DLC because she was being denied a transfer to an
accessible apartment and she was unsafe at home.
She was unable to use her wheelchair in her apartment
and as a result she fell and ended up in a nursing home.
DLC took the case to advocate for a transfer which would
allow her to move out of the nursing home. DLC
negotiated with the housing authority, obtained a
transfer and an apartment became available.
Valerie was able to move out of the nursing home and is
now living in a fully accessible apartment that she
loves. She was very appreciative that DLC was able
to take her case and help her move to a new home.
Along with a large
group of Massachusetts Independent Living Centers, DLC
recently submitted comments to the Department of Housing
and Community Development (DHCD) asking that more
housing resources under the Low Income Housing Tax
Credit (LIHTC) program be set aside for very low income
people with disabilities. The LIHTC program is the
state's largest housing production program. Our
comments, which were submitted as part of the planning
process for allocating new tax credits, can be found
See comlete version in MS
The Community Team
completed a Disability Discrimination Audit of the
housing market of the City of Newton, Massachusetts.
Conducted over a six month period, the audit was
modeled on testing techniques developed by the U.S.
Department of Housing and Urban Development. The
final report submitted to the city can be downloaded by
clicking on the link below.
The testing program
was designed to determine whether individuals with
disabilities experience discrimination when seeking
housing, either in the rental or sales market.
The audit, which
included testing for discrimination across six different
disability categories, - Individuals who are deaf,
Individuals who are blind and receive assistance from a
guide dog, Individuals who are wheelchair users,
Individuals with mental illness, Individuals with a
cognitive impairment and Individuals with a mobility
impairment - found evidence of discrimination in 48% of
52 overall tests conducted.
The types of tests
conducted included testing for differential treatment --
to see whether there is evidence that a person is
treated less favorably then a similarly-situated person
based on their disability; testing for reasonable
accommodations -- to see whether housing providers are
aware of their legal obligation and are willing to make
changes to policies, practices or procedures to allow an
individual with a disability an equal opportunity to use
and enjoy a dwelling; and testing for reasonable
structural modifications -- to see whether housing
providers are aware of their legal obligation and are
willing to allow or make physical modifications to
housing units where necessary for a person with a
discriminatory conduct included:
disabilities being shown more available units than
testers with disabilities;
disabilities being offered more generous terms, such
as lower rent or waiver of a fee, than
testers with disabilities;
landlords not returning messages left by testers
with disabilities even though the units being
inquired about were available;
agreeing to waive a no pet policy for a potential
renter who is blind and uses a guide dog
agreeing to allow individuals with disabilities to
make physical changes to units, such as lowering
cabinets or installing visual alarms.
The audit also found
evidence of discrimination by real estate agents and
agencies, which as places of public accommodation under
disability discrimination laws, cannot discriminate in
providing services to a person with a disability during
his or her housing search. DLC made numerous
recommendations to the City, including training,
outreach and education for landlords, agents and
individuals with disabilities, so that each group is
aware of their legal rights and obligations.
The case is Sabbag v. Romney, which involves MassHealth
(Medicaid) covered private duty nursing services. The
plaintiffs are a class of 400 - 500 individuals under
age 21 with serious disabilities or medical conditions.
Each is cared for at home, in part by private duty
nurses whose services are paid for by MassHealth. For
each plaintiff, MassHealth had agreed to pay for a
specific number of medically necessary hours of private
duty nursing services each week. In their complaint, the
plaintiffs claimed that they were unable to obtain
private duty nurses for all of the hours approved by
MassHealth because the rates paid by MassHealth for
private duty nursing services were too low and because
of other shortcomings in the administration of this
benefit by MassHealth. The plaintiffs claimed that, as a
result, the defendants had violated the federal Medicaid
Act and the Americans with Disabilities Act. The
plaintiffs asked the Court to order MassHealth to
increase the rate of reimbursement for private duty
nursing services and to take other measures to improve
the administration of the private duty nursing benefit.
In 2003, while this case was pending,
plaintiffs' counsel, along with an economic expert,
participated in public hearings in the rate setting
process for private duty nursing services before the
Massachusetts Division of Health Care Finance and Policy
(HCFP). At the end of that process, the agency increased
by 21.3% the rates at which private duty nurses are
reimbursed by MassHealth. These rates now appear in
regulations promulgated by HCFP at 114.3 Code Mass. Reg.
24.01, et seq. The state also changed the methodology by
which the rates are determined to result in a more
competitive rate. After the rate increases took effect
in 2004, the plaintiffs' lawyers and the defendants'
lawyers negotiated a settlement that requires the state
Medicaid agency to create a data collection systems for
better program management, to provide data on approved
hours, unfilled hours and the reasons for the unfilled
hours to class counsel and to the state rate setting
agency for the rate setting process expected in Fall
2006. The state also agreed to develop a protocol for
providing better case management and assistance to class
members. Finally, the state agreed to convene quarterly
meeting with an advisory committee consisting of class
members and class counsel. The Court approved the
settlement agreement in the case on 9/28/05.
Implementation of the settlement agreement is ongoing.
Berry v. Lowell – DLC brought suit on
behalf of the Northeast Independent Living Program
(NILP) and Mr. Berry, challenging the City of Lowell’s
locating accessible seating in the very last row of a
newly constructed minor league ballpark. Following a
trial, the federal court ruled that the ADA’s
integration imperative was violated by the segregated
seating scheme devised by the City. The Court mediated
an agreement among all the parties. Pursuant to that
agreement, a Consent Judgment was entered which provided
that a new front row would be constructed in time for
Opening Day, 2006, consisting of 15 wheelchair locations
and 15 companion seats. We have been monitoring the
City’s compliance with the terms of the Consent
Jill is a five-year-old girl with a bilateral severe,
sensori-neural hearing loss in both ears, for which she
wears digital hearing aids (she is verbal). Jill’s
hearing loss is progressive and the complexity of her
needs continue to increase over time. When Jill’s
parents initially came to DLC, Julia was attending an
integrated pre-school program in public school.
Testing completed by the school district indicated that
Julia’s scores for expressive and receptive language
were well below average. Testing by her health
care provider showed that Jill functioned in the
moderate to severe deficit range in receptive and
expressive language skills.
Jill’s parents were concerned about their daughter’s severe
deficits in her language skills, the length of her
school day, the lack of peers with similar disabilities
within her preschool group, and the inadequate acoustics
at the school building which did not contain an
audiology suite. Julia’s requested placement for
their daughter at the Clarke School for the Deaf, which
the education Team rejected.
Jill’s counsel at DLC attended mediation with the
school district on January, 2008. At the
mediation, the parties agreed to amend Jill’s Individual
Education Program (IEP) to include additional speech and
language services and to conduct updated testing. The
parties also agreed to an independent program evaluation
by Boston Children’s Hospital Deaf and Hard of Hearing
Program (DHHP). DLC contracted with the evaluator
to observe at the pre-school and Kindergarten programs
and the Clarke School for the Deaf.
The Team reconvened in April to review the consultant’s
observation report, the School District evaluation, and
to address unresolved issues on placement and services.
The school proposed a new IEP which contained many of
the recommendations from the DHHP report including
increased speech and language services, enhanced
acoustical modifications, additional direct instruction
by a teacher of the deaf, and placement in a class with
one other deaf student. Jill’s parents were
satisfied and have agreed to accept the placement and
services for their daughter.
A woman contacted DLC after she was
denied effective communication and related services at a
local hospital. She is Deaf and has a psychiatric
disability. During a recent hospitalization she was
denied access to ASL interpreters, TTYs and closed
caption television. We filed suit in federal court and
then reached a settlement in the case. The settlement
included $9500 for the client and $1500 for attorney’s
MENTAL HEALTH ADVOCACY
Cynthia is a woman with a visual impairment and depression
who resided in a nursing home. Following what she
alleged was inadequate treatment of her depression; she
was psychiatrically hospitalized for the first time.
Six months after her return to the nursing home, she was
involved in an incident with her roommate which was
construed by the facility as an “attack” on the
roommate. Cynthia’s position was that personal
items of hers were being lost and/or stolen since the
time of her admission into the facility. She
alleged that her visual impairment caused her to believe
that her roommate was the intruder and that she was
merely attempting to hold the person in place while she
called for staff. Cynthia was psychiatrically
hospitalized again, evaluated, found not to be dangerous
and discharged the same evening. In spite of this
finding, and an uneventful evening, the facility again
“section twelved” her the next day, to another facility.
When Cynthia was ready for discharge soon after, the
nursing home refused to accept her back, failing to
provide adequate discharge notice and other associated
Cynthia contacted DLC, which represented her at a Division of
Medical Assistance hearing. DLC hired an expert to
evaluate the client and testify at the hearing.
The hearing officer agreed that the facility had
violated the discharge regulations and ordered the
facility to take the client back. However, by that
time, Cynthia had already been forced to find another
nursing home, after spending almost 4 weeks
unnecessarily on a locked psychiatric unit. She
was settled where she was and was also afraid to return
to the facility.
Because DLC was aware that nursing facilities routinely
“Section 12” difficult clients as a way to avoid the
discharge regulations, with their “stay put”
requirements pending an appeal hearing, DLC told Cynthia
that it would consider bringing a case under G.L. c.
93A, the state consumer protection statute.
Although Attorney General Regulations had long stated that a
violation of the nursing home discharge regulations was
also a violation of 93A, the case appeared to be one of
first impression. There were no reported decisions
and calls to other legal services agencies revealed that
while they had threatened to file such claims, they had
not had to do so. DLC believed that bringing such
an action would help to address the lack of preliminary
relief that was available to the client in this case - -
hopefully making facilities think twice about the costs
and benefits associated with discharging vulnerable
residents in violation of their due process rights.
DLC filed the 93A case at the end of 2006, prevailed on a
Motion to Dismiss and undertook discovery in 2007.
During the summer of 2008, Cynthia settled the case
against the nursing facility and a doctor who had also
been named as a defendant. While DLC cannot
disclose the precise terms of the settlement agreement,
DLC believes that the settlement will act as a deterrent
to such conduct in the future.
A 17 year old with a mental illness
was admitted by her guardian/father to a local
university’s Intensive Residential Treatment Program
(IRTP). The IRTP’s handbook, on its face, violates some
of the Five Fundamental Rights afforded to the
adolescents residing on the unit. In particular, the
right to make and receive confidential phone calls to
and from whomever the client chooses was violated. The
only exception where the IRTP can restrict this right is
when there is substantial risk of harm to the client,
but it can only be temporarily restricted.
The IRTP had a policy that each client
had an approved “phone list” which included the names
and numbers of who they were allowed to make and receive
phone calls from. The phone list had to be approved by
both the client’s guardian and therapist. This clearly
violates the client’s right to make and receive
confidential phone calls to whomever they choose. This
violation specifically affected our client because she
was prohibited from calling peers and a therapist from
her previous IRTP.
Once DLC became involved, the IRTP
agreed to change their practices and policies regarding
phone access and other issues pertaining to the Five
Fundamental Rights. The IRTP re-drafted their handbook
to adhere to the Five Fundamental Rights and sought
comments from DLC.
DLC organized and held a free
conference for consumers who are also Social Security
Beneficiaries with information about work incentives,
their right to access Benefits Planners and their
employment rights. This training provided DLC an
opportunity to do outreach to consumers who are seeking
help getting a free and appropriate education for their
DURABLE MEDICAL EQUIPMENT
In the course of speaking with and
representing consumers who have experienced roadblocks
accessing durable medical equipment, DLC has discovered
a variety of barriers. The first barrier is consumer
information on where to seek coverage for durable
medical information, how to get started. To that end,
DLC is planning an AT consumer conference in the coming
year, which will cover MassHealth (Medicaid), Medicare
and other choices for accessing AT.
DLC's priority is assisting consumers
with MassHealth prior approval denials. But we have
found that many people do not even get so far as a
MassHealth denial. DLC has received many calls from
consumers who have assumed that a provider has made a
prior approval request or who have not been able to find
a provider to file a prior approval request and go
through the process. In these cases, DLC helps consumers
understand what MassHealth will and will not cover and
what needs to be submitted by the provider.
Sometimes the providers (and even the
consumer's doctors) have confused “difficulty” with
“impossibility” and/or have not understood the extent of
the documentation that needs to be provided. To help
consumers understand the process and their rights, DLC
has prepared a consumer-friendly description of the
process, which appears on the DLC website and on the
mass legal services website - and which we provide to
consumers who call, as well as at trainings.
Many consumers who call DLC do so
after their appeal rights have expired - because they
have been told that MassHealth will not cover the item.
In these cases, if the item seems appropriate and is
arguably coverable by MassHealth, DLC has worked with
the consumer, the doctors and the provider to obtain
resubmission of a better-documented prior approval
request. In many of these cases, the request is then
approved - without the need for further appeal. The
consumer-friendly DME information mentioned above is
also used in these situations.
Where the item does not seem
appropriate or coverable by MassHealth, DLC helps the
consumer understand his/her options - to revise the
submission or to seek other means of obtaining the item
- used equipment, Easter Seals loan program, etc.
DLC has not obtained all the results
it originally sought in terms of revising the DME prior
approval process. DLC has discovered that the issues are
more complex than originally understood. In addition,
through the educational process of raising these issues
at hearing, we no longer see hearing officers willing to
rely on information that was not made a part of the
hearing file or medical journal information that is not
part of the record.
In late 2004, DLC and other health
advocates in Mass. began receiving calls on behalf of
child consumers who had received MassHealth prior
approval for DME (e.g., gait trainers, standers,
assisted communication devices but who had not been able
to access the equipment from the provider. The reason
for this was that MassHealth had changed the codes and
reduced corresponding rates for the equipment below the
rate at which the providers were will supply the items.
DLC worked with a group of health advocates to bring
this access problem to the attention of MassHealth.
Ultimately, the rates were raised to a level at which
the providers were able to supply the items.
“Adam,” a 17-year-old with ADHD, major
depression, and a language-based LD who was expelled
from a local vocational technical high school in June,
2004. Rather than fight the expulsion, he attempted to
enroll in another high school in the fall. On the first
day of school, the high school suspended him
indefinitely because the victims of a pending felony
case against “Adam” attended the high school. When The
school offered only 10 hours of tutoring by a teacher
who had no information about our client’s learning
disabilities, his mother came to DLC for help.
We agreed to a risk assessment to
address the school’s concerns that “Adam” posed a threat
to the school, but I also forwarded a draft expedited
BSEA hearing request to the district, alleging that he
was a kid out-of-school with insufficient FAPE.
Meanwhile, “Adam” met with a psychopharmacologist, who
prescribed an antidepressant.
The TEAM met in December to address
both the risk assessment, which found “Adam” to be a
potential risk of harm, and our demands for FAPE. The
school agreed to an interim placement at the SEEM
Collaborative, beginning in January. “Adam” did well at
SEEM until he stopped taking his anti-depressant
medication and began to be verbally abusive to school
staff. This caused SEEM to abruptly end the placement.
To complicate matters, “Adam’s
probation officer attempted to have him violated,
alleging that he was thrown out of SEEM. However, the
Court refused to violate “Adam”, based in part on advice
DLC had given to “Adam’s new criminal defense attorney
about his disabilities and special education law.
Nonetheless, in April, “Adam” was
again a kid-out-of-school. The TEAM met again to discuss
more permanent placement. At this point, at “Adam’s
request, tutoring with a different teacher was set up
for the remainder of the term as the District worked
with “Adam” and his mother to find a suitable
out-of-district placement for the fall.
In September, “Adam” enthusiastically
began the semester at a new high school. However, this
was not until DLC intervened once more to ensure that
the school arranged for transportation.