Developmentally Disabled Sue for Home and Community Based Services

Disabled sue FL in federal court

By Jim Saunders
03/28/11 © Health News Florida

Gov. Rick Scott and two state agencies have been hit with a class-action lawsuit alleging Florida has failed to provide needed services to 19,000 disabled people who are stuck on a waiting list.

An advocacy group and five named plaintiffs --- who have developmental disabilities such as mental retardation and cerebral palsy --- filed the lawsuit last week in U.S. District Court in Tallahassee.

The lawsuit centers on a waiting list for what are known as home- and community-based services, which help disabled people live outside of institutions. The lawsuit contends that the state is violating federal law and that some people have been on the waiting list for more than five years.

"Plaintiffs have been placed on waiting lists for enrollment ... where they languish for years without services, thereby placing them at risk of institutionalization and regression of skills and therapies learned from educational programs,'' said the lawsuit, filed by lawyers for the advocacy group, Disability Rights Florida.

The suit names as defendants Scott, Agency for Health Care Administration Secretary Elizabeth Dudek and interim Agency for Persons with Disabilities director Brian Vaughan.

Shelisha Coleman, an AHCA spokeswoman, said in an e-mail this morning that her agency does not comment on pending litigation. Health News Florida was also seeking comment from the governor's office and the Agency for Persons with Disabilities.

The waiting list is part of a long-running debate in Tallahassee about the home- and community-based services program. Lawmakers and the Agency for Persons with Disabilities --- which manages much of the program --- have taken a series of steps in recent years to try to hold down rising costs, including limiting certain services.

Despite those attempts, the program has run large deficits. A House budget proposal released last week, for example, includes $169 million to cover a deficit this year.

The lawsuit focuses on people who are not able to fully take care of themselves and need varying levels of services to live in their communities. In many cases, the people live with family members.

But the lawsuit says that only people considered in "crisis" have been taken off the waiting list during the past five years and been added to the program. That can happen, for instance, when people become homeless or are considered dangers to themselves or others.

The lawsuit alleges Florida is violating the American with Disabilities Act, which requires efforts to integrate disabled people into communities. Federal law also is involved because the home- and community-based services program is run through what is known as a "waiver" to the Medicaid program.

Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at jim.saunders@healthnewsflorida.org.

Capitol Updates- Take 2

Spring fever must be hitting me hard this year, please note my revisions to what I sent out yesterday. My best, Rita Young

----------------------------------------------------------------------------------------------
The Senate Human Development Subcommittee recently met to review the 2012 Budget as the House has already passed their version a few weeks ago. We do not expect any big surprises due to the requirement of the Department of Justice settlement and the commitment of legislators to comply with the requirements. The 2012 budget should go to the full Senate Appropriations Committee early next week for a vote.


To review, for 2012, the House approved funding for:

• 400 Family support services, five crisis respite homes and six mobile crisis teams

• 100 Community waivers for NOW and COMP for individuals with developmental disabilities on the waiting lists

• 150 Community waivers for individuals moving out of state hospitals.

The good news is that also added was $680,000 for community waivers specifically for children aging out of foster care.


Other bills of interest:


HB 245 Criminal Justice Reform
Sponsored by Representative Jay Neal and Speaker David Ralston, this bill will build a Council of 11 members to analyze our state’s criminal justice system, report back findings by January of 2012, and recommend legislation.

We hear more and more cases that involve individuals with developmental disabilities and the justice system, we believe that reform is necessary to ensure those individuals are treated fairly and have the same access to the justice system as others. According to James G. Exum, communication difficulties and other challenges have meant that inmates with disabilities are more readily convicted, more likely to serve longer terms, and less likely to have their convictions appealed.


HB 385 Revenue and Taxation
Sponsored by Representatives Mickey Channel and Larry O’ Neal, this is a comprehensive look at our current tax system by a special committee made up of economists, legislators and small and large business representatives with recommendations on how to update Georgia’s tax system. No movement on this bill yet.

Look to 2020 Georgia for further details on the recommendations.


HB 181 Special Needs Scholarship Program
Sponsored by Representatives Rich Golick and Brooks Coleman and is
headed now to the Senate, this bill would drop the requirement of a student to be enrolled in a public school for one year before they could qualify for a voucher to attend private school.

Capitol Updates- Take 2

Spring  fever must be hitting me hard this year, please note my revisions to what I sent out yesterday.   My best, Rita Young
------------------------------------------------------------------------
The Senate Human Development Subcommittee recently met to review the 2012 Budget. The House already passed their version a few weeks ago,and we do not expect any big surprises due to the requirement of the Department of Justice settlement and the commitment of legislators to comply with the requirements. The 2012 budget should go to the full Senate Appropriations Committee early next week for a vote.


To review for 2012, the House approved funding for:

• 400 Family support services, five crisis respite homes and six mobile crisis teams

• 100 Community waivers for NOW and COMP for individuals with developmental disabilities on the waiting lists

• 150 Community waivers for individuals moving out of state hospitals.

The good news is that also added was $680,000 for community waivers specifically for children aging out of foster care.


Other bills of interest:

HB 245 Criminal Justice Reform

Sponsored by Representative Jay Neal and Speaker David Ralston, this bill will build a Council of 11 members to analyze our state’s criminal justice system, report back findings by January of 2012, and recommend legislation.

Since we hear more and more cases that involve individuals with developmental disabilities and the justice system, we believe that reform is necessary to ensure those individuals are treated fairly and have the same access to the justice system as others. According to James G. Exum, communication difficulties and other challenges have meant that inmates with disabilities are more readily convicted, more likely to serve longer terms, and less likely to have their convictions appealed.

HB 385 Revenue and Taxation
Sponsored by Representatives Mickey Channel and Larry O’ Neal, this is a comprehensive look at our current tax system by a special committee made up of economists, legislators and small and large business representatives with recommendations on how to update Georgia’s tax system. No movement on this bill yet.
Look to 2020 Georgia for further details on the recommendations.


HB 181 Special Needs Scholarship Program
Sponsored by Representatives Rich Golick and Brooks Coleman and is
headed now to the Senate, this bill would drop the requirement of a student to be enrolled in a public school for one year before they could qualify for a voucher to attend private school.

Delta Air Lines Fined $2 million for Disabilities Violations

By Annalyn Censky, staff reporterFebruary 17, 2011: 5:52 PM ET

According to the government investigation, Delta failed to help passengers needing assistance getting on and off the airplane, and the carrier frequently did not respond to customers' complaints on the matter

Airlines are required to respond within 30 days to written complaints about their treatment of disabled passengers.

"We take our aviation disability rules seriously and will continue to enforce them vigorously," Transportation Secretary Ray LaHood said in a statement.

Of the $2 million fine, Delta may use $1,250,000 for investments improving its services for passengers with disabilities beyond what is required by law. Those measures can include an automated wheelchair tracking system, customer service surveys and enhancements to the company website.

The remaining $750,000 is due within 30 days.

"We take the responsibility of serving customers with disabilities seriously and have made significant investments in technology, feedback assessment and training since the issues in 2007 and 2008 that the DOT cites in its consent order," Delta responded in an official statement.

Early this Morning

About an hour after sunrise, the House Appropriation Committee met to finalize their recommendations and vote on the budget for fiscal year 2012 at the Capitol. The biggest challenge facing legislators was the $1.7B shortfall in revenue this year. Our state budget is basically less that what it was in 2001, and our population has dramatically increased since then. Cuts that averaged about 7% per agency seemed to be the only solution for lawmakers to balance the budget. We understand the need for efficiencies and cuts but we need to advocate for a balance approach that includes new revenue as a practical solution.

Behavioral Health and Developmental Disabilities was spared any major cuts due mainly to the Department of Justice settlement. The Marcus Institute was originally cut a few weeks ago but restored this morning, and the House Subcommittee chaired by Representative Penny Houston also added 15 Medicaid waivers that are specifically for foster children with disabilities who are aging out of foster care.

Other good news within the Department of Community Health budget includes the restoration of dental, vision, and podiatry to individuals who use Medicaid and 33 slots for the Independent Care Waiver Program for people who have physical disabilities.

Health and Human Services Committee Hearing

The Committee on Health and Human Services met today, March 9^th, 2011, promptly at 10:00 A.M. With four bills to discuss, Senator Goggans was second to speak on his bill SB 245. SB 245 is a straight-forward bill aimed at defining the term “developmental disability.” The term developmental disability can apply to any person(s) with an intellectual disability and physical disability or any combination thereof. The purpose of this bill, according to Senator. Goggans, is to better align the state law with federal law. Once the bill had been introduced by the author, the Chairwoman, Senator Unterman of the 45^th District, opened the floor for discussion. With no one electing to speak, the bill moved to a vote, where it was favorably reported.

VIDEO EXPLAINS COMING COMMUNITY SERVICES

ATLANTA - A new video has been published to YouTube by the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) explaining the agency’s plans for expanding community services in North Georgia. It’s available for viewing on the web at http://www.youtube.com/user/GeorgiaDBHDD  .

The video is an effort to help the public better understand all of the services that will be put in place in 2011 to prevent the need for institutionalization among people with mental illness and developmental disabilities. Over 90-percent of the people served by DBHDD in the 31 counties that make up Region 1 already receive community services. By expanding those services and adding new ones, the agency will dramatically reduce the number of people who have to be transported to the state psychiatric institution in Rome, Georgia.

The brief video - under 6-and-a-half minutes in length - discusses the changing nature of mental health and developmental disability services nationwide before proceeding to lay out exactly what services are being planned, where they’ll be located, and when they’ll be available.

“We’re trying to use new technology to help as many people as possible understand the changes taking place in North Georgia,” said DBHDD Communications Director Tom Wilson. “We’ve found that traditional media, public meetings, and word-of-mouth just haven’t been effective in communicating the facts. We hope this video helps.”

Tom Wilson

Director and Press Secretary

DBHDD Office of Communications

Developmentally Disabled Inmate Fights to Live

By Bill Rankin The Atlanta Journal-Constitution

Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.

On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite. By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt. Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.

The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said.

During lively arguments in a packed courtroom, a number of judges seemed to agree.

Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence. Four states have adopted a tougher test, the clear and convincing evidence standard. Three states have not set a burden of proof.

The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling. About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional.

In 2002, the U.S. Supreme Court ruled that mentally retarded individuals, because of their disabilities in reasoning, judgment and self control, do not act with the same level of moral culpability that characterizes the most serious adult criminal conduct.

State attorney Beth Burton refused to concede the possibility that mentally retarded inmates will be executed in Georgia. She told the court that when the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide how to evaluate retardation claims.

This prompted questions from judges who wondered whether it would be acceptable if Georgia made it all but impossible for a defendant to prevail in a mental retardation claim.

What about a law that says only defendants with IQs below 30 can be found to be mentally retarded, asked Judge Stanley Marcus. An IQ of about 70 is generally considered to be the upper limit for a diagnosis of mental retardation.

"I think they could do that," Burton responded.

What if the state required defendants to prove retardation beyond a shadow of a doubt, Judge Charles Wilson asked. Would that make a difference?

"I can't say that it would, as crazy as that sounds," Burton replied, noting the U.S. Supreme Court could ultimately overturn such a law.

So as long as there is no Supreme Court decision that forbids a certain way of evaluating the claims, Georgia could set the burden so high no one could ever prove they were mentally retarded, Wilson said.

This prompted Judge J.L. Edmondson to wonder what the state planned to do with Hill, noting he had been found to be mentally retarded.

"If you get the chance, is Georgia going to execute this man?" he asked.

"Yes," Burton replied.

Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt. After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.

The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.

Judge Frank Hull, joined by a number of her 11th Circuit colleagues, said that the state Supreme Court ruling should stand. In more than 200 years, she noted, the U.S. Supreme Court has not ruled that a burden-of-proof standard violates the Eighth Amendment's ban on cruel and unusual punishment.