Monday, February 27, 2012
A recent book chapter of interest is titled "End-of-life care for patients with intellectual disabilities," by Irene Tuffrey-Wijne, Annemieke Wagemans, and Leopold Curfs.
The chapter is in the new book, A Public health Perspective on End of Life Care, by Joachim Cohen and Luc Deliens (Oxford University Press, April 1, 2012).
Noting the vulnerability of this group, and that this is an aging population, the authors discuss the challenges of providing palliative and end-of-life care services to people with intellectual disabilities.
HUD charges Bank of America with Discriminating against Homebuyers with DisabilitiesThe U.S. Department of Housing and Urban Development (HUD) today announced that it is charging Bank of America with discriminating against homebuyers with disabilities. HUD alleges that Bank of America imposed unnecessary and burdensome requirements on borrowers who relied on disability income to qualify for their home loans and required some disabled borrowers to provide physician statements to qualify for home mortgage loans.http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/yourrights ] makes it illegal to discriminate in the terms and conditions of a loan to an individual based on a disability, including imposing different application or qualification criteria, and makes it illegal to inquire about the nature or severity of a disability except in limited circumstances not applicable here.
"Holding homebuyers with disabilities to a higher standard just because they rely on disability payments as a source of income is against the law," said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity. "Mortgage companies may verify income and have eligibility standards but they may not single out homebuyers with disabilities to delay or deny financing when they are otherwise eligible."
HUD's charge is based on a "Secretary-initiated investigation," and the investigation of complaints filed by two individual borrowers in Michigan and one borrower in Wisconsin who claimed that Bank of America required them to provide personal medical information and documentation regarding their disability and proof of continuance of their Social Security payment in order to qualify for a home mortgage loan. The charge is also being issued as part of the work being conducted by the Federal Financial Fraud Enforcement Task Force's non-discrimination working group.
According to HUD's charge, Bank of America allegedly asked some borrowers for proof of their disabilities and sought evidence of the continuation of their Social Security income before approving loans, after first denying them. The matter will now be handled by the Department of Justice.
FHEO and its partners in the Fair Housing Assistance Program investigate approximately 10,000 housing discrimination complaints annually. People who believe they are the victims of housing discrimination should contact HUD at 800-669-9777 (voice), 800-927-9275 (TTY).
This is from http://www.disaboom.com/disability-rights-and-advocacy-general/hud-charges-bank-of-america-with-discriminating-against-homebuyers-with-disabilities
A Disability Is Not a Disability - Advice on Litigation and Specific Data on Disabilities Under ADA/ ADAAA
Dan Kohrman, at AARP, has some great advice in this regard. Here it is:
Thursday, February 23, 2012
Wednesday, February 15, 2012
Restraints and seclusion are used on people in institutions, children in schools, nursing home res- idents, general hospital patients, and other loca- tions, but most often with people who have dis- abilities. Questions regarding legality, morality, and efficacy abound. These questions, compounded by the serious possible adverse consequences of re- straints and seclusion, have commanded wide-rang- ing attention from legislatures, government agen- cies, human service professionals, direct care staff, advocates, clients and families, and the public. This article addresses the use of physical restraints and seclusion. It does not address the use of drugs as a behavior restraint, although much of the discussion applies in that context as well.
Is the use of human services restraint therapeu- tic? Can restraint use be reduced or replaced with alternatives? Is it time to relinquish these practices, at least when incorporated in a treatment or habil- itation plan?
In this article I begin with a look at the early institutional use of restraints and seclusion and, as a reminder of what may ultimately be at stake, I note some worst-case results in the United States. I then consider efficacy and risks of ‘‘human services restraint.’’ I review efforts to reform and reduce the use of restraint and address legal liability questions that impact on agency policy and professional be- havior. I conclude with some thoughts on the cur- rent state of knowledge, policies, and practices re- garding human services restraint and on the future of these techniques.
Restraints in the Early Institutions
Dr. John Conolly accepted the judgment of Dr. Robert Hill, who had experimented with nonres- traint at the Lincoln asylum. Dr. Hill had stated, ‘‘In a properly constructed building with [enough attendants], restraint is never necessary, never jus- tifiable, and always injurious’’ (Ozarin, 2001, p. 27). That was 170 years ago.
Professionals in the psychiatry, psychology, social work, and the developmental and intellectual disabilities field may be called upon to testify as experts in court in both individual and class action cases. Professionals often come to this task with many questions. Legal standards for acceptance of expert opinions must be met.
Counsel calling upon experts may desire many types of assistance and may, in some cases, be unaware of the extent of assistance an expert is able to provide. When a case moves to the courtroom, the expert wants to understand both the process and the substance: “What will happen? And how can I make the most skilled and relevant presentation?”
There are related practical questions as well. How does one prepare for testimony? What sort of site visit, interviews and record review, and other activities are most – or least – useful in this context? How does one write effective reports which meet both professional and legal standards? What should an expert expect from the lawyer who seeks the testimony, and what input should an expert require from the retaining attorney? What happens in a deposition or in cross-examination? What should the expert expect in court? And how does the court or other judicial officer hear and consider the testimony? What sort of presentation affects how the testimony is received?
This outline addresses the above and related matters. It is informed by the author’s experience as a litigator who has retained and confronted experts in these fields, and also by his experience as a court-appointed special master and as a court monitor.
“The Supreme Court’s ‘Douglas’ California Medicaid Cases, the Economic Crisis & the Promise of Community Services”
So is it illegal, then, to unnecessarily institutionalize someone? Yes. The Supreme Court held in 1999 that illegal discrimination exists when a person with disabilities is unnecessarily institutionalized. The case is called Olmstead v. L.C. The Court based its decision that unnecessary institutionalization is a form of discrimination on two rationales. First, placing people with disabilities who are capable of living in the community in institutions perpetuates the stereotypes that such individuals are unworthy or incapable of participating in community life. Second, confinement in an institution deprives the individual of participation in a broad spectrum of important activities, such as “family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” The Court recognized that institutionalization implies discrimination: “[T]o receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.”
The next step in using the Olmstead decision to argue against service cutbacks is to apply it to someone already in the community, and served by the state based, for example, on a Medicaid Waiver decision that otherwise the person would be in an institution. Surely, institutionalizing this person would be unnecessary. We know that already. Just as surely, it would make no sense for the person to be compelled to enter the institution simply to invoke his or her Olmstead rights to leave.
Courts have agreed with this line of reasoning to forbid community services reductions that would result in needless institutionalization.
Sidewalks to Nowhere: The Supreme Court and the ADA
David Ferleger & Richard Frame
An engineer in the aerospace and defense industry, Richard Frame became quadriplegic after a devastating auto accident twelve years ago. His body is paralyzed except for his head and shoulders,. He controls his power wheelchair with delicate head movements. Like most of the 3.4 million wheelchair users in the United States, Rick Frame actively participates in the life of his community.
When he leaves his home, however, Mr. Frame is excluded from his own community. When he takes to the streets of Arlington, Texas, he finds sidewalks to nowhere. Sidewalks with a curb cut at one end and no way to leave the sidewalk at the other end. Utility poles smack in the middle of a sidewalk. When he tried to go from his doctor’s office to a restaurant across the street, he discovered there was no way to get there. If his attendant parks Mr. Frame’s van in the municipal parking lot on a game day, he cannot get by wheelchair to the billion dollar Cowboys Stadium, built with $325 million in Arlington city funds.
The United State Supreme Court is poised to decide this month whether to review a sidewalk access decision in favor of Mr. Frame and several other wheelchair users which the National League of Cities, and the U.S. Conference of Mayors claim proclaim will impose a “crushing burden” on cities nationwide.
Joined by other cities and national organizations, the City of Arlington, Texas is asking the nine justices to free Arlington and other cities from any obligation to remedy their failure to make new and altered sidewalks accessible to people who use wheelchairs, a discriminatory violation of the 1990 Americans with Disabilities Act
A decision in favor of Arlington would also deny access to beneficiaries of technologies such as the Segway, the two-wheeled self-balancing device which hundreds of veterans disabled in Iraq and Afghanistan now use to go to work, walk their dogs and run with their children.
The case comes to the high court from the court of appeals, sitting unusually as a full court, which voted 8 to 7 last year that, “when a city chooses to construct a new sidewalk or alter an existing one, the city must take reasonable measures to ensure that those sidewalks are readily accessible to individuals with disabilities.” The court rejected Arlington’s argument that cities across the country may pick and choose when and where to provide accessible sidewalks.
In addition to the law, there are several moral, public policy and economic reasons why the Supreme Court should refuse to hear Arlington’s appeal. This form of discrimination is unfair, expensive and harmful to our national economy. It has extremely negative consequences for people without disabilities as well.
Excluding a class of people from the same sidewalks which “walking people” use is simply unfair. When a great city like Arlington builds and helps pay for monumental stadiums, that town ought to ensure that all of its residents can get to those stadiums, as well as to stores, hospitals, downtown restaurants, and their children’s schools.
The National League of Cities protests that, “sidewalk improvement programs can cost a single city hundreds of millions of dollars.” The appeals court explained that Congress looked at the question quite differently. Congress found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”
Our national economy will benefit when cities are compelled to connect the dots and provide pathways in the community for people with mobility impairments. The ADA itself states that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.”
Discrimination is a “totally unnecessary contributor to public deficits” and costs literally billions of dollars annually in support payments and lost income tax revenues,” the Congress concluded.
Cities need to do it right the first time. When it comes to sidewalk accessibility, Congress recognized that the additional cost of making a new sidewalk readily accessible is “often nonexistent or negligible.” When Arlington chose to build or alter inaccessible sidewalks after the 1992 ADA effective date, the city wasted taxpayers’ money and broke the law.
Inaccessible sidewalks harm everyone. Simply put, what works for people with disabilities works for everyone. We have all used curb ramps where sidewalks meet the street. They are useful when we are pushing a baby stroller or a shopping cart, lugging a suitcase, moving furniture, walking with crutches, or helping an elder cross a street. Bicyclists use curb ramps all the time.
Just as the invention of the typewriter, Jacuzzi and even email originated as efforts to benefit people with disabilities, so has the development of curb cuts, first implemented in 1945 in Kalamazoo, Michigan, as an accommodation for soldiers returning from World War II.
At a July 1990 ceremony, President George Herbert Walker Bush declared that with his “signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Now, 22 years later, it is past time for all those who pass through those doors to be able to join one another, co-workers and their neighbors.
David Ferleger is an attorney near Philadelphia, PA and represents the plaintiffs in the litigation in the Supreme Court. Richard Frame lives in Arlington, TX, is a retired Registered Accessibility Specialist, and is one of the plaintiffs before the Supreme Court.