As reported in our Fall 2015 Newsletter, DRNY filed a suit on behalf of a student with a disability who has been denied his service animal at school for the last three years. The U.S. Department of Justice (DOJ), representing the United States, filed a Statement of Interest in support of our client’s right to be accompanied by a service animal at school. The DOJ articulated a school districts responsibility under two anti-discrimination laws, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
People with intellectual and developmental disabilities are often affected by other’s low expectations about their decision making capabilities. Consequently, people are losing the right to make decisions, which leads to devalued life outcomes, such as less community integration.
Supported Decision Making (SDM) provides people with disabilities the individualized supports and services necessary to make informed decisions. SDM emphasizes that the majority of individuals with disabilities, even those with significant disabilities, have the ability and the right to make important decisions impacting their lives.
SDM recognizes that most individuals make decisions with the support of others and that individuals with disabilities are entitled to the same consideration. The SDM model will assist individuals with developmental disabilities in understanding the choices and consequences of those choices, so that they too can make their own decisions.
The SDM Pilot grant has three components which will overlap through this 5-year project period. They are: education regarding the SDM process, assisting individuals with disability under guardianship orders to restore decision making rights, and ensuring that individuals at risk of losing these rights are able to keep making their own decisions.
DRNY actively monitors long term care nursing homes and rehabilitation centers both within and outside New York State. As New York’s Protection and Advocacy System, DRNY actively monitors these facilities to ensure that individuals who reside in these facilities are free from abuse and neglect and have knowledge of their rights.
Monitoring Conditions in New York Nursing Homes.
Over the past year, DRNY has conducted monitoring visits to several nursing homes and educated residents about their rights. DRNY reviews the practices and policies of the nursing homes to ensure that residents are not unnecessarily diapered, over-medicated, or subjected to any unnecessary physical or chemical restraints. DRNY also investigates whether nursing homes honor the health care decisions made by a resident, and works to ensure that health care proxies are only used when an individual is incapacitated and unable to make health care decisions.
DRNY has partnered with New York State’s Developmental Disabilities Planning Council (DDPC), Hunter College and the Council on Quality and Leadership on a $1.9 million dollar pilot project for Supported Decision Making for people with intellectual and developmental disabilities. The 5 year pilot aims to enhance self-determination by promoting personal choice and decision making.
DRNY successfully represented a client after the Social Security Administration (SSA) incorrectly determined that she had to pay back $32,212.78. The client’s daughter also received a similar request from SSA for repayment of $25,854. Although our client was employed when she contacted us, she considered quitting her job due to the stress and anxiety that these demands for payment placed on her and her family.
DRNY was able to obtain a complete reversal of SSA’s requested overpayment. Additionally, SSA repaid the daughter the full amount of benefits that were incorrectly withheld and reinstated both the client’s and daughter’s monthly benefits. Our client has continued working and is now in the process of seeking a full time job, with the goal of no longer receiving social security benefits.
A young man with intellectual and developmental disabilities who lived in a New York intermediate care facility was neglected in the months leading up to his death. In its public report, DRNY concluded that the young man was in excruciating pain on a regular basis for eight months before his death. DRNY began investigating his death after receiving a complaint that he was neglected by both his primary physician and the facility caregivers. DRNY also reviewed the investigation by the New York State Center for the Protection of People with Special Needs (“Justice Center”), and concluded that it was insufficient.
DRNY interviewed staff and residents, reviewed facility documents, medical records, and investigative reports. In the end, DRNY found that this young man was seriously neglected in the months before his death, that this neglect caused him significant suffering, and likely contributed to his death. Even though the Justice Center reached similar conclusions, they inexplicably failed to substantiate any findings of neglect. DRNY’s report made recommendations to both the agency that operated the residence and to the Justice Center. The Agency has agreed to work with DRNY to address these concerns and has hired a consultant to address DRNY’s recommended corrective actions. The Justice Center has refused to re-examine this death based upon DRNY’s findings. The public investigation report is available on DRNY's Publication Page.
After nearly six months of denying a student access, DRNY successfully obtained an order requiring the NYC Department of Education to permit the student to bring his service animal in school, on the school bus, and at all school-related activities. The impartial hearing officer’s interim order concluded that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act provides a student with an express right to have a service dog accompany him in school. The order mandated that the student have access to his service animal in school starting March 1, 2016. With his service dog in school, the child is now more effectively managing behaviors associated with his disability.
The DOJ makes clear that Congress specifically intended for schools to permit individuals with disabilities to be accompanied by their service animals. The DOJ explains that the ADA sometimes requires modifications beyond a school’s responsibilities under the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education requirements. Sachem Central School District argued that because the school provides the child with a Free and Appropriate Public Education, that which is the required standard under the IDEA, they are absolved of their responsibilities to also accommodate our client pursuant to the ADA. The DOJ firmly rejected that position. The DOJ concluded that IDEA compliance does not automatically equate to ADA compliance, and the School’s refusal to allow a student his service animal in school amounts to discrimination under the ADA.
The DOJ Statement of Interest is available at http://www.ada.gov/enforce_activities.htm under Sachem Central School District.
DRNY’s client, a 19 year old with developmental disabilities, successfully retained his right to make his own decisions. Our client had recently transitioned from high school and his parent was concerned with his plan to live outside of the family home. The parent initiated a guardianship proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act. A court can grant guardianship over an individual with an intellectual and developmental disability when two medical professionals certify that the individual is unable to make decisions. A 17-A Guardianship is not tailored to those areas that the person needs assistance. If granted, our client would have lost the ability to make all decisions regarding his life and property.
DRNY represented our client and opposed the application for guardianship. The parent attempted to use our client’s medical records without his permission. The Rensselaer County Surrogate’s Court agreed that the attempted use of our client’s medical records without his permission violated his rights under HIPAA and the physician-patient privilege. The decision is reported at, In re B.M., 50 Misc. 3d 367, 19 N.Y.S.3d 393 (N.Y. Sur. 2015). The guardianship petition was withdrawn and our client moved out of the family home. He is now happily residing in supported housing. Most important, he retained his ability to make all decisions for himself and what he would like to do with his life.
Available in alternative formats upon request
If you have a topic or upcoming event you would like to share in an upcoming issue of DRNY’s Newsletter, please send it to: Jen.Wilson@DRNY.org
The Client Assistance Program has come a long way since I began as its Director in June of 2013. In fact, DRNY had only been designated the prior month as New York’s Protection & Advocacy and Client Assistance Program (CAP). This was the first of eight federal programs to be exclusively operated by DRNY.
In the CAP program, staff advocate for people with disabilities who are applying for and receiving services from the State’s vocational
DRNY is surveying sign language users about their experiences obtaining interpreters in health care settings. Under the Americans with Disabilities Act and New York State law, doctors’ offices and hospitals must provide reasonable accommodations such as providing and paying for sign language interpreters. However, many people who are deaf or hard of hearing do not receive those services when they are seeking medical treatment. They may therefore be unable to communicate effectively with their medical professionals, preventing them from participating in their health care and making it difficult to follow medical advice.
rehabilitation (VR) agencies, tribal VR programs, and federally funded independent living centers (ILCs). Over the last two and a half years, we have worked tirelessly to achieve positive results for our clients. Our team consists of six advocates located around the State, who are well versed in the rights of our clients. In most of our work, we assist clients and applicants of State VR agencies in getting services to help them prepare for, obtain, and maintain competitive employment.
In the time since I became the Director, we have had many successes. For example, we have obtained tuition assistance and computers for college students; assistive technology for working individuals; transportation assistance for those attending vocational training; funding for budding entrepreneurs; and much more. This is in addition to regular advice and counsel provided to clients to help them all become better self-advocates. I am proud of what we have accomplished since 2013. I look forward to continuing our great record of success at DRNY.
Director, Client Assistance Program
Since 2006, DRNY has advocated for the rights of nursing home residents who have mental illness and who can live in more independent, less restrictive settings in the community. After investigating improper discharges to nursing home settings, DRNY and co-counsel filed a lawsuit Joseph S. v. Hogan, et al. against the New York State Department of Health (DOH) and Office of Mental Health (OMH). These New Yorkers, including Joseph S., were discharged to large nursing homes both in New York and out of state, where they were held on locked wards.
Since September 2011, DRNY and co-counsel have been monitoring the settlement of the lawsuit to prevent unnecessary institutionalization of individuals with mental illness and to ensure discharge of those who were inappropriately placed in nursing homes. In May 2015, Joseph S., the named plaintiff, finally moved into his own studio apartment in Far Rockaway, Queens. He is very satisfied with his new home and has told us how happy he is in his apartment. Joseph attends programs in the community, enjoys healthy home-cooked meals prepared by his aide, and is caring for himself more independently.
By the end of 2015, 170 people who had been trapped in large nursing homes for years, were finally able to move into the community. There are another 26 people who are in the transition process. Those who have moved, live in a range of settings, including individual apartments and community residences with onsite supervision. All of our clients are benefitting from community-based supports and services, including mental health, case management, and personal care services. DRNY is continuing its work to ensure that those people who have not yet moved out of the nursing homes will be given the opportunity to also live free in the community.
At Hempstead Park Nursing Home, DRNY identified concerns with the interpretation of health care proxies and worked with the nursing home to ensure that they were appropriately used and interpreted. DRNY also provided training to Northeast Center for Special Care, on supported decision making and the rights of residents to access and retain legal counsel. Additionally, DRNY staff have visited residents in nursing homes in Far Rockaway, Harlem, Queens, Brooklyn, Bronx, Staten Island, Long Island, and Rochester, in order to gather information about their lives and to begin to advocate for their placement in community based settings.
Monitoring Neuro-behavioral Units in Massachusetts Nursing Homes.
Many New Yorkers with disabilities live in out-of-state nursing homes, discharged to these facilities from hospitals or nursing homes within New York State. These individuals are profoundly lonely and isolated, located far away from friends and family.
DRNY has been exploring the barriers faced by those who seek to return to New York State. DRNY visited Holyoke Healthcare Center and found that 130 of the 160 residents were New Yorkers. At CareOne at Lowell, DRNY discovered that 100 of the 160 residents were likewise New Yorkers. DRNY found that a similar situation existed at Vibra Hospital of Western Massachusetts, with a majority of the people in the neurobehavioral unit were New Yorkers. Many of these residents were in their forties and fifties and had been at these nursing homes for several years.
DRNY will continue to monitor these facilities and will expand the scope of visits to nursing homes in New Jersey and Massachusetts. DRNY will continue to provide direct advocacy to those individuals who face barriers to returning to their communities.
The survey is designed to gather data on the experience of people who use sign language in healthcare settings. The written survey, with instructions on how to submit a signed response, as well as a video in ASL, is available on the PAIR Page. Please pass this information on to all interested parties, or contact PAIR@DRNY.org for more information.
Elizabeth Grossman, Esq., Director PAIR & PABSS
Mark Murphy, Esq., Director PAIMI & PAVA
Jennifer Monthie, Esq., Director PADD, PAAT & PATBI
Erica Molina, Esq., Director CAP
Nina Loewenstein, Esq., Senior Staff Attorney PAIMI
Michael Gadomski, Esq., Staff Attorney PADD
Christina Asbee, Esq. Staff Attorney PAAT
Elena Landriscina, Esq. Staff Attorney PAIMI
Eliana Robles, Esq. Staff Attorney PABSS
Sara Liss, Esq. Staff Attorney PAIR
Christine Waters, Esq. Staff Attorney PATBI & PADD
Photographs by: Neil Colligan, Video Production Manager
DRNY is supported by the U.S. Department of Health & Human Services, Administration on Intellectual and Developmental Disabilities; Center for Mental Health Services, Substance Abuse & Mental Health Services Administration; U.S. Department of Education, Rehabilitation Services Administration; and, the Social Security Administration. This Newsletter does not represent the views, positions or policies of, or the endorsements by, any of these federal agencies.