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Massachusetts Protection & Advocacy

 
         

 

  Disability Law Center of Massachusetts

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  ► Our Work
 
  Below are samples of some of the work the Disability Law Center is involved in.
   
  SYSTEMIC ADVOCACY
   
  DLC Comments on Notice of Proposed Rulemaking (NPRM) by the U.S. Department of Justice Under Title III of the ADA to Require Movie Theaters to Provide Closed Movie Captioning and Audio Description  More
   
  DLC Comments on Proposed Regulations of the Massachusetts Department of Early Education and Care (EEC) on Use of Restraint and Seclusion in Schools. Details
   
  DLC Comments on State Transition Plans Submitted in Response to HCBS CMS Regulations. Details
   
  DLC Comments on Proposed Regulations of the Massachusetts Department of Elementary and Secondary Education (DESE) on Use of Restraint and Seclusion in Schools.  Details
 
   
  DD ELIGIBILITY
   
 

An Update on Advocacy & Successes in Expanding Eligibility for the Department of Developmental Services   (Last Revised. 2/13/13):

   
  The past year, and especially the past six months, has been an active time for DLC in advocating with our constituents for expanding of services of the Department of Developmental Services.  Details
 
   
  HOUSING
   
 

January 31, 2013 - This Disability Law Center(DLC), working in conjunction with the Boston Center for Independent Living (BCIL) and Stavros Center for Independent Living, have submitted public comments related to the Department of Housing and Community Development's plan for allocating federal low income housing tax credits, our largest program for producing affordable housing.  The plan, known as the Qualified Allocation Plan or "QAP", sets out the criteria for the types of housing proposals which will be awarded tax credits.

DLC, BCIL and Stavors have argued that more housing resources be reserved for housing stock which is both afforable and accessible.  We have also urged DHCD to use its housing resources to support people moving from institutions to integrated community settings.  Finally, we have urged DCD only to fund projects that use either universal design, or which adopt "visitability" rules, to provide at least a minimal standard for access.   View our comments here.

   
 
   
  INVESTIGATIONS

Investigation of Alternative Schools Finds Excessive Past Use of Restraint, Seclusion and Disciplinary Exclusions

The alternative schools established by the Lynn Public Schools have historically relied on frequent use of restraint, seclusion, filing of criminal charges against students and disciplinary exclusions, according to a 24 page investigation report issued by the Disability Law Center on March 25, 2010.  DLC conducted an investigation pursuant to its federal authority to investigate allegations of abuse and neglect in schools teaching children with disabilities.

While DLC’s report finds fault with behavioral intervention practices within the Lynn alternative public schools, it also acknowledges the constructive steps being taken by administration and teaching staff in Lynn.  This includes the decision to work with a consultant who has expertise in the field of positive behavioral supports for students with behavioral difficulties.  Despite the encouraging developments, DLC’s report recommends that Lynn take further steps to reach out to parents who have complained about the treatment of their children. 

Read the DLC report  (pdf)
Report of William Halikias, Psy.D. (pdf)
Response from Lynn Public Schools  (pdf)

Investigation Finds Failure to Adequately Investigate Allegations of Abuse in School for Children with Special Needs

A school teacher engaged in physical and mental abuse of special education students in a Randolph School operated by the South Shore Collaborative,  according to allegations made by three school aides and found to be credible in a report issued today by the Disability Law Center, the state Protection and Advocacy system.   DLC’s investigation report also concludes that two state agencies failed to adequately investigate the allegations  of abuse and neglect.

The Disability Law Center conducted its investigation pursuant to federal authority to investigate allegations of abuse and neglect in schools teaching students with disabilities.   It issued its findings in a 34 page report on February  2010.   A rebuttal by the school, DLC’s response and two affidavits from the parent of one of the students, are included in the report.

Read the full report (pdf)


SPECIAL EDUCATION

DLC wins second favorable decision in Dracut

On March 13, 2009, the Disability Law Center obtained a favorable Bureau of Special Education Appeals (BSEA) decision for a 19 year Student with Aspergers Syndrome.  The Hearing Officer ruled that the school district had denied him a free and appropriate public education (FAPE) by failing to provide proper transition services to help prepare him for life after high school.  Both federal and state law require these services for special education students. In our case, the Hearing Officer awarded the Student two years of compensatory education. 

In June 2009, DLC returned to the BSEA alleging that the school district had not followed the Order in the March 13 decision.  The Hearing Officer agreed and ordered the district to compensate the consultants at their usual hourly rate.

This second favorable decision has important language about a Hearing Officer’s authority to provide relief for special education students.      

pdfOriginal Decision      pdfSecond Decision


BOSTON SIDEWALKS & RAMPS

DLC attended a meeting with the Mayor and the City's Corporation Counsel. Commitments were made by the city to spend at least $15 million to fix/build curb ramps, and another $8 million for sidewalk repair. All city contracts now contain language regarding compliance with ADA and AAB standards. A disability commission will be created. There is also a good chance the Mayor will make a public pronouncement on these issues to coincide with the anniversary of the ADA.  We have worked with the Boston Center for Independent Living, Disability Policy Consortium, Neighborhood Access Group and Adaptive Environments on this issue. 


BOSTON VOTING ACCESS PROJECT

   
 

DLC continues to monitor Boston polling places, in partnership with the Boston Center for Independent Living (BCIL).  At the urging of DLC and BCIL, the City has completed a comprehensive evaluation of every polling location in Boston and has begun moving locations which are not fully accessible and cannot be made so for practical or logistical reasons.   DLC has worked collaboratively with BCIL on this issue for over 4 years now, and the effort is paying off, especially after a meeting with the Mayor in 2007.

 
   
  HOUSING
   
 

Valerie contacted DLC because she was being denied a transfer to an accessible apartment and she was unsafe at home.  She was unable to use her wheelchair in her apartment and as a result she fell and ended up in a nursing home.  DLC took the case to advocate for a transfer which would allow her to move out of the nursing home.  DLC negotiated with the housing authority, obtained a transfer and an apartment became available.  Valerie was able to move out of the nursing home and is now living in a fully accessible apartment that she loves.  She was very appreciative that DLC was able to take her case and help her move to a new home.


Along with a large group of Massachusetts Independent Living Centers, DLC recently submitted comments to the Department of Housing and Community Development (DHCD) asking that more housing resources under the Low Income Housing Tax Credit (LIHTC) program be set aside for very low income people with disabilities.  The LIHTC program is the state's largest housing production program.  Our comments, which were submitted as part of the planning process for allocating new tax credits, can be found here.   See comlete version in MS Word


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.


SPECIAL EDUCATION

Jill is a five-year-old girl with a bilateral severe, sensori-neural hearing loss in both ears, for which she wears digital hearing aids (she is verbal).  Jill’s hearing loss is progressive and the complexity of her needs continue to increase over time. When Jill’s parents initially came to DLC, Julia was attending an integrated pre-school program in public school.  Testing completed by the school district indicated that Julia’s scores for expressive and receptive language were well below average.  Testing by her health care provider showed that Jill functioned in the moderate to severe deficit range in receptive and expressive language skills.

Jill’s parents were concerned about their daughter’s severe deficits in her language skills, the length of her school day, the lack of peers with similar disabilities within her preschool group, and the inadequate acoustics at the school building which did not contain an audiology suite.  Julia’s requested placement for their daughter at the Clarke School for the Deaf, which the education Team rejected.

Jill’s counsel at DLC attended mediation with the school district on January, 2008.  At the mediation, the parties agreed to amend Jill’s Individual Education Program (IEP) to include additional speech and language services and to conduct updated testing. The parties also agreed to an independent program evaluation by Boston Children’s Hospital Deaf and Hard of Hearing Program (DHHP).  DLC contracted with the evaluator to observe at the pre-school and Kindergarten programs and the Clarke School for the Deaf.

The Team reconvened in April to review the consultant’s observation report, the School District evaluation, and to address unresolved issues on placement and services.  The school proposed a new IEP which contained many of the recommendations from the DHHP report including increased speech and language services, enhanced acoustical modifications, additional direct instruction by a teacher of the deaf, and placement in a class with one other deaf student.  Jill’s parents were satisfied and have agreed to accept the placement and services for their daughter.


 

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

Cynthia is a woman with a visual impairment and depression who resided in a nursing home.  Following what she alleged was inadequate treatment of her depression; she was psychiatrically hospitalized for the first time.  Six months after her return to the nursing home, she was involved in an incident with her roommate which was construed by the facility as an “attack” on the roommate.  Cynthia’s position was that personal items of hers were being lost and/or stolen since the time of her admission into the facility.  She alleged that her visual impairment caused her to believe that her roommate was the intruder and that she was merely attempting to hold the person in place while she called for staff.  Cynthia was psychiatrically hospitalized again, evaluated, found not to be dangerous and discharged the same evening.  In spite of this finding, and an uneventful evening, the facility again “section twelved” her the next day, to another facility.  When Cynthia was ready for discharge soon after, the nursing home refused to accept her back, failing to provide adequate discharge notice and other associated procedural protections.

Cynthia contacted DLC, which represented her at a Division of Medical Assistance hearing.  DLC hired an expert to evaluate the client and testify at the hearing.  The hearing officer agreed that the facility had violated the discharge regulations and ordered the facility to take the client back.  However, by that time, Cynthia had already been forced to find another nursing home, after spending almost 4 weeks unnecessarily on a locked psychiatric unit.  She was settled where she was and was also afraid to return to the facility. 

Because DLC was aware that nursing facilities routinely “Section 12” difficult clients as a way to avoid the discharge regulations, with their “stay put” requirements pending an appeal hearing, DLC told Cynthia that it would consider bringing a case under G.L. c. 93A, the state consumer protection statute.  

Although Attorney General Regulations had long stated that a violation of the nursing home discharge regulations was also a violation of 93A, the case appeared to be one of first impression.  There were no reported decisions and calls to other legal services agencies revealed that while they had threatened to file such claims, they had not had to do so.  DLC believed that bringing such an action would help to address the lack of preliminary relief that was available to the client in this case - - hopefully making facilities think twice about the costs and benefits associated with discharging vulnerable residents in violation of their due process rights. 

DLC filed the 93A case at the end of 2006, prevailed on a Motion to Dismiss and undertook discovery in 2007.  During the summer of 2008, Cynthia settled the case against the nursing facility and a doctor who had also been named as a defendant.  While DLC cannot disclose the precise terms of the settlement agreement, DLC believes that the settlement will act as a deterrent to such conduct in the future.


Court Settlement Approved in Lawsuit to Protect Prisoners with Mental Illness

The federal district court has approved a settlement agreement in Disability Law Center v. Massachusetts Department of Corrections et. al., a case challenging the practices of the state department of corrections in holding prisoners with serious mental illness in prolonged isolation.  The complaint was filed in March of 2007, alleging violations of the 8th Amendment to the U.S. Constitution, the Americans with Disabilities Act, and Section 504 of the rehabilitation Act of 1973.  The case was brought by the Disability Law Center, the Center for Public Representation (CPR), Prisoners Legal Services(PLS), and the private law firms of Bingham McCutcheon and Nelson Mullins.


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.