Joint Statement on Dover Amendment

JOINT STATEMENT

Dover Amendment Update: New Decision by the Supreme Judicial Court

Upholds the Legislature’s Groundbreaking Dover Amendment

September 23, 2019

Massachusetts Supreme Judicial Court

BOSTON – Today’s McLean Hospital Corporation v. Town of Lincoln decision by the Supreme Judicial Court (SJC) upholds legal protections for individuals with disabilities who wish to be fully integrated in the community.  The new decision upholds the Dover Amendment, G.L. c. 40A, s. 3, which exempts uses of land that are for education purposes from local zoning laws, and therefore protects against discrimination of people with disabilities. The Court reiterates that the type of student should not be evaluated, the nature of the population being served is irrelevant to determining if the use is “educational” under the Dover Amendment, and that education can look different for different learners. Massachusetts has long been a leader in the fight against discrimination and in education for all. Today’s decision by the SJC is a triumph for both, it upholds the right to education for all learners, no matter the type.

Six diverse organizations supported the plaintiff in this case – Association for Behavioral Healthcare, Inc. (ABH), Association of Developmental Disabilities Providers, Inc. (ADDP), Disability Law Center (DLC), Massachusetts Association of 766 Approved Private Schools (maaps), Massachusetts Council of Human Service Providers, Inc. (Providers’ Council), and the Mental Health Legal Advisors Committee (MHLAC).  The members of ABH, ADDP, maaps and the Providers Council all depend on the Dover Amendment to site their programs and services in communities throughout the Commonwealth, while the DLC and MHLAC seeks to improve the lives of people with disabilities by supporting policies and programs that ensure equal treatment. All of these organizations submitted amicus briefs in favor of upholding the Dover Amendment in this case. While each mission of these organizations is separate and distinct, collectively, in a unified voice, we are grateful to the SJC for upholding the important Dover Amendment, which is critical in the ongoing support of equal treatment for those with disabilities.

The Association for Behavioral Healthcare, Inc. (ABH) is a statewide association representing more than 80 community-based mental health and addiction treatment provider organizations.

The Association of Developmental Disabilities Providers, Inc. (ADDP) is a statewide association comprised of approximately 130 community-based providers throughout Massachusetts who provide critically needed services to individuals with intellectual and/or developmental disabilities, including Autism, and people with brain injuries.

The Disability Law Center (DLC) is a statewide private non-profit organization that seeks to promote the fundamental rights of all people with disabilities to participate fully and equally in the social and economic life of Massachusetts.

The Massachusetts Association of 766 Approved Private Schools (maaps) is a statewide association or approved private special education schools dedicated to providing educational programs and services to students with special needs.

The Massachusetts Council of Human Service Providers, Inc. (Providers’ Council) is a statewide association of community-based organizations that provide a broad spectrum of human services and supports to 1 in 10 residents of the Commonwealth.

The Mental Health Legal Advisors Committee (MHLAC) was established by the General Court in 1973 under the jurisdiction of the Massachusetts Supreme Judicial Court. An independent state agency, MHLAC provides advice on a wide range of legal issues including: involuntary civil commitment, access to services, treatment rights, guardianship, and the rights of individuals with disabilities in institutional and community settings.

DLC Issues Recommendations for Bridgewater State Hospital

Pursuant to its legislative charge to monitor the efficacy of service delivery reforms at Bridgewater State Hospital (“BSH”), the Disability Law Center (“DLC”) issued its six-month report summarizing its findings from its monitoring efforts there January 1, 2019 through June 30, 2019. The five-year anniversaries of both DLC’s investigation into the use of restraint and seclusion at BSH and the issuance of our first, of many, public reports occurred during this reporting period. Great strides have been made in the treatment and care of individuals at BSH over the past five years. More importantly, the past six months seem to have solidified the culture shift that began during the course of our investigation and monitoring. No doubt that there is still significant work to be done in the delivery of services, reporting of data, and physical plant infrastructure, but the right path seems to have been paved and is finally being consistently followed. To ensure the continued improvement of safety and treatment of persons served at BSH, DLC calls on the Commonwealth to follow the recommendations discussed in this report.

Key recommendations:

    • Deteriorating Physical Plant: Consistent with DLC’s recommendations in our public investigation findings on July 11, 2014, constantly reiterated since then, and stated in our February 25, 2019 report, “[i]nstead of the resource drain of patchwork fixes, the Commonwealth needs to construct a modern facility that can effectively provide humane and appropriate treatment.”
    • Administration of Medication: DLC renews its concerns raised in our May 2018 report that medication should be administered with informed consent first, if that is not possible, then a court order should be sought. Further, all individuals in need of “strict security” psychiatric evaluation and/or treatment should be under the auspices of the Department of Mental Health.
    • Programming: Wellpath must continue its efforts to collect data around programming to make the most use of how that information relates to an individual’s progress and treatment. The data can then inform person-centered treatment plans and programming recommendations.
    • Treatment of Individuals with Intellectual and/or Developmental Disabilities: Wellpath needs to continue to focus on development of individualized treatment plans and programming for individuals with intellectual and/or developmental disabilities. These efforts should range from de-institutionalization of individuals who have resided at BSH for decades to active discharge planning for individuals who would be better served by the Department of Developmental Services.
    • Persons Served at Old Colony Correctional Center (“OCCC”): Given the differing staffing constructs of the BSH and OCCC units, differing regulations and protocols, and differing union constraints, the disparity between BSH and OCCC may only be fully addressed if all individuals needing “strict security” in the Commonwealth are housed together and served under the auspices of Department of Mental Health. We believe the current distinctions used to differentiate between these populations do not necessarily reflect different security risks. In the meantime, DLC strongly encourages DOC to continue its efforts collaborating with Wellpath on this issue.
    • Staffing: DLC continues to raise concerns about data collection and reporting when there are vacancies in some of the positions tasked with such oversight and management. Wellpath should continue recruitment efforts for all vacant positions and review job responsibilities with staff to ensure that each person is efficiently and effectively performing his/her job.
    • Nutrition: DOC and Wellpath should continue this partnership in food service and delivery, and continue to expand programming around food initiatives. These programs boost community involvement in nutrition and have many ripple effect benefits from improved health to employment opportunities.
    • Stakeholder Involvement in Treatment: Wellpath should maintain its level of accessibility to the community and continue to engage stakeholders in professional development opportunities both on and off site. This sharing of knowledge and expertise improves the treatment and care of individuals at BSH and raises awareness about the significant progress that DOC and Wellpath have made over the past two years.

Marlene Sallo, the Executive Director of DLC, stated, “Over the past five
years, the culture at BSH has shifted from a punitive to a therapeutic
environment. We applaud this positive change and urge the Commonwealth to
follow our recommendations in order to ensure that improvements continue.”

As it has done in every one of its reports, DLC continues to implore the
Commonwealth to put DMH in charge of the facility. Historically, DMH has
resisted doing so as long as BSH remains at this antiquated facility. The
Commonwealth needs to construct a modern facility that can effectively
provide humane and appropriate treatment to this extremely needy population.
DLC urges state government to proceed with attending to this long overdue
unaddressed need under the auspices of the Department of Mental Health.

DLC, as the designated Protection and Advocacy System for Massachusetts, is
authorized under federal law to investigate incidents of abuse, neglect, and
death of individuals with disabilities throughout the Commonwealth.

Read the Report


Contact: Marlene Sallo, Executive Director
617-723-8455 x145
msallo@dlc-ma.org

DLC Issues Report Highlighting Substantial Problems with Physical Environment at Bridgewater State Hospital

Bridgewater State Hospital

Pursuant to its legislative charge to monitor the efficacy of service delivery reforms at Bridgewater State Hospital (“BSH”), the Disability Law Center (“DLC”) issued its six-month report summarizing its findings from its monitoring efforts there July 1, 2018 through December 31, 2018. Although there continues to be real positive change at BSH, virtually all forward progress must surmount difficult physical conditions caused by a deteriorating 45-year-old building that does not support or facilitate good mental treatment for men deemed to need “strict security.” Nearly constant day-to-day deficiencies in the physical environment affect almost every aspect of the BSH infrastructure, including the heating, cooling, plumbing and electrical systems, rendering it inappropriate to fully and appropriately treat the men at this facility.

Key problems with the physical environment at BSH include:

  • Extreme heat and humidity, which can have especially harmful effects on Persons Served (“PS”): Staff from the vendor, Wellpath, were sent out to doctors for heat-related symptoms and PS complained to DLC of heat-related symptoms, such as headaches, tiredness, sunburn and difficulty breathing. Even when the vendor offered to bring in additional cooling devices, the offer was unable to be accepted because the antiquated electrical system was inadequate to support even such stopgap measures.
  • Mold outbreak in the basements of several buildings: Due to a leak in the antiquated steam heat system, a mold outbreak occurred in the basement of the Medical Building and failed waste pumps resulted in four inches of water in the basement of the Administration Building. DLC sought and obtained a meeting with DOC to discuss concerns, but was denied the opportunity to test mold samples.
  • Leaky roof over the gym in the Commons building: Water dripping from the ceiling of this building after a significant rain or snow storm has been an ongoing problem at BSH. On at least one occasion a PS slipped on the floor and had to receive medical attention, while a Wellpath staff member who had slipped needed be taken out for medical attention. DOC had plans to replace the roof, but the discovery of asbestos in the roof forced a postponement of that needed repair.

Marlene Sallo, the Executive Director of DLC, stated, “the time is long past when Massachusetts can continue to tolerate such horrendous conditions.  We are only one heat wave or one mold explosion away from serious harm or death to a person served at Bridgewater State Hospital. These conditions call for decisive and effective action to be taken now.”

As it has done in every one of its reports, DLC continues to implore the Commonwealth to put DMH in charge of the facility.  Historically that agency has resisted doing so as long as BSH remains at this antiquated facility. The Commonwealth needs to construct a modern facility that can effectively provide humane and appropriate treatment to this extremely needy population. DLC urges state government to proceed with addressing this long overdue unaddressed need under the auspices of the Department of Mental Health.

Read the Full Report

Together We Can Make a Difference

This past year, the Disability Law Center worked to promote the fundamental rights of all people with disabilities to live and work in the communities of their own choosing. We fought against abuse and neglect and for access to services. We worked with school districts and service providers to ensure that the rights of people with disabilities were respected and maintained. Most importantly, we went up against those who tried to limit opportunities for people with disabilities and sought to eliminate barriers and create a pathway to possibilities.

I am proud of what we have accomplished this year.

As the New Year approaches, I promise that our organization will continue to promote the fundamental rights of all people with disabilities to participate fully and equally in the social and economic life of Massachusetts. The work that we do takes an extraordinary amount of resources on a daily basis. In order to increase our efforts we are going to need your help. Please consider making an end-of-year donation to DLC.

There is no other organization in Massachusetts that does what we do. If you believe in our mission, then please join DLC in advancing the rights of people with disabilities across every segment of our society.

I hope that I can count on you!

Sincerely,
Marlene Sallo

Marlene Sallo
Executive Director
Disability Law Center

 

DLC is a 501(c)(3) non-profit and your donation is tax deductible. DLC’s tax ID # is: 04-2741869.

Pay securely online below, or by check, or call 617-723-8455 ex123.

 

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VOTE TODAY!

Are you ready?

Why Vote? Watch our video!

Preparation:

To see a preview of your ballot, visit http://www.sec.state.ma.us/wheredoivotema/. Fill out your address and click on Show My Results. The next page will show your voting location and your current elected officials. Click on “My State Election Ballot” to see who is on the ballot.

Ballot Questions – we recommend that you review the ballot questions. Some are worded in a way that it’s easy to vote No when you meant to vote Yes. Revupma.org has several resources to help everyone understand the questions. You can bring reference materials into the voting booth to help you remember your choices.

Debates

Visit REVUPMa.org with some updated information on past debates. If you are still unsure about candidates, watching a debate may clarify your selection.

Accessibility

If you encounter any accessibility issues, contact the state at 800-462-VOTE  (8683) (toll free) or 617-727-2828. You may also e-mail them at elections@sec.state.ma.us.

You can contact us at 800-872-9992 or 617-723-8455.

AutoMARK Machine

All polling locations in MA are required to have a working AutoMARK machine, positioned so that voters can vote privately. Anyone can use the AutoMARK. Visit revupma.org for more information on how to use the AutoMARK machine.

AutoMARK Survey

If you use the AutoMark machine, we hope you will take a survey for the Bay State Council of the Blind.
https://www.surveymonkey.com/r/S5W5HTW

If you have any questions on the survey, contact the Bay State Council of the Blind at (773) 572-6312.

Hulu Becomes Latest Streaming Service to Commit to Accessibility for Blind Users

For Immediate Release:  October 17, 2018

Boston, Massachusetts—Hulu and advocates from the American Council of the Blind (ACB) and Bay State Council of the Blind (BSCB) have reached a settlement agreement to increase the accessibility of Hulu’s streaming service to individuals who are blind or have low vision. As a result, Hulu will undertake efforts to make its website and software applications accessible via screen readers and will provide audio description tracks for streaming content where possible. With these efforts, Hulu will join the list of online streaming providers, like Netflix, that are prioritizing accessibility features and making the entertainment industry more accessible to the disability community.

Hulu offers online streaming services to over 20 million subscribers across the nation. However, none of Hulu’s streaming content currently includes audio description—a separate audio track that narrates the key visual elements of video content between portions of dialogue to provide blind and low vision users a full media experience. For more on audio description, visit ACB’s Audio Description Project. Under the settlement agreement, Hulu will begin obtaining these tracks for as much streaming content as possible and will adapt its video player so that users can enable and disable this feature, similar to the closed caption option that currently exists on Hulu’s video player. Users will also be able to filter the Hulu streaming library based on the availability of audio description. Blind community members are enthusiastic about the new opportunity to fully enjoy Hulu’s extensive programming selection.

According to ACB President Kim Charlson, “These improvements by Hulu will provide people who are blind or have low vision with access to the same online video entertainment services currently enjoyed by millions of Americans. ACB commends Hulu for working with us to enhance access to its services for people who are blind. Our goal is to open up Hulu’s services to the blind community and to increase the availability of audio described movies and television programming. Movies and television are a central pillar of American culture. As television and movie content are increasingly delivered through streaming services, this agreement ensures that the blind community will receive and be able to independently use accessible Hulu content. This access is critical to making certain that people who are blind are included as equal participants in today’s society.”

In addition to providing audio description, Hulu will update its website and multiple software applications to ensure that screen-reader users can navigate and interact with the platform. A screen reader is software that enables blind individuals to access and interact with online services by converting the text displayed visually on the screen into audible speech or by outputting that information on a digital braille display. For a screen reader to work, website and app developers must program for compatibility. A single unlabeled button, like those for entering a password or submitting payment information, can render a website wholly unusable. By January 2020, Hulu will ensure that its website and applications are compliant with standard web-accessibility guidelines and that updates are tested for usability.

“So many times it is that last step—an inaccessible website—that keeps those who are blind or experiencing low vision from fully enjoying what others take for granted,” says BSCB President Brian Charlson, “and now Hulu will be working with us to make sure that their service can be accessed by everyone.”

Disability Rights Advocates (DRA), a non-profit disability rights legal center, and Disability Law Center, Inc. (DLC), the Massachusetts Protection and Advocacy agency, represented ACB, BSCB, Kim Charlson, and Brian Charlson in these negotiations with Hulu.

Rebecca Williford, Senior Staff Attorney at DRA, said, “This settlement will significantly improve access to movies and television for the blind community, moving people with disabilities one step closer to full inclusion in society, which was the promise of the Americans with Disabilities Act.”

Marlene Sallo, Executive Director of the Disability Law Center, said, “Online-streaming of videos has become an increasingly important source of entertainment. DLC is extremely pleased that, as a result of this significant agreement with Hulu, our clients and other individuals who are blind and visually impaired will now be able to enjoy the streaming of programs from Hulu.”

A copy of the agreement can be found at the bottom of this page. This agreement resolved a lawsuit filed against Hulu in the U.S. District Court for the District of Massachusetts, Civ. No. 1:17-cv-12285-PBS.

About Disability Rights Advocates (DRA)

Founded in 1993, DRA is a leading national nonprofit disability rights legal center. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with disabilities in complex, system-changing, class action cases. For more information, visit www.dralegal.org.

About Disability Law Center (DLC)

The DLC is the Protection and Advocacy system for Massachusetts and is authorized under federal law to protect and advocate for the legal rights of individuals with disabilities in Massachusetts. DLC worked with Bay State Council of the Blind in a series of negotiations with Fleet Bank, Sovereign Bank, and Citizens Bank to ensure that their ATMs, websites, and other banking services were fully accessible to individuals who are blind or visually impaired. For more information, visit www.dlc-ma.org.

About American Council of the Blind (ACB)

ACB works to increase the independence, security, equality of opportunity, and quality of life, for all people who are blind or visually impaired. ACB advocates for policies that provide services, opportunities, infrastructure, and equipment that are necessary for an inclusive society, in federal, state, and local governments, and among service providers and industry. For more information, visit www.acb.org.

About Bay State Council of the Blind (BSCB)

BSCB is a membership organization of blind, visually impaired, and sighted individuals committed to an enhanced quality of life for Massachusetts’ residents who are blind or visually impaired. BSCB convenes meetings and conferences, organizes recreation activities, provides publications, radio programs, and information, and advocates for services and legislation that improve access for people who are blind. For more information, visit www.acbofma.org.

Contacts

Meredith Weaver, Disability Rights Advocates, Staff Attorney:  (510) 665-8644

Marlene Sallo, Disability Law Center, Executive Director:  (617) 723-8455

Case Files

Read the Complaint

Read the Settlement

Read the Filed Settlement

REV-UP! News

Get Educated!

 

The Debates for the Massachusetts election have begun.

  • October 3:  Attorney General Debate between incumbent Maura Healey and challenger Jay McMahon. The debate was hosted by WGBH News and moderated by Jim Braude and Margery Eagan. Watch the debate at www.wgbh.org. Antonio Caban and Maddie Kilgannon wrote an article about the debate at the wgbh link, but the video is not close captioned.
  • Tuesday, October 9 from 8-9 p.m.: Gubernatorial Debate is between incumbent Charlie Baker and opponent Jay Gonzalez.  The debate will air live on WBSK TV as well as stream live on CBSBoston.com. Jonathan Keller will moderate.  Anyone can submit issue-oriented questions by emailing kelleratlarge@wbztv.com or tweet @kelleratlarge.  For more information, visit boston.cbslocal.com.
  • Sunday, October 21 at 7 p.m.:  At this Senatorial Debate,  sponsored by WBGY Springfield, incumbent Elizabeth Warren will face Geoff Diehl.  Questions can be submitted at www.masslive.com.

Voter Information

New Resources

  • From RootedinRights.org – Their voting page has several good videos
  • From NAD.org (National Association of the Deaf) – an ASL Voter Assistance Hotline

Accessibility

If you encounter any accessibility issues, contact the state at 800-462-VOTE (8683) (toll free) or 617-727-2828. You may also e-mail them at elections@sec.state.ma.us.

The Disability Law Center can also help.  Please contact DLC at 800-872-9992 or 617-723-8455.  Visit their website www.dlc-ma.org.

Learn more about your voting rights and accessibility requirements at our website at revupma.org.

AutoMARK Machine:

All polling locations in MA are required to have a working AutoMARK machine, positioned so that voters can vote privately.  Anyone can use the AutoMARK.  Visit revupma.org for more information on how to use the AutoMARK machine.

Get Out the Vote!

Get Out The Vote

September 4, 2018

Today is the MA Primary Election.

Do you have a plan?  Do you know where to vote?  Do you know who to vote for?  The polls are open from 7 a.m. until 8 p.m.

Accessibility:

If you encounter any accessibility issues, contact the state at 800-462-VOTE (8683) (toll free) or 617-727-2828. You may also e-mail them at elections@sec.state.ma.us.

We can also help.  Please contact us at 800-872-9992 or 617-723-8455.

Learn more at the REV-UP MA website at revupma.org.

Learn who is on the ballot, and where to vote:

Visit the state website:  Find my election information.  Enter your address and click on Show My Results.  On the next page, note your polling location.  Click on whichever party you plan to pull on Primary Day.  You will see everyone who will be on your primary ballot.  Not all candidates have an opponent.  For races with opponents, we strongly encourage you to learn about each candidate!  Check local papers, social media, etc, for forums and debates.  Some races are relying on write-ins – check your local newspapers and other media and be prepared.

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