Spring 2016
Exchange Newsletter
COVER
Supreme Court Bolsters Rights of Students with Disabilities - Twice!
From the National Disability Rights Network
2017 has already seen two extraordinary, unanimous rulings from the U.S. Supreme Court in favor of students with disabilities. Both cases addressed core issues presented by the federal Individuals with Disabilities Education Act (IDEA) - the level and quality of special education services needed to constitute an "appropriate" education, and the nature of due process rights when a child's civil rights were violated.
On March 22, 2017, the United States Supreme Court ruled unanimously in favor of a student with a disability in Endrew F. v. Douglas County School District RE-1. The court held that theIDEA requires more than barely trivial educational progress (referred to as “de minimis” by the Court) for students with disabilities.
The case involves a student with autism whose parents claim the school district failed to provide their son with an appropriate education as guaranteed by the IDEA. The lower courts had ruled for the school district and the Supreme Court reversed these decisions. According to the Court,
"a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all. Forchildren with disabilities, receiving instruction that aims so low would be tantamount to 'sitting idly . . . awaiting the time when they were old enough to ‘drop out.’ The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
The Court emphasized that the program for each student must be designed to meet that student’s unique individual needs. It also re-affirmed that the preferred educational placement for students with disabilities is “fully integrated in the regular classroom.” But for those students not being educated with their nondisabled peers, their “educational program must be appropriately ambitious in light of [their] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”
The National Disability Rights Network (NDRN), together with forty-four organizations that are made up of, represent, and advocate for the rights of Americans with disabilities signed on to an amicus curiae brief in favor of the student in the case. NDRN contended in the brief that since the 1980s Congress has made clear that a free appropriate public education must provide students with disabilities with an equal opportunity to meet the standards the district applies to all children.
According to Curt Decker, Executive Director of NDRN, “Although the Court did not go as far as we would have preferred, an 8-0 decision clearly rejecting the very low standard set by the lower courts in this case should send a strong message to courts and school districts around the country that the day of low expectations for students with disabilities is over.”
The Court's decision in Endrew F. was the second unanimous decision regarding special education rights of the year. On February 22, 2017, the U.S. Supreme Court ruled unanimously in favor of the family of a child with cerebral palsy in Fry v. Napoleon Community Schools. The case began when the district refused to allow a child with a service dog into school. The family won a victory with the U.S. Education Department’s Office for Civil Rights, which found that the school’s refusal violated her rights under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. When the family went to court to enforce the ruling, however, the lower courts determined that they would first have to pursue pointless administrative proceedings under theIDEA, even though the dispute had nothing to do with the student's special education services. In ruling for the family, the Court held that families that face discrimination in school do not have to first go through the IDEA’s administrative procedures; they can go directly to court.
This decision is important in that, when there are disputes that have nothing to do with special education, children and their families can now enforce their civil rights without having to negotiate IDEA's tortuous administrative hearing process first. For example, if a child is restrained or secluded in violation of state law and policy - protections that apply to all students - the child's family should not be forced to go through the IDEA hearing process just because they receive special education services.
NDRN joined with the protection and advocacy agencies in New York and Illinois, as well as the Autistic Self Advocacy Network, to write an amicus brief in support of the Fry family. The amicus showed how the type of discrimination faced by the Frys is all too common in our nation’s schools and families should not be required to face a needless hurdle when facing discrimination.
For more information on the Endrew F. and Fry cases, please contact MPAS.
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A Look Back at 2016
Dear Friends,
We recently released the 2016 Annual Report of Michigan Protection & Advocacy Service, Inc. (MPAS). MPAS is the federally designated protection and advocacy agency mandated to serve people with disabilities throughout the state ofMichigan.
A 2015 federal study reported that one in every five adults - 53 million Americans - has a disability. Disability is a universal experience that affects all aspects of life - mobility, thought, memory, independent living, vision, self-care, to name a few - and knows no boundaries of race, gender, age, language, income, or political party.
Disability is everywhere, yet people labeled with disabilities are often segregated, mistreated, excluded, and feared. That's when we go to work. We use words like equality, dignity, independence, and freedom to drive our advocacy. In 2016, MPAS worked to:
Improve safety for one of the most vulnerable populations in the country. MPAS policy and monitoring initiatives reduced the use of restraint and seclusion in schools and held caregivers accountable for abuse and neglect in nursing homes.
Protect individual liberty. From person-centered planning to voting rights, MPAS activities helped people with disabilities realize the right to make choices about all aspects of their lives, from daily routines to major life events.
Ensure equal opportunity to pursue the American dream. MPAS activities protected necessary community services and supports, promoted access to competitive, integrated employment, and returned children with challenging, disability-related behavior to school.
MPAS did its work at no cost to clients, stressing person-to-person contact between people with disabilities and advocates, and worked within its budget as a responsible steward of public funds.
Disability is a natural part of the human experience. One can be born to it, or one can acquire it at any time in life. As your Board President and Executive Director, we are family members of people with disabilities, and one of us (Elmer) is a recent stroke survivor. To us, rights protection is now more personal than before, but at the same time we are reminded that the struggle for safety, liberty, and opportunity is a universal one. We hope our work shows that the struggle is not only universal, but worthy and winnable.
Sincerely,
Thomas H. Landry, PresidentElmer L. Cerano
MPAS Board of Directors Executive Director
*To see our Annual Report, go to call (800)-288-5923 to request a copy.
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What Our Clients Are Saying About Us
"This is the second time I've called. Both times I was treated with respect, listened to, and truly helped. Thank you!"
"Fantastic service and helped reinstate services."
"Thanks for listening."
"Thank you! Very helpful, prompt, and knowledgeable. I will definitely make sure to use your services again if needed."
"The advocate I spoke to was absolutely amazing and very, very helpful."
"Excellent help and service."
"Thank you very much, my son will benefit greatly!"
"Everyone was extremely helpful and genuinely concerned. I really felt compassion."
"I am happy and will keep using your services."
"You're always super helpful."
"You are an informative and invaluable resource to the community."
"I had great help with my questions."
"Thank you for all your help with a 504 plan for my student!"
"I have been through a stressful period in my life and was happy to be listened to for a change."
"Helped above and beyond. Excellent advice and service. Thank you."
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2016 By the Numbers
7,374: Number of individual callers advised by MPAS Information and Referral advocates in 2016. Callers had questions about education, housing, human services, discrimination, health care, Social Security, conditions in institutions, and many other issues affecting the rights of people with disabilities. MPAS advocates listened and provided live, real-time responses, helping callers understand their rights and take concrete steps to address their problems.
$30,000: Fines ordered against nursing home staff against whom charges of neglect were substantiated through MPAS investigations and licensing complaints. MPAS staff reviewed 195 nursing home surveys, opened 11 individual and 30 systemic investigations, and filed numerous complaints against the individual licenses of staff involved in those findings. Over the three-year life of this project, in addition to the fines, 47 licensed professionals have been placed on probation, six professionals have been permanently banned from working in facilities accepting Medicaid or Medicare, and 158 continuing education courses have been ordered.
445: Children and adults with disabilities served by Michigan's community mental health (CMH) or other human service programs who received direct advice or assistance from MPAS. MPAS engaged in legal advocacy to restore critical community services to individuals, enabling them to remain in their communities, and was a part of the statewide work group tasked with maintaining the publicly-accountable mental health system to protect the service rights of over 248,000 service recipients.
40: Children residing in a state psychiatric hospital who benefited from new trauma-informed care practices adopted after MPAS successfully brought suit on behalf of a young man with a trauma history who was abused by other residents at the direction of hospital workers.
39,495: Visits to MPAS' website. MPAS also reached 10,448 people each quarter through our quarterly newsletter, The Exchange, 884 people through face-to-face outreach events, and 1,635 friends on Facebook. MPAS also distributed 11,435 publications, booklets, and brochures, including our popular Special Education Advocate's Manual.
75,264: Number of students with disabilities most impacted by MPAS systemic special education complaints against the Michigan Department of Education (MDE). MPAS' complaints focused on the state's general supervision of schools and how they met the needs of children with challenging disability-related behavior. After the complaints were substantiated, MDE redesigned its complaint investigation process to better serve students and families.
3,000: Children with disabilities restrained or secluded in Michigan schools each year. MPAS supported legislation that placed significant restrictions on use of these dangerous practices.
90.7%: Number of clients surveyed who indicated they would use our services again.
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Flint Records Access Update
MPAS settled its records access lawsuit with Flint Community Schools, preserving the important legal findings in the District Court's decision and assuring a fast turnaround in enforcing the right of parents and the protection and advocacy system to gain quick and complete access to school records.
On December 22, 2015, Flint Schools filed a notice of appeal, claiming that the district court committed an error in deciding that MPAS has a right of access to records. MPAS and FlintSchoolstried to resolve their dispute with a mediator appointed by the Sixth Circuit Court of Appeals, but were unsuccessful in the first attempt. The parties appeared before a panel of Sixth Circuit judges on July 27, 2016 to present oral arguments. After oral arguments, the Sixth Circuit recommended that the parties make another attempt at mediation.
This second attempt at mediation was successful and the parties entered into a settlement agreement in November2016. The terms of this agreement include that Flint Schools will respond to any future requests for records by providing MPAS with all requested education records within 12 business days (or less if any law requires a shorter timeframe). The parties also agreed that Flint Schools would pay MPAS its attorneys’ fees and costs associated with bringing this case. Finally, the parties agreed that the U.S. District Court would retain jurisdiction of the case for five years, in order to enforce the agreement.
This is a great result for children with disabilities. Before this case began, Flint Schools was not responding at all to MPAS’ requests for education records. Now, the school district has committed to providing all requested records within the reasonable timeframe of 12 days. Obtaining records within this timeframe will allow MPAS to focus its resources on providing students with disabilities with the advocacy support they need to ensure that they receive an appropriate education.
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Know When to Fold ‘Em
To those who use the public mental health system and the families, friends, and advocates who support and love you, I wish to highlight your importance to me and our system of care. You and you alone, are what is important. Your courage, passion and desire to live (or help a loved one live) an authentic, self- directed life is and should remain, the North Star in all we do. Never shy away from demanding that we do better. It is only your expectations and demand for continuous improvement, and at times, revolution, that will force the system to produce change leading to progress.
Only you will assure that our tax dollars are invested in care and supportive treatment and not squandered on politics, profits, and layers of bureaucracy that enrich the system at the expense of you and the people you love. Your voice will keep the system honest and focused on people in need. Like the minutemen of our country’s early history, you need to be on guard and ready to spring into action at a moment’s notice as the 298 struggle continues to remind us.
Tom Watkins,
Tom Watkins is the president and CEO of the Detroit Wayne Mental Health Authority.
"Section 298" Community Mental Health Final Report Released
The Michigan Department of Health and Human Services (MDHHS) submitted the final report for the Section 298 Initiative to the Michigan Legislature on March 15. The Section 298 Initiative is a statewide effort to improve the coordination of physical health services and behavioral health services. MPAS staff participated in the Initiative as members of the 298 Facilitation Workgroup.
The final report includes the 70 initial policy recommendations outlined in the interim report, and also incorporates several new recommendations from the workgroup on financing models and benchmarks for implementation. The Legislature will consider the report in crafting the 2018 budget.
State Board of Education Approves New Policy toLimit Restraint and Seclusion in Schools
The State Board of Education unanimously approved changes to Michigan's policy on restraint and seclusion in schools at its March 14 meeting. The new policy implements the language in recently-enacted Michigan law that places significant limits on the use of these dangerous practices.
State law now limits use of restraint and seclusion to emergencies posing danger of harm to self or others, and places limits on how and by whom those emergency practices are used. It bans certain practices, such as prone restraint, that are especially dangerous, and encourages use of positive behavior support and other evidence-based practices to prevent future emergencies. The law also requires reporting to parents, data collection, and training for school personnel.
Local districts are required by law to adopt their own policies, consistent with the new statutes and the new Board policy, for the 2017-18 school year.
For more information on the new seclusion and restraint law, please contact MPAS at 800.288.5923.
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Yes, You Are an Advocate
Written by:
Brett Williams-Public Policy Analyst
Michigan Developmental Disabilities Council
What does it mean to be an advocate? As you ponder that question, we will explore the things you do every day and how those actions help change your life, or the lives of your loved ones.
Everyone, at one time or another, has worked to change how something is done to improve the services they receive; shared their thoughts and concerns with friends and family, talked with a physician to achieve a healthy outcome; or shared personal stories with complete strangers hoping that they would understand your position. All of this is advocacy.