Exchange
A quarterly newsletter of Michigan Protection and Advocacy Service, Inc. (MPAS)
FALL 2012
Inside This Issue:
MDE Reopens Three MPAS Education Complaints
MPAS Legal Update
Supreme Court Finds Mandatory Life Without Parole for Juveniles Unconstitutional
Ask the Advocate
Senate Committee Issues Employment Report
IDEA and Virtual Education: Challenges and Opportunities
MPAS Given Award for Assuring Polling Places are Accessible
Use Assistive Technology to be More Independent
Voter ID Legislation
Update on Education Advocacy
Governor Reorganizes Vocational Rehabilitation Services
OSEP Applies Least Restrictive Environment Standard to Work Settings
Preparing For the New School Year
From the Executive Director
Michigan Receives Waiver from Requirements of No Child Left Behind Act
Michigan Establishes Order of Selection for Rehabilitation Services
School Ordered to Provide Compensatory Special Education Services
By Rhonda K. Smith, Editor
“She blamed herself,” says Shirley. “That made me fight even harder on her behalf.”
Just 10 years old, Bennea had experienced her share of challenges. Raised by her grandmother, Shirley, since she was two years old, Bennea had speech and language impairments, learning disabilities, seizure disorder, and serious emotional issues.
Although eager to learn, she needed additional help to master her studies. When Bennea was first evaluated for special education services, Shirley worked with school personnel to prepare an individualized education plan (IEP) that specified certain supports and services that the school was required to provide. Then in May 2010—federal law requires an annual review for students who receive special education services—Bennea’s team determined she should repeat second grade with resource room supports. Instead, Bennea was placed in a third-grade general education classroom.
“She was not academically prepared for third grade,” says Shirley. “What’s worse, they put her in a classroom with nearly 30 other children! There was no way she was going to get the one-on-one attention she needed to succeed.”
Consequently, Bennea fell behind in her schoolwork, cried frequently, and was not sleeping well. “She blamed herself,” says Shirley. “That made me fight even harder on her behalf.”
Aside from being placed in an inappropriate class setting, Bennea did not receive the special education services called for in her IEP; and services that had been in contention between Shirley and the school were at risk of not being resolved.
In the spring of 2010, the speech therapist from school left phone messages and sent progress notes home stating that Bennea was doing fine and no longer needed speech and language therapy. Yet, when tested at Beaumont Hospital, the report stated that her speech and language was impaired and that she could definitely benefit from further therapy.
“When I approached the school with this information, I was told that the speech therapist was overworked and was already providing services to 67 students,” says Shirley. “I failed to see how that was our problem. My child needed services, and the school was going to provide them one way or another.” When the school recommended termination of speech and language services at an IEP meeting in April, Shirley requested an independent educational evaluation (IEE).
Bennea returned to school in the fall of 2010. Shirley attempted to work with school officials to address Bennea’s falling grades and increased anxiety. Finally, in February 2011—after learning that Bennea was not only in the wrong classroom but had not received any of the services that had been agreed upon, let alone those in dispute—Shirley first asked that Bennea’s IEP team meet again.
Then she called Michigan Protection and Advocacy Service and an advocate began investigating her case. The advocate requested school records and reviewed them along with records provided by Shirley. While the school had added speech and language services again in February 2011, the advocate determined that the agreed-upon placement and services in Bennea’s May 2010 IEP had not been implemented. MPAS filed a complaint with the Michigan Department of Education, which substantiated the allegations and ordered the school district to provide compensatory services.
As of this writing, Bennea attends a Learning Disability Clinic four times a week where she receives three hours of one-on-one tutoring in second, third, and fourth-grade level subject matter.
“She’s a different kid,” says Shirley. “She’s out of bed before the sun rises asking to go to school. When she comes home in the afternoon, she mimics her teacher while playing ‘school’ with the younger children.”
As part of the agreement signed between Shirley and the school, Bennea also receives speech and language services, a laptop computer she can use at home, and visits with a social worker.
What’s more, other children will likely benefit from the ruling. Michigan Department of Education ordered the school district to locate other children who should have – but were not – receiving special education services during the same time period the school neglected to implement Bennea’s IEP. Once located, these students will also be provided compensatory services.
Bennea will take her newfound knowledge and upbeat attitude and rejoin her public school classmates in the fall.
Although Shirley credits MPAS for helping Bennea and her fellow students with disabilities fight for their rights, she has now become an advocate herself by educating other parents and motivating them to take action when needed. “These kids are our future,” she says. “Seeing them happy and successful makes it all worthwhile.”
MDE Reopens Two MPAS Education Complaints
The Michigan Department of Education’s Office of Special Education (OSE) recently notified MPAS that it was reopening two special education complaints that OSE had improperly closed or dismissed. (A third MPAS complaint was reviewed but not reopened at the request of the parent.) This action came months after an on-site review by the U.S. Office of Special Education Programs (OSEP) and is part of a broader OSE revision of policies and practices dealing with complaint investigations and findings. Although the individual complaints are confidential, please contact MPAS for more information about changes in the OSE complaint process.
MPAS Legal Update
Mark A. Cody, Legal Director
The MPAS Legal Team represents individuals in select cases that meet agency priorities. For more information on case selection, please contact MPAS. Following is a selection of Legal Team work so far this year.
Maintaining housing in the community is of vital importance to our clients. Recently, an MPAS client was faced with eviction because of his hoarding behavior. By the time he contacted MPAS, he had been to court and a judgment had been entered against him that would force him out of his house. If the judgment of eviction remained in place, he would have also lost his housing voucher. MPAS was able to negotiate with the landlord to permit our client to move to a different location of his choosing. The eviction was also set aside and the client kept his housing voucher.
Unfortunately, there is simply not enough accessible and affordable housing in Michigan. In an effort to remedy that situation, at least in part, MPAS submitted comments to Michigan State Housing Development Authority (MSHDA) in response to that agency’s Qualified Action Plan. MPAS urged MSHDA to expand the number of accessible and supportive housing units financed through the Low-Income Housing Tax Credit program. In addition, MPAS emphasized the need to avoid congregate settings.
MPAS also met with Michael Allen, an attorney nationally recognized for his work in protecting the rights of persons with disabilities in housing. Mr. Allen assisted the legal team in developing litigation strategies. An MPAS attorney also met with one of the Fair Housing Centers to discuss collaborative work between our two agencies.
In the area of employment, MPAS presented at a training sponsored by the Equal Opportunity Commission (EEOC) in Detroit. The presentation focused on defining the essential functions of the job under the ADA Amendments Act.
MPAS drafted an Amicus Brief in the case of Lewis v. Humboldt that was submitted to and accepted by the Sixth Circuit Court of Appeals. The issue in Lewis was whether a person alleging disability-based discrimination in employment has to show that disability was the sole reason for the employer’s action. The Court took the course of action urged by MPAS and found that disability did not have to be the sole reason for the employer’s action, broadening the protections of the ADA and putting the Sixth Circuit in line with the rest of the nation.
MPAS filed a lawsuit in Wayne County Circuit Court regarding the inaccessibility of a doctor's office that provides disability examinations for the Social Security Administration. The four to six-inch step leading to the front door makes the office inaccessible for people who use wheelchairs.
An amicus brief was submitted in the case of Smith v. Department of Human Services. The issue in that case was whether the State of Michigan could place a time limitation on the receipt of Temporary Assistance for Needy Families (TANF) benefits that was less generous than federal law. Our interest in the issue was that studies show that parents of children with disabilities face greater obstacles to employment than the general population. The brief that was submitted relied heavily on information that was provided to MPAS by the Developmental Disabilities Institute at Wayne State University.
In response to a complaint filed by MPAS, the Office for Civil Rights (OCR) of the United States Department of Education began an investigation into the practices of a local school district’s use of restraint and/or seclusion. The school district elected to enter into an agreement with OCR that will end certain practices and begin proper training of staff.
Supreme Court Finds Mandatory Life Without Parole for Juveniles Unconstitutional
Laurel Isquith, Information & Referral and Education
On June 25, 2012, the U.S. Supreme Court ruled that laws requiring juveniles to be sentenced to life without parole violated the Eighth Amendment of the Constitution which prohibits “cruel and unusual punishment.”
“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate … the Eighth Amendment’s ban on cruel and unusual punishment.” (No. 10–9646 Miller vs. Alabama; No. 10-9647 Jackson v. Hobbs, Director, Arkansas Department of Correction, Argued March 20, 2012—Decided June 25, 2012;)
http://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf
According to a recent summary of the decision by the Michigan Council on Crime and Delinquency:
“Miller follows other recent Court decisions in holding that juveniles should not be treated like adults. The Court clearly states that each sentence must ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ This includes considering a youth’s age and their ‘hallmark features’ such as immaturity, failure to appreciate risks and consequences, family and home environment, circumstances of the offense and extent of participation, competency and inabilities to deal with police or prosecutors, and the possibility of rehabilitation.” http://www.miccd.org/juvenile_life_without_parole_s.php
The Supreme Court made it clear that there may still be some youth sentenced to life who do not receive parole, but wrote that it believes the sentence would be “uncommon” after careful consideration of a youth’s background, the circumstances surrounding the crime, and the Court’s ability now to consider other sentencing options.
The Supreme Court’s findings invalidate Michigan laws that impose mandatory life sentences without parole upon juveniles as young as 14 years old. Over 350 Michigan inmates (the second highest total in the nation) are currently serving such sentences. (Based on the prevalence of disability among youth in the juvenile justice system, many of those 350 people probably have disabilities.)
While this gives juveniles facing sentencing from now on a chance, there is still a question in Michigan about whether all those currently sentenced to life without parole will be allowed to have their sentences reviewed.
ASK THE ADVOCATE
I received a shut-off notice from the utility company that my electrical and gas services will be turned off soon due to non-payment. Where can I go to get help to pay my utility bill and avoid shut-off?
Upon receiving a shut-off notice, it is always good to contact the utility company immediately to try and work out a payment arrangement to avoid shut-off of services. If this is not possible, there are programs to help eligible people with utility expenses, especially when a shut-off notice has been issued.
The State Emergency Relief Fund (SERF) may help pay part of your utility bill and help keep your utilities in service or have service restored. Eligibility is based on demonstrated immediate need (shut-off notice) or need for deliverable fuel, (e.g. propane or fuel oil, income, and assets). Call your local Department of Human Services office for additional information or call 800.292.5650.
The Heat and Warmth Fund (THAW) provides assistance to low-income Michigan residents in specific Michigan counties. To determine if your county is part of this program, call THAW’s toll-free referral number at 800.866.8429, or go to www.thawfund.org.
In addition to the programs mentioned above, there are other organizations that can, at times, provide emergency utility bill assistance. Those organizations include the Salvation Army and your local Community Action Agency (CAA). You can locate your local CAA in the phone book or at www.mcaaa.org/directory. Additional organizations to contact include United Way agencies, churches, and local service clubs, (e.g. Lions, Knights of Columbus, etc.).
The Home Heating Credit may help pay your winter heating bills for this upcoming heating season. A Home Heating Credit Claim form (MI-1040CR-7) is available where
tax forms are provided. You can also get forms from the Michigan Department of Treasury by calling 800.367.6263 or online at www.michigan.gov/treasury. You do not have to file an income tax return to qualify for the credit.
The following programs offer shut-off protection for individuals who may experience problems paying utility bills.
The Winter Protection Plan protects seniors and low-income customers from shut-off and high utility payments between November 1 and March 31. The plan allows eligible customers to make monthly payments of at least seven percent (7%) of their estimated annual bill November through March. At the end of the protection period, customers must pay installment payments on money owed, as well as their current bills. Contact your utility company to apply for the plan.