DLC’s Response to COVID-19 Concerns

The Disability Law Center (DLC) continues to actively work to prevent and address discrimination, abuse, and neglect faced by people with disabilities during the COVID-19/Coronavirus pandemic. This unprecedented situation is giving rise to new and different issues that require our attention. DLC’s efforts to address COVID-19-related issues to date include:

  • Working to shape policies to prevent medical rationing that discriminate against people with disabilities;
  • Advocating for DDS and DMHto create written protocols about staffing practices to guard against staff transmission to group home and shared living residents;
  • Advocating for ID/DD group homes to provide residents access to virtual and outdoor, socially distanced visitation with guardians;
  • Challenging unreasonable restrictions on movement by group homes and shared living providers that serve persons with mental health issues;
  • Calling on the Governor and top public health officials to take steps to protect prisoners with disabilities, which include: reducing the prison population by releasing from custody prisoners with disabilities and serious medical conditions that place them at particular risk of serious illness from COVID-19; providing supplies and services necessary to help prevent the spread of COVID-19 in correctional facilities; ensuring that medical and mental health services for prisoners with disabilities are not interrupted; ensuring that accessible telecommunications are available to prisoners with disabilities; and, providing DLC with relevant written policies and procedures concerning those protections;
  • Actively monitoring conditions within and concerns raised by persons served in facilities, including Worcester Recovery Center and Hospital, Bridgewater State Hospital, and Vibra Hospitals;
  • Regularly participating in national and state-wide collaborations aimed at identifying and addressing emerging issues facing people with disabilities as a result of the pandemic; and
  • Instituting a COVID-19 Attorney Point Person at the DLC to ensure all individuals reporting COVID-19 disability-related issues are receiving timely information and services.

If you would like to share your disability-related concerns about COVID-19 or your legal rights during this time, please email us at mail@dlc-ma.org.

Please note – we are using this information to advocate systemically for people with disabilities and submitting your input may not result in a new intake for your concern. However, it will provide valuable information for us to continue advocating for the rights of people with disabilities.

For patients with the coronavirus who need communication tools and supports due to speech-related disabilities: COVID-19 Communication Rights Toolkit with Printable Patient Accommodations Request Form:

https://communicationfirst.org/covid-19/

DLC signs onto letter to Governor

The Disability Law Center has signed onto a letter to the Governor and other distinguished State Officials. This letter concerns the Commonwealth’s current altered standard of care protocol and the need for immediate actions to avoid the potentially discriminatory allocation or withdrawal of life-saving resources from persons with disabilities.

DLC submitted letter to ensure the health and safety of people with disabilities

DLC recently submitted a letter to Governor Baker and top Public Safety Officials seeking more information and protective measures to ensure the health and safety of people with disabilities and serious medical conditions currently incarcerated in Massachusetts correctional facilities.


March 23, 2020

VIA EMAIL

Charles D. Baker, Governor
Massachusetts State House
24 Beacon Street, Room 280
Boston, MA 02133

Commissioner Carol Mici
Dept. of Correction Central Headquarters
50 Maple Avenue
Milford, MA 01364

Gloriann Moroney, Esq., Chaire
Mass. Parole Board Central Office
12 Mercer Road, Natick, MA 01760

Thomas A. Turco, Secretary
Executive Office of Public Safety and Security
1 Ashburton Place, Suite 2133
Boston, MA 02108

Peter Koutoujian, Sheriff and Mass. Sheriffs’ Association President
Middlesex Sheriff’s Office
400 Mystic Avenue, 4th Floor
Medford, MA 02155

Re: Maintaining Prisoner Safety During COVID-19 Pandemic

Dear Governor Baker, Secretary Turco, Commissioner Mici, and Sheriff Koutoujian:

As the Commonwealth braces for the full impact of COVID-19, we know that each of you share our concern for the effect on all Massachusetts residents. We write today concerning a population of residents at particular risk of infection – individuals with disabilities and serious medical conditions in our correctional facilities.

It is well understood that contagions like COVID-19 introduced into a jail, house of correction, or prison can quickly infect a large proportion of both prisoners and staff. This does not just pose a threat within prison walls, but also to the community at large when staff return home to their families and friends.

Moreover, a significant number of prisoners in Massachusetts correctional facilities fall within the high-risk groups more likely to develop serious illness or die if infected with COVID-19. Our jails and prisons hold individuals who have an array of disabilities and serious medical conditions, including cardiovascular diseases, diabetes, hepatitis, chronic obstructive pulmonary disease, chronic kidney diseases, and cancer. Some of these individuals are housed in specific facilities or specialized units based on their need for mental health and medical treatment and/or for assistance and accommodations related thereto.[1] There are also many elderly prisoners. Indeed, as of January 1, 2018, there were well over 900 individuals over 60 years of age under the jurisdiction of DOC alone.[2] Not surprisingly, these groups overlap quite a lot.

The Disability Law Center (DLC) has a federal mandate as the Commonwealth’s Protection and Advocacy Agency[3] (P&A) to protect and advocate for individuals with disabilities, including those who are criminally and civilly detained in correctional facilities. In keeping with this mandate, we write to request that you take the following steps to ensure the health and safety of prisoners with disabilities and serious medical conditions in your care and custody during this public health crisis:

  • Immediately identify every individual in the custody of DOC and county correctional facilities who have disabilities and/or medical conditions that place them at high risk for serious illness if they are infected by COVID-19;
  • Approve, on an expedited basis, release of individuals identified per paragraph (1) who are eligible for release on some form of supervised release (e.g., parole, medical parole, temporary furlough, home confinement, ) or through executive clemency mechanisms (commutation or pardon);
  • Approve, on an expedited basis, release of individuals identified per paragraph (1) who are within six (6) months of completing their sentence and do not pose an immediate threat of physical harm to the community;
  • Approve, on an expedited basis, release of individuals identified per paragraph (1) who are currently awaiting parole revocation or have been revoked on the basis of technical violations and return them to community parole supervision;
  • For individuals identified per paragraph (1) who are not released, implement protocols to minimize their risk of exposure to COVID-19, including through provision of hygiene supplies and available personal protective equipment, and increased cleaning and sterilization in the Health Services Units, the SNF, ADLs, RTUs, STPs, the BMU, Bridgewater State Hospital, and the Bridgewater Units at OCCC;
  • Ensure that individuals identified per paragraph (1) are not held in prolonged isolation on the basis of their disabilities and/or medical conditions – absent a COVID-19 diagnosis – and are provided daily access to outdoor recreation time, contact with their families, friends, and attorneys through telecommunications;
  • In consideration of measures to limit or prohibit visitation, ensure that all individuals with disabilities and/or serious medical conditions in Massachusetts correctional facilities receive daily access to free telecommunications, including standard telephones, amplified telephones, captioned telephones (CapTel), and videophones;
  • Ensure that all individuals diagnosed with mental illness and any other individuals experiencing mental health crisis have the ability to receive confidential meetings with mental health clinicians, as opposed to only contacts with mental health clinicians at cell doors; and
  • Ensure that access to regular medical services for all individuals with disabilities and/or chronic medical conditions are not interrupted or truncated.

DLC calls upon the Commonwealth to treat the above as continuing obligations during the pendency of any Massachusetts State of Emergency and National State of Emergency related to COVID-19.  In addition, in order to have maximum effect in lowering the threat to vulnerable prisoners as well as to the prisoner population as a whole and correctional staff, these actions should be undertaken swiftly before COVID-19 is introduced into Massachusetts correctional facilities; DLC understands that, currently, diagnosed cases of COVID-19 are limited to the Massachusetts Treatment Center (three prisoners, one staff person). To be clear, the above requests are intended to supplement and inform the measures state agencies must take to protect ALL prisoners from infection, such as those suggested by Prisoners Legal Services, Mental Health Legal Advisors Committee, and the American Civil Liberties Union of Massachusetts.

Further, DLC requests in its P&A role that the DOC, Parole Board, and Sheriffs’ Association, to the extent is has developed guidance for Sheriff’s Departments, please provide any written policies and protocols adopted related to this crisis, including those concerning:

  • Prevention and mitigation of both COVID-19 introduction into correctional facilities and spread to prisoners and staff;
  • Screening and testing for individuals presenting symptoms that may be indicative of COVID-19 infection and for individuals exposed to other who have presented symptoms or tested positive;
  • Quarantine of individuals who have tested positive or present symptoms that may be indicative of COVID-19 infection;
  • Increased cleaning and sterilization of living quarters, communal bathrooms, communal eating areas, areas for the provision of medical and mental health services, medical equipment, phones, assistive technology, etc.
  • Access to information for prisoners and staff concerning COVID-19 and recommended safety precautions to prevent infection;
  • Provision of personal protective equipment, soap, disinfectant, cleaning supplies, hand sanitizer with at least a 60% alcohol content, tissues, and extra uniforms;
  • Access to mental health and medical services unrelated to COVID-19; and
  • Access to recreation, telecommunications, and other programming.

Thank you very much for taking the time review and consider these requests during this unprecedented crisis.  Please contact DLC will any questions concerning these requests. We look forward to learning more about your current efforts and plans to protect this vulnerable population.

Sincerely,

 

Marlene Sallo

 

Marlene Sallo

Executive Director

[1] Such units include the Assisted Daily Living (ADL) Units at MCI-Norfolk and MCI-Shirley; the Skilled Nursing Facility (SNF) at MCI-Shirley; the Bridgewater Units at Old Colony Correctional Center (OCCC), Residential Treatment Units (RTUs), Secure Treatment Programs (STPs), and the Behavior Management Unit (BMU).

[2] Massachusetts Department of Correction, Prison Population Trends 2017, at https://www.mass.gov/files/documents/2018/09/28/PrisonPopTrends_2017_Final.pdf.

[3] This mandate was first codified through the passage of the Protection & Advocacy for People with Developmental Disabilities (PADD) Act. 42 U.S.C. § 15043(a). Congress extended the protections of the PADD Act, incorporating them by reference into legislation protecting persons with other forms of disabilities. This includes the: Protection & Advocacy for Mentally Ill Individuals (PAMII), 42 U.S.C. § 10805, Protection & Advocacy for Individual Rights (PAIR) Act, 29 U.S.C. § 794e(f), and the Protection & Advocacy for Individuals with Traumatic Brain Injury (PATBI) Act. 42 U.S.C. § 300d-53(k).

 

DLC Issues Recommendations for Bridgewater State Hospital

For Immediate Release                                             

Contact: Marlene Sallo, Executive Director     

617-723-8455 x145                                        

msallo@dlc-ma.org


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 September 2019 through February 2020.  DLC continues to raise the same concerns regarding the deteriorating physical plant and now expands those concerns to include positive mold testing results. It is important to note that the extent of DLC’s monitoring would not be possible without our broad access, and our mold testing would not be possible without our expanded authority granted under Line Item #8900-0001. DLC also continues to raise concerns around the administration of medication and the disparate treatment of individuals served under DOC, rather than Wellpath, security.

Key recommendations:

  • Deteriorating Physical Plant: For well over a year now, DLC has urged DOC to conduct extensive mold sample swab testing throughout BSH (see DLC recommendation in our February 25, 2019 and July 15, 2019 reports). DOC repeatedly and consistently, not only refused to do such testing, but actively denied DLC access to perform the tests. During this reporting period, DLC was granted specific authority under Line Item #8900-0001 to conduct mold testing, including in areas where persons served (“PS”) are not living. As such, DLC toured BSH with our contracted mold expert on December 5, 2019 and returned on December 19, 2019 to collect  samples throughout the facility for testing. The testing revealed extensive mold in almost every single area swabbed by our expert, including HVAC systems/vents. Consistent with DLC’s prior recommendations, DLC submits that, instead of the resource drain of patchwork fixes for the existing BSH facility, 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 and, if that is not possible, then a court order should be sought. Further, all individuals in need of “strict security” during psychiatric evaluation and/or treatment should be under the auspices of the Department of Mental Health.
  • Disparities in Use of Force between BSH and Old Colony Correctional Center (“OCCC”) Bridgewater Units: From chemical agents to handcuffs, DOC security measures at OCCC escalate situations and are both inflammatory and trauma-inducing to PS. We believe the current distinctions used to differentiate between these populations do not necessarily reflect different security risks. DLC urges DOC to ensure uniformity in the security protocols at BSH and the OCCC Units and to discontinue security measures based on a culture of punishment and control, namely, chemical agents, handcuffs, and utilization of tactical teams.
  • Contraband and Security at BSH: Wellpath and DOC have and should continue to collaborate on safety and security improvements. This should be done while prioritizing the treatment and well-being of the PS at BSH.
  • Continue to Make Progress on Policies and Practices: Wellpath and DOC must continue to identify and respond to issues where there is a lack of clarity and/or no policy guidance. Specifically, DLC recommends that DOC formulate policies on PREA consent standards and OCCC ISOU admissions as soon as possible, and that Wellpath continue efforts to track and report on assaults.

Marlene Sallo, the Executive Director of DLC, stated, “For years, we have been raising concerns about the hazardous living conditions at Bridgewater State Hospital and the need for DOC to ensure the health and safety of Persons Served and staff alike. Our report makes it perfectly clear: DOC must take swift and appropriate action to address the mold and multiple physical plant issues at BSH. Construction of a modern facility will be the only effective way to provide humane and appropriate treatment for Persons Served at BSH.”

As it has done in every one of its reports, DLC continues to implore the Commonwealth to construct a safe and 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.

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

Decision by the FDA to Ban Electrical Stimulation Devices (ESDs) for Self-Injurious or Aggressive Behavior.

Public Statement by the Disability Law Center on the March 4, 2020 Decision by the FDA to Ban Electrical Stimulation Devices (ESDs) for Self-Injurious or Aggressive Behavior.

March 4, 2020

Today’s announcement by the FDA finally bans painful electric shock of persons with disabilities used for the purposes of behavior modification.  Such measures have been widely discredited in clinical literature and practice and are still regularly used at only one facility in the entire country, regrettably here in Massachusetts.

For over six years, the FDA carefully studied this issue using external and internal experts in range of fields such as medicine, psychiatry, psychology, neurology, special education, biomechanical engineering, statistics and medical ethics.   It also heard testimony from a broad range of stakeholders including former residents from the Judge Rotenberg Center, families, providers, experts and advocates.  This includes more than 1,500 public comments received about the proposed rule, as well as approximately 300 comments submitted to the April 2014 FDA advisory panel meeting.

FDA’s final conclusion is that these devices present an “unreasonable and substantial risk of illness or injury.” We appreciate the agency’s detailed, multi-disciplinary expert analysis, its careful deliberate process, and its commitment to protecting people with disabilities from pain and other physical and emotional injury.

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Landmark Agreements Establish New Model For Online Accessibility In Higher Education And Business

FOR IMMEDIATE RELEASE:
February 18, 2020

Media Contact:
Josh Levitt: 845-641-3654
cohenmilstein@berlinrosen.com

LANDMARK AGREEMENTS ESTABLISH NEW MODEL FOR ONLINE ACCESSIBILITY IN HIGHER EDUCATION AND BUSINESS

Settlement with MIT Follows Similar Agreement with Harvard University to Caption Online Content;

Agreements Represent the Most Comprehensive Set of Online Accessibility Requirements


BOSTON—The National Association of the Deaf (NAD) announced today a landmark settlement with the Massachusetts Institute of Technology (MIT) that institutes a series of new guidelines to make the university’s website and online resources accessible for people who are deaf and hard of hearing. The settlement follows a similar agreement with Harvard University in November 2019, which together represent the most comprehensive set of online accessibility requirements in higher education and provide a new model for ensuring worldwide online and digital accessibility in academia and business for people who are deaf and hard of hearing.

MIT, one of the most celebrated academic research institutes in the world, has agreed to provide industry standard captioning for publicly-available online content, including video and audio content posted on MIT.edu as well as MIT’s YouTube, Vimeo, and Soundcloud pages, certain live-streaming events and online courses such as Massive Online Open Courses (MOOCs), MITx and MIT OpenCourseWare.

The terms of the settlement are included within a consent decree, which can be enforced by the court. The court must approve the consent decree before it may become effective.

MIT must also implement a public process to manage these requests. MIT is also required to submit reports every six months beginning in June 2020 to NAD and the Disability Law Center with information about the number of requests received, among other details.

This settlement was reached four years after this litigation began in 2015, when it was filed in the U.S. District Court for the Western District of Massachusetts as a class action lawsuit. The lawsuit was prompted by the recognition that, notwithstanding the description of MIT’s online resources as “open and available to the world,” many of its videos and audio recordings lacked captions or used inaccurate captions. MIT had no published policies in place to ensure these learning tools were accessible to people who are deaf and hard of hearing. In the United States alone, there are approximately 50 million deaf and hard of hearing people. 

During the litigation, MIT filed a motion to dismiss the case. In response the court ruled that federal laws prohibiting disability discrimination covered MIT’s online content.

The named plaintiffs in this class action lawsuit, NAD, C. Wayne Dore, Christy Smith and Lee Nettles, were represented by Cohen Milstein Sellers & Toll, the Disability Law Center, the Disability Rights Education & Defense Fund, the Civil Rights Education and Enforcement Center, and also the NAD.  

“The settlements with MIT and Harvard usher in a new era of accessible online learning in higher education. The civil rights mandate is clear – all colleges and universities must ensure that the video and audio content on their websites are accessible through quality captioning.” said Howard A. Rosenblum, Chief Executive Officer, National Association of the Deaf.“Providing equal access through new and evolving technologies is at the core of the Americans with Disabilities Act. This announcement opens up a huge new world of learning for the tens of millions of people who were previously unable to access MIT’s wealth of online educational resources,” said Arlene B. Mayerson, Directing Attorney at the Disability Rights Education & Defense Fund.

“These agreements with MIT and Harvard are ground-breaking and historic, opening new doorways in learning for deaf and hard-of-hearing students and professionals and setting a new standard for civil rights enforcement for accessibility in online learning. We urge other institutions that share their research, case studies, and course work to the public to follow this precedent to ensure their content is accessible to deaf and hard of hearing people, worldwide,” said Joseph M. Sellers who heads the civil rights practice at Cohen Milstein Sellers & Toll.

“There’s no excuse for any institution to shortchange the millions of people who are deaf and hard of hearing. We cannot pick and choose what types of accessibility we want to provide—it’s a fundamental right that everyone deserves. We’re pleased the agreement ensures all learners will be treated equally,” said Amy F. Robertson, Co-Executive Director of the Civil Rights Education and Enforcement Center.   

“These agreements represent the most comprehensive framework for ensuring that higher education institutions make their online and digital resources available for the deaf and hard of hearing. Nobody should be denied the opportunity to an education because of a disability, and the digital doors of MIT are now open for everyone,” said Marlene Sallo, Executive Director of the Disability Law Center.

###

Notice of Settlement of Class Action Relating to Captioning of Harvard’s Public Web Content

The National Association of the Deaf, Disability Rights Education and Defense Fund, Disability Law Center, Civil Rights Education and Enforcement Center, and the law firm of Cohen Milstein Sellers & Toll provide the following Notice.  Video of this Notice in American Sign Language is available at https://harvardcaptioningsettlement.com/.


NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT

ATTENTION: ALL PEOPLE WHO ARE DEAF OR HARD OF HEARING WHO WANT CAPTIONING OF HARVARD’S ONLINE CONTENT

If you are deaf or hard of hearing and have tried to access or would like to access Harvard’s online video content with captions or to access Harvard’s online audio content with a transcript, you may be a member of the proposed Settlement Class affected by this lawsuit. The Settlement Class in this case does not include students of Harvard University. This is a court-authorized notice.

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY LEGAL PROCEEDINGS IN THIS CASE.

NOTICE OF CLASS ACTION

The purpose of this notice is to inform you of a proposed settlement in a pending class action lawsuit brought by the National Association of the Deaf (“NAD”) and three Deaf plaintiffs on behalf of deaf and hard of hearing individuals against President and Fellows of Harvard College (“Harvard”). The case is titled National Association of the Deaf v. Harvard University and the President and Fellows of Harvard College, No. 3:15-cv-30023-KAR, and is pending in the United States District Court for the District of Massachusetts. The proposed class action settlement (“Settlement”) is set forth in a proposed Consent Decree, which must be approved by the United States District Court.

BACKGROUND

This lawsuit alleges that Harvard violated the Americans with Disabilities Act and the Rehabilitation Act by failing to provide captioning for its publicly available online content. Plaintiffs and other deaf and hard of hearing individuals alleged that they attempted to access Harvard’s publicly available online content but were unable to do so because it did not have captions or had inaccurate captions.

This is a class action. In a class action, one or more people or organizations, called Class Representatives (in this case the National Association of the Deaf, C. Wayne Dore, Christy Smith, and Lee Nettles (“Plaintiffs”)), sue on behalf of people who have similar legal claims. All of these people are a Class or Class Members. One court resolves the issues for all Class Members. United States Magistrate Judge Katherine A. Robertson is in charge of this class action.

The Court did not decide in favor of either Plaintiffs or Harvard in this case. Instead, both sides agreed to a settlement. That way, they avoid the cost, delay, and uncertainty of a trial. The settlement provides benefits that go to the Class Members. The Class Representatives and Class Counsel (the attorneys appointed by the Court to represent the Class) think the proposed settlement is in the best interests of the Class Members, taking into account the benefits of the settlement, the risks of continued litigation, and the delay in obtaining relief for the Class if the litigation continues.

THE SETTLEMENT CLASS

The Settlement Class includes all persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or

obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard.

SUMMARY OF THE PROPOSED SETTLEMENT

The following is a summary of certain provisions of the Settlement. The complete Settlement, set forth in the proposed Consent Decree, is available as set forth below.

The Settlement requires Harvard to caption its online content as follows:

  • Content created and produced at Harvard on or after December 1, 2019 and posted on a University Website will be captioned when posted.
  • Content created and produced at Harvard prior to December 1, 2019 and posted on a University Website will be captioned upon request within five business days.

Content on a “University Website” means any content on a public-facing website or web‐based application within a Harvard-controlled domain used to conduct University Business by Harvard faculty and staff. The term “University Website” includes websites operated by all of Harvard’s Schools and Academic Departments, News Organizations, Administrative Offices, Museums and Libraries, Academic Centers, Initiatives, and Programs. “University Business” includes activities carried out under the auspices of Harvard University but does not include activities organized or conducted by students or student organizations.

The following content will also be captioned when posted (after December 1, 2019) or upon request (if posted before that time):

  • Content created and produced at Harvard by a Department Sponsored Student Organization, as defined in the Harvard College Handbook for Students, and posted on any public-facing website within a Harvard-controlled domain.
  • Content posted as part of a Massive Open Online Course.
  • Content created and produced at Harvard and on the official YouTube channel and, if any, the official Vimeo or SoundCloud channel for certain Harvard schools, museums, libraries, and other units.

Harvard will also provide live captioning for University-wide events.

The settlement also requires Harvard to report to NAD on its compliance with these terms and establishes a process by which members of the public can request that content be captioned.

RELEASE OF CLAIMS

The Settlement resolves and releases all claims for injunctive, declaratory, or other non-monetary relief and attorneys’ fees and costs that were brought or could have been brought against Harvard relating to the lack of captioning or accurate captioning of free online audio or video content for the general public that is produced, created, hosted, linked to, or embedded by Harvard.

REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES

The settlement class is represented by the Civil Rights Education and Enforcement Center, the Disability Law Center, the Disability Rights Education and Defense Fund, the National Association of the Deaf, and the law firm of Cohen Milstein Sellers & Toll PLLC (“Class Counsel”). Harvard has agreed not to oppose Class Counsel’s request for an award of their reasonable attorneys’ fees, expenses, and costs in the amount of $1,575,000. This amount is subject to the approval by the Court.

FAIRNESS OF SETTLEMENT

The Class Representatives and Class Counsel have concluded that the terms and conditions of the proposed Settlement are fair, reasonable, adequate, and in the best interests of the Settlement Class. In reaching this conclusion, the Class Representatives and Class Counsel have considered the benefits of the settlement, the possible outcomes of continued litigation of these issues, the expense and length of continued litigation, and actual and possible appeals.

THE COURT’S FINAL APPROVAL/FAIRNESS HEARING

The Court has preliminarily approved the Settlement, and has scheduled a hearing for February 25, 2020 at 11:00 a.m. in the Hampshire Courtroom, 300 State Street, Springfield, Massachusetts 01105 to decide whether the proposed Settlement is fair, reasonable, and adequate, and should be finally approved. Although you are not required to attend, as a Settlement Class Member, you have the right to attend and be heard at this hearing, as specified in the next section below. At the hearing, the Court will consider any objections to the Settlement. Judge Robertson will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Settlement. The Court will also consider the agreed upon amount to award Class Counsel as reasonable attorneys’ fees, costs and litigation expenses. We do not know how long this decision will take.

If the Court approves the Settlement, all Class members will be bound by the provisions of the Settlement with respect to claims against Harvard for injunctive relief and attorneys’ fees and relating to captioning of online content.

OBJECTIONS TO THE SETTLEMENT

If you wish to object to the Settlement or to speak at the hearing, you must send any objection and/or notice of your intent to appear at the hearing to the Court in writing on or before February 10, 2020, and include the case number (Civil Action No. 3:15-cv-30023), to the following address: Clerk of the Court, US Courthouse, 300 State Street, Springfield, Massachusetts 01105.

You may also object by filling out this form: https://public.mad.uscourts.gov/FairnessHearing.html

Please note that the Court can only approve or deny the Settlement. The Court cannot change the Settlement’s terms.

All objections must be submitted or postmarked on or before February 10, 2020.

Any Class Member who does not object at or before the Final Approval Hearing will be deemed to have approved the Settlement and to have waived such objections and shall not be able to make any objections (by appeal or otherwise) to the Settlement.

IF YOU DO NOT OPPOSE THIS SETTLEMENT, YOU NEED NOT APPEAR OR FILE ANYTHING IN WRITING.

FURTHER INFORMATION

The terms of the Settlement are only summarized in this notice. For the precise and full terms and conditions of the Settlement, please see the proposed Consent Decree available at www.harvardcaptioningsettlement.com/consentdecree, by accessing the Court docket on this case through the Court’s Public Access to Electronic Records (PACER) system at https://www.pacer.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the District of Massachusetts, 300 State Street, Springfield, Massachusetts 01105, between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.

You can also obtain more detailed information about the Settlement or a copy of the Settlement Agreement by calling 240-468-7109 (videophone) or 800-308-1878 (voice), by emailing harvardsettlement@creeclaw.org, or by contacting Class Counsel by mail at any of the following addresses:

Thomas P. Murphy

Disability Law Center, Inc.

32 Industrial Drive East

Northampton, MA 01060

Amy F. Robertson

Civil Rights Education and Enforcement Center

1245 E. Colfax Ave., Suite 400

Denver, CO 80218

 

Joseph M. Sellers

Shaylyn Cochran

Cohen Milstein Sellers & Toll PLLC

1100 New York Ave NW, Fifth Floor

Washington DC 20005

Arlene Mayerson

Namita Gupta

Disability Rights Education And Defense Fund, Inc.

3075 Adeline Street Suite 210

Berkeley, CA 94703

Howard Rosenblum

The National Association of The Deaf Law and Advocacy Center

8630 Fenton Street, Suite 820

Silver Spring, MD 20910

Please do not direct questions to the District Court. To obtain copies of this Notice or the Consent Decree in alternative accessible formats, please contact Class Counsel listed above.

National Association Of The Deaf Announces Landmark Settlement With Harvard To Improve Online Accessibility

Settlement Includes Requirements Beyond Harvard’s New Accessibility Policies, Including Captions for Live Events, Third-Party Platforms and Department-Sponsored Student Groups Harvard Agrees to Enter Consent Decree, Ensuring Court Enforcement of Settlement

BOSTON—The National Association of the Deaf (NAD) announced today a landmark settlement with Harvard University that institutes a series of new guidelines to make the university’s website and online resources accessible for those who are deaf or hard of hearing. The settlement represents the most comprehensive set of online accessibility requirements in higher education and ensures for the first time that Harvard will provide high-quality captioning services for online content. The settlement expands upon Harvard’s new digital accessibility policy, which was announced in May. Harvard must provide captions for all online resources, including school-wide events that are live-streamed, content from department sponsored student organizations and any new university created audio or video hosted by third-party platforms such as YouTube, Vimeo and SoundCloud. The terms of the settlement are included within a consent decree, which can be enforced by the court. The court must approve the consent decree before it may become effective.

This settlement was reached four years after this litigation began in 2015, when it was filed in the U.S. District Court for the Western District of Massachusetts as a class action lawsuit. The lawsuit was prompted by the recognition that, notwithstanding the description of Harvard’s online resources as available to “learners throughout the world,” many of its videos and audio recordings lacked captions or used inaccurate captions. Harvard had no published policies in place to ensure these learning tools were accessible to people who are deaf and hard of hearing. In the United States alone, approximately 50 million people are considered deaf or hard of hearing.

Through the litigation, Harvard filed two motions to dismiss the case. In response to each, the court ruled that federal laws prohibiting disability discrimination covered Harvard’s online content. After these rulings were issued, Harvard announced its new digital accessibility policy and several months later the parties reached a settlement.

The individual plaintiffs in this class action lawsuit, C. Wayne Dore, Christy Smith and Lee Nettles, were also represented by Cohen Milstein Sellers & Toll, the Disability Law Center, the Disability Rights Education & Defense Fund, and the Civil Rights Education and Enforcement Center.   “As Harvard learned through this lawsuit, universities and colleges are on notice that all aspects of their campus including their websites must be accessible to everyone. Captioning video content is a basic form of access that opens up academic learning to not only deaf and hard of hearing people but the world. The National Association of the Deaf asks all who develop video content for the Internet to ensure access through quality captioning,” said Howard A. Rosenblum, Chief Executive Officer, National Association of the Deaf.

“Open and equal access to evolving technology is essential if the promise of the Americans with Disabilities Act is to be realized. By committing to caption content on a vast array of research and learning, today that dream came a step closer as one of the top universities in the world opens their digital doors to millions of deaf and hard of hearing people,” said Arlene B. Mayerson, Directing Attorney at the Disability Rights Education & Defense Fund.

“This settlement is a milestone for civil rights enforcement in the new millennium, as it ensures the wealth of knowledge and academic research residing on the Harvard University websites will be accessible to people who are deaf and hard of hearing everywhere,” said Joseph M. Sellers who heads the civil rights practice at Cohen Milstein Sellers & Toll.

“This settlement means greater access for current and future deaf and hard of hearing learners to the vast universe of Harvard’s online content. Ensuring accessibility is not something that can be considered a bonus—it is a fundamental right that everyone deserves. We’re pleased that Harvard will finally be treating all learners with the same standard of respect,” said Amy F. Robertson, Co-Executive Director of the Civil Rights Education and Enforcement Center.

“The significant expansion of opportunities for deaf and hard of hearing people to participate in Harvard’s community of lifelong learners realized by this settlement is an important step toward inclusion for all individuals with disabilities and invaluable to the intellectual community of our Commonwealth and nation as a whole,” said Marlene Sallo, Executive Director of the Disability Law Center.

The Scale and Scope of the Agreement

Harvard previously announced it will begin captioning new content created on or after December 1 on its website. Yet the settlement requires Harvard to take several new and additional steps, including captioning existing content posted on or after January 2019 within two years. For any content not already captioned, upon receiving a request, Harvard must caption the content within five business days. Furthermore, the university now must provide industry-standard live captioning for school-wide events that are live-streamed, while captioning new content of Department Sponsored Student Organizations, Massive Open Online Courses (MOOCs) and university created content on the official channel hosted by third-party platforms, including YouTube, Vimeo and SoundCloud. Harvard must also implement a public process to manage these requests. Harvard is also required to submit reports every six months beginning in June 2020 to NAD and the Disability Law Center with information about the number of requests received and any changes made to these policies, among other details.

Notice of Settlement of Class Action Relating to Captioning of Harvard’s Public Web Content

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

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