News & Notes

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News
Mainstream Newsletter Fall 2007 Edition
The Legal Center Investigates Aurora Elementary Schools
Supporting Prisoners with Mental Illness
Governor Ritter Signs Proclamation
Celebrating 30 Years at The Legal Center

Mainstream Newsletter Spring 2007 Edition
Defending the rights of children: report sparks controversy
Educational dreams coming true for determined student
The Low Income Housing Tax Credit and Section 504
Mark Ivandick to lead Protection and Advocacy for Individuals Illness Program
Case study: protection and advocacy for Colorado's most vulnerable citizens

Mainstream Newsletter Fall 2006 Edition

Preview Articles
Early Childhood:
Part C Lead Agency Change
El Cambio de la Agencia Principal de la Parte C
Voting:
VOTE! You Have Choices in Addition to Those on Your Ballot

Click here to view our most current Annual Report of financial information.
Legal Center Recommendations Regarding Voting Equipment Decertification

12-Year Old Wrongfully Denied DD Services
The Legal Center for People with Disabilities and Older People
and the Law Firm of Fox and Robertson, PC File Groundbreaking
Class Action Law Suit
The Everyday Guide to Special Education Law Available - Order Now
10th Circuit Hears Oral Arguments in HIV Employment Case
New Tenth Circuit Least Restrictive Environment Decision

Notes
Catch up on The Legal Center's case notes and success stories...

The Legal Center Gets School Services for Boy in Foster Care
PADD Program Investigates Sexual Assault in Group Home
PADD Program Keeps Children on CES Waiver
Grand Junction Office Follows Up on Regional Center to Community Placement
Special Education Program Enforces IDEA Discipline Rules
PAIMI Program Keeps 8 Year-Old from Falling through Mental Health Services Cracks and Takes on Medicaid Ombudsman Issue
PAIMI Program Acts to Limit Guardanship to Woman in Nursing Home
PAIR Program Changes Civil Rights Division Policy
HIV Legal Project Protects Confidentiality Rights
CAP/PABSS Program Helps Clear up Ticket-to-Work Confusion
PABSS/AT Programs Get AT in Braille Individualized Plan of Employment
Special Education/Protection and Advocacy for Assistive Technology Programs Limit Parent's AT Liability

The Legal Center Gets School Services for Boy in Foster Care
The Legal Center, through our Grand Junction office, filed a complaint with the Colorado Department of Education on behalf of a young boy with multiple disabilities, including blindness, because the Mesa County Valley School District (the Mesa District) refused to enroll him in school and did not appoint a surrogate parent to act on his behalf in the special education process. The boy was in the custody of the Garfield County Department of Social Services (Garfield County) who, on March 23, 2004, had placed him in a foster plaement within the Mesa Valley School District. Once the boy began to reside within the Mesa School District's boundaries, the district had the legal responsibility to ensure that he received a free appropriate public education. On March 23rd the boy's foster parents tried to enroll him in school in the Mesa School District, but the district did not provide school services to him. The Mesa School District believed that Garfield County had not followed the appropriate process in placing the student in the Mesa School District. As a result the student did not go to school.

Additionally, the whereabouts of the boy's natural parents were not known and the natural parents' parental rights had not been legally terminated. Under the IDEA school districts are required to assign an educational surrogate parent to act on a student's educational behalf when the student's parents cannot be discovered or located. The IDEA specifically prohibits county departments of social or human services from acting as educational surrogate parents for students in their custody because, since these agencies are financially responsible for the student's care, they have a conflict of interest. Garfield County could not, therefore, be an educational surrogate parent for this boy. Moreover, the Mesa School District did not assign an educational surrogate parent to advocate for the educational rights of this parentless student. Thus, no one came forward to get school services for this student when the Mesa School District did not provide him with services. The Legal Center became aware of that the Mesa School District was not providing school services to the boy and had not assigned an educational surrogate parent to advocate for him.

The Legal Center contacted the Mesa School District's to get the student in school and get an educational surrogate parent appointed, but the district did not do so. Thus, The Legal Center filed its complaint with the Colorado Department of Education on April 12, 2004. The Mesa School District enrolled the boy in school on April 14, 2004, sixteen school days after he became a resident of the school district.

The Federal Complaints Officer with the Colorado Department of Education determined that the Mesa School District was responsible for providing the boy with a free appropriate public education once the boy began living within the district and that the Mesa School District should have appointed an educational surrogate parent for the student. In responding to the Mesa School District's concern that Garfield County did not follow the appropriate interagency placement procedures the Complaints Officer said: "The fact that public agencies have unresolved issues between them may not operate as a justification to deprive a child with a disability the special education services to which he or she is entitled." The Complaints Officer's decision can be found at the Colorado Department of Education's website.

PADD Program Investigates Sexual Assault in Group Home
Using its authority as Colorado's Protection and Advocacy System for People with Developmental Disabilities, The Legal Center investigated a sexual assault upon a resident of a group home by one of the home's staff members. Based on our recommendations, the victim of the assault was moved to a permanent home of his choice and is currently receiving follow-up mental health treatment. Further, after persistent urging from The Legal Center, the police also interviewed other residents in the home, who were also subsequently moved into a safer setting based upon the information, obtained. Multiple criminal charges are expected to be filed.


PADD Program Keeps Children on CES Waiver
The Protection and Advocacy for Developmental Disabilities (PADD) Program represented two families and their children in administrative appeals to maintain eligibility in the Children's Extensive Services (CES) Medicaid Waiver. This waiver provides services to children with a developmental disability as well as severe medical and intense behavioral needs over and above school day programming. Due to a change in the waiver criteria, children were found ineligible for services they had been receiving for years. Attorneys in the PADD program worked with the families, the Community Centered Boards, and the Division for Developmental Disabilities to provide additional information in support of the families' desires to keep their children on the waiver and to continue receiving the much needed services. After extensive negotiating with the reviewing agency, both families were able to remain on the CES waiver and receive all of the previous services for their children.

Grand Junction Office Follows Up on Regional
Center to Community Placement
The Legal Center's Grand Junction office represented a 47-year-old man who we had previously represented in April 2000 in moving from the Grand Junction Regional Center to a group home in Walsenburg, his home town.

He has a guardian who lives in Grand Junction, and is therefore unable to visit him as much as she would like. Thus, she relies heavily on his team in Walsenburg to remain in close contact with her regarding how he is doing. Unfortunately, the staff in Walsenburg did not contact her frequently enough regarding how he was doing in Walsenburg. Concerned about his care and the lack of communication with the service provider, she contacted The Legal Center. The Legal Center investigated and wrote a letter to the community center board and service provider outlining the concerns about the individual and requested an inter-disciplinary team meeting to discuss the concerns.

The meeting occurred in August 2004. Despite a few medical issues that had not been thoroughly addressed between residential staff and the individual's doctor and the failure to communicate with the guardian in a timely manner, the individual was doing well in the community. Communication between the guardian in Grand Junction and the service providers has improved.

Special Education Program Enforces IDEA Discipline Rules
The Legal Center represented a studen with ADHD in obtaining special education services and overcoming inappropriate school suspensions. When the student was in middle school his mother had expressed concern to school staff that her son needed some assistance because he had attention deficit hyperactivity disorder; however, the school district did not move forward to determine him eligible for special education services. Without special education services the student's behavior deteriorated, and he was suspended for 16 days without school services and threatened with expulsion. The Legal Center first intervened to get the district to conduct an IEP meeting and determine the student eligible for special education services. As a result the student was placed in a more supportive educational setting. The Legal Center then addressed the issue that his suspensions were for behavior that was related to his disability in violation of the IDEA. The Legal Center filed a Federal Complaint with the Colorado Department of Education. The decision from the Colorado Department of Education agreed that the student's suspension had violated his right to a free appropriate public education and that the school district had not acted promptly in determining him eligible for special education services. The school district was ordered to provide the student with compensatory education to make up for lost educational opportunity.

PAIMI Program Keeps 8 Year-Old from Falling Through  
Mental Health Services Cracks and
Takes on Medicaid Ombudsman Issue
The Legal Center represented a parent of an eight-year-old boy who was being terminated from community mental health services. Staff of the Community Mental Health Center terminated his services and medication benefits because they believed he had a developmental disability and should be served by the developmental disability service system. The Medicaid Ombudsman Program had also denied the child's parent assistance in challenging the service denial, because the State has directed that the Ombudsman Program cannot represent individuals in appealing service denials. The Legal Center negotiated a six-month extension of services from the Mental Health Center for the boy. Moreover, The Legal Center determined that the State's contract with the agency providing Medicaid Ombudsman services may not comply with state law requiring that the Medicaid Ombudsman be available to act as a designated representative for complainants. We have brought that issue to the State's attention but we have not yet received a response.

PAIMI Program Acts to Limit Guardianship to Woman in Nursing Home
Delta County Adult Protective Services initiated a guardianship action regarding a woman who had made repeated calls to Emergency Medical Technicians and police. Shortly before the final hearing date, her court appointed counsel asked to withdraw as her counsel, and The Legal Center was appointed to represent her. The day before the rescheduled hearing date the parties were able to reach an agreement whereby the guardianship would terminate 10 days after the client's acceptance at an assisted living facility. The facility accepted her, but the Mesa County Department of Human Services, where the facility is located, denied the transfer of services from Delta County to Mesa County. Delta County and the client are jointly appealing that decision with a hearing scheduled for September. Meanwhile, The Legal Center has also assisted the client with respect to ancillary issues regarding her former apartment and Social Security.

PAIR Program Changes Civil Rights Division Policy
The Colorado Civil Rights Division accepts and investigates complaints of discrimination in employment, housing and public accommodations. As a part of its intake process, the Division had a policy of requiring persons who filed a public accommodation complaint to sign a waiver form. The form stated that the individual acknowledged that in filing a complaint with the Division, the Complainant had selected an exclusive forum and remedy.

The PAIR Program disagreed with the Division's interpretation of the State Civil Rights Act, understanding the statute to allow filing with the Division as well as allowing a subsequent withdrawal and filing in court. The PAIR Program additionally disagreed with the Division's interpretation of available remedies. The Legal Center advised our clients to file complaints with the Division but to refuse to sign the waiver. After negotiation with the Division, including participation of the Attorney General's office, the Division's Director agreed to substantively change the waiver form. The form is now purely informational, and lists the choices that an individual may have for filing a complaint. No signature is required.

The Legal Center is pleased with this result, as it adds to our strategic tool belt, allowing us to use the full array of statutory procedural avenues to ensure that individuals with disabilities enjoy access to public accommodations.

HIV Legal Project Protects Confidentiality Rights
An attorney in a rural area called with an urgent request for assistance. He represented an HIV-positive parent in a Dependency and Neglect case with a hearing four days away. Another attorney, representing the children, wanted to disclose the parent's HIV information to a parent who was not a party to the proceedings. The HIV Legal Project was able to advise the attorney about the bounds of privacy/confidentiality requirements. We provided relevant case law, as well as a brief on the topic written by another HIV/AIDS advocacy agency. The attorney was able to go forward with tools to alert the court to confidentiality issues and relevant laws. We were able to clear up an important misunderstanding. In the Dependency and Neglect context, confidentiality rights do not compete with the best interests of the child. Rather, medical judgements, with reference to experts in the field (including the Centers for Disease Control), about safety must be made, and confidentiality determinations are entirely dependent upon these determinations of safety/best interests. Of course, in determining safety, the emphasis must be on expert medical opinion, and not stereotypes or generalizations.

CAP/PABSS Program Helps Clear up Ticket-to-Work Confusion
A woman contacted The Legal Center for assistance when she became aware that her Ticket-To-Work was never assigned even though she had signed an Individualized Plan for Employment (IPE) in February 2003 and turned her ticket over to her Division of Vocational Rehabilitation (DVR) counselor at the same time. The individual had obtained employment through the 2 Succeed Program while she was involved with DVR. She moved up quickly to an advocate position and was currently off SSI due to earnings. During late spring 2003, she received a medical continuing disability review ((CDR), which she completed and returned to Social Security. After learning more about her rights under the ticket, she realized that one of the benefits of assigning the ticket was protection from a medical CDR. She has a bi-polar disorder and was concerned that she would lose her medical eligibility for SSI as a result of the CDR even though she may need those benefits in the future if she had an episode of illness.

Despite DVR downplaying the importance of their responsibility to assign tickets to work, both the client and this advocate were determined to get her ticket assigned. DVR was aware of the issue at many levels, but took no action to try to find a solution to the problem.

The Legal Center contacted the national ticket advisory panel and arranged for the client to testify by phone at their next meeting in March 2004. The client testified and provided written comments. There was a great deal of interest in the client's experience and a discussion ensued where it was recognized that there was no real remedy for a client when the paperwork does not get sent and the ticket isn't assigned. The ticket was assigned and it was agreed that this is a significant issue and that counselors with DVR needed training on the issue.

The client also testified at the State Rehabilitation Council and provided written comments. As a result of her testimony, it was agreed that the state ticket advisory group would be reinstated to review and address ticket issues. The client and The Legal Center advocate both became members of this newly reformed ticket group. The state group has met once and discussed ways that DVR could provide consistent information to consumers about the ticket, including other issues. We are still waiting to hear about systemic outcomes at the national level.

PABSS/AT Programs Get AT in Braille Individualized Plan of Employment
The Legal Center represented a blind individual who requested assistance from our PABSS Program because her services on her Individualized Plan of Employment (IPE) were not being provided. When she contacted The Legal Center she had been in training for nearly six weeks but did not have a copy of her IPE nor had she received any services under the plan so that she could participate in her training program. These services included a computer with JAWS, ID Mate, talking calculator, Braille paper, clothing allotment, and a bus pass. The trainer at the job site had not even received a check for her training. The Legal center was able to intervene and get all of the needed services, including the IPE in Braille format. When last contacted she reported that she had received all services and that her counselor was treating her with kindness and respect.

Special Education/Protection and Advocacy for Assistive
Technology Programs Limit Parent's AT Liability
The Legal Center's Assistive Technology Program was contacted to help the parent of a 13-year-old student in special education resolve a dispute over the wording of a school district's Equipment Checkout form. The student uses an AlphaSmart device to assist him in completing his schoolwork, and since he needed the AlphaSmart to do his homework, his IEP included home use of the AlphaSmart.

At the beginning of the current school year, the student's parent was asked to sign a form, which held her responsible for any damage, loss or theft of the device, regardless of cause or location of the device at the time of damage, loss or theft. The parent refused to sign the form because she felt that she should not be held responsible for normal wear and tear, nor for any damage or loss that might occur while the device was used in school. Because of the disagreement over liability, the student was unable to take the device home, and as a result, was falling behind in his Science class.

Our review of the form revealed that it is not in compliance with Office of Special Education Programs Letter to Culbreath, 25 IDELR 1212 (1997), which states that if the IEP team determines that the student needs a device at home, the parents are not responsible for normal use, including wear and tear to the device.

The Legal Center contacted the Special Education Office and requested that they revise the form to be in compliance with the OSEP letter, and that they address this particular individual's immediate need to be able to take the device home to use for homework. The form was modified so that the parent felt comfortable signing it. The District intends to modify the form to use system-wide.