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.

Boy,8, Arrested Over School Tantrums

ORLANDO, Fla. -- An 8-year-old boy was arrested earlier this week after being accused of running from teachers at school, throwing sticks and injuring one of them.


School administrators on Tuesday called the Orange County Sheriff's Office, who arrested the special education student and charged him with battery. It's the fifth time since November that he has been arrested after being accused of fighting with teachers at the school, but according to police reports, none of the teachers suffered serious injuries.


The public defender's office said deputies came to Riverside Elementary on Tuesday for the child's latest attack on teachers. The child now has a mug shot and a rap sheet.


Parents at the school wonder why.


"That's terrible," said Connie Dewitt. "I'd be distraught. Arrested? They're just kids. Somebody else should be doing something about it. The school should be doing something. There should definitely be something in place to help the child."


In one police report, the boy's teacher said the boy "bit his left knee and kicked him," leaving "a slight red mark" about "the size and shape of the top of an eraser of a pencil."


Last month, the same teacher said the boy "struck him with the chair and fist," and said at one point the boy was "chasing other students around the classroom threatening to kill them." According to the police report, no one was ever seriously injured, but the teacher called deputies for an arrest each time.


The boy's mother said her child "doesn't act this way at home."


A representative for the Orange County School District said each incident is reviewed on a case by case basis, and it's up to the administrator to maintain order in the school and sometimes law enforcement can be called. The district said law enforcement takes over the case from there.

The boy appeared in court Friday and saw his mother for the first time after being held at the Juvenile Detention Center for three days.

The judge chastised his mother for not following through with previous recommendations to get the boy counseling.


"He's your responsibility. We really don't want to be a part of his life," the judge said.

The mother's attorney said the school district had failed them.

"Students who have special needs should be given appropriate services, including counseling and behavioral services," attorney Barbara Glass aid.

The judge ordered the child to mandatory counseling outside of the classroom.

A district spokesman said he could not talk about the case specifically, but said principals are required to maintain order in their schools, which sometimes requires calling law enforcement.

Watch Local 6 News for more on this story.

www.clickorlando.com

POSTED: Thursday, February 24, 2011

UPDATED: 5:40 pm EST February 25, 2011

H.B. 229

I recently received this review of HB 229 from Pat Nobbie from the DD Council. If you have been denied Medicaid and have appealed the case, or know some who has, this bill could help streamline the process.

IF YOU are a Medicaid recipient who has experienced unnecessary delays in a request for a Fair Hearing, OR if you have had a decision in your favor overturned by the Department of Community Health, please write a one page description of your experience and send it to: pnobbie@dhr.state.ga.us.  Please include contact information including a phone number and e-mail address.  Please indicate if you would be willing to speak in support of this legislation when it comes before the committee.  Put “Medicaid appeals” in the message line.  Thanks

H.B. 229:  Increase Efficiency & Preserve Due Process

in Medicaid Appeals Hearings

HB 229 Corrects 2 problems in the Medicaid Appeals Process

Problem 1:  Currently, if an individual is denied Medicaid for any reason – eligibility, frequency, duration or intensity of services, they can appeal that decision to the Department of Community Health and request a Fair Hearing.  DCH must submit the request for a hearing to the Office of State Administrative Hearings (“OSAH”), BUT THERE IS NO REQUIRED TIME FRAME in state law within which the transmittal of the request must occur.  It has been the experience of many families that DCH sits on the requests for a Fair Hearing unnecessarily, leaving Medicaid recipients in limbo.

Federal Medicaid Act requires that if a Medicaid recipient appeals a denial of services and requests a Fair Hearing, the decision on that appeal must be made within 90 days from the date the request for a hearing was submitted.

When DCH sits on those requests for a fair hearing, it cuts into the 90 day time frame the Office of State Administrative Hearings has to render a decision.

Solution:  HB 229 requires DCH to transmit a request for a Fair Hearing to OSAH within 15 days of receiving it, giving the Administrative Law Judges 75 days to hear the case and render a decision.

Problem 2:  After OSAH hears a case and renders a decision, DCH can appeal the decision to itself. Under current Georgia law, DCH can “affirm, modify or reverse” the judge’s decision.  This creates three issues: 1) it is a waste of time as it adds at a minimum an additional 60 days to the appeal process; 2) it undermines the integrity of an appeal process that is supposed to be impartial and fair; 3) it is a waste of resources to have a full-blown hearing only to have the department change the decision as they see fit.  In most of the administrative proceedings before OSAH other than Medicaid appeals (i.e. child support, special education, administrative license suspension, DNR appeals), the judge’s decision is final.  If either party wishes to challenge the result, they may appeal the OSAH decision to Superior Court. 

Solution:  HB 229 removes DCH’s ability to overturn an administrative law judge’s decision.  If either party doesn’t like the Hearing Officer’s decision, they may appeal to Superior Court.  An Impartial Judge’s decision is respected and stands as the Final Administrative Decision.

HB 229 provides an administrative appeal process that is fair and efficient, and protects the integrity and impartiality of the appeal proceedings before the Office of State Administrative Hearings.

Letter from Extraordinary Mom

Happy President's Day! 

I just got this email over the weekend from a parent who sent out emails in response to the action alert on Friday. I changed the city she lives in and her name to Extraordinary Mom. I will say that I  know her personally, and I promise she is!

Thanks for understanding that we need to move to a new level of advocacy and ask for increased revenue to fund services. The short personal story along with an action to take makes this a effective letter.

Have a great week. See you all Thursday at Disability Day at the Capitol. 


Best, 
Rita

State Representative, District 46

340 State Capitol Building

Atlanta, Georgia 30334

Dear Representative Jones:

My 23 year old son has Autism. I am 53 years old and don’t know what will happen to him after my husband and I are gone. I’ve been told over and over since he was just a little boy that there just isn’t enough funding available. All the while the waiting list for services continues to grow and grow. When will it by my son’s turn?

For my son and for thousands of others across Georgia, it is critical for the state to increase revenue in order to provide needed services for individuals with developmental disabilities. By updating our out dated tax system, please look for ways to increase revenues during this legislative session to fund individuals on the waiting list.

Please help us to help our kids. Thank you for any support that you can give us.

Sincerely,

Extraordinary Mom
Near Savannah, GA 

I recently received this from a dear advocate in Carrollton;

My daughter is now 39 yrs. old, and even before her birth I was an advocate for disabilities as a speech therapist/audiologist.  It seems that we parents and those who work “in the system” are the only ones who truly “care” about the current and future care of our family members.  I have sought help from politicians, some of whom have had children with disabilities, and yet our needs always come up short.  What more can we do??  I am now in my 70s and have little energy because of my own health problems.  But for the rest of my life I will continue to do all I can for those like my daughter.

The facts: There are over 17,000 aging family members in Georgia caring for an individual with developmental disabilities. Our waiting list continues to grow every year by at least 700-900 due to students graduating high school. The state revenues are simply not enough to handle the demand of our families.

We need to ask our legislators to update our out of date tax system to better protect us from economic downturns and bring more revenue into our state.  The following legislators are deciding on tax reform and recommendations from a Tax Council that was formed last year and need to hear from our families the following message:

Cut and paste the paragraph below and the bolded sentence, sign your name and write a few personal sentences like our advocate did above:

For my child and for thousands of others across Georgia, it is critical for the state to increase revenue in order to provide needed services for individuals with developmental disabilities. By updating our out dated tax system, please look for ways to increase revenues   during this legislative session to fund individuals on the waiting list.

For solutions that take a balanced approach, review 2020 Georgia’s recommendations.

Send to the following legislators asap:

 The Honorable Larry O'Neal, State Representative, District 146: 

larry.oneal@house.ga.gov,

The Honorable Stacey Abrams, State Representative, District 84: stacey.abrams@house.ga.gov,

The Honorable Jan Jones, State Representative, District 46: 

jan.jones@house.ga.gov,

 The Honorable Steve Thompson, State Senator, District 33: 

steve.thompson@senate.ga.gov,

Advocacy matters.  Thank you,

Rita Young

2011 Partners in Policymaking

Partners in Policymaking is back! The deadline to apply is March 10th. 

Special Tax Reform Council Report

Yesterday, members of the Special Tax Reform Council presented their recommendations to a group of state senators and representatives on how our state tax system needs to made more effective and efficient. At a time when there are no new dollars for community supports until the end of June, and then only 100 budgeted for next year, we need to care about what legislators ultimately decide about new revenue for the state. Remember, there are nearly 6,000 people waiting for services.  2020 Georgia just released one if its 20 Choices for Georgia’s Future and highlighted the lack of funding for community waivers.

With so many worthy causes to put your time and energy around, we hope that you continue to support the common vision for people with developmental disabilities to have the supports that they need to in order to lead meaningful lives by staying connected and involved in your community and in statewide advocacy efforts.

One very specific way you can do that is to develop your own leadership skills through Partners in Policymaking. Partners is a leadership development program for parents of children with developmental disabilities and self advocates and has over 500 graduates statewide. I am a graduate of Partners, and I can testify that it set the course for the work that I do everyday. Stay tuned for more news and details later this week. 

Jewish Disabilities Awareness Month

There are no boundaries around spirituality.

Temple Kehillat Chaim, a Reform Jewish synagogue in Roswell, will inspire, motivate and educate the community with a special Sabbath worship service on Friday, February 25th at 7:30. February 2011 is the third annual International Jewish Disability Awareness Month. Synagogues around the world are highlighting their mission to break down physical, communication, and attitudinal barriers, and educate our communities on what accessibility and inclusion really mean.

Stacey Ramirez, Director of Individual and Family Supports for the Center for Leadership in Disability at Georgia State University in Atlanta will be this year’s invited guest speaker. Ms. Ramirez will share her experience in facilitating Person Centered Planning, a unique process that empowers people with and without disabilities. Person Centered Planning focuses on the individual and his needs by putting the person in
charge of defining the direction for his life, not on the systems that may or may not be available to serve him. This ultimately leads to greater inclusion as a valued member of both community and society and heightened personal satisfaction.

Person Centered Planning involves the development of a “toolbox” of methods and resources that enables a person at any age of life – from childhood to adulthood to choose his own pathways to success; the planners simply help him determine where he wants to go and how best to get there. The service will speak to the importance of community supporting individuals with disabilities while cultivating spirituality.

Where: Temple Kehillat Chaim
1145 Green Street Roswell, Ga. 30075
When: Friday, February 25, 2011 7:30 p.m.
Phone: 770 641-8630

Recent Advocacy Alert

Dear Advocates,

If you received a recent advocacy alert this afternoon regarding SB22, please disregard. We apparently had some technical difficulties with our software, and the message you received concerning a bill on transportation was from a previous legislative session. Excuse the confusion.We are looking into how and why that error occurred.

Sincerely, Rita

Captiol Update:

Yesterday, the Subcommittee on Human Resources in the GA House met to hear public testimony on the closure of hospitals across the state that serves individuals with mental illness and developmental disabilities. Twenty-two people gave testimony to legislators that lasted several hours. Kudos to Pat Nobbie from Georgia Council on Developmental Disabilities for telling legislators that we need 1500 waiver services for DD when there are only 100 in the budget. Also Josh Norris from Georgia Advocacy did a great job in stressing the need for a plan of action on how Georgia needs to support folks coming out of hospitals as well as fielding difficult questions from legislators on issues such as the future of Central State hospital in Milledgeville. Linda Wilson, Partner graduate and AADD Board President also stressed the need for family support services to be funded in the budget to help families keep their loved ones at home or in the community. The common thread in most of the testimonies was the need to build up provider capacity quickly to insure smooth transition from hospital placement to the community, and provide adequate funding to support the Behavioral Health and Developmental Disabilities infrastructure as they change in culture and the way they provide services to individuals with Mental Health and DD.