HOUSING DISCRIMINATION

The Community Team completed a Disability Discrimination Audit of the housing market of the City of Newton, Massachusetts.  Conducted over a six month period, the audit was modeled on testing techniques developed by the U.S. Department of Housing and Urban Development.  The final report submitted to the city can be downloaded by clicking on the link below.

The testing program was designed to determine whether individuals with disabilities experience discrimination when seeking housing, either in the rental or sales market.

The audit, which included testing for discrimination across six different disability categories, - Individuals who are deaf, Individuals who are blind and receive assistance from a guide dog, Individuals who are wheelchair users, Individuals with mental illness, Individuals with a cognitive impairment and Individuals with a mobility impairment - found evidence of discrimination in 48% of 52 overall tests conducted.  

The types of tests conducted included testing for differential treatment -- to see whether there is evidence that a person is treated less favorably then a similarly-situated person based on their disability; testing for reasonable accommodations -- to see whether housing providers are aware of their legal obligation and are willing to make changes to policies, practices or procedures to allow an individual with a disability an equal opportunity to use and enjoy a dwelling; and testing for reasonable structural modifications -- to see whether housing providers are aware of their legal obligation and are willing to allow or make physical modifications to housing units where necessary for a person with a disability. 

Examples of discriminatory conduct included:

• testers without disabilities being shown more available units than testers with   disabilities;

• testers without disabilities being offered more generous terms, such as lower   rent or waiver of a fee, than testers with disabilities;

• agents and landlords not returning messages left by testers with disabilities even though the units being inquired about were available;

• landlords not agreeing to waive a no pet policy for a potential renter who is blind and uses a guide dog

• landlords not agreeing to allow individuals with disabilities to make physical changes to units, such as lowering cabinets or installing visual alarms.

The audit also found evidence of discrimination by real estate agents and agencies, which as places of public accommodation under disability discrimination laws, cannot discriminate in providing services to a person with a disability during his or her housing search.  DLC made numerous recommendations to the City, including training, outreach and education for landlords, agents and individuals with disabilities, so that each group is aware of their legal rights and obligations.    Read the Final Report

ACCESS TO HEALTH CARE

In December 2001, advocates from the Disability Law Center, Greater Boston Legal Services and Massachusetts Law Reform Institute filed a statewide class action in federal court in Boston on behalf of five individuals against the Governor of Massachusetts and the state officials responsible for the Massachusetts Medicaid program, known as "MassHealth." The case is Sabbag v. Romney, which involves MassHealth (Medicaid) covered private duty nursing services. The plaintiffs are a class of 400 - 500 individuals under age 21 with serious disabilities or medical conditions. Each is cared for at home, in part by private duty nurses whose services are paid for by MassHealth. For each plaintiff, MassHealth had agreed to pay for a specific number of medically necessary hours of private duty nursing services each week. In their complaint, the plaintiffs claimed that they were unable to obtain private duty nurses for all of the hours approved by MassHealth because the rates paid by MassHealth for private duty nursing services were too low and because of other shortcomings in the administration of this benefit by MassHealth. The plaintiffs claimed that, as a result, the defendants had violated the federal Medicaid Act and the Americans with Disabilities Act. The plaintiffs asked the Court to order MassHealth to increase the rate of reimbursement for private duty nursing services and to take other measures to improve the administration of the private duty nursing benefit.

In 2003, while this case was pending, plaintiffs' counsel, along with an economic expert, participated in public hearings in the rate setting process for private duty nursing services before the Massachusetts Division of Health Care Finance and Policy (HCFP). At the end of that process, the agency increased by 21.3% the rates at which private duty nurses are reimbursed by MassHealth. These rates now appear in regulations promulgated by HCFP at 114.3 Code Mass. Reg. 24.01, et seq. The state also changed the methodology by which the rates are determined to result in a more competitive rate. After the rate increases took effect in 2004, the plaintiffs' lawyers and the defendants' lawyers negotiated a settlement that requires the state Medicaid agency to create a data collection systems for better program management, to provide data on approved hours, unfilled hours and the reasons for the unfilled hours to class counsel and to the state rate setting agency for the rate setting process expected in Fall 2006. The state also agreed to develop a protocol for providing better case management and assistance to class members. Finally, the state agreed to convene quarterly meeting with an advisory committee consisting of class members and class counsel. The Court approved the settlement agreement in the case on 9/28/05. Implementation of the settlement agreement is ongoing.

ACCESSIBILITY

Berry v. Lowell – DLC brought suit on behalf of the Northeast Independent Living Program (NILP) and Mr. Berry, challenging the City of Lowell’s locating accessible seating in the very last row of a newly constructed minor league ballpark. Following a trial, the federal court ruled that the ADA’s integration imperative was violated by the segregated seating scheme devised by the City. The Court mediated an agreement among all the parties. Pursuant to that agreement, a Consent Judgment was entered which provided that a new front row would be constructed in time for Opening Day, 2006, consisting of 15 wheelchair locations and 15 companion seats. We have been monitoring the City’s compliance with the terms of the Consent Judgment.

DEAF ACCESS

A woman contacted DLC after she was denied effective communication and related services at a local hospital. She is Deaf and has a psychiatric disability. During a recent hospitalization she was denied access to ASL interpreters, TTYs and closed caption television. We filed suit in federal court and then reached a settlement in the case. The settlement included $9500 for the client and $1500 for attorney’s fees.

MENTAL HEALTH ADVOCACY

A 17 year old with a mental illness was admitted by her guardian/father to a local university’s Intensive Residential Treatment Program (IRTP). The IRTP’s handbook, on its face, violates some of the Five Fundamental Rights afforded to the adolescents residing on the unit. In particular, the right to make and receive confidential phone calls to and from whomever the client chooses was violated. The only exception where the IRTP can restrict this right is when there is substantial risk of harm to the client, but it can only be temporarily restricted.

The IRTP had a policy that each client had an approved “phone list” which included the names and numbers of who they were allowed to make and receive phone calls from. The phone list had to be approved by both the client’s guardian and therapist. This clearly violates the client’s right to make and receive confidential phone calls to whomever they choose. This violation specifically affected our client because she was prohibited from calling peers and a therapist from her previous IRTP.

Once DLC became involved, the IRTP agreed to change their practices and policies regarding phone access and other issues pertaining to the Five Fundamental Rights. The IRTP re-drafted their handbook to adhere to the Five Fundamental Rights and sought comments from DLC.

BENEFITS TRAINING

DLC organized and held a free conference for consumers who are also Social Security Beneficiaries with information about work incentives, their right to access Benefits Planners and their employment rights. This training provided DLC an opportunity to do outreach to consumers who are seeking help getting a free and appropriate education for their children

DURABLE MEDICAL EQUIPMENT

In the course of speaking with and representing consumers who have experienced roadblocks accessing durable medical equipment, DLC has discovered a variety of barriers. The first barrier is consumer information on where to seek coverage for durable medical information, how to get started. To that end, DLC is planning an AT consumer conference in the coming year, which will cover MassHealth (Medicaid), Medicare and other choices for accessing AT.

DLC's priority is assisting consumers with MassHealth prior approval denials. But we have found that many people do not even get so far as a MassHealth denial. DLC has received many calls from consumers who have assumed that a provider has made a prior approval request or who have not been able to find a provider to file a prior approval request and go through the process. In these cases, DLC helps consumers understand what MassHealth will and will not cover and what needs to be submitted by the provider.

Sometimes the providers (and even the consumer's doctors) have confused “difficulty” with “impossibility” and/or have not understood the extent of the documentation that needs to be provided. To help consumers understand the process and their rights, DLC has prepared a consumer-friendly description of the process, which appears on the DLC website and on the mass legal services website - and which we provide to consumers who call, as well as at trainings.

Many consumers who call DLC do so after their appeal rights have expired - because they have been told that MassHealth will not cover the item. In these cases, if the item seems appropriate and is arguably coverable by MassHealth, DLC has worked with the consumer, the doctors and the provider to obtain resubmission of a better-documented prior approval request. In many of these cases, the request is then approved - without the need for further appeal. The consumer-friendly DME information mentioned above is also used in these situations.

Where the item does not seem appropriate or coverable by MassHealth, DLC helps the consumer understand his/her options - to revise the submission or to seek other means of obtaining the item - used equipment, Easter Seals loan program, etc.

DLC has not obtained all the results it originally sought in terms of revising the DME prior approval process. DLC has discovered that the issues are more complex than originally understood. In addition, through the educational process of raising these issues at hearing, we no longer see hearing officers willing to rely on information that was not made a part of the hearing file or medical journal information that is not part of the record.

In late 2004, DLC and other health advocates in Mass. began receiving calls on behalf of child consumers who had received MassHealth prior approval for DME (e.g., gait trainers, standers, assisted communication devices but who had not been able to access the equipment from the provider. The reason for this was that MassHealth had changed the codes and reduced corresponding rates for the equipment below the rate at which the providers were will supply the items. DLC worked with a group of health advocates to bring this access problem to the attention of MassHealth. Ultimately, the rates were raised to a level at which the providers were able to supply the items.

EDUCATION

“Adam,” a 17-year-old with ADHD, major depression, and a language-based LD who was expelled from a local vocational technical high school in June, 2004. Rather than fight the expulsion, he attempted to enroll in another high school in the fall. On the first day of school, the high school suspended him indefinitely because the victims of a pending felony case against “Adam” attended the high school. When The school offered only 10 hours of tutoring by a teacher who had no information about our client’s learning disabilities, his mother came to DLC for help.

We agreed to a risk assessment to address the school’s concerns that “Adam” posed a threat to the school, but I also forwarded a draft expedited BSEA hearing request to the district, alleging that he was a kid out-of-school with insufficient FAPE. Meanwhile, “Adam” met with a psychopharmacologist, who prescribed an antidepressant.

The TEAM met in December to address both the risk assessment, which found “Adam” to be a potential risk of harm, and our demands for FAPE. The school agreed to an interim placement at the SEEM Collaborative, beginning in January. “Adam” did well at SEEM until he stopped taking his anti-depressant medication and began to be verbally abusive to school staff. This caused SEEM to abruptly end the placement.

To complicate matters, “Adam’s probation officer attempted to have him violated, alleging that he was thrown out of SEEM. However, the Court refused to violate “Adam”, based in part on advice DLC had given to “Adam’s new criminal defense attorney about his disabilities and special education law.

Nonetheless, in April, “Adam” was again a kid-out-of-school. The TEAM met again to discuss more permanent placement. At this point, at “Adam’s request, tutoring with a different teacher was set up for the remainder of the term as the District worked with “Adam” and his mother to find a suitable out-of-district placement for the fall.

In September, “Adam” enthusiastically began the semester at a new high school. However, this was not until DLC intervened once more to ensure that the school arranged for transportation.