OPA: P&A NEWS Volume 3, Number 2

 P&A News
 
From the desk of Jim McGaughey
Executive Director     
May 2011
 
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U. S. Supreme Court upholds state agency P&A’s authority
 
{Logo for the Virginia P&A Office, the lady justice holding legal scales while sitting in a wheelchair with a cane.} Two weeks ago, the U.S. Supreme Court issued a ruling that produced a huge sigh of relief at OPA.  The case grew out of an attempt by the Virginia Office of Protection and Advocacy (VOPA) to secure a federal court order compelling Virginia’s mental health department to produce records VOPA needed in order to complete investigations into suspected abuse and neglect in a state hospital.  Federal law authorizes P&As to conduct abuse/neglect investigations, and requires service systems to allow access to such records.  However, the Commonwealth of Virginia objected, claiming that it could not be sued by one of its own agencies in federal court.  The 4th Circuit Court of Appeals agreed with that position, and ruled against VOPA.  VOPA felt strongly that it needed to appeal that ruling to the U.S. Supreme Court – people had died at the hospital under questionable circumstances, and safeguarding against abuse and neglect lies at the very heart of the P&A mandate.  However, everyone knew that appealing the decision risked widening the scope of the ruling: if the Supreme Court upheld the 4th Circuit’s decision, it would mean that all state agency P&As would lose the ability to seek federal court orders against state officials.  (Note: most P&As are organized as private, non-profit organizations, and are designated by their respective states as the official P&A systems for those states.  Those P&As were unaffected by the ruling.  VOPA and the eight other state agency P&As, including Connecticut OPA, were established as official agencies of their respective state governments.)
 
At the Supreme Court, VOPA argued that federal P&A legislation clearly authorizes P&As to seek relief from any court, including the federal courts, for violations of disability rights laws.  That includes laws such as the PAIMI Act and the DD Act, which authorize P&As to investigate abuse and neglect.  VOPA further argued that while Congress left it to the states to choose the type of P&A system they wanted, it did not intend that state agency P&As would be less able to protect the civil rights of people with disabilities than the P&As in states that chose to designate private, non-profit entities.  The Commonwealth of Virginia countered by characterizing VOPA’s suit against the state’s mental health agency as an “intramural dispute” between two departments of state government, and argued that such suits should not be allowed in federal court based on previous Supreme Court interpretations of the 11th Amendment to the Constitution and the doctrine of “sovereign immunity”.  The doctrine of sovereign immunity limits suits against states and state officials in federal courts.  
 
In a 6-2 decision announced on April 19, 2011, the Supreme Court sided with VOPA.  The Justices held that state agency P&As can seek prospective relief in federal court against state officials under the legal doctrine of ex parte Young.  Ex parte Young is a 1907 case that recognized an important exception to sovereign immunity.  It permits parties to pursue injunctive relief against state officials in federal court.  Writing for the majority, Justice Anton Scalia explained that ex parte Young actions are a well established and necessary vehicle for securing compliance with federal law.  He reasoned that a state’s ‘dignity interest” was not offended when it was sued in federal court by the very entity which the state had chosen and authorized to protect rights created in federal law. 
 
This is especially good news for OPA, which has previously obtained federal court orders securing access to state agency records needed for abuse/neglect investigations.  See:  OPA v. Htfd. Bd. of Educ. 464 F.3d 229 (2d Cir. 2006), OPA v. Mental Health,  488 F.3d 119 (2d Cir. 2006). The full decision, Virginia Office for Protection and Advocacy v. Stewart, can be found at ___S.Ct. ____,  2011 WL 1466121.
 
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Sexual Assault, “Respectful Language” legislative proposals move forward
 
As the 2011 Session of the General Assembly enters the home stretch, legislative committees have acted favorably on a number of bills that are important for people with disabilities.  Among the most notable of these are:
 
SB 918, An Act Concerning Sexual Assault of Persons Whose Ability to Communicate Lack of Consent is Substantially Impaired. The need for this bill became apparent when the State Appellate Court overturned the verdict of a jury which had convicted a Fairfield County man of sexually assaulting his girlfriend’s daughter - a woman who has both intellectual disability and significant physical disabilities. (The State’s Attorney is appealing that decision to the State Supreme Court, and OPA has filed an amicus brief supporting that appeal.) (See State v. Fourtin.)
 
While there is still hope that the Supreme Court will overturn the Appellate Court’s ruling, the case has highlighted deficiencies in the current statutory language - language which refers to victims with disabilities as “mentally defective” or “physically helpless”.  That language is not only offensive, but, as the Fourtin case illustrates, is subject to interpretations that can deny justice.  The bill deletes those terms from the statute and clarifies that the crime of sexual assault (in either the 2nd or 4th degree, depending on the particular conduct) occurs when the victim is unable to communicate a lack of consent.  National crime statistics from the Department of Justice indicate that people with disabilities are twice as likely to experience sexual assault as are people without disabilities.  Many of the perpetrators are caregivers or are otherwise known to the victims. The Judiciary Committee unanimously voted to approve the bill (e.g. issued a “Joint-Favorable” resolution), sending it on to the Senate where it is currently awaiting action.  Last year a substantially similar bill was passed by the Senate, but died on the House calendar.  Advocates will need to watch to make sure SB 918 does not suffer a similar fate this year.
 
Raised Bill No. 6279, commonly referred to as the “Respectful Language” bill would update a number of references in the statutes which describe and authorize the Department of Developmental Services.  Most notably, it would systematically remove references to “mental retardation”, replacing them with the term “intellectual disability”.  Eligibility criteria for DDS services would not be affected. As with the successful effort to renam {Picture of a sad child stating that Words can hurt.} e the Department itself, which culminated in legislation passed in 2007, much of the impetus behind this proposal derives from the hurtful experiences of those to whom the term “retarded” has been applied.  The term “intellectual disability” is commonly accepted in educational contexts.  The bill includes provisions which would also update references to the term “mental retardation” in OPA’s Abuse Investigation statutes.  It  garnered “Joint-Favorable” resolutions from the Public Health, Human Services, and Judiciary Committees, and has just been passed by the House of Representatives.  The bill now heads to the Senate. 
 
OPA’s Legislative Specialist, Beth Leslie, posts weekly updates on the status of legislation affecting people with disabilities on the OPA website at www.ct.gov/opapd .     
 
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Proposed agency mergers create question marks for disability-specific agencies & programs
 
In an effort to address Connecticut’s historic budget crisis and reduce the size and complexity of State government, Governor Malloy’s proposed budget for Fiscal Years 2012 and 2013, released in February, contained plans to merge several disability specific agencies into existing, larger ones.  (A number of other, non-disability related agencies, including several large ones, are also slated for merger.)  That proposal called for educational services for children who are blind or visually impaired to be transferred from the Board of Education and Services for the Blind (BESB) to the State Department of Education (SDE), while BESB’s adult services would have been merged into the Bureau of Rehabilitation Services (BRS) of the Department of Social Services (DSS).  The budget also proposed merging the Commission on the Deaf and Hearing Impaired (CDHI) into DSS.  Testimony from affected constituencies reflected concern that moving these disability-specific entities into much larger bureaucratic structures could dilute the expertise, internal synergy and effectiveness with which they currently function. 
 
After hearing those concerns, the Appropriations Committee recommended a modified approach: to remove BRS from DSS, and merge it with both BESB and CDHI.  All the current programmatic responsibilities of those agencies would remain intact.  The new entity would be called the Bureau of Rehabilitative Services, and it would also house positions and functions currently associated with the Department of Motor Vehicle’s Handicapped Driver Training Program - a program that was slated to be eliminated in the Governor’s original budget proposal.   This modified approach has been incorporated into the budget just passed by the Senate and now under consideration by the House.  It is not entirely clear how the newly created Bureau will be structured.  Further enabling legislation will be needed to flesh out and legally authorize the new entity.
 
It is always difficult to assess the costs and benefits associated with restructuring proposals, just as it is difficult to weigh the advantages and disadvantages of maintaining separate, autonomous programs focused on particular segments of the population.  Change is not necessarily a bad thing, especially if it affords an opportunity to break down silos, re-examine assumptions about the status quo, and rethink how well things are, or ought to be done.  But, as with any new proposal, there are a number of fiscal, political, legal and structural questions that will need to be answered.  And, then there is the perennial issue of culture: how to reconcile the practices, values, beliefs and expectations that exist within the separate agencies, and how best to blend the common, often unspoken understandings that exist between the members of discrete constituencies – people who have experienced different life circumstances and, through decades of advocacy, have helped shape the responses of particu {Picture of a man and woman both pulling on a large dollar sign.} lar support systems dedicated to meeting their unique needs.  How does all that get worked out?  Can it be done in a “win-win” way that actually moves things forward for everyone?  At this point, questions like these outnumber answers.  But they are good questions – much better questions than exist in some of our neighboring states where services are simply being slashed on a wholesale basis.  And, because they are good questions, they deserve good answers. 
 
 
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Community Conversation focuses on closing the achievement gap for special education students
 
On April 16, 2011, the Hartford Commission on Disability Issues sponsored a “Community Conversation” on Closing Connecticut’s Achievement Gap for Children and Youth with Disabilities.  Funded by a grant from the Graustein Memorial Fund, the event brought together educators, parents and community leaders to formally consider, for the first time in Connecticut, how best to include students with disabilities in statewide efforts to address the State’s embarrassing achievement gap.  (The term “achievement gap” refers to the disparity between educational outcomes for students in largely white, suburban communities and those for students of color living in poorer communities.  Connecticut’s achievement gap is believed to be the largest in the nation.)  General awareness of the achievement gap has been growing, and a number of initiatives have been launched to address it.  However, very little attention has been paid to including students with special education needs in those initiatives.  In fact, some of the “reforms” being pursued by urban school systems to boost graduation and college admission rates (e.g. the Hartford Public Schools’ “Student Based Budgeting”) have exacerbated the gap for special education students.  
 
Participants in the conversation identified a number of factors that contribute to the problem, and listed steps that would result in improvements.  A full report summarizing the “conversation” will be forthcoming.  Both the report and the effort to raise awareness of the impact of the achievement gap for special education students are very much needed, if only to keep things from getting worse in cities like Hartford.  According to a recent article in the Hartford Courant, outgoing Superintendant of Schools Stephen Adamowski has presented a budget for the coming fiscal year that would cut $4.6 million from special education program funds. 
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Feds to Monitor Connecticut Special Education Implementation in November
 
The U.S. Department of Education’s Office of Special Education Programs (OSEP) will be conducting a monitoring visit in Connecticut this November.  OSEP routinely conducts monitoring visits to states according to a cycle that is determined, in part, by information that State Education Authorities submit regarding their state’s compliance with the requirements of the Individuals with Disabilities Education Act (IDEA).  This will be the first OSEP monitoring visit to Connecticut since 1995.  The State Department of Education’s Bureau of Special Education is gearing up for the Fed’s arrival.  The State Advisory Committee on Special Education (SAC) was informed at its March meeting that OSEP will want to interview its members (as a group) and the Connecticut Parent Advocacy Center (CPAC) is being asked to develop a parent survey in anticipation of the visit.  Both CPAC and OPA have recently been asked to join the SAC as non-voting, ad hoc members.       
 
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Restraint and Seclusion related injuries to children prompt PAIMI investigations and advocacy with State oversight agencies
 
When the Connecticut General Assembly adopted statutory restrictions on the use of restraint and seclusion of persons with disabilities in 1999, it required that reports of serious restraint-related injuries be forwarded to OPA by state oversight agencies. In 2007, that requirement was extended to include students with disabilities being educated in public schools.  Acting under authority conferred by the federal Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), OPA has recently investigated the circumstances surrounding a number of injuries that occurred in special education schools and residential programs, most of which serve children with significant mental health and behavioral support needs.  
 
While the facts vary somewhat between cases, it is clear that legal requirements prohibiting the use of restraint and seclusion except as emergency interventions are not being observed.  It is also clear that in many of the children’s programs, staff members are trained to use face-down prone restraints.  Holding a child on the floor in face down restraint requires involvement of fewer staff than other techniques, but there is mounting evidence to the effect that it is an inherently dangerous practice.  (In recognition of this, both the Connecticut Department of Mental Health and Addiction Services, and the Department Developmental Services have banned the use of face down restraint in their programs.)  In one program, investigators also found that the training curriculum includes instructions to staff on how press a knuckle into the ear of the student being restrained in order to secure compliance more quickly. 
 
As distressing as these findings are, emphasizing flaws in “how-to-do-it” training or particular restraint techniques misses the point. The most prevalent problem PAIMI investigators have identified is the absence of individually relevant functional behavioral assessments and positive behavioral support strategies for the children who were injured.  Those types of individualized assessments and strategies can help children with serious behavioral disorders learn more adaptive skills.  When programs adopt these approaches and become skilled in using them, behavior improves and reliance on restraint and seclusion is significantly reduced. 
 
OPA recently met separately with representatives of the Department of Children and Families and the State Department of Education to present these findings and to suggest a collaborative campaign that would include providers funded and/or regulated by both agencies.  The goals of the campaign would be to: 1) eliminate reliance on restraint and seclusion in children’s residential and educational programs; 2) assure that children are provided with positive behavioral supports for learning adaptive skills; and 3) encourage mental health professionals and educators who are involved with particular children to work together to develop consistent, individually appropriate treatment and educational plans.   
 
 
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Alternative Formats available in alternate format upon request.
Comments, questions, or suggestions should be forwarded to James.McGaughey@ct.gov
James D. McGaughey, Executive Director
Office of Protection and Advocacy for Persons with Disabilities
60B Weston Street
Hartford, CT  06120-1551


Content Last Modified on 1/27/2012 11:16:44 AM