IN THIS ISSUE:

1.   Learn About the Oklahoma Parent e-Network
2.   ODLC Sets Up Education Law List on Internet
3.   Redlands Partners Webpage Update
4.   The U. S. Supreme Court's "Near-Sighted" View of the ADA
5.   Second Circuit Holds ADA Constitutional
6.   Tenth Circuit Joint Circuits Holding ADA Constitutional
7.   Assistive Technology Publications Available
8.   Settlement in Florida Lawsuit (Synopsis)
9.   West Virginia Waiting List Litigation
10. Tenth Circuit Speaks on Systemic Litigation
11. National Health Law Program Issue Brief: HCFA Issues Medicaid Letter on Mental Health Services
12. Native American P&A Project
13. FERPA Online
14. Internet Resources
15. Eastern State Hospital Transition Oversight Panel

Oklahoma Parent e-Network

The Oklahoma Parent e-Network is an electronic network of parents of children with disabilities residing in Oklahoma. The purpose of the network is to unite Oklahoma families of children with disabilities via the World Wide Web, an email list and WebRing. Come share your thoughts and experiences with other Oklahoma families. They want to learn from one another, share info & resources pertinent to our state. Parents of adult dependents with disabilities are also welcome to join.

You may join the Network by following their instructions:
Join Our Email Support/Discussion List by sending a blank message to okla-parent-network-subscribe@onelist.com.
The email list is a great way to network with other parents in the state for support & sharing ideas/information.
Subscribers are welcome to announce their organization's meetings & various activities. The list is not a forum for any one particular viewpoint or ideology, but welcomes all ideas offered in a constructive manner.

ODLC SETS UP EDUCATION LAW LIST ON INTERNET

Oklahoma Disability Law Center, Inc. (ODLC) has subdivided its disability law list and created a list dealing only with education issues. The name of the new list is "Oklahoma Education Law." As with all ODLC lists, membership is limited to persons who would be eligible for services through ODLC -- people with disabilities, their families and people who represent or advocate for them.

The eGroup allows you exchange messages in any format you choose (individual messages, digest, summaries, on web only). The eGroup has other features including a calendar, document vault, and more available on the web at http://www.egroups.com/group/oklaedlaw/.

The eGroup's email address is oklaedla-@egroups.com. Only members may post to the list and access the archive messages. The messages are not moderated and are sent directly to group members.

Subscribing to the ODLC eGroup : Users can send an email to oklaedlaw-subscrib-@egroups.com.
The eGroup Membership Policy is set to require moderator approval for new members.

ODLC added a block to its webpage ( http://www.flash.net/~odlcokc) for signing on the list directly.

REDLANDS PARTNERS WEBPAGE UPDATE

Redlands Partners Webpage http://www.flash.net/~odlc2

Redlands Partners is Oklahoma's Developmental Disabilities Network, consisting of: Oklahoma Developmental Disabilities Council, University Affiliated Program of Oklahoma and the Oklahoma Disability Law Center, Inc. All three offices are funded through the Administration on Developmental Disabilities (ADD) of the Administration for Children and Families (ACF), US Department of Health and Human Services.

If there is a commonly-used resource you would like us to include on the webpage, let us know. If you have any comments or suggestions for improvement, let us know that too. We appreciate those who have contended with its "under construction" periods.

THE U.S. SUPREME COURT'S "NEAR-SIGHTED" VIEW OF THE ADA

By: Arlene Mayerson, Directing Attorney, Disability Rights Education and Defense Fund
Matthew Diller, Associate Professor of Law, Fordham University School of Law

When the Americans with Disabilities Act was signed into law, President Bush declared that "every man, woman and child with a disability can pass through once-closed doors into a bright new era of equality,
independence and freedom" For many people with disabilities, recent rulings of the Supreme Court slam the door that Congress and President Bush opened.

Last month's Supreme Court decision on the definition of disability under the ADA put up new barriers to individuals whose disabilities are mitigated or controlled by technological aids or medical treatment.
Unfortunately, a critical legal issue was decided based on facts that could obscure the gravity of the impact of the decision. Two women with poor vision, that was fully corrected by eyeglasses, were turned down by United as airline pilots because they did not meet United's vision standards unless they wore glasses.

Although it may seem a simple and unsurprising result that people with myopia are not entitled to claim "disability," the Court's reasoning has profound implications for many people who face persistent discrimination and whom Congress meant to protect. The ruling that the term disability in the ADA is determined by examining the individual claiming discrimination in their "corrected" state, even if the employer's reason for not hiring or firing was the underlying uncorrected condition, leads to the perverse result that a person with a disability who avails him/herself of the benefits of technological and medical advances thereby risks losing protection from job discrimination.

For example, if an individual with epilepsy or diabetes manages through medication and discipline to control the effects of the condition, she may have a hard time bringing an ADA case even if she was fired from her job simply because she has the condition and even if the condition has no impact on job performance. In other words, the employer is free to act on every bigoted and irrational impulse that it may have toward a particular disability. Make no mistake about it this danger is not imagined --- many employers respond to conditions like epilepsy and diabetes in precisely this way. A person with controlled epilepsy is five times as likely to be unemployed as her non-impaired counterpart.

The Americans with Disabilities Act, of course, was intended to put an end to this kind of discrimination. It was drafted as a civil rights statute, a break from the "hopeless, helpless, protect and pity" model of disability. The ADA is a celebration of the "new" disabled man/woman -- independent, free, loud and proud. The recognition that people with disabilities can excel in all kinds of functions and roles is at the heart of the statute.

The crabbed interpretation delivered by the Supreme Court puts a rejected applicant with a disability in the untenable position of emphasizing all the things he can't do in order to claim ADA protection, and then once in the courthouse door to downplay limitations in order to prove he/she is qualified for the job. It is important to realize that establishing that you are disabled under the ADA does not get you the job. It just means that you get your day in court to challenge an adverse employment decision which was based on your physical or mental impairment. By attempting to limit the ADA to the "truly disabled", the Supreme Court continues to look at disability as a matter for pity, rather than equality. In essence, the Supreme Court condones exactly the behavior Congress sought to eradicate. When it comes to the ADA, the Court just doesn't "get it."

In order to make the breadth of the statute clear, the Congress included in the definition of disabled, an individual who is "regarded" as disabled, but has no actual incapacity at all. The Court's decisions could allow an employer to argue that it did not regard an individual to be "disabled" because (take a deep breath) he or she can work elsewhere. The fact that other employers have not adopted the same exclusionary policy based on medical conditions can actually serve as a defense because if someone will hire you, you are not "disabled" enough to claim non-discrimination protections. Thus, the more irrational the discrimination, the more unassailable it is.

Imagine this logic in any other area of civil rights and it doesn't even pass the laugh test. "No we don't hire women, Jews (fill in the blank) but you can get a job somewhere else so what's the beef?" The ADA is about equality of opportunity, which means a fair opportunity to perform all jobs for which an individual is qualified.

These absurd results are not required by the statute. Congress made clear that it intended the ADA as a broad and comprehensive protection against the irrational exclusion of people with disabilities from jobs and public programs. The Court both ignored the clear legislative history on this point, as well as the view of the federal agency charged with interpreting the statute. As the eloquent dissent by Justices Stevens and Breyer explains, the majority's "miserly" interpretation is a disservice to the law.

Despite the ruling, litigation will continue on the issues left open by the Court. Ironically, in its attempt to curb litigation, the Court spawned a whole new generation of litigation on the question of who does or does not fit within the definition of "disability." People with disabilities will continue to work to redeem the promise of the ADA. They and their allies have fought too long and hard to let this law go undefended

SECOND CIRCUIT HOLDS ADA CONSTITUTIONAL

Muller v. Costello, (2nd Cir. 8/11/99), 1999 WL 599285
http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/2nd/987491.html
News article: http://www.lawnewsnet.com/stories/A4395-1999Aug11.html

EXCERPT FROM OPINION:

I. The ADA and the Eleventh Amendment

DOCS contends that, as a state agency, it is immune from claims under the ADA because the ADA does not validly abrogate states' immunity to suit in federal court under the Eleventh Amendment. We review this issue de novo because it involves the interpretation and constitutionality of a federal statute. See United States v. Bianco, 998 F.2d 1112, 1120 (2d Cir. 1993).

In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-58 (1996), the Supreme Court set forth a two-part test for determining whether an act of Congress abrogates states' Eleventh Amendment immunity: (i) Congress must unequivocally express its intent to abrogate the immunity; and (ii) Congress must act pursuant to a valid exercise of power. Accord Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205 (1999). DOCS does not dispute that the ADA satisfies the first element under Seminole Tribe. Indeed, in light of 42 U.S.C. § 12202, which provides that a "State shall not be immune under the [E]leventh [A]mendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of [the ADA]," any such contention would be difficult to maintain. Rather, DOCS focuses on the second Seminole Tribe element, arguing that Congress exceeded its powers under § 5 of the Fourteenth Amendment in enacting the ADA.

Recent Supreme Court precedent has clarified that Congress may abrogate states' Eleventh Amendment immunity pursuant to § 5 of the Fourteenth Amendment but not pursuant to any Article I power such as the Commerce Clause. See Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. at 2205; Close v. State of New York, 125 F.3d 31, 38 (2d Cir. 1997) ("After Seminole, the only source of congressional abrogation stems from the Fourteenth Amendment.")

Section 5 of the Fourteenth Amendment empowers Congress to enact "appropriate legislation" to "enforce" its substantive provisions, including the Equal Protection Clause. A statute is "appropriate legislation" to enforce the Equal Protection clause1 if "it is plainly adapted to that end and [if] it is not prohibited by but is consistent with the letter and spirit of the [C]onstitution." Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (quotation omitted). In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court explained that the authority to enforce the Fourteenth Amendment is a broad power to remedy discrimination and prevent future discrimination, see id. at 517-18, 536, and that Congress can prohibit activities that are not themselves unconstitutional in furtherance of its remedial scheme. See id. at 518, 529-30. It stressed, however, that Congress's power under § 5 must be linked to constitutional injuries and there must be a "congruence and proportionality" between the harms to be prevented and the statutory remedy. Id. at 520. This "proportionality" analysis has been further refined by Florida Prepaid Postsecondary Education Expense Board: "for Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct." 119 S. Ct. at 2207.

The evil that Congress sought to combat by passing the ADA was irrational discrimination against persons with disabilities.2 See generally 42 U.S.C. § 12101 (1994) (stating, inter alia, "some 43,000,000 Americans have one or more physical or mental disabilities[;] . . . historically, society has tended to isolate and segregate individuals with disabilities, and . . .discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem; . . . discrimination . .. persists in . . . employment"). Congress's finding in paragraph (a)(7) of § 12101 warrants particular emphasis: "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society . . . ."

Congress spent hundreds of hours in hearings determining the scope of the problem and the best manner to address it. See Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393-94 & nn. 1-4 (1991) (reciting deliberative process as including "eleven public hearings [in] the House of Representatives . . . and three by the Senate . . . [and] lengthy floor debates in the Senate and in the House of Representatives" and collecting citations thereto); see also Coolbaugh v. Louisiana, 136 F.3d 430, 436-37 & n.4 (5th Cir.) (recounting extensive deliberative and fact gathering process), cert. denied, 119 S. Ct. 58 (1998). Congress considered and rejected the assumption that the "inferior economic and social status of disabled people . . . [was] an inevitable consequence of the physical and mental limitations imposed by disability," instead attributing the inferior status to "discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply imbedded prejudices toward people with disabilities." H.R. Rep. No. 101-485(III), at 25 (1990), reprinted in 1990 U.S.C.C.A.N. 447-48 (House Judiciary Committee Report). Congress intended that the ADA "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," to provide "clear, strong, consistent, enforceable standards" to combat such discrimination, and "to ensure that the Federal Government plays a central role in" the enforcement of these standards through the full use of its legislative powers under § 5 of the Fourteenth Amendment and the Commerce Clause. 42 U.S.C. § 12101(b).

It is an established principle of constitutional law that the Equal Protection Clause protects against class- or group- based invidious discrimination. The Equal Protection Clause prohibits "arbitrary and irrational discrimination" even if no suspect class or fundamental right is implicated. Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988); see Romer v. Evans, 517 U.S. 620, 631-34 (1996); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (invalidating special use permit requirement for placement of home for mentally disabled where apparent rationale was "irrational prejudice"). Moreover, Congress may prohibit conduct that is not itself unconstitutional as prophylaxis against discrimination that may be subtle or difficult to detect. See City of Boerne, 521 U.S. at 529-30. In light of Congress's findings of the extent of discrimination against people with disabilities, and with due regard to the deference owed to Congress in making such judgments, we will not second-guess Congress's judgment that the ADA was targeted to remedy and prevent irrational discrimination against people with disabilities. See id. at 519-20 ("Congress must have wide latitude in determining where [the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law] lies").

Moreover, we hold, in agreement with four of our sister circuits to have considered the issue,3 that the ADA is a proportionate and congruent response to the discrimination that Congress sought to prohibit. See City of Boerne, 521 U.S. at 520 ("There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."). The ADA targets particular practices -- in this case, discrimination in employment -- and provides a remedy following the time-tested model provided by the anti-employment discrimination provisions of Title VII of the Civil Rights Act of 1964. See H.R. Rep. No. 101-485(III), at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 449 ("The [ADA] completes the circle begun [by the Rehabilitation Act] with respect to persons with disabilities by extending to them the same civil rights protections provided to women and minorities beginning in 1964.") (House Judiciary Committee Report); see also Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 51-52 (2d Cir. 1998) (applying McDonnell-Douglas burden shifting analysis to ADA claim).

Despite the extensive hearings and findings that support the ADA, defendants argue that its reasonable accommodation provisions, see 42 U.S.C. § 12112(b)(5)(A), (B), are not proportional or congruent to the discrimination that Congress identified. We disagree. The ADA employment provisions define discrimination as, among other things, "not making reasonable accommodations" for a disabled applicant or employee if those accommodations would not "impose an undue hardship on the operation of the business" of the employer. 42 U.S.C. § 12112(b)(5)(A); see also 42 U.S.C. § 12112(b)(5)(B) (addressing the denial of employment opportunities to a qualified disabled individual based on the necessity for making a reasonable accommodation). The employer need not make an accommodation if the steps to be taken would "requir[e] significant difficulty or expense," considered in the light of several factors, including the cost of the accommodation and the size and resources of the employer. 42 U.S.C. § 12111(10). As the Fourth Circuit explained in Coolbaugh, Congress heard testimony that businesses would benefit from the improved labor pool that would result from making accommodations to the disabilities of potential employees. See 136 F.3d at 437-38 (citing testimony). Therefore, Congress enacted a proportional and congruent remedy in requiring employers to make those accommodations that did not impose significant difficulty or expense.

It is this proportionality and congruence that distinguishes the ADA from the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., which the Supreme Court held to be unconstitutional in City of Boerne.4 See 521 U.S. at 511. Congress enacted RFRA in response to Employment Division v. Smith, 494 U.S. 872 (1990), in which the Supreme Court held that the Free Exercise clause provided no exemption from neutral laws of general applicability. Congress purportedly sought to restore the test used by courts to adjudicate Free Exercise Clause cases prior to Smith by prohibiting any state or federal action that "substantially burdened" a person's exercise of religion unless the state action "(1) [wa]s in furtherance of a compelling governmental interest; and (2) [wa]s the least restrictive means of furthering that compelling governmental interest." City of Boerne, 521 U.S. at 515-16 (quoting and discussing 42 U.S.C. § 2000bb-1). The Supreme Court found that RFRA was "so out of proportion" to the problems identified that it could not be viewed as preventative or remedial legislation under § 5 of the Fourteenth Amendment. Id. at 532. Noting the rigor of the test that Congress had prescribed, and more particularly, the applicability of RFRA to all government action in every conceivable field, the Court found that RFRA lacked "congruence" between the "means used" and the "ends to be achieved." See id. at 530-32.

In contrast to RFRA's "[s]weeping coverage" and "intrusion at every level of government," see City of Boerne, 521 U.S. at 532, the anti- discrimination provisions of the ADA provide a narrowly tailored and reasonable response to the problem of discrimination against people with disabilities. Accordingly, Congress's enactment of the ADA was within its authority under § 5 of the Fourteenth Amendment and its abrogation of states' Eleventh Amendment immunity is effective.

TENTH CIRCUIT JOINS CIRCUIT RULING THAT ADA IS CONSTITUTIONAL

On August 19, 1999, the Tenth Circuit Court of Appeals held, "Accordingly, we join the Second, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that the ADA was a permissible exercise of Congress' Section 5 enforcement powers."

The full opinion may be located online at: http://www.kscourts.org/ca10/cases/1999/08/98-3102.htm

General Sovereignty-Related Principles

42 U.S.C. § 12202 -- ADA
"A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."

FYI: Pre-ADA
Pennhurst State School & Hospital v. Halderman (US Supreme Court 1984)
http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=465&page=89

Congruence and proportionality standard for exercise of Section 5 enforcement powers City of Boerne v. Flores (US Supreme Court 1997)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=95-2074

Arbitrary discrimination by the state against disabled persons violates the Equal Protection Clause City of Cleburn v. Cleburn Living Center (US Supreme Court 1985)
http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=473&page=432

Congress may not abrogate state sovereign immunity pursuant to its Article I powers Seminole Tribe of Florida v. Florida (US Supreme Court 1996)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=U10198
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=98-531

Rulings on ADA Constitutionality

HOLDING ADA CONSTITUTIONAL:

Martin v. State of Kansas (10th Circuit Opinion 8/19/99)
http://www.kscourts.org/ca10/cases/1999/08/98-3102.htm

Mueller v. Costello (2nd Circuit 8/11/99)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=987491

Amos v. Md. Dept. Pub. Safety & Correctional Servs. (4th Circuit 6/24/99)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=967091Pv2&exact=1

Kimel v. Florida (11th Circuit 1998)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=962788MAN

Coolbaugh v. La. State (5th Circuit 1998)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=9630664CV0v3&exact=1

Clark v. California (9th Circuit 1997)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9616952

Crawford v. Indiana Dept. of Corrections (7th Circuit 1997)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=963123

DICTA SUGGESTING CONSTITUTIONAL:

Torres v. Puerto Rico Tourism Co. (1st Circuit 1999)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=981908

ADA NOT CONSTITUTIONAL:

Alsbrook v. City of Maumelle (8th Circuit 7/23/99)
http://caselaw.findlaw.com/data2/circs/8th/971825P.pdf

ASSISTIVE TECHNOLOGY PUBLICATIONS AVAILABLE

Please contact ODLC if you want one (or all) of these booklets.

We received copies of the booklet, "Funding of Assistive Technology -- The Public School's Special Education System as a Funding Source: The Cutting Edge." This booklet is a joint effort of United Cerebral Palsy Associations (UCPA) and our National Assistive Technology (AT) Advocacy Project (backup center for ODLC's protection and advocacy efforts).

Special education issues continue to be a high priority in most P&A programs. The special education system also continues to be one of the major funding sources for AT school-aged children with disabilities. The booklet's 49 pages of text represents a very thorough examination of the law, regulations, policy and case law regarding federal special education law and its use as a funding source for AT. In putting together this booklet, we thoroughly reviewed: the 1997 amendments to the Individuals with Disabilities Education Act (IDEA); the March 12, 1999 amendments to the federal special education regulations; and recently decided court decisions, including the U. S. Supreme Court's decision in the Garret F. case which was issued earlier this year.

We would recommend distribution of the booklet to any other advocacy organization personnel who regularly deal with special education issues and private attorneys from Oklahoma who handle special education appeals.

This is the second in a series of five booklets to be published this summer. The following additional booklets are available or are expected to be available in the following sequence:

** "Medicare and AAC Devices: Funding of Augmentative and Alternative communication (AAC) Devices Through Medicare, the Decision Making and Appeals Process for non-HMO Participants (already available)

** "Funding of Assistive Technology: State Vocational Rehabilitation Agencies and Their Obligation to Maximize Employment (mid to late-July)

** "Funding of Assistive Technology: The Social Security and SSI Work Incentives (late-July or shortly after passage of the Work Incentives Improvement Act)

** "Funding of Assistive Technology: The Americns with Disabilities Act, Section 504 of the Rehabilitation Act and the Fair Housing Act (August)

The special education booklet is geared toward attorneys and full-time advocates. Accordingly, this booklet and those dealing with vocational rehabilitation, work incentives and the Americans with Disabilities Act will contain comprehensive discussions of law, regulation, policy and court decisions. By contrast, the already published Medicare booklet is geared toward a professional, non-attorney audience and contains more limited legal citations.

If you do not want to wait for the printed hard cover version, you may write for an advance copy through email: jsheldo-@nls.org The booklet series will also be placed on the NLS web page: http://www.nls.org.

There are also two articles that will be published in the upcoming months, and ultimately posted to the NLS web page:

(1) "SSI and the Family Law Attorney: Using Creative Alimony, Child Support and Property Settlements to Maximize SSI and Medicaid" as recently completed and sent to Clearinghouse Review for publication in early August. It contains many examples of creative methods to obtain funding for AT.

(2) "Funding of Assistive Technology Through Medicare" will be published by Clearninghouse Review in the late fall.

SETTLEMENT IN FLORIDA LAWSUIT (Synopsis)
http://fddc.org/announce/synopsis.html

The Master Plan which forms the basis for the parties' agreement and which was accepted by the Court after lengthy questioning of the parties at the June 28, 1999, hearing on the matter, establishes that both the ICF/DD program and the Home and Community Based Waiver are valuable resources in Florida and that both will remain viable options for Florida consumers "for the indefinite future."

The Plan indicates that the ICF/DD program has been restored to its pre-suit status by an additional $45 Million + legislative appropriation and by enactments again establishing the State's authority to license and oversee ICF/DD's. The promise is made that those residing within such facilities will not be transitioned to the community unless it is their choice to do so. In that regard, annual choice counseling will be provided to each of the individuals living in a private ICF/DD (currently numbering 2,096, according to the State).

It is the Department's objective under the Master Plan that those who choose the Home and Community Based Waiver program will receive an appropriate level of services, to include safe and adequate living arrangements; work or other appropriate day activity; transportation; medical and dental care; evaluations, as needed; and medically necessary therapies, consumable supplies and durable medical supplies.

In the end, the Plaintiffs appear to have conceded to the State its autonomy, both in formulating the oversight panel and in retaining control of its service delivery system. The final State plan undoubtedly became more palatable, too, upon its amplification of the choice counseling and quality assurance provisions; with its agreement to be more inclusive in receiving input on the implementation of its plan; and by its recognition of the need to maintain the ICF/DD program as an option, while nevertheless emphasizing its commitment to a properly funded Home and Community Based Waiver.

WEST VIRGINIA WAITING LIST LITIGATION
http://www.healthlaw.org/pubs/199907benjamin.html

The United States District Court for the Southern District of West Virginia has ordered the state Medicaid agency to ensure that mentally retarded and developmentally disabled persons who are eligible to receive intermediate care services in home-based settings get these services in a timely manner. The article on the National Health Law homepage includes location of full opinion online. The opinion was issued on July 15, 1999.

TENTH CIRCUIT SPEAKS ON SYSTEMIC LITIGATION

The following is a breakdown of the Tenth Circuit opinion issued on August 12, 1999, along with some initial thoughts on the significance of this opinion in our daily lives. The opinion is pending request for hearing en banc. Although this would ordinarily be a long shot, the existence of a vigorous dissent might improve the chances. In the meantime, it remains the law that controls federal district courts in our state.

WHERE: Tenth Circuit (http://www.kscourts.org/ca10/cases/1999/08/96-2278.htm). States covered by this opinion are: Oklahoma, Kansas, New Mexico, Colorado, Utah, Wyoming.

WHO: Sixteen mentally or developmentally disabled children who are or were in the custody of the state of New Mexico sought to certify a class comprised of "[a]ll children who are now or in the future will be (a) in or at risk of State custody and (b) determined by defendants and/or their agents to have any form of mental and/or developmental disability for which they require some kind of therapeutic services or support."

WHAT: An action brought for declaratory and injunctive relief alleging that defendants have failed to provide protections and therapeutic services required by federal statutes and the United States Constitution. The Court characterized the case as one seeking "structural reform of New Mexico's system for evaluating and treating children with mental and developmental disabilities in its custody. The stories of the named plaintiffs reveal a child welfare system having terrible difficulties providing the children with the kind of care and treatment they deserve. . . .In essence, plaintiffs charged the state with failing to provide them services, benefits, and protections guaranteed by federal statutory and constitutional law."

RESULT:

Eleventh Amendment Issue

Defendants asserted, for the first time on appeal, Eleventh Amendment immunity from this federal court suit. Because of its jurisdictional nature, defendants may raise this defense at any stage of the proceedings, and the Court was required to address this jurisdictional question to determine whether they could reach the class certification and abstention issues.

Because the Court found that the present suit did not impinge upon the sort of special sovereignty interest contemplated by the U. S. Supreme Court, the Court held that the Ex parte Young doctrine precluded defendants' Eleventh Amendment immunity defense. As the Eleventh Amendment posed no bar to any claim in this action, the Court did not need to address whether the ADA, Section 504 of the Rehabilitation Act, and/or the IDEA contain valid statutory abrogations of Eleventh Amendment immunity under § 5 of the Fourteenth Amendment.

Class Certification Issue

The district court in this case found plaintiffs had failed to meet the Rule 23(a) requirements for commonality and typicality. The Court concluded that the diverse situations of the named plaintiffs showed there is no question of fact common to the class. The Court of Appeals also affirmed the district court's finding of no common question of law. The court concluded that "there is no one statutory or constitutional claim common to all named Plaintiffs and all putative class members."

Plaintiffs alleged that systemic failures in the defendants' child welfare delivery system deny all members of the class access to legally-mandated services which plaintiffs need because of their disabilities. But the Court of Appeals refused " to read an allegation of systematic failures as a moniker for meeting the class action requirements." Given the complex facts and legal issues involved in this case, the Court of Appeals could not say the district court abused its discretion when it refused to characterize plaintiffs' claims as a systematic violation.

The plaintiffs also contended that at the very least, all putative class members suffer, or will suffer, violations of the Medicaid Act, the ADA, and the Rehabilitation Act. The Court could not determine a common allegation of a Medicaid Act violation for all named plaintiffs. Similarly, only a few of the named plaintiffs asserted claims under the IDEA and the Fourteenth Amendment. As for the ADA and Rehabilitation Act claims, all named plaintiffs appear to have asserted that defendants denied them benefits, services, or adequate care because of their disabilities. The Court concluded that even if this were sufficient to establish a common legal question as to the named plaintiffs, plaintiffs had not shown that it is common to all putative class members under their proposed class definition.

In sum, given the divergent circumstances, legal claims, and corresponding remedy for each child, the Court held that the district court did not abuse its discretion in failing to find a single issue of law or fact common to all class members. Because they found no abuse of discretion regarding commonality, they did not reach the district court's finding on typicality.

Abstention

Having eliminated the class action, the Court of Appeals went on to instruct on the outcome of the remaining individual claims. Although federal courts have a "virtually unflagging obligation" to exercise jurisdiction granted them, they must on rare occasions abstain from exercising their jurisdiction in order to "avoid undue interference with states' conduct of their own affairs," according to the Court of Appeals.

In this case, neither party disputes that the state has an important interest in the care, disposition, and welfare of disabled children in its custody. Instead, the parties' dispute revolves around whether there is an ongoing state judicial proceeding in which the plaintiffs had an adequate opportunity to raise their federal claims.

The Circuit Court concluded that "[c]ertainly, abstention is appropriate unless state law clearly bars the interposition of the [federal statutory] and constitutional claims." In this case, plaintiffs have failed to clearly show that they could not have raised their claims during the periodic review proceedings."

The fact that New Mexico's children's courts had not traditionally handled these claims, had clogged dockets, had minimal discovery and were believed to be courts of limited jurisdiction had no impact on changing the Tenth Circuit's result.

The Court concluded, "Accordingly, when a litigant has not attempted to present his federal claims in related state court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary." And the only instance in which abstention would not be followed is when use of the review hearings for federal claims has been "explicitly rejected." Finally, the Court said, "we affirm the district court's decision to abstain from hearing the individual claims in this case."

SIGNIFICANCE:

(1) Does this also apply to all other instances in which people with disabilities have pending state court proceedings -- such as guardianship and mental health commitments? Those, too, are district court actions with continuing jurisdiction over the people.

(2) At first, this opinion seemed discouraging. Maybe out of this can come the most significant systemic change of all. Perhaps the Tenth Circuit can breathe life into the "parens patriae" notion. In 1985, the Oklahoma Supreme Court described the doctrine as "[s]tatutes dealing with the juvenile process allow the state, through its appropriate organs, to assume custody of deprived and delinquent children and to perform duties as surrogate parents. This form of government intervention is based upon the principle of parens patriae (parent of the country). The doctrine not only allows the legislature to enact laws affecting children, but also places on it the duty to do so. Every child, from the moment of its birth, owes allegiance to the government of his country and, conversely, is entitled to the protection of that government, both in his person as well as property."

Is the state, through its appropriate organs, performing duties as a good surrogate parent, or one that neglects the federal rights of its children? How many judges assigned to juvenile cases regularly inquire into whether the child's IEP is appropriate, whether a 504 plan is needed or enforced, whether all the medicaid benefits have been secured, etc.? Now they will be the first line of enforcement on those issues until the Tenth Circuit changes its mind about abstaining from these type individual claims. Looks as if they'll be "full service" gas stations for children until they are "explicitly" absolved of the responsibility.

National Health Law Program Issue Brief: HCFA Issues Medicaid Letter on Mental Health Services

The National Health Law Program, one of ODLC's legal backup centers, responds to requests for assistance on behalf of individuals who need Medicaid coverage of home and community based services and drug services to address their mental health needs. On June 7, 1999, the Health Care Financing Administration (HCFA) issued a Dear State Medicaid Director letter that contains important and helpful guidance on Medicaid mental health services. The letter discusses three issues: (1) incorporation of Assertive Community Treatment principles in Medicaid coverage decisions; (2) timely prior authorization and emergency supplies of requested drugs; and (3) attention to mental health needs in advance directives. This memo summarizes the letter, which is available at: http://www.hcfa.gov/medicaid/smd60799.htm.

Assertive Community Treatment

At the outset, HCFA apparently assumes that states are planning comprehensive approaches to community-based mental health services. As part of this planning, the agency recommends that state Medicaid programs adopt the principles of Assertive Community Treatment and Assertive Case Management. These standards employ the use of interdisciplinary teams, shared caseloads, 24-hour mobile crisis teams, assertive outreach for treatment in patients' own environments, and individualized treatment, medication, rehabilitation, and support services. HCFA's letter notes these programs have been successful in reducing costly inpatient hospital stays for persons diagnosed with schizophrenia. The agency states that these programs can be supported "under existing Medicaid policies." In other words, the Medicaid Act already supports coverage of these services, and your clients who need them should be able to get them paid for by Medicaid now.

Pharmacy services

Finally, in an important reminder to states, the letter provides: "When there are prior authorization requirements for prescription medicines, including the new generation of drugs for schizophrenia, prescription requests must be responded to in 24 hours. In emergency situations, there must be provisions for dispensing at least a 72 hour supply of the requested drug." This requirement is discussed in the Medicaid Act at 42 U.S.C. § 1396r-8(d)(5). NOTE: HCFA is applying these requirements to drug services that states carry out "via contract," thus including managed care organizations within this requirement.

Consumer Directed Care

The letter also addresses mental health in the context of advance directives. It states, "Advance directives are an increasingly important tool for consumers of mental health services to articulate their decision about treatment and to guide treatment when they can not make these decision themselves." States are urged to work with state mental health authorities to ensure attention to mental health issues in their advance directives policies.

NATIVE AMERICAN P&A PROJECT
http://www.protectionandadvocacy.com/nativeaf.htm

The Mandate of Native American Protection & Advocacy Project is...
...To overcome linguistic, geographic and cultural barriers in order to provide adequate protection and advocacy services to American Indians who reside in isolated, expansive reservations.
...To work cooperatively with the existing P&A systems in the States where the American Indian Consortium exist and develop cooperative agreements on how to best serve this population.
...To meet the unique legal needs of Native Americans with disabilities especially those living in northern Arizona, northwest New Mexico and a small section of southern Utah.

The Goal of the Native American Protection & Advocacy Project is...
...To promote understanding of Native American values and culture among P&As and other national disability communities.
...To promote understanding of civil rights for persons with disabilities among the Native American communities.

Since receiving permanent funding in 1995, the Native American Protection & Advocacy Project has...
...Directly assisted hundreds of individual clients with several individual problems.
...Trained close to 2000 people, including individuals with disabilities and their family members, advocates and attorneys, and professionals within school districts and tribal government programs.

The Native American Protection & Advocacy Project has addressed issues in...
...Special education in public, tribal and particularly Bureau of Indian Affair schools.
...Housing access and discrimination.
...Abuse and neglect against persons with disabilities.
...Technical assistance on federal law such as ADA and Medicare.
...Medical and Rehabilitative Therapy access and education.

The Native American Protection & Advocacy Project areas of expertise are...
...Indian Housing Programs and the Fair Housing Act.
...Special Education.
...Medicaid and federal benefits.
...Community and Group home services for people with developmental disabilities.
...General and Federal Indian Law.

The Native American Protection & Advocacy Project welcomes the opportunity to work in coalition with individuals and groups seeking to understand the unique concerns of Native Americans with disabilities.

FERPA Online

FERPA, 34 C.F.R. Part 99
http://www.lrp.com/ed/freelib/free_regs/bc3499.htm

FERPA, Sample Complaint Form
http://comnet.org/sac/ferpa.htm

FERPA, Parent Education Advocacy Training Center
http://www.peatc.org/ferpalaw.htm

---SAMPLE OKLAHOMA FERPA NOTICES LOCATED ONLINE:

FERPA, Oklahoma City Community College
http://www.okc.cc.ok.us/enrollment/catalog/cat_sps_educational.html

FERPA, Western Heights School District, Oklahoma City, OK
http://westernheights.k12.ok.us/administration/board_policies/2701.txt

INTERNET RESOURCES:

Law Terms -- Definitions
http://www.lectlaw.com/def.htm

Law Research -- Findlaw, Inc.
http://www.findlaw.com

Links to Oklahoma Websites
http://www.geocities.com/Athens/Atlantis/3194/oklinks.html

Learning Disabilities and the Law After High School
http://www.ldonline.org/ld_indepth/legal_legislative/latham_ld.html

Post Secondary Education Discrimination
http://www.advocacyinc.org/233.htm

Social Security Field Office in Oklahoma
http://www.ssa.gov/dallas/state_ok.html

Housing and Urban Development (HUD) Websites
To File Complaints
http://www.hud.gov/search.html
Housing Discrimination
http://www.hud.gov/hdiscrim.html
Bad Landlords in Federal Housing
http://www.hud.gov/hoybadl.html
Manufactured Housing
http://www.hud.gov/hoymanu.html
Land Sales
http://www.hud.gov/hoyland.html
Deceptive Home Improvement Contractors
http://www.hud.gov/hoycont.html
Fraud, Waste and Abuse
http://www.hud.gov/hotline.html

EASTERN STATE HOSPITAL TRANSITION OVERSIGHT PANEL

Current Update: Panel Meetings of July 29 and August 19, 1999

On July 29,1999 ODLC staff attorney Melissa Sublett attended the second Panel Meeting of the Eastern State Hospital Transition Oversight Panel. The Transition Oversight Panel is established pursuant to Senate Bill 149 and charged with the duty of advising and assisting the Department of Mental Health and Substance Abuse Services with the development of a transition plan and timetable in the deinstitutionalization of Eastern State Hospital. All members of the Transition Panel were present. The panel began the process of analyzing hospital usage, assessing provider readiness for inpatient care, reviewing funding options and reviewing community based best practices.

On August 19,1999 ODLC attend a meeting at OSU in Tulsa (formerly Rogers State University) 1:00 -3:00 P.M. in the North Hall second floor. The following items were included on the agenda: identifying community based service expansion needs and review emergency detention and commitment statutes. Jerry Regier attended the meeting and urged that the transition be completed as soon as possible to have more money available for community services.

To receive information or provide comment regarding the transition of Eastern State Hospital please contact Melissa Sublett by email (msublett@flash.net) or telephone at 918-743-6220 v/tdd or 1-800-622-5883 v/tdd.

Pursuant to S.B. 149, the Transition Oversight Panel for the Deinstitutionalization of Eastern State Hospital had its first meeting on July 15, 1999, at 1:00 p.m. at Rogers University in Tulsa, Oklahoma. ODLC's staff attorney, Melissa Sublett, attended the meeting.

During the meeting the panel accomplished the following:

September 14, 1999, 9:00 - 11:00 a.m. Muskogee, OK

September 14, 1999, 1:00 - 3:00 p.m. Vinita, OK

September 16, 1999, 9:00 - 11:00 a.m. Stillwater, OK

September 16, 1999, 1:00 - 3:00 p.m. Tulsa, OK

Most of the members of the oversight panel will attend these hearings. The Department of Mental Health and Substance Abuse Services will oversee and conduct the hearings.

MEMBERS OF THE PANEL:

If you do not have a copy of the statute setting up the panel, you may obtain one by calling ODLC, 918-743-6220 v/tdd, or outside Tulsa, 800-226-5883 v/tdd.