News from Disability Rights Ohio is the monthly newsletter from the Disability Rights Ohio providing information and updates about case work and activities of Disability Rights Ohio, and other disability-related news.
In this issue:
- Disability Rights Ohio provided voting assistance
- Complaint filed against Columbus City Schools
- Individual Options (IO) waiver helps people with disabilities avoid institutionalization
- Action and results: Case summaries
In anticipation of the November 6, 2012 election, attorneys, advocates, and investigators at Disability Rights Ohio traveled to various institutions throughout the state in October and early November to give presentations to people with disabilities regarding their voting rights. The audiences at these presentations also consisted of families of people with disabilities as well as staff and administrators at the institutions, which included nursing facilities, intermediate care facilities for people with intellectual disabilities (ICF-IID), state-operated developmental centers, state-operated psychiatric hospitals, and residential care facilities.
At each presentation, Disability Rights Ohio staff offered pertinent information relating to the county in which the institution was located, including the address and telephone number for the county board of elections and the location of early, in-person voting. Staff also informed people about a hotline we operated on Election Day for any voting-related problems, issues, or questions. These presentations likely explain the significantly higher volume of phone calls we received to our hotline than during past elections. Furthermore, we discussed our recent transition from Ohio Legal Rights Service, a state agency, to Disability Rights Ohio, a non-profit organization, and explained our philosophy, our priorities, and the type of work we do.
Disability Rights Ohio acted as a liaison to Self-Advocates Becoming Empowered (SABE) USA’s voting project. SABE is the self-advocacy organization in the United States. Founded in 1990, SABE works for the full inclusion of people with developmental disabilities in the community throughout the 50 states and the world.
On Election Day, interview teams with self-advocates were at the polling locations. The teams asked questions of voters who were willing to identify as having a disability. After the election, SABE also worked with other organizations to get as much input as possible. This effort happened in many states with a strong effort in Ohio. The surveys were gathered to demonstrate the true state of voting access across the USA.
SABE contacted Disability Rights Ohio on Election Day with a concern about SABE’s exit polling. Ohio has a 100-foot neutral zone rule around the entrance to a polling location. SABE needed to know if that neutral zone applied to the accessible entrance, which was on the opposite side of the building from the main entrance. One of our attorneys did research and concluded that the SABE was very likely not limited to this 100-foot neutral zone. SABE decided to maintain a little distance from the accessible entrance just to avoid any problems. This worked well for them, and they had no further legal problems that day.
Disability Rights Ohio has a voting hotline during polling hours on each Election Day. On Election Day, November 6, 2012, the hotline received 16 calls. Attorneys from Disability Rights Ohio provided assistance and advice to each caller.
Here are some of the ways we provided assistance:
- Three voters were given information about their voter registration and correct polling location.
- Two voters learned about what kind of identification they could use to vote.
- Three voters found out where and how to vote when they had moved but not updated their address with the board of elections.
- Three voters who were unexpectedly hospitalized on Election Day were able to obtain absentee ballots from their boards of election. For one voter who was hospitalized in a county different from where he lived and voted, the two boards of election worked together to provide the individual with a ballot.
On Election Day, November 6, 2012, Disability Rights Ohio filed an emergency complaint and motion for injunctive relief at 7:38 p.m. on behalf of a voter who had not received her requested absentee ballot and could not go to the polls to vote in person because she was in a psychiatric hospital several counties away from her voting location. After the Board of Election and the Secretary of State refused to provide a reasonable accommodation to allow her to vote, Disability Rights Ohio filed an emergency complaint and motion for a temporary restraining order.
On Friday, November 16, 2012, the federal judge found that the Secretary of State and local board of election could have accommodated the voter on Election Day to allow her to vote. To remedy the situation, he ordered that her ballot, which was sent in the day after Election Day, be counted.
Read Decision and Entry Sustaining Plaintiff's Motion for a Temporary Retraining Order [PDF]
After Columbus City Schools refused to remove the doors of seclusion rooms in response to Disability Rights Ohio's investigative report, a parent of an 18-year-old student who has autism and Disability Rights Ohio filed a formal written complaint with the Ohio Department of Education (ODE). The complaint alleges individual and system-wide violations of the federal Individuals with Disabilities Education Act. ODE must issue a letter of findings within 60 days of the filing of the complaint. The school district must correct any violations found by ODE within one year.
Disability Rights Ohio, formerly the Ohio Legal Rights Service, after a six-month investigation that included federal litigation to obtain needed records, found that schools in the Columbus City Schools (CCS) improperly use restraint and seclusion to punish and control the behavior of students with disabilities. Frequently, and in violation of CCS' own policies, staff used the seclusion room or restrained the student because of a minor infraction, such as being disrespectful or non-compliant.
Read the investigative report: Columbus City Schools Use of Seclusion Rooms
Disability Rights Ohio successfully represented an individual with an intellectual disability to prevent her move from the community and into an intermediate care facility for people with intellectual disabilities (ICF-IID).
The system for people with developmental and intellectual disabilities in Ohio is, in many respects, biased toward institutions, which makes it exceedingly difficult for such people to live and receive services in their homes or in community-based settings. The federal government pays for more than half of Medicaid services provided in both institutional and community settings. The state of Ohio pays the remaining portion (often referred to as the “match”) for expensive institutional settings, yet county boards of developmental disabilities pay the remaining portion for less costly home and community-based services, thereby creating incentives for counties to press for institutional placements so that costs can be shifted to the state. As a result, many people are denied their right to avoid unnecessary institutionalization under the Americans with Disabilities Act and the Supreme Court’s decision in L.C. v. Olmstead.
Approximately 27,000 people throughout Ohio are on waiting lists for the Individual Options (IO) waiver, the predominant Medicaid program in Ohio that enables people with intellectual or developmental disabilities to receive community services and avoid unnecessary institutionalization. Unfortunately, these waiting lists are extremely long in each county and move very slowly. Unless a person is at the top of the waiting list, he or she may have no choice but institutionalization to receive needed services. There is a mechanism under Ohio law, however, that allows an individual to receive first priority for enrollment on the IO waiver in an emergency situation, and Disability Rights Ohio successfully represented an individual with an intellectual disability recently to prevent her unnecessary institutionalization in an ICF-IID.
This individual had been receiving non-Medicaid funding from the county board of developmental disabilities, which allowed her to live in a community setting, but it later decided to terminate this funding and to propose to move her to an ICF-IID (presumably, as described above, to shift financial responsibility to the state of Ohio). A Disability Rights Ohio attorney recommended that the individual and her mother/guardian request “emergency status” from the county board of developmental disabilities because the termination of funding would cause a “loss of present residence” and would result in her placement in an ICF-IID. Because this request was refused, Disability Rights Ohio represented the individual at a Medicaid hearing. A subsequent administrative appeal decision confirmed that she met “emergency status” because losing her present residence should be considered an emergency situation if the only alternative is placement in an institution. The county board of developmental disabilities is now processing the individual’s enrollment on the IO waiver, and she will be able to remain in the community.
Individual integrated into the community with assistance from Disability Rights Ohio
A young adult with an intellectual disability and multiple mental illnesses who has been institutionalized in a locked behavioral unit in a nursing facility for years will now be moving into her own apartment in the community with the services and support she needs.
Her guardian had contacted Disability Rights Ohio because the nursing facility had intended to discharge the individual, concluding that she no longer belonged in such a restrictive setting. But because of the absence of services in the community, there was a serious risk that she would instead be institutionalized in an intermediate care facility for individuals with intellectual disabilities (ICF-IID).
A Disability Rights Ohio attorney first advised the individual and her guardian to apply for HOME Choice, a Medicaid program that assists people who are transitioning from an institution into the community. Also, since the individual was on a waiting list for the Individual Options (IO) waiver, a Medicaid home and community-based services program for people with intellectual disabilities, the attorney represented her at a Medicaid hearing and argued that she meets the criteria for emergency status, which provides a person with first priority above all others for home and community-based services. The county board of developmental disabilities eventually agreed that she meets the criteria for emergency status, and the attorney then negotiated with the Ohio Department of Developmental Disabilities to enroll her on the IO waiver so that she could move into the community and receive the services she needs to live independently.
Disability Rights Ohio assists individual in winning Medicaid appeal; client’s services are maintained
An individual with intellectual and developmental disabilities is currently enrolled on the Transitions DD waiver, a Medicaid home and community-based services program that allows an individual to reside in the community and avoid unnecessary institutionalization. After a Colorado Norms assessment was completed, however, the Ohio Department of Job and Family Services (ODJFS) proposed to reduce the amount of waiver services he received by more than half, even though he had experienced no change in his condition or needs.
A Disability Rights Ohio attorney represented the individual at a state hearing to contest this proposal, but the hearing officer ruled against him. On administrative appeal, the attorney argued that the completion of the Colorado Norms assessment, which ostensibly provides guidelines to assist an assessor in determining the length of time it takes to perform each type of covered waiver service, could not be the sole basis for reducing the individual’s services. There was no evidence regarding how the guidelines are established, how the assessment is to be completed, and when an assessor should deviate from the guidelines to reflect an individual’s unique characteristics. Furthermore, the assessment erroneously omitted any mention of the individual’s need for assistance with certain activities of daily living, and also clearly did not produce an accurate reflection of the individual’s needs for services in all other activities in which he needed assistance.
Fortunately, the administrative appeal decision agreed, ordering ODJFS to reinstate the individual’s services and to complete a new assessment.
Self-advocate successfully appeals to have overpayment waived and benefits restored
An individual’s Social Security benefits have been restored after an error resulted in an overpayment and termination of the client’s benefits.
The client attempted to appeal the termination and overpayment but was repeatedly denied the opportunity to file her appeal, her reconsideration or her waiver, and the SSA office staff member would not allow the client to talk with a supervisor.
The client contacted Disability Rights Ohio for assistance. A staff attorney contacted the main Social Security office to discuss the client’s problems and attempt to resolve this matter. The client, her mother and the client’s case manager followed the attorney’s recommendation of making a personal trip to the Social Security office. As a result of their self-advocacy, the issue was resolved in the client’s favor. The county Social Security manager indicated that the worker who refused to help was no longer employed, that the client’s benefits would be restored and the overpayment waived, as it was in error.
Self-advocate files complaint against landlord to have a support animal in her apartment
An individual with post-traumatic stress disorder and anxiety finally has the support animal she needs as a reasonable accommodation for her disability.
She requested that her landlord permit her to keep an emotional support dog in her apartment. Her doctor had strongly recommended a dog as a way to alleviate the difficulties she experienced from her mental illness and to allow her to feel safe in her home. The landlord, however, refused, citing its no-pet policy.
A Disability Rights Ohio attorney contacted the landlord’s attorney, stating that the federal Fair Housing Act as well as Ohio law protects the right of an individual with a disability to keep an emotional support dog in his or her home and that this animal is, by definition, not a pet. For months, the Disability Rights Ohio attorney negotiated with the landlord’s attorney, who eventually insisted the individual could instead obtain a hamster, which would have been completely ineffective for the individual’s disability. Because only the unique characteristics of a dog were suitable for the individual’s disability, the Disability Rights Ohio attorney advised her to file an administrative complaint with the Ohio Civil Rights Commission.
Fortunately, the matter was finally resolved, and the individual was able to obtain the emotional support dog. She reports that, in the short amount of time in which she has had the dog, it has done wonders for her condition and has improved the quality of her life.