident in school. Sometimes this involves a teacher or teacher’s aide who has locked a child in a room or closet. Sometimes the child has been tied or handcuffed to a chair. Sometimes the police have been called. Sometimes the child has been tasered.
When we receive these calls, we first investigate to find out what happened. We look to see if the child has been deemed eligible for special education services and whether the child as an IEP (individualized education program.) If so, we see if the program includes a behavioral plan. For special ed students, we often find that there is no behavioral plan or the plan in place is inadequate. We also find that school personnel have not been trained to understand and apply behavioral plans. This is not true in all cases, but in many.
Our view is that no-one benefits from physical conflicts in schools. School budgets may benefit in the short run from skimping on training or keeping a child locked in a room rather than providing an adequate level of staffing, but this undermines the quality and trust placed in a school. We also think that a school that fails to inform a parent of such an incident is harming the student, the parents and the community. If, for example, your child was tazered in school and the school didn’t tell you, how would you and other parents feel about it?
DRO worked with the Oregon Department of Education to create administrative rules that set standards for the use of seclusion and restrain of students. But four years later, we found that most schools were not complying with the rules. So we have now suggested legislation to require schools to have written policies, provide training, keep data and inform parents of incidents.
This past Wednesday, the House Education Committee held a public hearing on House Bill 2939. This followed the release of a study by DRO which sets out the problem and proposed solutions, and a press conference on Tuesday featuring the parents of a child who has been secluded and restrained.
At the hearing, DRO attorney Chris Shank testified about the need for the bill and how the McMinnville School District achieved a dramatic reduction in use of seclusion and restraint by implementing best practices. Committee Co-Chair Sara Gelser asked why the bill forbids use of “prone restraint.” Chris said that this practice restricts breathing and has resulted in deaths. This concern as confirmed by another witness whose company trains teachers in appropriate intervention techniques. This witness also noted that forbidding the use of prone restraint does not penalize a teacher if a student ends up in prone position temporarily.
A union representative testified that staff need training and injuries need to be documented. She seemed to blame all problems on school administrators and lack of funding and be concerned that staff may be scapegoated.
Dr. Jeff Sprague from the University of Oregon testified about the success of using positive behavioral interventions and supports to keep students and teachers safe. The parent of a child who had been strapped to a chair for full school days in order to keep her from wandering (without informing her parents) gave articulate and affecting testimony.
There were very few questions from the committee members. The politics of this bill are that nobody wants to embarrass school districts and districts do not want to publicly state that restraining and secluding students is alright. However, the quiet lobbying that occurs out of the public eye will emphasize that districts face tough financial pressures and do not want to be regulated by the state. There will also be push-back from those who do not want children with disabilities in regular schools. Yes, there are plenty of those folks still around.
The bottom line for me is that yes, we do ask a lot of our schools and, as we see playing out in Wisconsin, some citizens believe that we should get everything we want without having to pay for it. But what our schools have been able to do for people with disabilities has been truly revolutionary. We have been able to put aside expensive institutions, expand employment and social participation and bring down the costs of social dependence by educating and integrating children with disabilities as early as possible.
Education benefits all students and their families as well as our broader economic and social well-being. Applying what we have learned through experience and research to keep schools safe is a win-win. And providing schools with adequate resources to do the job is, um, a no-brainer.
Jan 24, 2011
Oregonians with disabilities should keep a careful eye on both how government works and on their medical files.
Last week, I heard a radio report about the transfer of Rep. Gabrielle Giffords from the hospital to a rehab facilty. The reporter noted that Giffords' family would not release all of her medical records to the press and then explained, somewhat grudgingly, why they are allowed to withhold this information. This reminded me of an article I had just read about Apple CEO Steve Jobs who is taking time off to deal with health problems. This report had also grumbled about Jobs' desire to keep his medical records private.
The very next day, I read an editorial in the Oregonian that suggested that public safety would improve if police had access to the mental health records of homeless people. Then, I went to a meeting with members of the Oregon Parole Board where we discussed if it was good practice for the Board to release mental health evaluations of inmates who are being considered for parole, to the victims of their crimes. This is now the practice of the Board, making Oregon unique among the states. At a legislative hearing on this issue, I heard a crime victim advocate say that he kept a file of all the psychological evaluations of inmates. He said he enjoyed reading them. No harm, one supposes, since there is no penalty for releasing this information to the general public.
It seems that in this Facebook age, everyone wants to see everybody else's junk. But don't touch mine and definitely do not mess with my privacy settings. So from airport patrons to medical patients, from abuse victims to gun owners, from big-time political donors to ballot measure signers, everyone wants to be able to keep their own profile low, low, low. Another example: the Oregon Attorney General is campaigning that he will make it easier for folks to get public records while, at last count, there are 41 bills filed in this year's legislature that affect public records: most seeking more protection from disclosure.
It's fair to ask if privacy is just another commodity that the powerful or politically sympathetic get to enjoy, or are there underlying principles that we can apply to measure when privacy is a reasonable expectation? The U.S. Constitution has been found to guarantee some level of privacy from government intrusion as a protection for the politically disadvantaged. But what about when the state sanctions private intrusion by a favored group into the normally private affairs of a less popular population (for example, the Oregon parole board policy on psychiatric evaluations of inmates)?
The importance of confidentiality for people with disabilities is closely tied to the discrimination that people experience, particularly those with "hidden" disabilities of the mental, cognitive and intellectual kind. Many people with mental illness are not comfortable with police evaluating their clinical records because of their experiences of being automatically considered erratic and unpredictable by officers. Chronic illnesses of all sorts are of great interest to others, not only to insurance companies but to employers and, indeed, investors.
Do stockholders in Apple feel able to sort through Steve Jobs' medical information and decide if he is a good investment based upon their own medical knowledge? In many cases, yes. Are Rep. Giffords' political opponents ready to assess her likely level of recovery? I suspect they are at it already with the information at hand. Is the general public wary of individuals with brain injury, mental illness or intellectual disabilities? Check out the local newspaper or cinema for an easy answer.
Privacy is a topic that appeals to human impulses of self-protection and curiosity. Oregon's interest in open government and protection of its citizens must be balanced. The choice is not between being Wikileaks-West or East Germany on the Willamette.
Jan 12, 2011
Let's not draw the wrong conclusions from these tragic shootings.
We are very saddened by the shootings in Tucson. To Representative Gabrielle Giffords, her staff and other victims of this vicious attack, we wish you comfort and courage in the difficult process of healing and recovery.
We know from experience that tragic events of this kind spawn a variety of political opportunists who try to exploit people’s sympathies and fears. On issues concerning the tone of political discourse and the wisdom of gun regulation, various forces will fight it out in the public arena. One group, however, will be targeted as scapegoats and is not well equipped to fight back: individuals with mental illness.
These horrible shootings have already been used by a D.C.-based organization that is urging state legislatures to lock up and forcibly medicate any individual who has a diagnosis of serious mental illness. This group is also attempting to silence people and organizations who advocate for humane and respectful treatment and supports for those individuals. The forced treatment group seems to believe that legislators, judges and policy makers should not hear the concerns of individuals with mental illness before making decisions that directly affect their lives. Its strategy mirrors its underlying principles: legislators should not hear all sides of the issue because there is only one way to correctly think.
The facts are that having mental illness, in itself, does not increase one’s chances of committing serious violence. However, failing to offer assistance to people struggling to find housing and employment, and turning away from those who need help to resist fear and substance abuse can have awful results for them, their families and their community. Laws that make it easier to commit people or forcibly medicate them are not effective in improving mental health conditions or in decreasing social violence. Evidence-based treatments and supports that are known to help continue to be in short supply even though, to quote Gary Roberts, the new superintendent of the Oregon State Hospital, “Recovery is not only possible, it is more than likely.”
But don’t take my word for it. The two major federal policy papers in the field: The President’s New Freedom Commission on Mental Health and The Federal Action Agenda encourage a focus on outcomes of mental health care that are desired by the individual, “which are to attain each individual’s maximum level of employment, self-care, interpersonal relationships, and community participation.” None of the 20 goals set forth in the New Freedom Report recommend forced treatment. Instead, evidence-based practices and rights protection are emphasized.
In Oregon, we have some very tough choices to make about funding state services. Continuing the present level of services would cost $3.5 billion more than the state expects to have. This is why we must make sure that legislators know the facts and do not make decisions based upon unfounded fears and hasty, unproven “solutions.”
We understand that Representative Giffords has a long, distinguished record of advocating at the state and federal levels for community mental health services and cautioning against the stigma and discrimination that burden people who have mental illnesses. Let her inspiration and courage guide us through these difficult times.
Dec 19, 2010
We will have to set priorities in the state budget. Those disability programs and services that promote recovery, choice, self-determination and integration should be at the top.
When it comes to Oregon State Hospital, everyone's talking about culture change. If you listen to government officials, state hospital management and personnel, advocates and the media, they all talk about this thing called "culture" and the need to change it. And it's not just the hospital. Last week, I was at a meeting of "stakeholders" discussing a state initiative to change how group homes are used. Most everyone agreed that the "culture" of this service must change. This is one of those very useful phrases that everyone can agree with as long as the details remain murky.
The two words "culture change" describe a process and destination. The destination is "recovery." The process is how the state hospital and group homes can change their thinking and actions to better promote recovery.
Changing habits of thought and action can be difficult. A reformer might think that getting an new idea announced as a federal policy will lead to quick implementation. Such a policy was announced for "recovery" in the report of The President's New Freedom Commission on Mental Health. It's Vision Statement reads:
We envision a future when everyone with a mental illness will recover, a future when mental illnesses can be prevented or cured, a future when mental illnesses are detected early, and a future when everyone with a mental illness at any stage of life has access to effective treatment and supports — essentials for living, working, learning, and participating fully in the community.
This report was released in 2003. It's ideas were not new to leaders in Oregon's mental health system. But we are still trying to get some traction on the ground level where people with psychiatric disabilities are housed and treated.
In the worlds of physical and intellectual disability services where I also advocate, there are certainly lingering prejudices, paternalism and the imposition of external limitations on individual development. People are still inappropriately stashed in nursing homes, sheltered workshops and self-contained classrooms. But you don't hear too much about culture change. More frequently, you hear concern that people from outside the services systems will not properly understand the existing culture.
As Oregon's new Governor and legislature start to tackle our very severe budget crisis, there will be a lot of talk about what and how much to cut. We must make sure that we always ask whether a program, a service or a facility will help to change the cultures that need to change and expand the cultures that need protecting. Every dollar spent should promote recovery, choice, self-determination and maximum integration.
Nov 27, 2010
Send a letter to Southern Oregon University and be part of a movement for peace and justice.
According to news reports, a young man from Corvallis decided it was a good idea to blow up a bunch of adults and children at the Christmas tree lighting event at Pioneer Square in Portland. The reports say that he planned to leave the country after detonating his bomb.
The stories indicate that this was not some grand conspiracy directed from someplace like Yemen or Pakistan. It appears to be, instead, the idea of a 19 year old graduate of Westview High School and former OSU student.
The news also tells us that a father and son stand accused of deciding it was a good idea to plant a bomb at a bank in Wilsonville to protest either the bank, the federal government or both. They are now being tried for aggravated murder in the death of a policeman who was trying to disarm the bomb.
And then there is the news story about Eliza Schaaf. She is a 20 year old woman with intellectual disabilities who enrolled in a ceramics class at Southern Oregon University. After regularly attending class, Eliza was thrown out of school with just three classes to go. SOU decided that a person with intellectual disabilities could not be allowed to audit one of its classes even though Eliza was not seeking college credit.
Eliza and her family are very disappointed. So are her fellow students who have protested the university’s actions. So are many citizens, newspapers and elected officials who have urged SOU to change its mind. The university is not moved by these appeals and, just yesterday, turned down Eliza’s appeal of its decision.
Eliza has not planted a bomb, except metaphorically. For details, visit her web site at http://www.elizaschaaf.com/.
You will see that Eliza is a direct victim of disability discrimination. She has been treated with ignorance by a university and with disregard by a publicly-funded and supposedly accountable institution. Her grievance is not abstract or theoretical in the slightest. In response, she has chosen to courageously take on this institution using the tools of communication, developing community support, following appeals procedures and working to educate decision-makers.
We need to support Eliza not just because she has been the victim of an injustice but because of how she has chosen to respond. She speaks not just for herself, but for the disability community and for all Americans who believe that we can find justice by reaching out to the hearts and minds of fellow citizens.
I’ve sent my letter to SOU officials decrying their actions. Please join with me with more letters and protest.
The Department of Justice is widening its investigation of Oregon State Hospital to see if Oregon honors patients' Olmstead rights.
The U.S. Supreme Count case, L.C. vs. Olmstead, has been around for over ten years but its full meaning as yet to be realized. The case basically says that the ADA gives people with disabilities the right not to be unnecessarily segregated. Just as the government cannot tell all people of a race or religion that they have to live in one place, it can't require people with disabilities to all live together (say, in a nursing home or state training center) in order to receive services.
Just to clear it up right away, the "Olmstead Act" was passed by Congress in 1909 and addressed the authority of the U.S. President over the affairs of Puerto Rico. Many people use "Olmstead Act" to refer to L.C. vs. Olmstead. In fact, so many do it that a Google search using "Olmstead Act" results almost entirely in stuff about the ADA case. This drives me to distraction. But I digress....
In the last two years, the U.S. Department of Justice (USDOJ) has taken a much more active role in enforcing Olmstead. One result is a recent Settlement Agreement between the U.S. and Georgia. In the agreement, Georgia agreed to stop putting people with developmental disabilities in its state hospitals and, instead, create a system of community services to assist them. It also agreed to build a more comprehensive community mental health system including new 'Assertive Community Treatment Teams," "Community Support Teams," "Intensive Case Management Teams," "Crisis Service Centers," housing, employment, peer services and more.
Fairly soon after completing the settlement in Georgia, USDOJ sent a letter to Oregon saying that it was starting an investigation of how our state is complying with Olmstead. DRO has asserted for years that Oregon does not do a good job on Olmstead. We have sued the state a number of times on behalf of state hospital patients who are not discharged for months and years even though the hospital says the patients are no longer needing hospital-level care. We continue to monitor patients who are stuck in the hospital while a convoluted placement process in which there is no ultimate authority bumbles along.
Oregon has just - just - started a effort to reform how it uses its community residential beds. They call it "Aim High." Oregon still does not have an "Olmstead Plan" which many states have to show how they are working to get people out of state hospitals. DRO has had to use court action and the threat of court action in local communities that fight to keep people with mental disabilities from living in their neighborhoods. The state has never asserted these rights for patients.
Lastly, in the midst of severe budget cuts, Oregon plans to build a new, large state hospital in Junction City. The cost of operating this "big box" in the middle of a field in the Willamette Valley has to come from somewhere. Will it come from school budgets? State police? Corrections? Or, maybe, the desperately strapped community mental health budget? If community mental health is cut to staff Junction City, Oregon will be the anti-Olmstead state: it will create a structure of unnecessary segregation of individuals with mental disabilities.
In sum, Oregon has been and remains content to leave people in expensive, unnecessary state hospital beds. It is planning for an even greater emphasis on segregated care. This is why USDOJ is back for more investigation.
Nov 04, 2010
It's time to look for opportunities for positive change in the year ahead.
Now that most of the votes have been counted, it's time to start planning for the year ahead. In January, Oregon will have a new governor, John Kitzhaber, a House of Representatives that is evenly split between Republicans and Democrats, and a Senate that (as of this writing) will have a narrow Democratic majority.
By far, the biggest issue the new government will face is the state budget. Present projections predict a $3.2 Billion difference between state revenue and the cost of continuing existing state services through the 2011 to 2013 budget cycle. Cuts will need to come from an already slimmed-down budget that took 9% across-the-board reductions this year and may require more downward adjustment if revenue forecasts do not pick up.
What can we expect from the new legislature? If we are fortunate, the even balance of parties will encourage cooperation and moderation. A spirit of common purpose and compromise should include the Governor who will have to be a part of deal-making. With equal participation, neither party should be able to blame the other for the effect of unavoidable service cuts.
If we are not fortunate, there could be chaos, where the more strident voices jockey for advantage and seek to position themselves to tar the other party with accusations of all sorts. This would be a disservice both to the people of Oregon and the institution of the legislature. Hopefully, we Oregonians can avoid what seems to be a trend elsewhere.
Oregon's disability community is now faced with some difficult choices. Legislators will be looking to us for suggestions about where to cut and how to cut. If we refuse to engage, the decisions will be made without us.
As in any difficult decision making process, advocacy groups need to start with defining their core values and envisioning the services that they would like to see down the road. How can we build toward the world we want to see with the least damage to recipients?
To begin with, we need to assure that safety of our most vulnerable, but in doing so we should not underestimate what individuals and their families can accomplish with adequate community supports. We must move away from services that default to institutional settings and expand brokerage and managed care models of community residential and support services.
In tight budget times, supported employment services are often on the chopping board. But in these harsh economic times, does it make sense to keep people in positions of economic dependence and isolation?
This is the time for advocates to put their values to the test. If we don't, other interests will prevail.
Oct 12, 2010
And then ask your candidate how Oregon will care for the 80,000 seniors and people with disabilities who will need help with long-term care by 2030.
Today is the last day to register to vote in the Oregon fall elections. I hope you registered and I hope you vote when the ballot arrives. Why? You are entitled to real answers to real problems. Your vote is your entitlement.
Politics. For me, the word summons up both fascination and frustration, anticipation and aggravation, hope and hostility. I work in the state legislative process as an advocate. I've seen a lot about how it functions. No, it hasn't made me cynical. It's just people trying to work stuff out. As I like to say, things would work more smoothly without people, but I still like to have them around.
Fact is, people with disabilities rely upon Medicare and Medicaid. They are able to get into buildings and go to school and stay on the job because of civil rights laws. Most lawmakers understand that regardless of party. Some candidates pretend that these factors are just dollars on a spreadsheet, not people's lives. One state representative told me that, to him, the ADA meant that the best parking spots at Walmart are always empty and he can't use them.
So what I'm getting at is that voting matters for people with disabilities. Look at candidates' track records, not their promises. Ignore the TV advertising. It's money being thrown at you to upset you in the way that pollsters say will upset you. And as for money, the true question is not whether too much cash is being spent by the government but who gets to decide how to spend it.
Consider this: In June, 2009, almost 19,000 Oregon seniors, 8,750 Oregonians with physical disabilities and 13,700 people with developmental disabilities received long-term care services paid by Medicaid. Thanks to us aging baby-boomers, the need for long-term care is predicted to double within the next 20 years. As your candidate his or her plan for Oregon to handle this reality. Just saying that we should all "sit down at the table" and discuss it is not a real answer.
Sep 22, 2010
While attending a hearing at the legislature, I look to Ben Franklin and Lou Reed for advice and wisdom.
I’m sitting in the peanut gallery of the Interim House Human Service Committee. This is one of the weeks between regular legislative sessions when House and Senate committees meet to hear about important issues and adjust the state budget. The budget news hangs in the air like an impolite odor. Advocates for human services are trying to figure out how to save services in an era of higher demand and much less money. I give my opinion by quoting Ben Franklin: "We must all hang together or, assuredly, we shall all hang separately."
Yesterday, DRO attorney Jim Wrigley testified at the House Education Committee about the need for state law to require schools to have the “burden of proof” in special education hearings. Now, if a parent wants to challenge a school’s failure to provide adequate services for their child, the parent must first present enough information to show that the school is not meeting its legal duties. The school, however, holds all of the relevant information and assessments. It has all the professionals. It has the money and the lawyers.
DRO, parents and advocates believe the present requirements are not fair. Schools should have the duty to show that a student is receiving a legally adequate education program rather than forcing the parent to prove inadequacies. We believe that this change would promote more communication between schools and parents and encourage resolution of problems short of formal hearings.
While Jim was talking to the committee, I was down the hall at the Senate Health Committee talking about the need to change how people with mental and cognitive disabilities are held and treated when they are involved with the criminal justice system. DRO and other advocacy groups are urging changes in how the Psychiatric Security Review Board works with the state hospital. We are also asking the state to stop plans to build a new, expensive state hospital in Junction City. Our message is that this planned hospital is both too expensive and a step in the wrong direction is creating an effective and humane mental health system.
Right now, James Toews from the state Seniors and People with Disabilities Department is talking about how budget cuts are threatening services for these populations. Case loads are going up as the population ages. Federal funding agencies will not allow Oregon to change its eligibility standards and must approve reimbursement rate cuts for services. These factors limit how the state can adjust to the double whammy of increased demand and less money.
Next up are Richard Harris, Greg Roberts and Nina Strickland to talk, once more, about Oregon State Hospital. Greg is the new superintendent of OSH, Nina was the acting superintendent and Richard is the head of the state additions and mental health agency.
Greg just said that some of the problems of the hospital can be solved quickly and all problems can be solved eventually. Rep. Ron Maurer from Grants Pass says he wants to be optimistic but many attempts to fix OSH have not worked. When should the state cut bait? Greg says that OSH is a lot like Greystone Hospital in New Jersey where he was able to turn things around. The biggest problem is the hospital losing its sense of mission. This, he feels, can be quickly addressed.
I think I share Rep. Maurer’s skepticism and hope. Can the guy from New Jersey get it done? We shall see. I feel the need for another quote and so I turn to Lou Reed: "You need a boat full of faith to get by."
Sep 10, 2010
Sen. Wyden proposes that Oregonians be allowed to sidestep the requirement to buy health insurance. I agree, if we can demonstrate other ways to significantly increase coverage and bring down costs.
Health care reform. OK, I said it. If you are like most Americans, you have reacted with either hope or horror. That is because, in my view, millions of dollars have been spent to turn this phrase into a symbol of everything you like or don't like about modern life.
One thing most Americans don't like is being told what to do. If doing that thing also costs money, it will be downright disgusting. Telling an American that s/he HAS to buy health insurance fits this description to a tee.
A very small minority of Americans are health policy nerds. These folks understand that Americans spend more on health care and get less for their money than any other citizenry. They also understand that costs are escalating at an alarming rate and this not only affects the health of Americans but also the competitiveness of American business in the world economy. Not only do Americans not want nerds to run their lives, the don't think nerds HAVE lives.
I mention all this because on August 26, Oregon Senator Ron Wyden sent a letter to Bruce Goldberg who is the director of the Oregon Health Authority. Ron (I can call him "Ron" not only because everyone else does but we used to play basketball together a few centuries ago), said that he wants to help Oregon get a waiver from the federal health care reform law. For any nerds reading this, that law is the "Patient Protection and Affordable Care Act (PPACA). The waiver would allow Oregon move forward with an insurance exchange and minimum benefit package without requiring people to buy insurance.
Ron states: "the heart of real health reform is affordability and not mandates." Not, apparently, being one to dawdle, Dr. Goldberg (I usually call him Bruce because this is Oregon and everyone does) replied two days later. He agreed! He says that Oregon is a perfect place to test the idea that families will choose to purchase insurance policies if they are affordable. Oregon, he states, is well underway in creating a "value based benefit package" and a health insurance exchange that can provide an excellent testing ground for the nation.
Is this a good idea? Some national critics think not. If Oregon is allowed to sidestep the individual mandate, they say, other states that are less well-intentioned will follow. Insurance companies may throw huge resources into lobbying future (less progressive) administrations for waivers that undermine the expansion of health care coverage for Americans.
I'm inclined, however, to side with Ron and Bruce (they can just call me Bob). I'm totally convinced that we must have health care reform in order to improve America's health, eliminate injustice against those with disabilities and other pre-existing conditions and "bend the cost curve" of medical coverage. But I recognize that, as Americans, we don't like being told what to do. We don't mind, however, being shown what works.
The laws governing Medicaid are still based on outdated preferences for institutional care. But waivers have allowed progressive reforms to move forward that improve people's lives, honor their civil and human rights and save money. Waivers do not allow (in most cases) states to "throw grandma under the bus" even though it may seem that way at times.
Lastly, in order to bend that curve, some tough decisions will need to be made. Oregon has worked hard to get public participation at all levels of decision-making. This will continue to be essential and may provide a model for other states. (Even I have sat with the nerds to explain why disability rights must be factored in.)
In this grown-up game of show and tell, the special interests have done a lot of telling. Now it's time to let Oregon show how it's done.
Aug 20, 2010
I was on vacation, but the state's budget woes were not. In considering cuts, the state should 1. Protect the most vulnerable, 2. Get people out of institutions, and 3. Keep people out of institutions and other segregated settings.
In case you didn't notice, I took a summer vacation from my blog.
It all started with a long vacation that my wife and I took to celebrate my 60th birthday and the graduation of our youngest kid from college. That's right, the parents got a gift for the son's graduation. And it was great!
When we planned our vacation six months ago, it seemed like late June and early July would be a period of relative calm. But, of course, it wasn't. The state budget went further in the tank and the Governor was preparing to take 9% off the top of all state budgets. On the list of cuts (all painful) were some items that we at DRO felt were particularly harmful and potentially illegal. These were the provision of in-home support services to seniors and people with mental, physical and developmental disabilities.
As I watched from afar via email, DRO staff geared up to challenge these cuts. Legal research and writing proceeded at a fever pitch. We sent out the word to people who were receiving these services to let us know if they wanted to contest cuts. As our litigation director, Kathy Wilde, was putting together this legal package, the legislature's Emergency Board announced that it was considering the restoration of in-home supports by using some reserve funds and re-allocated money in human services budget. Kathy did not slack off. On the day of the E Board's meeting, she was ready to file suit.
But, to everyone's relief, the legislature followed through and restored funding. When I got back to the office a couple of days later, Kathy presented me with the legal brief and pleadings and I thought to myself that I should take vacations more often.
As you probably know, the state budget has not gotten any better since then. This week, the state announced that its present budget is another $200 to $500 million in the hole. For the next budget cycle, the Governor is asking agencies to present him with proposals for 30% cuts. The final budget for July 2011 to June 2013 will be determined by a new governor and a new legislature, but it's clear that there won't be as much money to go around as we are accustomed.
While it's tempting under these circumstances to just plan my next vacation, I know that the next ten months will require all of us in the human services community to pull together to come up with the best approach to resource development and allocation. We at DRO are committed to to working with our partners to assure that the legal rights and safety of Oregonians with disabilities are honored in this process. In our minds, this means that we must first:
1. Assure the safety of our most vulnerable citizens;
2. Prioritize services that allow people with disabilities who live in segregated facilities to return to the communities, and
3. Prioritize community services and supports that allow individuals with disabilities to maintain independent or family living without having to be educated or served in segregated settings.
The next regular legislative session begins in January. It will be no vacation.
May 27, 2010
Oregon State Hospital is still a mess despite five DRO lawsuits since 1992 trying to fix it. With massive budget cuts on the way, advocates tell the legislature what should be done to change things.
On Tuesday, the Oregon House Human Services Committee held a four hour hearing about Oregon State Hospital. Witnesses included administrators, workers, a resident, a former resident, a family member, the state's lawyer and a panel of advocates including Beckie Child from Mental Health America of Oregon, Chris Bouneff from NAMI and me. Our panel recommended three things that the state should do:
- Agree to a court-enforceable agreement to fix OSH.
- Stop all efforts to build a new state hospital in Junction City.
- Reform how people go into the hospital and get out, particularly from the criminal courts.
We pointed out that we cannot afford the money to run a new hospital (about $220 million per year) and have not been able to fix OSH on our own. We said that Oregon must learn how to use precious state hospital beds more effectively and stop asking administrators and staff to be both a hospital and a prison (two incompatible tasks).
I testified that I wanted to be hopeful that Oregon could fix OSH without outside oversight, but experience told us otherwise. I noted that DRO has sued OSH five times since 1992 in order to force improvements, but the problems don't go away.
Committee Chair Carolyn Tomei asked me to send her a written summary of those cases. I did, and now I'm sharing it with you.
Charles B. vs. Concannon: A Class Action filed in 1992 on behalf of forensic patients and patients with developmental disabilities. A Settlement Agreement was reached in 1994 which required that all patients have an individual treatment plan, a baseline assessment, a comprehensive assessment, appropriate referrals, education programs, psychosocial rehabilitation, sex offender treatment, and vocational services. Staff were to receive 80 hours of core curriculum training. Professional staffing levels were to be adequate, movement restriction and seclusion & restraint policies were to be changed, and patients with cognitive disabilities were to be assessed and placed in appropriate alternative settings.
Miranda B. vs. Kulongoski: A Class Action filed in 2000 on behalf of civilly committed patients in Oregon’s state hospitals. A Settlement Agreement was reached in 2004 which required DHS to develop 75 new licensed placements and/or supported housing, discharge at least 31 class members, begin discharge planning upon hospital admission, refer any patient who was not placed within 90 of being ready-to-place to an Extended Care Management Unit for assistance in placing, develop a fund to assist with exceptional barriers to placement which would start with $1,500,000, and develop a process to monitor vacancies in community facilities.
Bartow and Oregon Advocacy Center vs. DHS: A Wrongful Death action filed in 2002 on behalf of a patient who died during a take-down and an unsafe conditions claim on behalf of all OSH patients. The case was settled in 2004 for $200,000 in damages plus an agreement to place defibrillators on wards and update restraint training to include information on positional asphyxia and de-escalation techniques.
Oregon Advocacy Center vs. Mink: A Class Action filed in 2002 on behalf of defendants who had been found unable to aid and assist in defense of criminal charges who languished in local jails awaiting transfer to OSH. Following trial and appeal, OSH was ordered to admit defendants from jail who are found unable to aid and assist in their defense within seven days of such finding.
Harmon vs. Fickle: 2004 Class Action on behalf of forensic patients at OSH. A Settlement Agreement was reached in 2006 that required OSH to hire 30 new professional staff, DHS to hire 4 new community placement developers, OSH to increase the staff to patient ratio from under 1.10 to 1.82, and DHS to create 71 new community placements (at least 30 being intensive case management slots) in addition to 128 planned placements for forensic patients.
May 14, 2010
Have you had a good or bad experience with a summer program serving your special education child?
A question that comes up at this time of year for many parents of special education students is: are there any good summer programs for my child?
We hear from parents who are able and willing to pay, but can't find a good summer program that meets their child's special needs. We also hear from parents who are owed compensatory education and are looking for something positive for their child during the summer.
Please add a comment to this blog post by clicking on the blue add comment button below and share the following information with us and other parents:
- The type of program
- Your child's age & disability
- Whether your child's experience was good or bad
- The name, location & cost of the program
- Dates & hours that the program runs
(For example, is it 2 hours/day for 3 weeks in August or 5 days/week from 8a-2p all summer?)
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If we receive a large response, we will look into developing the information into a resource that contains updated and relevant information about summer programs for special education students.
We hope to hear from a lot of you! Thanks for your help!
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