August 2005
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DRC Moving by September 1; New Program Up & Running
The summer months brought about changes for the Disability Rights Center of Kansas (DRC). As the temperature rises, DRC heats things up with a new downtown location and new program.
New Location:
After months of knocking down walls, choosing paint swatches and ensuring ADA accessibility, DRC is pleased to announce that it will move to its new home in downtown Topeka by the first of September 2005.
With DRC’s new location, located in the first floor of the former St. Gregory Suites building, comes more opportunity and development. DRC’s current location in far southwest Topeka is not the most accessible location for people with disabilities (there is no fixed-route bus service, etc.).
“This move is another sign that we are trying to meet the needs of our consumers,” Michael Donnelly, DRC director of policy and outreach said.
By moving downtown, the State Capitol, state offices, State and Federal Courthouses and DRC’s partner agencies will be more accessible to the DRC staff members who frequent these places.
“The new location will benefit us because we will be closer to the action at the Statehouse and the Courthouse. We’ll have better access to the courts, both state and appellate, and most importantly, our offices will be more accessible to our consumers,” Rocky Nichols, DRC executive director said.
Because there are multiple bus routes downtown, the new DRC office will be more accessible to Kansans with disabilities. DRC also works closely on policy issues with other organizations such as the Statewide Independent Living Council of Kansas (SILCK), InterHab, NAMI, the Big Tent Coalition, the Mental Health Coalition, etc. These partnerships will also benefit from the new location.
“DRC’s move downtown will expedite the ability of advocacy groups to meet and strategize at a moments notice on policy issues impacting people with disability,” Shannon Jones, SILCK director said.
New Program:
DRC acquired the Client Assistance Program (CAP) beginning April 1, 2005, through a re-designation by Governor Kathleen Sebelius. The CAP is 100 percent federally funded and provides advocacy services including administrative, legal and other remedies, to ensure the rights of persons receiving or seeking services under the Rehabilitation Act of 1973 (vocational rehabilitation services, independent living center services, research and training projects, etc). DRC conducted a statewide outreach effort to inform consumers, service providers and other stakeholders about the new one-stop shopping created by this acquisition of the CAP, the services available, the rights of consumers under the Rehabilitation Act of 1973, as well as the services and priorities of DRC.
DRC staff completed 24 presentations attended by 416 participants in 13 cities in Kansas. Those who attended included people with disabilities, family members, service providers, advocates and Kansas Rehabilitation Services (KRS) employees. Attendees expressed their gratitude for the disability rights information presented by DRC. Many also expressed frustration with disability services in Kansas, including vocational rehabilitation services, the traditional focus of CAP services. As the trucking case example on page 3 shows, DRC is already having a positive impact on consumers of vocational rehabilitation through its operation of CAP.
Under the new CAP program, DRC can answer questions, clarify rules, regulations and procedures regarding services and programs funded under the Rehabilitation Act and the ADA. Most importantly, DRC can advocate for legal rights, provide assistance with Individualized Plan for Employment (IPE) and advise and assist with the appeal process.
DRC Investigates Abuse and Neglect case
One of the special powers under federal law granted to DRC is the ability to investigate abuse and neglect of people with disabilities and then remedy them. The following is merely one example of an abuse and neglect investigation that DRC is conducting of a private Intermediate Care Facility for the Mentally Retarded (ICF/MR) in northeast Kansas. It is used to illustrate an important service that DRC provides. The facility is a group home with eight residents who have developmental disabilities. The Department on Aging (DOA) surveyed the facility after it received complaints, to determine whether the facility was in compliance with the conditions of participation for Medicaid and whether the provider met state certification requirements. DOA reported that the house was out of substantial compliance with two different conditions on Sept. 16, 2004. A few of the incidences stated in the report include: a resident left unattended in the shower under running water for two hours, a client with a maggot-filled bowl movement caused by a contaminated feeding tube, a resident found lying in urine-soaked sheets and a resident left in bed with no pajamas or covers over his upper body.
The Department on Aging gave the facility 30 days to come into substantial compliance, which according to the agency it has now done. However, this action does not make right the alleged abuse and neglect.
Upon reviewing the DOA survey report and receiving a complaint, DRC conducted an abuse and neglect investigation. DRC advocates visited the group home, obtained residents’ guardian information and contacted the guardians. DRC is representing four of the eight residents through their guardians and one resident on his own behalf. While the Department on Aging and the Department of Social and Rehabilitation Services (SRS) can take bureaucratic and regulatory steps against the provider, DRC is the only group in the abuse and neglect system empowered to represent the individuals who are wronged by a group home’s violations.
DRC Helps Man Rev Up Trucking Business
Richard Owen is a truck driver from Bison, Kan., and in June 2005, after months of waiting for action from Vocational Rehabilitation (VR), his shiny new red truck arrived along with the rights to run his own trucking business. Richard is an early DRC Client Assistance Program (CAP) success story. DRC acquired the CAP in April 2005.
In 1975, Richard lost his right arm above the elbow while working on an oil drilling rig. After many challenges, Richard began working as a mechanic, but was soon unable to keep up with job demands. Three years later he started driving a hauling truck with a manual transmission using his left arm to shift gears. Then, in September 2004, the Kansas Department of Transportation revoked his commercial driving license because he was driving without a required medical waiver, which had been made mandatory by changes in licensing laws.
According to the Kansas Department of Transportation medical evaluation summary, to receive a medical waiver, Richard would have to take a driving test, submit a state motor vehicle driving record (MVR), acquire a Skill Performance Evaluation (SPE) Certificate and obtain a medical examination report from an orthopedic surgeon stating that he is physically qualified to drive a commercial motor vehicle (CMV). These barriers were unmovable without help from VR.
Richard contacted VR for assistance. VR issued him his fifth prosthetic arm. Unfortunately, the arm, like others before, was not compatible with the functions needed to successfully regain his commercial drivers license and continue driving a truck.
“No matter what kind of arm they put on me, I wouldn’t be able to operate a vehicle,” Richard said. “I did not get the proper rehab treatment 20 years ago, so I’ve lost about 90 percent of the movement in my right arm.” Richard was told to search for other career opportunities.
Richard, understandably frustrated with VR, contacted DRC for help. As a result of DRC’s advocacy, VR set up an appointment for Richard with a physiatrist in Hays, Kan. Richard was told that he would not benefit from a prosthetic arm because of the lack of movement in his arm and the space in the truck. To continue driving trucks, Richard would have to have a vehicle with an automatic transmission.
“I lost about $36,000 in income trying to figure this all out. But once DRC starting helping me, things got done.” Richard said.
In January of 2005, Richard’s employer, Bosch Hauling, sold out the business, leaving Richard with no job, no truck and no license.
DRC approached VR and helped Richard submit a proposal for owning his own trucking company. Richard’s business plan was accepted and VR purchased a 1999 Freightliner truck and paid for the initial company start up costs.
Richard’s truck arrived in June and after successfully completing a driving test, Richard has been contracting out work for his company, RD Owen Trucking.
Welcome New DRC Staff Members
Karen Flesch, M.S.W.
Disability Rights Advocate
Karen graduated from Oberlin College with a Bachelor of Arts degree in psychology and received a Master of Social Work degree from Washburn University. In conjunction with her social work training, Karen completed field placements at Shawnee County Health Agency and the Colmery O’Neil Veterans Administration Medical Center. At Shawnee County Health Agency, Karen provided social work services through the Family Planning and Maternal & Infant Health programs. Karen also served as a Spanish/English interpreter and translator for programs at the health agency. At the Veterans Administration, Karen was a social work intern in the hospital’s continued care psychiatry program. During her graduate studies Karen participated in the HealthCorps division of the AmeriCorps national service program. While at Washburn, Karen was nominated to Phi Kappa Phi and Phi Alpha academic honor societies. As part of her commitment to social justice, Karen has pursued volunteer work with a variety of social service agencies in Topeka. Karen presently volunteers with Breakthrough House, where she has been a Compeer for the past three years.
Karen Eager, J.D.
Disability Rights Attorney
Karen received her law degree from Washburn University School of Law where she graduated with Dean’s Honors, was a member of the Law Review and served as Comments Editor on the Law Review Editorial Board. She received her Bachelor of Arts degree in History and Humanities/Philosophy from Northwest Missouri State University. Karen’s legal career began as a staff attorney with Legal Services for Prisoners where she represented inmates at the Hutchinson Correctional Facility and Larned State Hospital. She has also been a staff attorney for the State Board of Indigent Defense Service’ s Appellate Defender Office where she wrote numerous appellate briefs and presented oral arguments before the Kansas Appellate Courts. After a stint in private practice in Lawrence, Kansas, Karen joined the firm of Shamberg, Johnson & Bergman in Kansas City, Missouri where she was involved in complex product liability and medical malpractice litigation. She is a faculty member in Washburn University School of Law’s Intensive Trial Advocacy Program.
Nick Cobos
Office Assistant
Nick has lived in Topeka is a Lifelong Topekan and has received office experience with companies such as Goodell, Stratton, Edmonds and Palmer. He is chairman of the Shawnee County Council of Community Members and had served in the past on the Board of Directors for DRC. Nick is a volunteer at TARC, where he once received services, and has volunteered at the Topeka Civic Theatre and Academy. Nick enjoys playing golf, watching sports, listening to music and working on the computer. He has also written his autobiography about being a self advocate and a person with a developmental disability, “Dreamer’s Don’t Quit.”
Catherine E. Johnson, J.D., M.A.
Disability Rights Attorney
Catherine received her law degree from the University of Iowa, College of Law. Catherine is licensed to practice law in Iowa and Missouri, and soon in Kansas. She received her undergraduate degree in Business Administration and English from t he University of Iowa, as well as a Masters Degree in Higher Education, specializing in students’ civil rights. Catherine started her legal career as a staff attorney for Muscatine Legal Services, advocating for individuals in civil, criminal and juvenile actions. Catherine’s long-standing interest in students’ civil rights in education, led her to unique professional opportunities, as Director of Student Legal Services, University of Iowa, Assistant Dean of Students for Saint Louis University, School of Law, and Managing Attorney, Civil Justice Clinic, Washington University, School of Law. In those capacities, she represented, advocated, and counseled students in legal, academic and life issues. Catherine has also been a civil commitment and defense staff attorney for the Iowa and Missouri Public Defender Offices, where she represented individuals the state sought to commit under newly enacted civil commitment statutes. Catherine has written numerous appellate briefs and presented oral arguments before the Iowa Appellate Courts.
Michelle Studebaker, B.S.W.
Disability Rights Advocate
Michelle graduated Magna Cum Laude from Washburn University with a Bachelors degree in Social Work. While obtaining her degree, Michelle was secretary for the Washburn Student Social Work Association and participated in the many association functions and activities. Michelle also completed her internship at the V.A. Health Care System of Topeka as part of her Social Work curriculum and studies. Prior to coming to work for DRC, Michelle worked as a Para-educator for USD 501 in Topeka. She assisted students with both hearing impairments and visual impairments while at USD 501. Michelle currently is a board member of Kansas Association of Blind Athletes (KABA), and is Vice President of the Client Council for Kansas Services for the Blind.
Wrap-Up on the 2005 Special Session of the Kansas Legislature
The Legislature was called to Topeka in late June to respond to a Kansas Supreme Court decision on school finance. Essentially, the Court found that the State had not met its constitutional responsibility to adequately fund schools, especially special education, at-risk programming and services for students whose first language is not English.
DRC submitted an Amicus brief (Friend of the Court brief) in the school finance case asking the Court to pay attention to the needs of students using special education services. The Court’s decision requiring additional funding for special education was important to DRC and other special education advocates. Because it was part of the Court’s order to the state, Special Education Services received a great deal of focus and funding during the special Legislative session. The Legislature added $13.5 million to special education (2005-2006 school year) during the Special Session on top of the $17.7 added to special education in the regular session, for a total of $31.2 million. The cumulative amount that the Legislature added for all K-12 education was $304 million.
Although education funding was the primary purpose of the Special Session, much of the 12 days was spent on proposals to amend the Kansas Constitution. Both the United States and Kansas Constitutions ensure citizens the right to due process, including judicial remedies (relief). The proposed amendments to the Constitution would have taken away a persons right to monetary, and in some cases, injunctive relief when Kansans with and without disabilities successfully sue the state for violations of their legal or civil rights, or for injuries suffered by some action of the State. DRC was one advocacy that openly opposed the proposals during the Special Session. Both House Concurrent Resolution 1603 (HCR 1603) and Senate Concurrent Resolution 5003 (SCR 5003) were defeated when they failed to receive the necessary two-thirds majority vote in the Kansas House of Representatives.
“Life, Liberty and Safety”
2005 Policy Updates of the Disability Rights Center of Kansas
During the 2005 legislative session, the Disability Rights Center (DRC) took on several large public policy initiatives. All of DRC’s 2005 public policy initiatives focused on issues of “life, liberty and safety” for Kansans with disabilities.
Life:
Limiting a Guardian’s Ability to Withhold Medical Treatment
Kansas guardianship law makes it far too easy for a guardian to withhold or withdraw medical treatment from a person with a disability. The law states that a guardian can remove life preserving medical treatment, including food and water, from the person with a disability if that person relies on “artificial means” (feeding tube, portable respirator, etc.).
It is not required that the person with disabilities be on emergency life support to have life sustaining food, water or medical care withheld. Furthermore, the person with a disability, whose medical treatment is being withheld, does not have a say in what happens to them. The Court has no discretion and is required to issue the order to withhold medical care.
DRC’s original proposal on this issue was detailed in HB 2307, which called for an automatic due process and other protections for persons with disabilities under guardianship to ensure that their intent regarding withdrawal or withholding of food, water and medical care is honored. The House Judiciary Committee held a hearing on HB 2307, but did not act on the proposal. Although not introduced as a Terri Schiavo bill, the media attention surrounding the Schiavo case in Florida assisted in getting the full House to amend the DRC proposal on withholding and withdrawing of food and water into SB 92.
The House passed SB 92 with a 95-29 vote, and the issue was further considered by a conference committee resulting in a signed Committee report. However, the Senate did not debate this conference committee report. The DRC Bill will likely be studied in the interim by the Kansas Judicial Council and it is highly likely that some measure will be given serious consideration for passage in the 2006 session.
Protecting All Kansans with Mental Retardation from the Death Penalty
Recently, the Kansas Supreme Court ruled a portion of the death penalty law unconstitutional. During the 2005 Session DRC hoped to further clarify Kansas death penalty law as it relates to persons with significant cognitive disabilities, of which the label “mental retardation” is perhaps the most well known.
DRC wants to ensure that persons with significant intellectual functioning disabilities (defined as two or more standard deviations below the norm on an IQ test) are protected from the death penalty, regardless of the age of onset of the disability. Nearly 80 percent of Americans support preventing persons with these types of disabilities from being executed.
DRC endorsed SB 14 and SB 32. Both of these bills would exempt persons with significant intellectual functioning disabilities from the death penalty, regardless of the “age of onset” of the disability. Both bills ensure determination of the disability is made pre-trial.
Because the Legislature is waiting for the US Supreme Court to act on our death penalty law, the Legislature is putting all death penalty bills on hold.
Liberty & Safety:
Lessons from the Kaufman House Case DRC and the Kansas Attorney General developed a package of bills to help prevent cases of abuse, neglect and exploitation, like the Kaufman House, in the future.
Three Bills by DRC & the Attorney General on Kaufman House:
1. Eliminate Systemic Conflicts of Interest -
The Kaufman case is surrounded by the issue of conflict of interest. The conflicts of interest in this case are clear: Mr. Kaufman was the 1) Guardian/Conservator, 2) therapist, 3) landlord and 4) alleged sexual abuser of the woman for whom he was appointed to protect. These conflicts are allowed under current Kansas law. DRC thinks that Kansas law must change to at least prevent non-family guardians/conservators from having conflicts of interest with their ward. This change was proposed in HB 2307 and SB 240.
2. Hold Unregulated Group Homes Accountable – The Governor signed SB 116 giving the state authority to close unlicensed group homes that serve persons with disabilities or homes which refuse to become licensed. This new law also requires SRS to license all programs or facilities with two or more persons with disabilities in a residential setting. DRC’s proposed this new licensing requirement as part of a three-pronged package of bills to help prevent abuse in residential facilities like the Kaufman case.
3. Collaborative Abuse, Neglect & Exploitation Unit - HB 2306 and SB 239 would have established a state unit to investigate and prosecute perpetrators of abuse, neglect and exploitation of persons with disabilities through either criminal prosecution (through the Attorney General) or civil remedies (through DRC). The final budget did create the Protection and Advocacy For Kansans with Disabilities Fund in the Attorney General’s office, but no funding was added. DRC is hopeful that the 2006 Legislature will put state monies into this newly established fund to bring perpetrators of abuse and neglect of persons with disabilities to justice.
Safety:
Seclusion Rooms & Restraints
There is no state law or policy that limits placing school children in harmful seclusion rooms or restraints. Persons in state institutions (KNI, Larned, etc.) have more protection from seclusion and restraint than school children because Kansas regulates these tactics in state institutions
Implementing an effective policy would help hold schools accountable for the use of these potentially damaging measures on the 65,000 children receiving special education services.
DRC’s bill to limit seclusion and restraint (SB 241) was sent to the Senate Education Committee where the Committee directed the State Board of Education to adopt rules and regulations to establish protections and standards on the use of these potentially damaging interventions. A committee has been established by the Kansas State Department of Education to draft potential rules and regulations. DRC is actively participating and advocating on this committee for effective rules and limits on the use of seclusion rooms and restraints.
Boy Makes Big Hit in D.C. for Winning Grand Slam Case
For most young boys, summertime means playing outside with the sun on their faces, ball gloves planted on their hands, baseballs flying in every direction and dirt covering every inch or their frame. Last summer, Matthew Whaley successfully fought to experience this small part of the American dream. It took DRC’s legal representation and a federal lawsuit before the 8-year-old with cerebral palsy was allowed to play on his summer baseball team in his home town of Scott City, Kan.
Last month, after his legal battle to run the bases was conquered, Matthew was honored in Washington D.C. at a celebration of the 15th anniversary of the Americans with Disabilities Act (ADA). Matthew and his mom, Jennifer Berends, also provided testimony to a Congressional briefing which was co-sponsored by the Congressional Disability Caucus and the Consortium of Citizens with Disabilities. Matthew’s story was so compelling that it was picked up by the national media and was even featured as a case example of what is good about the ADA on NPR’s Morning Edition.
“It meant a lot to have that honor because it is more than just a small issue with Matthew. We hope that our case will give other parents the courage to see that it is OK to stand up for their rights and their children’s rights,” Jennifer Berends said.
In addition to addressing the Congressional briefing and telling their story to a national audience, Matthew and Jennifer met with members of the Kansas Congressional Delegation to educate them on the importance of the ADA.
“I was delighted to meet Matthew in Washington,” Senator Pat Roberts said. “He’s a courageous young man. His story is proof positive of the need for the Americans with Disability Act (ADA). Persons with disabilities should not be discriminated against in the workforce, in the academic world, or even on the baseball field. Matthew’s persistence to play gives other youth the opportunity to overcome any hesitation, and step up to the plate.”
Last summer, Jennifer contacted DRC after the Scott City Recreation Commission said Matthew, who uses a walker for mobility, couldn’t play little league baseball because he was a “direct threat” to the other players. The commission also said his participation would “fundamentally alter” the game of baseball, though Matthew requested no rule changes or accommodations. U.S. District Court Judge J. Thomas Marten in Wichita ruled in favor of DRC’s position and found the league was in violation of Matthew’s civil rights under the ADA. Judge Marten then imposed a preliminary injunction ordering the commission to allow Matthew to play ball.
“He should be allowed to play like any other kid. Just let him get out there and bat, hit, play and run,” said Kirk Lowry, litigation director for DRC, who represented Matthew in the case.
Congress passed the ADA to ensure full integration of people with disabilities into all of society, including recreation opportunities. This ruling is a precedent for Kansans with disabilities.
“DRC is proud of our successful legal advocacy for Matthew and even more pleased that his courage and fight for his right to play baseball under the ADA is getting national recognition,” said Rocky Nichols, DRC executive director.
New Medicare Program Covers Prescription Drugs
Historically Medicaid, not Medicare, has covered prescription drugs. Medicare is the federal medical insurance program for all people over 65 and people with disabilities who have qualified for Social Security Disability Insurance (SSDI) for 2 years. Medicaid is the joint state/federal health insurance and long-term care program for categorically eligible groups of people, including people with disabilities who live with low income and resources. Medicaid is funded 60 percent by the federal government and 40 percent by the states, but is 100 percent administered by the states.
MEDICARE - PART D
Congress passed the Medicare Modernization Act in 2003. The Act provides for coverage of outpatient prescription medication costs for the first time as part of Medicare. These medications will be administered through private sector Prescription Drug Plans (PDPs) and Medicare Advantage (MA) plans.
One critical issue of importance to many people with disabilities is the impact this will have on those persons currently receiving both Medicaid and Medicare. Effective January 1, 2006, all of these persons, referred to as dual eligibles, will be required to participate in this new Medicare program. That means that if you are currently receiving Kansas Medicaid and are eligible for Medicare (an SSDI recipient also) your Medicaid will no longer cover prescription drugs after Jan. 1, 2006.
Beginning Nov. 15, 2005, individuals who are dually eligible will be required to enroll in one of the Medicare prescription plans offered to them. If they do not choose a program and enroll before January 1, 2006, they will be automatically enrolled by Medicare and the plan will be randomly selected.
Persons currently receiving only Medicare will also be eligible to enroll and will have a prescription plan. This automatic enrollment may not take place until spring 2006.
Individuals who are only receiving Medicaid will not be affected by this change.
Dual eligibles may have to pay monthly co-payments ranging from $1 to $5 per prescriptions.
Special benefits will be available to help with the premium costs of Medicare Part D prescription drug coverage. These are called Low Income Subsidies. Individuals will have to apply for these subsidies through Social Security or through SRS unless they are currently getting Medicaid. In that case, they will automatically be eligible.
Although you may be automatically enrolled, you can switch plans on a monthly basis if you choose. This is also true if you selected a plan before Jan. 1, 2006.
When selecting a plan, it is important to compare your current medications to the medications covered by the plan. This is often referred to as a formulary. Each plan option will describe their formulary and which medications are covered under that plan and which are not. The plans may also specify particular pharmacies that must be used. Information regarding the various plans should be mailed sometime in Oct. 2005. A booklet, “Medicare & You 2006” will be available and will list the Medicare prescription drug plans available in your area.
Kansas Medicaid will not cover persons refusing Medicare Part D. People refusing Part D will be left without drug coverage.
It is DRC’s understanding that enrollment will be available through the mail, the Internet (at www.medicare.gov), by phone at 1-800-MEDICARE (1-800-633-4227) or at local Social Security offices. TTY users should call 1-877-486-2048. Reportedly there will be help available at those resources to assist you in choosing your plan.
DRC will provide additional information as requested and will be closely monitoring the appeal processes related to delivery of services and other issues that will ensure that Kansans with disabilities are provided with the support they need without interruption.
New Legislation: IDEA Changes
On November 19, 2004, Congress passed legislation to reauthorize the Individuals with Disabilities Education Act (IDEA). Similar Kansas legislation went into effect on July 1, 2005. This is a summary of the new IDEA law:
Overview:
Congress again affirmed that children with disabilities have a civil right to an equal education. Congress retained the fundamental right to a free appropriate public education (FAPE) in the least restrictive environment (LRE). Children have a right to FAPE in the LRE, an Individual Education Plan (IEP), to due process, as well as a right to refuse initial evaluation, services or alternative placement.
Reduction of Paperwork:
IEPs must still include goals for all students, but benchmarks and short-term objectives are only required for the students with the most severe disabilities. However, a description of how progress toward goals will be measured, and regular progress reports are required.
IEP Content:
Even though short-term objectives are not mandated by law, parents can request that they be done by the IEP team. Parents may want to take the position that short-term objectives are the way to measure progress toward meeting identified goals.
IEP Team Attendance:
The new regulations allow certain IEP team members to be excused from attending the meeting if the area for which they provide services is not being discussed.
IEP – Multi-Year IEP Demonstration:
The Secretary of Education is authorized to approve proposals from up to 15 states that would allow local school districts to offer multi-year IEPs, not to exceed 3 years in length. Parental consent would be required to use this option. This has the potential of limiting parental participation in their child’s educational planning by reducing the annual IEP requirement currently in place.
Discipline and Manifestation Determination Review:
Prior to IDEA 2004, the school district was responsible, prior to implementing certain disciplinary procedures, to show that the behaviors being addressed were not a manifestation of the student’s disability. Under the new law, it is now necessary for the parent to establish that the behavior was caused by, or had a direct and substantial relationship to the child’s identified disability.
45 Day Limit:
The option for a school to place a student in an alternative educational setting has been changed from 45 calendar days to 45 school days. This has significant impact as it will allow for a 9 week instead of 6 week removal and could negatively impact the student academically and emotionally.
Case by Case Determination:
The new IDEA law provides that the school may consider disciplinary action, or alternate educational placement for students on a case by case basis. This provision can cut both ways. It could offer some support for parents in the sense that school personnel have the option to consider any unique circumstances when determining whether to change the placement of a child who violates a school code of conduct.
Transfers between School Districts:
New provisions in IDEA 2004 require that services in a current IEP be continued when a student transfers from one state to another during the school year until a new IEP is developed, adopted and implemented. Previously, this provision only applied to in-state transfers from one district to another.
Due Process:
Procedural Safeguards Notice:
Under IDEA 2004, school districts are no longer required to automatically provide parents written notice informing them of their due process rights along with IEP team meeting and re-evaluation notices. Parents will need to be aware of their rights, including the right to request this material if they need it.
Resolution Session:
There is now a requirement for a mandatory “resolution session” before going to Due Process. The requirement can be waived if both the parents and the school district agree, in writing, or if they agree to use the mediation progress outlined in the Law.
Attorney’s Fees:
If a request for due process or cause of action is determined to be frivolous, unreasonable, or without foundation/merit, the parent’s attorneys may be responsible for paying the attorney’s fees incurred by the school district. Additionally, parents themselves could be responsible for the school district’s attorney’s fees if it is determined that the request was presented for inappropriate purposes like harassment. While it is important that there should not be the filing of an improper or frivolous cause of action, this could have a chilling effect on parents looking for legal representation and serve as a deterrent for filing valid complaints.
DRC on track to triple number of Kansans served!
By Rocky Nichols, DRC executive director
Nearly two years ago we began a journey together. Now that journey has taken us to a far better place. The journey I am talking about is the comprehensive agency-wide reorganization of DRC.
As you recall, almost two years ago DRC began a very public, transparent and comprehensive agency-wide reorganization. The goal of the reorganization was to dramatically improve the quality and quantity of legally-based advocacy services provided by DRC. Now, less than two years later, the reorganization is already beginning to have a huge impact in the amount and level of advocacy services we provide.
For example, if we stay on our current pace then by the end of the federal fiscal year we will serve more than triple the number of Kansans with disabilities with our legally-based advocacy services. In 2003 DRC (then KAPS) only served 264 Kansans with legal-based advocacy (4 through legal representation and 260 through advocacy/self advocacy). Now DRC is on target to serve 923 Kansans (a projected 80 with legal representation and 843 with advocacy/self advocacy). That is a 3.5 fold increase. And, that increase was achieved at the same time that our agency sustained a nearly 1 percent across the board budget cut. That’s doing more with less!
The above numbers show dramatic improvement in the quantity of our services. Also of note is the positive change in the quality and level of our services. Before the reorganization, consumers were twice more likely to be told “we can’t help you” and simply sent away with a referral to another agency instead of being provided legally-based advocacy (in 2003, 70% of cases were information/referals, vs. 30% legal representation/advocacy/self-advocacy). The difference post-reorganization is night and day. Now, callers are more than four times more likely to be provided a legally-based advocacy service than being told “we can’t help you” (in 2005, only 18% of cases were information/referalls, vs. 82% legal representation/advocacy/self-advocacy).
I am so proud of the efforts of our hard working employees at DRC. I want to thank them for their dedication and effort. I also want to thank the disability community in Kansas for your patience and understanding through the changes we have made at DRC. These numbers show that the reorganization, though painful, was well worth it.