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FROM JIM MCGAUGHEY                                                                                           

VOLUME 1, NUMBER 4

 

 

{Logo for Equal Housing}

Four years after filing a federal lawsuit, the CT Fair Housing Center and the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities have settled a landmark housing discrimination case with New Horizons Village, an apartment complex in Unionville which markets itself as providing independent housing for people with significant physical disabilities.  Under the consent decree, New Horizons will cease requiring tenants to open their private medical records for review and to show that they can “live independently”.  New Horizons will also pay damages and attorney’s fees of $600,000 to a former tenant who challenged its discriminatory policies.  This is believed to be the largest settlement in a case challenging independent living requirements in Connecticut.

 

The case was initially brought by Denise LaFlamme, a person with disabilities who resided at New Horizons Village in 2004. “I really wanted to live at New Horizons because it gave me the chance to live in a community of people with disabilities and an accessible apartment.” However, after a brief hospital stay, New Horizons, deemed Ms. LaFlamme “too disabled” to return to her apartment, despite her attending physician’s instruction that she return to her apartment upon her release from the hospital.  OPA had advocated for LaFlamme, and joined the case to press for policy changes.

 

Greg Kirschner, Legal Director for the CT Fair Housing Center, and Ms. Laflamme’s attorney said “New Horizons used its tenant criteria to discriminate based on type and severity of disability.  The Fair Housing Act is absolutely clear that it is impermissible to limit the housing choices of people with disabilities based on stereotypes about their ability to care for themselves; people with disabilities are entitled to the same freedom to choose how and where they want to live as people without disabilities.”

 

Nancy B. Alisberg, Managing Attorney of the Office of Protection and Advocacy for Persons with Disabilities said, “New Horizons treated individuals with disabilities differently than any landlord is permitted to treat its tenants.  It is fundamental under the Fair Housing Act that people with disabilities may not be required to disclose their private medical records as a condition for receiving housing.   The consent decree will protect the rights of both applicants and current residents.  We also hope that this case will serve as a lesson for other providers of housing that the rights of individuals with disabilities will be protected by the courts.”

 

In April of this year, Judge Janet Bond Arterton, of the Connecticut Federal Court, held that New Horizons’ independent living policy, which included a requirement that tenants and applicants disclose medical records, violated the Fair Housing Act. NHV used these medical records to screen out individuals it considered “too disabled” to live independently and disclosed applicant’s medical information to other tenants as part of the application process. “A discriminatory housing practice is still unlawful even if made with good intentions if it denies housing to individuals with disabilities based on their disabilities.” (LaFlamme et al.  v. New Horizons, Inc. et al., 605 F.Supp.2d  378 (D.CONN. 2009).

 

The settlement requires complete revision of New Horizons requirements for tenancy, including an end to the practice of inappropriately requesting private medical records. It further requires that determinations regarding needs for personal care assistance are to be decided on a case-by-case basis, and that any request for additional personal care assistance by a tenant must be considered a request for reasonable accommodation.  Under a unique statutory arrangement, New Horizons receives and allocates state funds for personal care assistance for its residents.  While New Horizons markets itself to people with disabilities regardless of their ages, the Court’s ruling could also have significant implications for the challenge seniors face when seeking quality housing.
  
A court-approved monitor will receive and review monthly disclosures from New Horizons Village to ensure compliance with the Consent Decree and provide quarterly reports to the Court.

 

Closures and transfers proposed in response to cuts and retirements in human service agencies

 

{Black sign with Red Letters that say} Considerable controversy has developed concerning plans to close or make major changes in the operation of certain State human services programs and facilities.  The Department of Mental Health and Addiction Services (DMHAS) has announced plans to close Cedarcrest Hospital in Newington; the Department of Children and Families (DCF) plans to close High Meadows, a residential treatment facility for children in Hamden; and the Department of Developmental Services (DDS) is proceeding with its plans to privatize operation of 17 state operated Community Living Arrangements (CLAs). (CLAs are sometimes called “group homes”).  

 

While there is little doubt that budgetary considerations are a major driver for these {Picture of a dollar bill being squeezed by two vice grips} changes, the agencies have also cited a variety of other factors.  These include the impact of the recent state employee Retirement Incentive Plan, major upcoming expenses for necessary facility repairs, and evolving service models which, along with increasing demands for more community-based services argue against continuation of centralized, congregate programs.  Because the plans involving Cedarcrest and High Meadows involve reductions in hospital and residential treatment beds, DMHAS and DCF must seek Certificate of Need approval from the Office of Health Care Access before closing those facilities.  (No such approval is needed for DDS to privatize its CLAs.)

 

Opponents of these changes point out the benefits of stability, and cite the high levels of staff commitment, the unique programmatic features and administrative cultures of the facilities slated to close or change hands.  Legislators, family members and state employee unions are among those expressing concerns.  Between the Certificate of Need process and the potential for legislative intervention, the ultimate outcome of the controversy is far from certain. 

 

While there is good reason to approach program closures and large scale transfers with caution, change in human service systems is not inherently bad.  In fact, over the past several decades DDS, DMHAS and DCF have undertaken many positive changes that focus attention on the unique identities, needs and preferences of people they support; on affirming concepts such as self-determination and community membership and recovery.  These concepts and the practices they foster focus on our common humanity rather than perpetuating stigma and devaluation.  Most of those improvements would not have been economically or philosophically possible without simultaneously abandoning older models and closing facilities.  In fact, for advocates of progressive reform in human services, it is enormously frustrating to watch as precious public resources are repeatedly lavished on antiquated, facility-based programs while more relevant, innovative approaches are chronically under-funded.  

 

However, when large scale systems changes are primarily driven by economic considerations, there is reason to be concerned that the same progressive, person-centered values these agencies have worked so hard to cultivate will be set aside; that meaningful roles and relationships will be lost; that the identities and needs of the individual human beings who are supposed to be the beneficiaries of our efforts will be subsumed in a swirl of deadlines and schedules and organizational dictates; and that, in the process, people can be badly hurt.  The real test by which these proposed changes should be judged is whether sufficient care and resources are being devoted to developing responsive, individually relevant alternatives.      

 

The risks inherent in transitions of this nature can be minimized if planners recognize the inherent fallibility of all human endeavors – even well meaning ones - and consciously build in safeguards.  One of these safeguards is independent advocacy.  OPA and its subcontractors have played major roles in prior transition processes.  However, the budget crisis is also affecting us.  OPA cannot, by itself, meet the advocacy needs for all those potentially affected by these proposed changes.  We are, however, holding discussions with other advocacy groups to explore ways we can pool our resources and reach more people.  And we remain intensely interested in safeguarding the rights of people facing major transitions.  If you have concerns over what will happen to you, or a friend or family member has concerns over an individual who may be “falling through the cracks” of placement or transfer, please contact us at (860) 297-4300 (voice); (860) 297-4380 (TTY) or toll-free CT only 1-800-842-7303 (V & TTY).

 

Statewide Emergency Notification System is Becoming a Reality

 

Connecticut will soon be the first state to acquire a state-wide Emergency Notification System (ENS).  The new system will allow individual emergency warning messages to be sent by telephone, text, TTY, fax or email to residents, businesses and facilities in particular locations that may be affected by an impending or evolving emergency.  To date, such systems have been acquired primarily by individual municipalities, universities and corporations.  Some Connecticut towns and cities already have their own versions of this, but the high cost of maintaining current contact information put these systems beyond the reach of many municipalities, and difficulty obtaining unlisted telephone numbers limited their utility.  The unlisted number problem was fixed legislatively during the last session, and the State has now contracted with Everbridge Communications to implement the new system. Towns with existing systems will be integrated into the state-wide system over time. 

 

{Sign that says } The new ENS will allow warning messages to be initiated by municipal or State officials to businesses and residents in particular neighborhoods, towns, or regions, depending on the type of emergency.  For people with disabilities the new system has two important features: First, individuals can choose their preferred means of receiving warning messages (e.g. a deaf person could choose to receive a text message on his or her Blackberry, with back up messaging to his or her home TTY; a person with a mobility disability could choose to receive a voice message over a cell phone and a text message via email, etc.); Second, the system will allow voluntary “citizen opt-in” so people can choose to receive warnings and instructions that are tailored to their particular needs.  For instance, in a mass evacuation and shelter scenario, people who have pre-identified their need for accessible transportation or for access to a shelter with electrical generating capacity to re-charge wheelchair batteries could be contacted earlier and directed to specific collection points or shelter locations that have the needed capacity.  There will be ten defined categories to which people can voluntarily “op-in”, including categories for people who have service animals, who need refrigeration for medications etc.       

 

Planners expect the state-wide ENS to be operational by the end of this year.  Look for further public information about this innovative system sometime in December.  As soon as the notification preference and citizen opt-in features become operational, OPA will help disseminate “how to” instructions.  

 

 

In response to several legislative proposals that would legalize physician as {Black and white photo of wheat with the sun setting in the background. } sisted suicide, a group of disability advocates, health care professionals and religious leaders from New England states recently met in Boston to discuss ways to share information and support each other in opposing such measures.  The proposals they are concerned about are based on language originally adopted in Oregon, and have been raised in a number of New England states, most recently in New Hampshire. (Similar proposals have been defeated in Maine and Vermont.)  Opposition from disability rights advocates has been spearheaded by the Disability Rights Education and Defense Fund (DREDF), independent living centers, and Not Dead Yet, a grass roots advocacy organization concerned with the effects of unconsciously held prejudices on medical decision making for people with disabilities.    

 

Not everyone in the disability community agrees on this subject.  Some see legalizing physician assisted suicide as an extension of the concept of “self-determination”; others believe that suicide, itself, should not be illegal or the concern of the state.  However, most leading disability-rights advocacy groups oppose this direction.  Their opposition centers on several key issues and questions:  First, it is not uncommon for people who acquire a disability to experience a considerable period of depression before coming to realize they can still lead good, contributing lives. While the proposals for physician assisted suicide speak of “terminal illness” as a threshold requirement, the distinction between terminal illness and progressive disabilities is sometimes a grey area, and it is difficult to see how decision-making based on that distinction could be effectively policed.  Doctors in at least one European country that has accepted this practice have begun to categorize long-term disabilities with “poor prognoses” as “terminal”, including some psychiatric diagnoses like anorexia nervosa.  In addition to concern over  a “slippery slope” of definitions, criteria,  unconscious prejudices and self-justifying rationalizations, questions also arise regarding the impact that legalizing physician assisted suicide would have on social norms and personal expectations.  Would the fact that a doctor authorizes and actively assists in taking human life signal a fundamental change in the core ethic of a profession heretofore committed to saving and protecting life?  Would the involvement of “professionals” to whom we traditionally turn for advice, confer legitimacy on a practice that society has long discouraged?  If we begin to accept suicide as an “understandable choice” in response to at least certain types of disabilities, will we ever learn to value the lives of all people and invest adequately in approaches that enhance quality of living (including end-of-life care)?  And, lastly, what message would legalization send to a person who has just been diagnosed with a progressive disability?  At what point would the availability of this “option” cease to be a choice and become a “felt duty” to ease the “burden” and cost of care for family members or for society generally?  

 

For further information, you can access the DREDF webpage on physician assisted suicide and euthanasia at:  www.dredf.org/assisted_suicide/index.shtml

 

 

State Building Inspector Lisa Humble and the Department of Public Safety’s Codes and Standards Committee have begun initial work on the next major revision to the State Building Code.   Formally adopted as a regulation by the Department of Public Safety, the State Building Code addresses a myriad of issues, including requirements affecting the accessibility of buildings that are being constructed or undergoing extensive renovation or changes in use.  The State Code is based on the general requirements and standards contained in the International Building Code (IBC) “family” of codes – a continually evolving set of standards recommended by national and international experts.  However, there is also a substantial “Connecticut Supplement” that contains state-specific requirements, some of which have a considerable impact on accessibility.  The State Code is revised approximately every five years to keep pace with, and officially adopt changes in the IBC. 

 

The revision process will involve discussions amongst the members of the Codes and Standards Committee, development of proposed language, a public hearing, publication of a draft and consideration of comments from members of the public, and reviews by the Attorney General and the Regulation Review Committee of the General Assembly.  At this early point in the process, the Codes and Standards Committee is still soliciting ideas and suggestions.  You may submit a recommendation regarding the revised code by visiting the website of the Department of Public Safety, downloading and printing out the form “Code Change Form” found at http://www.ct.gov/dps/cwp/view.asp?a=2148&q=308964.  Fill out the form and mail it to the designated address.  (Note – this is not a “fallible form” – it must be printed out and mailed separately.)           

 

 

{Person in wheelchair, looking up at steps where there is no ramp. Arm thrown up in frustration.}

 

 

 

Comments, questions, or suggestions should be forwarded to: James.McGaughey@po.state.ct.us
James D. McGaughey, Executive Director
Office of Protection and Advocacy for Persons with Disabilities
60B Weston Street
Hartford, CT  06120-1551