RSA-509 - Protection & Advocacy of Individual Rights (PAIR) Program Performance Report

Delaware (COMMUNITY LEGAL AID SOCIETY,) - H240A120008 - FY2012

General Information

Designated Agency Identification

NameCommunity Legal Aid Society Inc.
Address100 W. 10th Street Suite 801
Address Line 2
CityWilmington
StateDelaware
Zip Code19801
E-mail Addressbhartman@declasi.org
Website Addresshttp://www.declasi.org
Phone302-575-0660
TTY 302-575-0696
Toll-free Phone800-292-7980
Toll-free TTY
Fax302-575-0840
Name of P&A Executive DirectorWilliam Dunne, Executive Director
Name of PAIR Director/CoordinatorBrian J. Hartman
Person to contact regarding reportBrian J. Hartman
Contact Person phone302-575-0660
Ext.220

Part I. Non-Case Services

A. Individual Information and Referral Services (I&R)

Multiple responses are not permitted.

1. Individuals receiving I&R within PAIR priority areas145
2. Individuals receiving I&R outside PAIR priority areas0
3. Total individuals receiving I&R (lines A1 + A2)145

B. Training Activities

1. Number of trainings presented by PAIR staff25
2. Number of individuals who attended training (approximate)2,242

Community Education and Presentation Events FY12

DLP staff exhibited at the 2011 NAMI Conference on October 13, 2011. Staff spoke to attendees about all DLP programs and services including the PAIR program. There were approximately 250 persons in attendance. Staff distributed an assortment of 259 brochures, pamphlets and booklets that contained PAIR related information. [11-1032577]

The DLP Legal Advocacy Director gave a presentation at Widener University’s Professionalism Day on October 26, 2011. The Legal Advocacy Director spoke to attendees about all DLP programs and services including the PAIR program, and the practice of public interest law. There were 40 persons in attendance. There were no materials distributed. [11-1032965]

The DLP Legal Advocacy Director gave a presentation for the HRSA Learning Institute on October 27, 2011. The Legal Advocacy Director spoke to attendees about medical-legal partnerships in social services context and gave an overview of all DLP programs including the PAIR program. There were approximately 250 persons in attendance. Staff distributed 250 sets of materials that contained information related to the PAIR program. [11-1032732]

DLP staff exhibited at the 2011 Community Mental Health Conference on November 19, 2011. Staff spoke to attendees about all DLP programs and services including PAIR. There were approximately 250 persons in attendance. The DLP distributed an assortment of 190 brochures and pamphlets which contained information related to the PAIR program. [11-1033211]

The DLP Project Director gave a presentation at the LIFE Conference on January 19, 2012. The Project Director presented on state legislation in 2012, in which he described legislation on topics such as accessibility, voting and disability prevention. There were 120 persons in attendance. There were 120 sets of materials distributed. [11-1031432]

The DLP exhibited at the LIFE Conference on January 19, 2012. Staff gave an overview of all DLP services including the PAIR program. There were approximately 400 persons in attendance. Staff distributed an assortment of 529 brochures, pamphlets and booklets that contained information related the PAIR program. [12-1035142]

DLP staff gave a presentation to employees from the Delaware Center for Justice on February 17, 2012. Staff spoke to attendees about special education law and gave an overview of all DLP programs and services including PAIR. There were 2 persons in attendance. Staff gave attendees 55 DLP brochures to distribute to their constituents. [11-1033408]

The DLP Legal Advocacy Director presented on a panel at the University of Delaware’s Academy of Life Long Learning on February 23, 2012. The Legal Advocacy Director spoke to attendees about medical-legal partnerships and gave an overview of all DLP programs and services, including the PAIR program. There were 150 persons in attendance. No materials were distributed. [12-1033881]

The DLP Legal Advocacy Director gave a presentation about DLP programs and services, including the PAIR program at Widener University on March 6, 2012. There were 5 persons in attendance. There were no materials distributed. [11-1033152]

DLP staff gave a presentation to Wraparound Delaware staff on March 8, 2012. Staff spoke to attendees about public benefits and special education. They also gave an overview of all DLP programs and services, including the PAIR program. There were 12 persons in attendance. Staff distributed an assortment of 195 brochures and pamphlets which contained PAIR related information. [12-1034038]

The DLP exhibited at the 2012 Brain Injury Conference on March 21, 2012. There were approximately 200 persons in attendance. The DLP distributed an assortment of 150 brochures and pamphlets which contained PAIR related information. [12-1035004]

The DLP Project Director gave a presentation to the Delaware Congressional delegation on March 27, 2012. Included in the presentation was an overview of all DLP programs and services including PAIR. There were 7 persons in attendance. The DLP distributed 3 sets of materials which contained PAIR related information. [12-1034268]

The DLP attended the 2012 Disability Day on April 4, 2012. There were 50 persons in attendance. Staff spoke to attendees about DLP programs and services including the PAIR program. Staff distributed 50 DLP brochures which contained information about the PAIR program. [12-1035005]

DLP staff gave a presentation at Independence Resources Incorporated about disability services in Delaware for individuals living in the community on April 9, 2012. Staff spoke to attendees about all DLP programs including the PAIR program. There were 7 persons in attendance. There were 14 brochures distributed to attendees which contained information about the PAIR program. Staff also distributed 120 brochures to Independent Resources Incorporated for distribution to their constituents that contained PAIR related information. [12-2034394]

The DLP Legal Advocacy Director gave a presentation at Widener University on April 12, 2012. The Legal Advocacy Director presented on poll site monitoring for the 2012 Primary. There were 15 persons in attendance. No materials were distributed. [12-1033976]

DLP staff gave a presentation at a symposium sponsored by the Widener Journal of Law, Economics, and Race on April 25, 2012. Included in the presentation was an overview of all DLP programs and services including the PAIR project. There were 60 persons in attendance. There were no materials distributed. [12-1033673]

DLP staff gave a presentation at Wilmington University to the disability services graduate class on May 5, 2012. Staff spoke to attendees about the history of P&A’s and DLP programs and services including the PAIR project. There were 20 persons in attendance. There were 20 brochures distributed that contained information about the PAIR project. [12-2034678]

The DLP Legal Advocacy Director gave a presentation at HRSA on May 17, 2012. The Legal Advocacy Director spoke to attendees about medical legal partnerships and gave an overview of DLP programs and services including PAIR. There were 35 persons in attendance. There were no materials distributed. [12-1034722]

DLP staff gave a presentation to the Delaware Healthy Mothers and Infants Consortium on June 14, 2012. Included in the presentation was an overview of all DLP programs and services including PAIR. There were 7 persons in attendance. There were 14 sets of materials distributed which contained information related to the PAIR project. [12-1034723]

DLP staff gave a presentation to the Food Allergy and Asthmatic Multicultural Society of Delaware about the ADA and Section 504, and their impact on work, school and day care accommodations on August 15, 2012. Staff also spoke to attendees about all DLP programs and services including the PAIR project. There were 7 persons in attendance. There were no materials distributed. [12-1035598]

DLP staff gave a presentation at the Partners in Policymaking meeting on June 16, 2012. All "Partners" are persons with disabilities or family members. Staff gave an overview of all DLP programs and services including PAIR. There were 23 persons in attendance and 23 brochures were distributed that included PAIR related information.

DLP staff gave a presentation at the Rick Van Story Center on August 28, 2012. Staff spoke to attendees about the ADA Integration Mandate and highlighted potential voting barriers in the upcoming election for individuals with disabilities. There were 15 persons in attendance. There were 26 brochures and pamphlets distributed that contained PAIR related information. [12-1036103]

DLP staff gave a presentation at the CLASI office in Dover, Delaware on August 29, 2012. Staff spoke to attendees about the ADA Integration Mandate and highlighted potential voting barriers in the upcoming election for individuals with disabilities. There were 10 persons in attendance. There were 29 brochures and pamphlets distributed that contained PAIR related information. [12-1036142]

DLP staff gave a presentation at the Georgetown Presbyterian Church on August 30, 2012. Staff spoke to attendees about the ADA Integration Mandate and highlighted potential voting barriers in the upcoming election for individuals with disabilities. There were 7 persons in attendance. There were 7 brochures distributed that contained PAIR related information. [12-1036148]

The DLP exhibited at Wilmington Wellness Day on September 15, 2012. Staff spoke to attendees about all DLP programs and services including the PAIR program. There were approximately 300 persons in attendance. Staff distributed an assortment of 138 brochures and pamphlets which included information related to the PAIR project. [12-1036351]

C. Information Disseminated to the Public

1. Radio and TV appearances by PAIR staff0
2. Newspaper/magazine/journal articles0
3. PSAs/videos aired0
4. Hits on the PAIR/P&A website5,109
5. Publications/booklets/brochures disseminated2,431
6. Other (specify separately)0

Narrative

N/A

Part II. Individuals Served

A. Individuals Served

Count individual once per FY. Multiple counts not permitted for lines A1 through A3.

1. Individuals still served as of October 1 (carryover from prior FY)49
2. Additional individuals served during the year57
3. Total individuals served (lines A1 + A2)106
4. Individuals w. more than 1 case opened/closed during the FY. (Do not add this number to total on line A3 above.)7

B. Individuals served as of September 30

Carryover to next FY may not exceed total on line II. A.3 above 36

C. Problem Areas/Complaints of Individuals Served

1. Architectural accessibility7
2. Employment4
3. Program access0
4. Housing9
5. Government benefits/services47
6. Transportation2
7. Education0
8. Assistive technology0
9. Voting0
10. Health care10
11. Insurance2
12. Non-government services21
13. Privacy rights0
14. Access to records0
15. Abuse2
16. Neglect0
17. Other2

D. Reasons for Closing Individual Case Files

1. Issues resolved partially or completely in individual favor69
2. Other representation found1
3. Individual withdrew complaint4
4. Appeals unsuccessful2
5. PAIR Services not needed due to individual's death, relocation etc.0
6. PAIR withdrew from case0
7. PAIR unable to take case because of lack of resources0
8. Individual case lacks legal merit1
9. Other0

Please explain

E. Intervention Strategies Used in Serving Individuals

List the highest level of intervention used by PAIR prior to closing each case file.

1. Technical assistance in self-advocacy7
2. Short-term assistance35
3. Investigation/monitoring4
4. Negotiation4
5. Mediation/alternative dispute resolution0
6. Administrative hearings19
7. Litigation (including class actions)8
8. Systemic/policy activities0

Part III. Statistical Information on Individuals Served

A. Age of Individuals Served as of October 1

Multiple responses not permitted.

1. 0 - 40
2. 5 - 223
3. 23 - 5983
4. 60 - 6410
5. 65 and over10

B. Gender of Individuals Served

Multiple responses not permitted.

1. Females64
2. Males42

C. Race/Ethnicity of Individuals Served

For individuals who are non-Hispanic/Latino only

1. Hispanic/Latino of any race1
2. American Indian or Alaskan Native0
3. Asian0
4. Black or African American32
5. Native Hawaiian or Other Pacific Islander0
6. White73
7. Two or more races0
8. Race/ethnicity unknown0

D. Living Arrangements of Individuals Served

Multiple responses not permitted.

1. Independent83
2. Parental or other family home11
3. Community residential home1
4. Foster care0
5. Nursing home5
6. Public institutional living arrangement1
7. Private institutional living arrangement0
8. Jail/prison/detention center4
9. Homeless1
10. Other living arrangements0
11. Living arrangements not known0

E. Primary Disability of Individuals Served

Identify the individual's primary disability, namely the one directly related to the issues/complaints

1. Blind/visual impairment6
2. Deaf/hard of hearing1
3. Deaf-blind0
4. Orthopedic impairment46
5. Mental illness0
6. Substance abuse1
7. Mental retardation0
8. Learning disability1
9. Neurological impairment22
10. Respiratory impairment3
11. Heart/other circulatory impairment15
12. Muscular/skeletal impairment1
13. Speech impairment0
14. AIDS/HIV6
15. Traumatic brain injury4
16. Other disability0

Part IV. Systemic Activities and Litigation

A. Systemic Activities

1. Number of policies/practices changed as a result of non-litigation systemic activities138

2. Number of individuals potentially impacted by policy changes57,312

Describe your systemic activities. Be sure to include information about the policies that were changed and how these changes benefit individuals with disabilities. Include case examples of how your systemic activities impacted individuals served.

The DLP had many non-litigation systemic successes. For ease of reference, legislative, regulatory, and policy achievements are compiled in Section V.A. by priority, i.e., Accessibility, Par. 3; Transportation, Par. 4; Housing/Independent Living, Par. 4; and Autonomy, Par. 4.

B. Litigation/Class Actions

1. Number of individuals potentially impacted by changes as a result of PAIR litigation/class action efforts23
2. Number of individuals named in class actions0

Describe your litigation/class action activities. Explain how individuals with disabilities benefited from your litigation activities. Be sure to include case examples that demonstrate the impact of your litigation.

Seventy-six year old lived in subsidized apartment with support from Meals on Wheels and home health services. Landlord filed for eviction based on safety and housekeeping concerns. DLP attorney met with landlord and landlord’s attorney concerning accommodations and eviction action was voluntarily dismissed. Housing was preserved. [10-3028834]

Forty-five year old with chronic impairments due to motorcycle accident lived in supported housing program. He received notice of judicial eviction hearing based on rent arrears. DLP negotiated repayment agreement with automatic debit from client’s checking account to landlord and eviction action was dismissed. [11-2033321]

Seventy year old suffered brain damage after brain tumor surgery. During his rehabilitation, relative removed $110,000 from savings which jeopardized client’s ability to secure new housing to accommodate his limitations. DLP filed unjust enrichment action in Chancery Court and later transferred representation to CLASI=s elder law program (ELP) when attorney transferred to ELP. [08-2007357]

Forty-two year old SSDI beneficiary with orthopedic impairments had monthly benefits reduced by $850 child support order paid to Division of Child Support Enforcement. Mother was receiving benefits for children based on SSDI. Client had inadequate funds to pay rent. DLP represented in Family Court and reduced child support order to zero. [07-1019836]

Forty-seven year old SSDI beneficiary with diabetes, heart disease, kidney transplant, and blindness resided in State nursing home. He desired regular visitation schedule with his minor son who was living with maternal grandparents. DLP filed visitation petition in Family Court and secured order establishing a set schedule for visitation which preserved family integrity and client’s autonomy. [11-2031589]

Fifty-five year old SSDI beneficiary lived in Section 8 housing with son who verbally abused her. DLP represented client in Family Court on petition for protection from abuse order (PFA). DLP facilitated issuance of separate vouchers to client and son and son moved out of premises. Client decided to voluntarily dismiss her PFA petition at Family Court hearing since son had vacated her residence. [12-2033849]

Thirty-nine year old alleged financial exploitation by mother-in-law with whom he had resided until recently. He was currently homeless. DLP represented in Family Court which entered a protection from abuse (PFA) order. DLP also facilitated recovery of client’s personal belongings from former residence with police present. DLP initiated assessment of merits of litigation to recover funds from mother-in-law but she filed bankruptcy, undermining viability of litigation. [09-1024932]; 09-1025316]

Fifty-nine year old SSDI beneficiary based on orthopedic disability assisted with care of her grandchildren. Estranged spouse of daughter applied for Protection from Abuse order against client to undermine current custody order and avoid child support. DLP negotiated stipulation of dismissal of application and preserved client’s autonomy. [11-2032714]

Administrative Agency Level Advocacy

Forty-nine year old with arthritis was denied Unemployment benefits. He was unable to continue employment as heavy equipment operator but physician opined he could perform less strenuous work. DLP represented in multiple administrative hearings and secured favorable eligibility determination. [11-3031594]

Fifty-four year old with orthopedic impairments was denied Unemployment benefits. Her employer had denied her accommodation of modified shifts and Claims Deputy had denied benefits based on finding of inability to work. DLP represented in administrative hearing and secured favorable eligibility determination based on client’s ability to work 8-hour shifts, but not 12-hour shifts, based on physician’s opinion. [11-3032319]

Fifty-four year old with orthopedic impairments was receiving Unemployment benefits. Former employer offered her position at half her former pay and no benefits. Client declined offer but had to report to Department of Labor (DOL) that she had turned down employment. DOL then terminated her Unemployment benefits. DLP represented in Referee hearing but was unsuccessful in securing reinstatement. [12-3034287]

Fifty-eight year old with chronic health impairments received Medicaid termination notice from DHSS when her application for SSDI was approved and she became over-income for Medicaid. DLP requested administrative hearing to contest termination and successfully negotiated with DHSS to secure reinstatement of Medicaid under the Medical Transition to Medicare (MAT) program. [11-1032461]

Fifty-four year old had been paid benefits under a long term disability policy which required her to apply for SSDI and appeal denials. Client received unfavorable SSDI eligibility decision but did not realize she had to appeal. Insurer then demanded she repay $5,509 in funds paid to her under policy. DLP represented client in new SSDI application and convinced ALJ to reopen formerly denied claim. Although SSDI eligibility was once again denied after hearing, client had fulfilled requirements of insurance policy and insurer withdrew demand for repayment of $5,509.

Thirty-eight year old with orthopedic impairments had appealed termination of SSDI benefits based on medical improvement. DLP obtained supporting medical documentation and represented at administrative hearing. However, unfavorable decision was issued. Client decided to not appeal the decision. [11-1031086]

Forty-six year old SSI beneficiary received notice of $1,728 overpayment. DLP filed waiver application, represented client in SSA administrative conference, demonstrated that client was without fault, and secured waiver of entire amount. [11-1030695]

Twenty-seven year old with partial paralysis due to auto accident had $4,361 SSI overpayment. DLP filed waiver application, represented in SSA administrative conference, and secured waiver of entire amount. [11-1032543]

Forty-one year old SSDI beneficiary received $47,404 overpayment notice from the SSA since he had been paid benefits for several years while records showed he had outstanding warrant which disqualified for benefits. DLP requested reconsideration, represented client in multiple SSA administrative conferences, submitted proof that warrant had been withdrawn in 2006, and obtained decision eliminating entire overpayment. [10-1028546]

Sixty-four year old dual SSI/SSDI beneficiary requested assistance regarding SSA recoupment of overpayments of both SSI and SSDI. DLP represented in multiple SSA administrative conferences, and negotiated a reduction in the repayment rate from an aggregate of $35/month to $10/month. [11-1033055]

Fifty-nine year old SSDI beneficiary had received notice of $14,000 overpayment. DLP analyzed, discovered SSA error, represented client in multiple SSA administrative conferences, and successfully reduced overpayment to $6,457. SSA then agreed to benign repayment schedule of $10/month. [10-1027682]

Fifty-eight year old former SSI beneficiary amassed $9,800 overpayment when husband returned to household and his income made household over-income for benefits. DLP represented client in conference with SSA representative seeking waiver. However, SSA denied based on failure to report change in living arrangements. Since client had no funds to repay, DLP provided advice on options based on review with SSA, including repayment upon eligibility for retirement benefits at age 62 or divorce of spouse. [12-1034727]

Twenty-one year old with visual impairment received notice of $7,220 overpayment of Disabled Adult Child benefits and suspension of benefits. DLP submitted reconsideration request, represented in multiple SSA administrative conferences, secured reinstatement of benefits, elimination of overpayment, and payment of $9,778 in wrongfully withheld benefits. [11-1031981]

Fifty-two year old with orthopedic impairments was being evicted from mobile home park due to arrears on lot rent. She needed additional income but had recently received a notice denying her claim for SSDI. The DLP represented her at the Reconsideration level, submitted extensive medical support from five sources, requested expedited decision from DDS, and secured a favorable eligibility decision. [11-1032946]

Forty-nine year old retail store cashier with fibromyalgia asked for reasonable accommodation of intermittent leave to obviate adverse consequences of frequent absences due to flare ups of condition. Retailer denied request and fired for absenteeism. DLP represented in DOL discrimination complaint based on ADA and State law. DOL issued charge and retailer settled as part of conciliation meeting for $8,177. [11-3030538]

Part V. PAIR'S Priorities and Objectives

A. Priorities and Objectives for the Fiscal Year Covered by this Report

For each of your PAIR program priorities for the fiscal year covered by this report, please:

  1. Identify and describe priority.
  2. Identify the need, issue or barrier addressed by this priority.
  3. Identify and describe indicators PAIR used to determine successful outcome of activities pursued under this priority.
  4. Explain whether pursuing this priority involved collaborative efforts by other entities. If so, describe this collaboration.
  5. Provide the number of cases handled under the priority. Indicate how many of these, if any, were class actions.
  6. Provide at least one case summary that demonstrates the impact of the priority.

A. FIRST PRIORITY: ACCESSIBILITY.

1. Identification

The PAIR program will promote and facilitate access to governmental programs and public accommodations.

2. Need, Issue or Barrier Addressed

Persons with disabilities are frequently denied services because they cannot "get in the door" or because they need accommodations (e.g. interpreters; service dog accompaniment). Safety-net public benefits programs may also present eligibility or standards-based barriers to effective access by persons with disabilities.

3. Outcome Indicators

Successful outcomes under this priority include the removal of architectural barriers, cessation of discriminatory practices, and amending policies to provide equal and effective access to governmental programs and places of public accommodation by people with disabilities. As reflected in the PAIR FY 12 Priorities, the outcome indicators for this objective were as follows:

a. As a result of DLP intervention, 30 persons will secure equal or improved access to governmental services or public accommodations.

b. As a result of DLP intervention, 10 laws, regulations, policies or other barriers to government services or public accommodations will be eliminated or reduced.

4. Collaborative Efforts

DLP staff participated in meetings of the following groups: Division of Vocational Rehabilitation State Rehabilitation Council, Architectural Accessibility Board, AT Loan Program Advisory Board, Delaware HIV Planning Council, and Access Wilmington Committee. A DLP senior paralegal served as chair of the State Rehabilitation Council. DLP staff were members of the other organizations.

Delaware utilizes a managed care system with MCO’s to implement its Medicaid program. Most of the State’s 210,000 Medicaid enrollees participate in this system. Consumer organizations (Delaware Managed Care Panel; Family Voice) sponsor regular teleconferences to address issues arising within the system. A DLP attorney participates in the calls and provides on-going technical assistance.

The DLP routinely collaborated with the State Council for Persons with Disabilities (SCPD); Governor’s Advisory Council for Exceptional Citizens, and other groups to prevent adoption of laws, regulations, and policies having a discriminatory or adverse effect on PAIR constituents. Concomitantly, the DLP promoted initiatives which enhanced access to government services and public accommodations. The following are illustrative:

Legislation

Physical & Electronic Access

The State Council for Persons with Disabilities requested a DLP analysis of a U.S. DOJ regulation and pending federal legislation (H.R. 4256; H.R. 4200; S. 2186; S. 2191) covering ADA standards for swimming pools. The U.S. Attorney General had postponed the effective date of ADA pool regulations in March, 2012 and solicited public comment. The DLP provided the analysis to the SCPD which issued comments to policymakers in July, 2012.

Legislation (S.B. No. 248) was introduced to promote access by persons with hearing or speech limitations to telecommunication service for analog communication devices. The DLP supported the legislation which was enacted and signed by the Governor on August 3, 2012. Access to Health Care

Legislation (H.B. No. 265) was introduced to require State-regulated health insurers to cover pill-form oral chemotherapy as a same-cost alternative to more traditional intravenous or injected anticancer treatment. Similar cancer parity legislation has been enacted in at least fifteen (15) other states. The DLP issued a highly favorable critique which was adopted by multiple councils and shared with policymakers. The legislation was enacted and signed by the Governor on May 1, 2012.

Legislation (H.B. No. 216) was introduced to authorize consumer reimbursement and damages against State-regulated health insurers who unreasonably denied a test or treatment. The DLP issued a favorable critique which was endorsed by multiple councils and shared with policymakers. The legislation was not released from committee.

Legislation (S.B. No. 262) was introduced to expand the State Medicaid program to cover preventative and urgent dental services for adults. The DLP issued a favorable critique resulting in issuance of an SCPD letter of support in June, 2012. The bill, which included a large fiscal note, was not enacted.

Access to Employment

Legislation (H.B. No. 275) was introduced to authorize a State tax credit to support the hiring of a qualified veteran, i.e., a person who served during recent campaigns (Iraq; Afghanistan; Global War on Terror). There are 7,000 qualifying veterans in Delaware. There is a high prevalence of disability (PTSD; TBI; spinal cord injury) among such veterans. The DLP issued a favorable critique which prompted endorsements from multiple councils. The legislation was enacted and signed by the Governor on July 31, 2012.

Legislation (S.B. No. 216) was introduced to revise existing criminal background check standards for applicants for employment as home health aides or support staff in long-term care facilities. The DLP issued a comprehensive critique with several recommended amendments. The most significant concern was a grant of complete employer immunity for declining to hire an applicant based on arrest record only and irrespective of anti-discrimination laws. The EEOC recently issued guidance which counsels that an arrest without a conviction is generally not an acceptable reason to deny employment. The immunity provision would have a disproportionate impact on individuals with disabilities who are otherwise protected by ADA, ’504, and State law anti-discrimination standards. The critique was adopted by multiple councils and shared with policymakers, the Delaware Trial Lawyer’s Association, and the ACLU. As a result, the bill was amended to incorporate at least five (5) DLP-recommended revisions, including striking the immunity provision in its entirety. The bill, as amended, was enacted and signed by the Governor on July 5, 2012.

The DLP served on a committee which developed employment-first legislation and edited sequential drafts of the proposed bill. The final legislation (H.B. No. 319) requires all State agencies that provide services to individuals with disabilities to consider, as the first option, competitive employment in an integrated setting. Based on the DLP’s recommendation, the SCPD was charged with administration of an Employment First Oversight Commission to facilitate implementation of the law. The bill was enacted and signed by the Governor on July 16, 2012.

Access to Voting Process

Legislation (H.B. No. 196) was introduced to facilitate voting by persons with disabilities. First, it required recipients of State funding above a threshold level to make premises available for polling, so long as it would not be incompatible with the recipient’s primary purpose. Second, it permitted voters with an illness or physical disability to be sent and return absentee ballots by electronic transmission. Third, it authorized self-administration of an affidavit for absentee ballot for individuals providing constant care to relatives due to illness, injury, or disability. The DLP issued a favorable critique which was adopted by multiple councils and shared with policymakers. The legislation was enacted and signed by the Governor on July 5, 2012.

Companion legislation (H.B. No 199; H.B. No. 200) was introduced to amend Delaware’s Constitution and statutory law to require photo and signature identification to vote in a general election. The DLP issued a negative critique based on studies demonstrating that such voter identification restrictions have a disproportionate impact on persons with disabilities, including those in residential facilities. Multiple councils adopted the critique which was shared with policymakers. The bills were never released from committee.

Legislation (H.B. No. 331) was introduced to expand eligibility for absentee voting. The DLP issued a favorable critique. The critique summarized the findings of a 2010 study which determined that individuals with self-care and independent living difficulties eligible for absentee ballots voted at twice the rate of voters without disabilities in the 2010 election. The study also found that in states offering absentee voting, a higher percentage of persons with disabilities voted. The fiscal note to H.B. No. 331 predicted that the current 5% of Delawareans using absentee ballots would increase to 30% if the legislation passed. Multiple councils adopted the favorable critique which was shared with policymakers. The bill was approved by a House committee but did not proceed further in the legislative process.

The DLP drafted legislation to conform Delaware voting law to the federal Voting Rights Act, as amended effective January 1, 1984. The federal law authorized voter assistance in the voting booth for individuals who are illiterate or have a disability. Delaware law was more restrictive. It disallowed assistance based on illiteracy, only permitted another voter to provide assistance, and only permitted assistance to voters with physical disabilities. The Election Commissioner incorporated the legislation into an omnibus bill (H.B. No. 348) revising several sections of the election code. The DLP assisted with the preparation of other provisions in that bill, including the definition of signature to cover traditional, digital, and electronic signatures. The legislation was enacted and signed by the Governor on July 5, 2012.

Legislation (S.B. No. 143) was introduced to update voting provisions in the Delaware Constitution. The legislation was intended to achieve conformity with federal law and eliminate restrictions on absentee voting. For example, the Constitution authorizes use of absentee ballots based on sickness or physical disability but omits any reference to mental disability. The DLP issued a favorable critique which was adopted by multiple councils and shared with policymakers. The bill passed the Senate but not the House in 2012.

Regulations and Policies

The State Victim Compensation Program (VCAP) is a federally funded agency which pays approved medical claims which are not covered by Medicaid, Medicare, or private insurance to victims of violent crimes. Many individuals with disabilities caused by perpetrators of violent crime benefit from the program. The DLP Project Director is a Governor’s appointee to the VCAP Advisory Council. In FY11, the VCAP proposed adoption of a uniform standard for payment of medical claims. The DLP negotiated several amendments to protect beneficiaries from balance billing by providers. A final regulation was adopted in FY11 which incorporated specific provisions drafted by the DLP. In later months, the VCAP issued a proposed regulation covering dental claims which used the same template incorporating the DLP-drafted balance billing protections. In FY12, the VCAP adopted a final dental claim regulation which included the DLP-drafted protections. [15 DE Reg. 175 (8/1/11) (proposed); 15 DE Reg. 678 (11/1/11) (final)]

Advocates for claimants expressed concern that the VCAP would deny claims based on the inability of the claimants to produce documentation of income. In April, 2012, the DLP Project Director shared analogous DHSS benefits standards with the VCAP Advisory Council resulting in the unanimous approval of a policy authorizing the acceptance of income verification from collateral sources or claimant affidavit.

Although State law conferred the authority to issue VCAP agency regulations on the VCAP Advisory Council, the VCAP agency proposed a mission statement for the Council that relegated it to purely an advisory role. The Council is primarily composed of advocates for victims of violent crimes, including the DLP Director. The DLP prepared a more robust mission statement which emphasized the Council’s role in providing regulatory guidance. In June, 2012, the Council adopted the DLP’s version of the mission statement.

The Department of Insurance issued a proposed regulation to facilitate consumer comparison of health insurance rates. The DLP issued a favorable critique which was adopted by multiple councils and shared with the Department. A final regulation was adopted which conformed to the proposed version. [15 DE Reg. 740 (12/1/11) (proposed); 15 DE Reg. 1164 (2/1/12) (final)]

The Division of Public Health (DPH) proposed adoption of regulations to implement Delaware law on medical use of marijuana. The 2011 law authorized use for individuals with certain conditions, including cancer, HIV, Alzheimer’s, and PTSD. The DLP issued a critique with six (6) recommended amendments. Multiple councils adopted the critique which was shared with the Division. DPH adopted a final regulation incorporating five (5) amendments prompted by the commentary. [15 DE Reg. 1424 (4/1/12) (proposed); 15 DE Reg. 1728 (6/1/12) (final)] As a follow up, the Division requested that the DLP review and provide technical assistance on its application packet and forms. The DLP completed the review and submitted comments in August, 2012.

The Division of Social Services (DSS) proposed regulations modifying the fair hearing notice and procedure standards which apply to appeals of benefits programs, including Medicaid, TANF, General Assistance, and the Food Supplement Program. In FY11, the Division had rejected some regulatory amendments proffered by the DLP. In FY12, the new proposal incorporated two (2) important changes which conformed to the DLP’s FY11 recommendations: 1) clarification that beneficiaries have access to the agency’s entire case record, not just documents the agency intends to introduce at hearing; and 2) clarification that Medicaid MCOs prepare hearing summaries in cases contesting their decisions. The DLP issued a critique of the proposed regulation which included two (2) new recommendations. Multiple councils adopted the critique which was shared with the Division. DSS adopted a final regulation incorporating amendments prompted by both recommendations. [15 DE Reg. 971 (1/1/12) (proposed); 15 DE Reg. 1339 (3/1/12) (final)]

DSS proposed a set of comprehensive revisions to it fair hearing procedures which apply to its benefits programs, including Medicaid, TANF, General Assistance, and Food Supplement Program. The DLP issued a critique with eleven recommended amendments. Multiple councils adopted the critique which was shared with the Division. DSS adopted a final regulation incorporating amendments based on ten (10) of the eleven (11) recommendations. [15 DE Reg. 973 (1/1/12) (proposed); 15 DE Reg. 1343 (3/1/12) (final)]

DSS proposed amendments to its expedited fair hearing regulations which apply to appeals of Medicaid denials of critical health services. The DLP issued a critique with two (2) recommended amendments addressing a beneficiary’s right to review case records on an expedited basis, i.e., within 1 business day or receipt of an application seeking expedited review. The Division adopted a final regulation incorporating both recommended amendments. [16 DE Reg. 6 and 30 (7/1/12) (emergency and proposed); 16 DE Reg. 419 (10/1/12) (final)]

In FY11, legislation (S.B. No. 12) had been enacted removing a lifetime ban on eligibility for Food Supplement Program benefits for convicted felons. The change benefitted individuals with histories of past substance addiction resulting in criminal convictions. In FY12, the Division of Social Services (DSS) proposed revisions to its regulations to implement the new law. The DLP issued positive critiques of the proposed regulation which included two (2) concerns. Multiple councils adopted the critiques which were shared with the Division. The Division adopted final regulations which addressed both concerns. [15 DE Reg. 451 (10/1/11) (proposed); 15 DE Reg. 1027 (1/1/12) (final); 15 DE Reg. 1277 (3/1/12) (proposed); 15 DE Reg. 1616 (5/1/12) (final)]

DSS proposed to amend its Food Supplement Program standard covering restoration of benefits. The DLP issued a critique which identified the omission of a federal regulatory standard covering changes in household composition. Multiple councils adopted the DLP critique which was shared with the Division. The Division adopted a final regulation which included an amendment incorporating the standard from the federal regulation. [15 DE Reg. 450 (10/1/11) (proposed); 15 DE Reg. 1025 (1/1/12) (final)]

DSS proposed revisions to its Food Supplement Program electronic benefits transfer regulation. The DLP issued a critique which identified nine (9) concerns. Multiple councils adopted the critique which was shared with the Division. The Division adopted a final regulation which incorporated twelve (12) amendments prompted by the commentary. [15 DE Reg. 454 (10/1/11) (proposed); 15 DE Reg. 1030 (1/1/12) (final)]

DSS proposed adoption of a TANF renewal plan. The DLP issued a critique which identified a few outdated references to statutes and agencies. The critique was adopted by multiple councils and shared with the Division. The Division adopted a final regulation which updated the references. [15 DE Reg., 469 (10/1/11) (proposed); 15 DE Reg. 1045 (1/1/12) (final)]

DSS maintains a child care subsidy program as a support service for individuals enrolled in TANF or other public benefit programs promoting employment. Persons with disabilities are disproportionately enrolled in TANF. DSS issued a series of four (4) sets of proposed regulations resulting in DLP critiques. Multiple councils adopted the critiques which were shared with the Division. DSS adopted final regulations incorporating an aggregate of five (5) amendments prompted by the critiques. [15 De Reg. 1435 (4/1/12) (proposed); 15 DE Reg. 1759 (6/1/12) (final); 15 DE Reg. 1551 (5/1/12) (proposed); 16 DE Reg. 78 (7/1/12) (final); 15 DE Reg. 1674 (6/1/12) (proposed); 16 DE Reg. 213 (8/1/12) (final); 16 DE Reg. 47 (7/1/12) (proposed); 16 DE Reg. 319 (9/1/12) (final)]

The Division of Medicaid & Medical Assistance (DMMA) proposed adoption of a Medicaid State Plan amendment to authorize establishment of an electronic asset verification system. The DLP issued a critique which identified only one (1) error. Multiple councils adopted the critique which was shared with the Division. DMMA adopted a final regulation which corrected the error. [15 DE Reg. 435 (10/1/11) (proposed); 15 DE Reg. 845 (12/1/11) (final)]

DMMA proposed to adopt use of a telemedicine delivery system for providers enrolled in the Medicaid program. The option of offering services via videoconferencing facilitates access by individuals in rural areas or with difficulty traveling. The DLP issued a critique which endorsed the authorization to cover telemedicine subject to three (3) amendments, including a recital that provision of services through telemedicine may require accommodations to ensure effective communication under the ADA. Multiple councils adopted the critique which was shared with the Division. DMMA adopted a final regulation incorporating three (3) amendments conforming to the DLP recommendations. [16 DE Reg. 44 (7/1/12) (proposed); 16 DE Reg. 314 (9/1/12) (final)]

DMMA proposed to adopt a federal option in the context of improper payments utilizing a CMS template. The DLP issued a critique which endorsed the concept of the regulation. Multiple councils adopted the critique which was shared with the Division. DSS adopted a final regulation which conformed to the proposed version. [15 DE Reg. 448 (10/1/11) (proposed); 15 DE Reg 1020 (1/1/12) (final)]

DMMA proposed to adopt a Medicaid State Plan Amendment to implement CMS guidance contemplating the providers not be paid for preventable conditions caused by the provider. The DLP issued a critique recommending that the regulation clarify that the provider could not impose financial liability on the patient and including protections in MCO contracts. Multiple councils adopted the critique which was shared with the Division. DMMA adopted a final regulation with no further changes based on the rationale that it conformed to a CMS template. [15 DE Reg. 276 (9/1/11) (proposed); 15 DE Reg. 664 (11/1/11) (final)]

DMMA proposed a somewhat restrictive Medicaid tobacco cessation services regulation. The American Heart Association notes that the adult smoking rate among Medicaid recipients is 36.6% compared to 22.6% in the general population. The DLP issued a critique which recommended two (2) amendments. Multiple councils adopted the critique which was shared with the Division. DMMA adopted a final regulation with no further changes ostensibly because it was based on a CMS template. [15 DE Reg. 278 (9/1/11) (proposed); 15 DE Reg. 656 (11/1/11) (final)]

DMMA proposed a Medicaid State Plan Amendment to its standards authorizing estate recovery for Medicaid expenditures for individuals age 55 or older receiving nursing services, home and community-based services, and related hospital and prescription drug services. The DLP issued a favorable critique which was adopted by multiple councils and shared with the Division. The Division acknowledged the endorsements and adopted a final regulation which conformed to the proposed version. [15 DE Reg. 1412 (4/1/12) (proposed); 15 DE Reg. 1721 (6/1/12) (final)]

DMMA had previously adopted a Medicaid regulation limiting the scope of services to qualifying legally residing noncitizens. In FY12, the Division issued a new regulation requiring emergency services to such individuals to be provided only in a hospital. The DLP issued a critique which recommended that coverage also be available within free-standing emergency or urgent care centers. Multiple councils adopted the critique which was shared with the Division. DMMA adopted a final regulation with no amendment. Based on a DLP recommendation, the SCPD issued a letter to the DHSS Secretary outlining both the financial and clinical imprudence of the hospital-only policy. [15 DE Reg. 620 (11/1/11) (proposed); 15 DE Reg. 1023 (1/1/12)] (final)

In March, 2012, the DLP supported Delaware State Bar Association correspondence to the Social Security Administration objecting to a new policy of not identifying the administrative law judge until the day of hearing. The policy would result in problems with pre-hearing communication concerning witnesses, evidence, and continuances.

County Park Accessibility & Safety The DLP noted that two County parks violated ADA standards by omitting an accessible portalav in each cluster of portalavs. In one of the parks, there was no accessible unit in the entire park. The DLP Project Director met with the local County councilman and followed up when the County failed to install the accessible units as promised. The County then installed three (3) sets of accessible portalavs to achieve ADA compliance. The DLP monitored compliance during FY12 to ensure that the units were kept in place.

In the disability prevention context, the DLP issued a January, 2012 critique of the development of a large (20,000 square foot) skateboard arena erected with concrete and metal railings. The DLP recommended adoption of safeguards (e.g. helmet and safety requirement; on-site staffing). Multiple councils adopted the DLP critique which was shared with New Castle County Council. In March, 2012, the County approved a few signs recommending, but not requiring, use of helmets and safety equipment upon the opening of the arena.

Architectural Accessibility Board Reviews

A DLP Staff Attorney is a Governor’s appointee to the Architectural Accessibility Board (AAB) which must approve plans for new construction and renovations of buildings using State funding. During FY12, the DLP participated in formal reviews of one hundred and forty-three (143) sites. The AAB disapproved twenty-eight (28) sets of plans, prompting revisions to ensure conformity with accessibility standards. The DLP also referred six (6) election sites to the AAB which identified deficiencies in all six (6) sites which were then referred to county election commissioners for remedial action.

5. Number of Cases - (47)

6. Case Summaries

a. Government Benefits

Forty-nine year old with arthritis was denied Unemployment benefits. He was unable to continue employment as heavy equipment operator but physician opined he could perform less strenuous work. DLP represented in multiple administrative hearings and secured favorable eligibility determination. [11-3031594]

Fifty-four year old with orthopedic impairments was denied Unemployment benefits. Her employer had denied her accommodation of modified shifts and Claims Deputy had denied benefits based on finding of inability to work. DLP represented in administrative hearing and secured favorable eligibility determination based on client’s ability to work 8-hour shifts, but not 12-hour shifts, based on physician’s opinion. [11-3032319]

Fifty-four year old with orthopedic impairments was receiving Unemployment benefits. Former employer offered her position at half her former pay and no benefits. Client declined offer but had to report to Department of Labor (DOL) that she had turned down employment. DOL then terminated her Unemployment benefits. DLP represented in Referee hearing but was unsuccessful in securing reinstatement. [12-3034287]

Fifty-four year old inmate had been allowed to use CPAP machine in prison. However, when it broke, prison would not allow him to obtain and use a substitute machine. DLP negotiated with attorney for prison, new sleep study was arranged which confirmed need for machine, and prison provided new machine. [11-2032862]

Fifty year old inmate with HIV and orthopedic impairments had fallen in shower and claimed inadequacy of treatment. DLP investigated, determined that prison had arranged for imaging testing, sent to specialist who diagnosed with fracture, and then provided physical therapy for three months. Treatment was not determined to be inadequate. [12-2034749]

Twenty-one year old inmate had been injured in auto accident. He desired accommodations for his back injury. DLP reviewed medical records and determined that prison was implementing appropriate accommodations. [11-2031948]

Twenty-one year old inmate with recent seizure disorder alleged that prison was not providing appropriate dosage of seizure control medications. DLP sent him release forms to authorize review of his medical records. Inmate did not respond and did not answer follow-up correspondence. [12-2034748]

Forty-five year old SSI beneficiary had experienced adverse reaction to steroid shot and, per two gastroentrologists, needed specific treatment not available in Delaware but available at Temple’s motility clinic. The Medicaid MCO refused to approve the treatment. DLP assisted with negotiations to secure approval. MCO approved treatment at Temple. [10-3010573]

Fifty-eight year old with chronic health impairments received Medicaid termination notice from DHSS when her application for SSDI was approved and she became over-income for Medicaid. DLP requested administrative hearing to contest termination and successfully negotiated with DHSS to secure reinstatement of Medicaid under the Medical Transition to Medicare (MAT) program. [11-1032461]

Sixty-eight year old with chronic health impairments received termination notice from State-operated medical screening for life program based on belief she was eligible for Medicaid or Medicare. DLP provided regulations demonstrating ineligibility for Medicaid and Medicare due to immigration status and screening for life eligibility was reinstated. [11-1031825]

Fifty-four year old received monthly benefits from long-term disability policy which required her to apply for SSDI and repay the insurer from any SSDI benefits received. She received $34,740 from the policy. She was later determined eligible for SSDI and received a check for $16,500 in back benefits. She requested advice on whether she needed to repay insurer. DLP reviewed policy and advised client of her obligation to repay insurer from back benefit award. [10-3028748]

Fifty-four year old had been paid benefits under a long term disability policy which required her to apply for SSDI and appeal denials. Client received unfavorable SSDI eligibility decision but did not realize she had to appeal. Insurer then demanded she repay $5,509 in funds paid to her under policy. DLP represented client in new SSDI application and convinced ALJ to reopen formerly denied claim. Although SSDI eligibility was once again denied, client had fulfilled requirements of insurance policy and insurer withdrew demand for repayment of $5,509.

Forty-three year old developed a terminal brain tumor. DLP prepared application for SSDI/SSI and expedited consideration which was forwarded to client for signature and return for filing. However, documents were not returned. Relative later contacted DLP and reported that client was in hospice. DLP reiterated offer of assistance. [11-2032830]

Thirty-eight year old with orthopedic impairments had appealed termination of SSDI benefits based on medical improvement. DLP obtained supporting medical documentation and represented at administrative hearing. However, unfavorable decision was issued. Client decided to not appeal the decision. [11-1031086]

Twenty-three year old was awaiting combined SSI hearing on remand from Appeals Council and denial of new application. DLP devoted extensive efforts to develop the medical record. The DLP determined that the eligibility claim was weak based on the records. The client then missed three scheduled appointments and failed to respond to DLP communication. The DLP provided a closing letter with advice and an analysis of the medical record. [09-1026621]

Fifty-five year old with orthopedic disability had applied for SSI benefits. She was concerned that some of the information recorded in her application by the SSA Claims Representative was inaccurate. Since she was unable to travel to DLP office, DLP representative conducted home visit and submitted corrections to SSA the same day. Benefits were approved. [11-1032889]

Forty-six year old SSDI beneficiary with aphasia due to ABI received SSA forms related to continuing disability review (CDR). DLP assisted with preparation of forms and documentation of disability. SSA approved continued eligibility for SSDI. [10-2029792]

Sixty-one year old SSI beneficiary had benefits suspended due to beneficiary’s misunderstanding of resource standards. DLP assisted with reinstatement of benefits after resources were spent down and educated beneficiary on resource standards. [10-1029782]

Thirty year old with hearing impairment consulted DLP regarding repayment of $14,000 SSDI overpayment. DLP investigated, consulted SSA staff who had developed repayment plan of only $10.00/month, and clarified current status and repayment terms with client. [10-1029845]

Fifty-eight year SSI beneficiary died while application for relative to serve as representative payee was pending. Social Security Administration then sought recoupment of $945 in alleged overpayment. DLP secured waiver of entire overpayment from SSA. [11-1032333] Forty-six year old SSI beneficiary received notice of $1,728 overpayment. DLP filed waiver application, represented client in SSA administrative conference, demonstrated that client was without fault, and secured waiver of entire amount. [11-1030695]

Fifty-four year old with orthopedic disability had SSI terminated and was repaying overpayment. She did not understand rationale. DLP investigated and determined that client had received $20,000 from relative which she put in CDs. This disqualified her from SSI based on the $2,000 resource limit. The DLP provided technical assistance concerning spending down the funds to requalify for SSI. [12-3033561]

Twenty-seven year old with partial paralysis due to auto accident had $4,361 SSI overpayment. DLP filed waiver application, represented in SSA administrative conference, and secured waiver of entire amount. [11-1032543] Forty-one year old SSDI beneficiary received $47,404 overpayment notice from the SSA since he had been paid benefits for several years while records showed he had outstanding warrant which disqualified for benefits. DLP requested reconsideration, represented client in multiple SSA administrative conferences, submitted proof that warrant had been withdrawn in 2006, and obtained decision eliminating entire overpayment. [10-1028546]

Sixty-four year old dual SSI/SSDI beneficiary requested assistance regarding SSA recoupment of overpayments of both SSI and SSDI. DLP represented in multiple SSA administrative conferences, and negotiated a reduction in the repayment rate from an aggregate of $35/month to $10/month. [11-1033055]

Fifty-nine year old SSDI beneficiary had received notice of $14,000 overpayment. DLP analyzed, discovered SSA error, represented client in multiple SSA administrative conferences, and successfully reduced overpayment to $6,457. SSA then agreed to benign repayment schedule of $10/month. [10-1027682]

Forty-nine year old SSI beneficiary with paraplegia received significantly reduced benefits based on SSA’s recoupment of $4,316 overpayment. DLP assisted with waiver request. SSA approved benign repayment schedule of $20/month. [11-3033013]

Sixty-seven year old former SSDI beneficiary received $9,705 SSDI overpayment notice. DLP investigated and determined overpayment was caused by SSA error. DLP recommended submission of waiver application but client decided he could afford to repay based on 36-month schedule. [11-3032988]

Fifty-nine year old former SSDI beneficiary contacted DLP regarding $97,000 overpayment due to failure to report earnings for several years while receiving benefits. SSA had already denied waiver request based on finding of fault. DLP offered to accompany to conference with SSA to discuss repayment options. However, beneficiary did not accept offer and declined to meet with SSA. DLP sent beneficiary a letter with recommendations. [11-1032956]

Fifty-seven year old SSI beneficiary was interested in increasing the amount of her benefit check which was being reduced by both recoupment of overpayment and attribution of husband’s income. Beneficiary provided contradictory information about husband’s residency to both DLP and SSA. DLP provided technical assistance on reduction of overpayment recoupment rate but declined representation regarding husband’s income given contradictory information. [11-1032872]

Fifty-eight year old former SSI beneficiary amassed $9,800 overpayment when husband returned to household and his income made household over-income for benefits. DLP represented client in conference with SSA representative seeking waiver. However, SSA denied based on failure to report change in living arrangements. Since client had no funds to repay, DLP provided advice on options based on review with SSA, including repayment upon eligibility for retirement benefits at age 62 or divorce of spouse. [12-1034727]

Twenty-one year old with visual impairment received notice of $7,220 overpayment of Disabled Adult Child benefits and suspension of benefits. DLP submitted reconsideration request, represented in multiple SSA administrative conferences, secured reinstatement of benefits, elimination of overpayment, and payment of $9,778 in wrongfully withheld benefits. [11-1031981]

Forty-eight year old with chronic infection-related impairments alleged that Social Security Administration had incorrectly withheld $54,000 in back benefits. The DLP investigated allegations and provided client with results of analysis which did not support allegations. [12-1033930]

Sixty-four year old SSDI beneficiary had converted to retirement benefits and then changed mind, repaid retirement benefits, and resumed SSDI benefits. However, client questioned accuracy of amount or repaid retirement benefits. DLP investigated and provided client with accurate analysis of calculations. [12-1034157]

Thirty-four year old SSDI beneficiary questioned Social Security Administration’s claim of past overpayment of benefits in 2009-2010. DLP investigated and provided client with detailed analysis of basis and calculation of overpayment. [12-1035267]

Forty-year old former SSDI beneficiary had received notice of $12,665 overpayment due to excess earnings. She had already received a denial of her request for waiver based on fault. DLP determined there was lack of merit to appeal to ALJ but client decided to pursue such an appeal. The DLP provided advice on procedures. [11-1032760]

Fifty-four year old SSDI beneficiary had been paying $100 monthly towards $1,335 overpayment which occurred in Spring of 2012. She did not understand basis for overpayment. DLP investigated and provided client with detailed analysis of overpayment. At client’s request, DLP then negotiated a lower repayment schedule of $50 monthly. [12-1034240]

b. Public Accommodations Fifty-two year old SSDI beneficiary was denied treatment by medical center since it lacked an isolation room and beneficiary manifested signs of persistent parasites. A second medical facility was identified with an isolation room which was willing to provide same treatment. DLP investigated , determined that claim lacked sufficient merit to litigate, and provided legal analysis to client. [11-1033266]

Sixty-nine year old was denied service by restaurant based on presence of his service dog. He had filed complaint under the Equal Accommodation statute and solicited advice on procedures. DLP provided technical assistance on subpoenas and procedures. [11-1032752]

Forty-nine year old retail store cashier with fibromyalgia asked for reasonable accommodation of intermittent leave to obviate adverse consequences of frequent absences due to flare ups of condition. Retailer denied request and fired for absenteeism. DLP represented in DOL discrimination complaint based on ADA and State law. DOL issued charge and retailer settled as part of conciliation meeting for $8,177. [11-3030538]

B. SECOND PRIORITY: TRANSPORTATION.

1. Identification

The PAIR program will promote a consumer-friendly public transportation system and reduction of barriers to constituent travel.

2. Need, Issue, or Barrier Addressed

People with disabilities have difficulty commuting to work, traveling to medical appointments, and living independently when they cannot access the public transportation system. This inability to use the public transportation system has a disproportionate impact on less affluent persons with disabilities. Apart from the public transportation system, consumers are also affected by motor vehicle laws, parking ordinances, and private transportation providers. Finally, vehicular safety standards affect the incidence and exacerbation of injuries resulting in disability.

3. Outcome Indicators

Indicators of a successful outcome under this priority include gaining access to public and private transportation, enhanced access to designated parking options, and removal of barriers to pedestrian travel. As reflected in the PAIR FY 12 Priorities, the outcome indicators for this objective were as follows:

a. As a result of DLP intervention, 5 persons will secure equal or improved access to transportation.

b. As a result of DLP intervention, 5 laws, regulations, or policies will be changed or barriers to transportation eliminated or reduced.

4. Collaborative Efforts

The DLP addressed transportation-related concerns through active participation in a DART paratransit advisory committee (EDTAC). The DLP also addressed Division of Motor Vehicles (DMV) initiatives in conjunction with the State Council for Persons with Disabilities (SCPD). The DMV periodically consulted the Council on matters related to disability, including parking placards and license plates. A DART paratransit representative and DLP representative serve on the Council. Finally, the DLP is a member of the advisory committee to the State Medicaid transportation broker, Logisticare.

Legislation In FY11 the DLP had issued a negative critique of legislation (H.B. No. 202) designed to deter fraudulent use of special license plates and placards which authorize parking in ADA-designated accessible parking spaces. The DLP had identified several deficiencies in the bill which would result in deterring legitimate transportation of individuals with disabilities. In FY12, the DLP redrafted the bill to fulfill the sponsor’s intentions while ensuring consistency with existing law. The resulting legislation authorized fines to drivers parking in accessible parking spaces unless the person on whose behalf the special license plate or placard had been issued was being transported. The amended legislation passed the House and Senate unanimously and was signed by the Governor on April 5, 2012.

The DLP issued a favorable critique of disability-prevention legislation (S.B. No. 152). The bill repealed a statute allowing anyone with a standard driver’s license to operate a 3-wheeled motorcycle. Instead, operators of 3-wheeled motorcycles would be required to undergo knowledge and skills tests and obtain a motorcycle endorsement on their driver’s license. The bill was enacted and signed by the Governor on February 6, 2012.

The DLP issued a favorable critique with two (2) recommended amendments of disability-prevention legislation (S.B. No. 225). In a prior reporting period, the Legislature had adopted a DLP-authored bill requiring persons under 18 to wear a helmet while riding a bicycle. S.B. No. 225 was patterned on the bike helmet bill and required horseback riders under age 18 on public roadways to wear a helmet. The bill passed the House but failed to pass the Senate by 1 vote in June, 2012.

Legislation (H.B. No. 264) was introduced to enable students with disabilities to enroll in a driver’s education course through age 21 and to take the course more than once if unsuccessful. The DLP provided technical assistance on the legislation to the State’s special education council (GACEC) which was promoting the bill. The legislation was enacted and signed by the Governor on April 19, 2012.

Legislation (H.B. No. 246) was introduced to create a yellow dot medical alert program. Patterned on legislation adopted in other states, the bill authorized a voluntary program in which an individual could attach a yellow dot sticker to the rear window of a vehicle to alert emergency responders that medical information about the driver and/or frequent passengers is in the glove compartment. The DLP issued a comprehensive analysis of the bill which included one recommended amendment. Multiple councils adopted the analysis which was shared with policymakers. The bill was approved in committee but laid on the table in March, 2012.

The DLP supported the June, 2012 enactment of legislation (SCR 34) establishing a State Transition Task Force for Emerging Adults with Disabilities and Special Health Care Needs. The legislation directs the Task Force to include 4 committees, including one addressing transportation. The Task Force is further directed to draft a State plan for transition services for submission to the Legislature by June, 2013. The legislation requires the appointment of a DLP representative to the Task Force.

Regulations and Policies

The State Division of Parks and Recreation solicited comments on proposed Use of Electronic Personal Assistance Devices standards applicable to State parks. The DLP prepared a 13-page critique which was adopted by the SCPD and shared with DNREC through a February 27, 2012 memo. The critique identified multiple concerns related to restrictions on use of wheelchairs. As of the end of FY12, the Division had not adopted final standards.

In April, 2012, the DLP submitted a 3-page set of comments on the Division of Aging & Adults with Physical Disabilities draft FY13-15 Delaware State Plan on Aging. The DLP recommended inclusion of a paratransit objective. The Division agreed and inserted a conforming objective.

The Delaware Dept. Of Transportation (DelDOT) proposed adoption of a new regulation covering its grievance system for external complaints involving the ADA and ’504. The DLP issued a lengthy critique which identified some inconsistencies between the proposed regulation and Federal Highway Administration guidance. Multiple councils adopted the critique which was shared with DelDOT. A final regulation had not been published as of October 1, 2012. [16 DE Reg. 270 (9/1/12)]

In July, 2012 the DLP noted that the DelDOT website contained incomplete information concerning processing of ADA complaints. The DLP contacted DelDOT’s newly hired ADA coordinator who promptly revised the website information and promised to upgrade its content to incorporate comprehensive ADA information in the near future.

On September 17, 2012 the DLP Project Director and the directors of 3 disability-related councils met with a DelDOT administrator to initiate planning for promotion of accessible taxicabs. The DLP followed up with potential corporations which could sponsor the service while simultaneously employing drivers with disabilities.

5. Number of Cases (2)

6. Case Summaries

Sixty-nine year old with orthopedic disability requested the DLP to assess why her application for paratransit eligibility had been denied. The DLP obtained the relevant documents from the State paratransit agency and determined that the client’s physician had opined that she could ride a fixed route bus. The DLP provided the client with an analysis of the paratransit eligibility standards and recommended a new application only if her physician would certify that she could not currently ride a fixed route bus. [11-1033058]

Sixty-one year old with orthopedic impairments had DMV-issued placard authorizing her to park in designated accessible parking spaces. However, those spaces were often filled in her apartment complex. The DLP successfully negotiated with landlord who agreed to addition of two additional accessible parking spaces near client’s building. [12-2034618]

C.THIRD PRIORITY; HOUSING;INDEPENDENT LIVING.

1.Identification

The PAIR program will promote freedom from disability-based discrimination in housing and the reduction of barriers to independent living.

2.Need, Issue, or Barrier Addressed

Without adequate housing and support services, people with disabilities are unable to live independently in the community. When a landlord, mobile home park owner, or zoning board refuses to make accommodations in its policies or practices, it denies the person with a disability the right to live in a setting of the individual’s choice.

3.Outcome Indicators

Factors used to determine a successful outcome under this priority include gaining access to an accessible residence; compensatory or injunctive relief for discriminatory acts by a landlord or housing program; retention of a residence in the community; enjoyment of all the rights/privileges related to tenancy or home ownership; safety and quality of services within congregate residential settings; and promotion of supports to facilitate persons with disabilities living successfully in the community. As reflected in the PAIR FY 12 Priorities, the outcome indicators for this objective were as follows:

a. As a result of DLP intervention, 20 persons with disabilities will secure equal access to or maintain housing or independent living supports.

b. As a result of DLP intervention, 10 laws, regulations, or policies will be changed or the r barriers to housing eliminated or reduced.

4.Collaborative Efforts

The DLP Project Director served on Governor’s Commission on Community-based Alternatives for Persons with Disabilities Housing Committee which was merged with the SCPD Housing Committee. The Committee researched and published Community & Choice: Housing Needs for People with Disabilities in Delaware in April, 2012. The 101-page report compiles the results of an in-depth study of housing needs and includes policy recommendations to improve access to affordable, accessible and integrated housing by persons with disabilities.

The DLP addressed several bills, regulations, and policies affecting housing or reducing barriers to independent living. The following is a partial list. In most cases, the DLP collaborated with the State Council for Persons with Disabilities (SCPD); and Governor’s Advisory Council for Exceptional Citizens (GACEC). The list also includes examples of collaboration with the AARP and Delaware Trial Lawyer’s Association (DTLA) on some initiatives.

Legislation

In a prior reporting period, the DLP had drafted universal design legislation to require newly constructed residences using public financial assistance to meet universal design accessibility standards. In FY12 the DLP continued to provide technical assistance for a revised version of the legislation (H.S. No. 1 for H.B. No. 227). The revised legislation required inclusion of accessibility features in newly constructed single family residences, including duplexes and triplexes, built with public financial assistance. The standards cover accessible routes, bedrooms, hallways, bathrooms, and kitchens. The legislation was enacted and signed by the Governor on July 27, 2012.

Legislation (H.B. No. 261) was introduced to weaken consumer protections from termination of utilities based on non-payment. Delaware law historically disallowed utility shut-offs if a physician certified that termination would adversely affect the health of a resident. This law protected individuals reliant on oxygen, electronic lifts, nebulizers, etc. The DLP issued a highly negative critique of the legislation which proposed to allow termination unless it would result in a resident’s death and required good faith effort to make payments as interpreted by the utility. The DLP negotiated some amendments, including the following: 1) a requirement that the utility provide advance notice to a known case manager/coordinator or residents;2) an authorization for the Public Service Commission to issue regulations defining good faith effort to make payments; and 3) disallowance of termination if it would result in institutionalization. Key legislators opposed the legislation and prompted reinstatement of the adverse effect on health benchmark. The revised bill was enacted and signed by the Governor on July 18, 2012.

The DLP supported the June, 2012 enactment of legislation (SCR 34) establishing a State Transition Task Force for Emerging Adults with Disabilities and Special Health Care Needs. The legislation directs the Task Force to include 4 committees, including one addressing housing. The Task Force is further directed to draft a State plan for transition services for submission to the Legislature by June, 2013. The legislation requires the appointment of a DLP representative to the Task Force. Regulations and Policies

The Division of Medicaid & Medical Assistance (DMMA) proposed adoption of a new Program of All Inclusive Care for the Elderly (PACE). Eligibility was open to individuals at least 55 years of age with income below 250% of the SSDI Federal Benefit level. A combination of Medicaid and Medicare funds would be used to pay a provider to cover all preventive, primary, acute, and long-term care services. CMS national statistics indicate that 7% of PACE enrollees live in nursing homes with the vast majority living in the community with supports. The DLP issued a favorable critique which was adopted by multiple councils and shared with the Division. The enabling program regulation was adopted. [15 DE Reg. 437 (10/1/11) (proposed); 15 DE Reg. 847 (12/1/11) (final)]

DMMA proposed to adopt enrollment standards for the above PACE initiative. [16 DE Reg. 170 (August 1, 2012). The DLP issued a critique identifying several concerns, including conflicting standards concerning eligibility, authorization to terminate participation for conduct that could be symptomatic of disability, and lack of appeal rights. Multiple councils endorsed the critique and forwarded conforming commentary to the Division with a copy to AARP. As of October 1, 2012, a final regulation had not been issued.

DMMA proposed adoption of a Medicaid State Plan amendment to implement a Qualified Long-term Care Insurance Partnership Program. The program is authorized by federal law to provide an incentive to individuals to purchase qualifying long-term care insurance. Under the program, an individual would enroll in Medicaid without having to exhaust the private LTC insurance benefits. Medicaid would cover costs in excess of those covered by the private policy. A typical LTC policy covers both residential nursing home services and home health services. The DLP issued a critique which identified several potential implementation issues. Multiple councils adopted the critique which was shared with the Division. The Division adopted a final regulation which included a recital that it would consider the concerns when implementing the new program. [15 DE Reg. 621 (11/1/11) (proposed); 15 DE Reg. 1014 (1/1/12) (final)]

DMMA proposed adoption of a Medicaid State Plan amendment to reflect the transfer of the Office of the Long-term Care Ombudsman from the Division of Aging & Adults with Physical Disabilities (DSAAPD) to the Office of the DHSS Secretary. The change was prompted by CMS based on a perceived conflict since DSAAPD administers State-operated long-term care facilities and the Ombudsman is expected to independently address long-term care facility deficiencies. The DLP issued a positive critique of the proposed amendment subject to the Department honoring a prior commitment to address the provision of independent counsel to the Ombudsman. Multiple councils adopted the critique which was forwarded to the Division. The Division adopted a final regulation and referred the issue of independent counsel to the Office of the Secretary. A meeting with the Office of the Secretary was scheduled to occur after October 1, 2012. [16 DE Reg. 42 (71/12) (proposed); 16 DE Reg. 312 (9/1/12) (final)]

DMMA proposed to adopt a regulation authorizing a quality assessment tax on nursing homes which would then be used to increase Medicaid provider rates and inferentially improve quality of care. The DLP issued a critique which identified only one (1) concern. The critique was endorsed by multiple councils and shared with the Division. The Division adopted a final regulation which addressed the concern. [16 DE Reg. 38 (7/1/12) (proposed); 16 DE Reg. 309 (9/1/12) (final)]

DMMA proposed to amend its emergency assistance regulation which includes home repairs based on casualty. The DLP issued a critique which was adopted by multiple councils and shared with the Division. The commentary included a recommendation to authorize home repairs to provide accessibility (e.g. an individual could be injured and require a temporary ramp). The Division adopted a final regulation incorporating some amendments prompted by the commentary. However, it declined to add an authorization to cover home repairs to achieve accessibility. [16 DE Reg. 173 (8/1/12) (proposed); 16 DE Reg. 426 (10/1/12) (fnal)].

DMMA proposed adoption of a set of regulations implementing conversion of multiple Medicaid HCBS waivers into a single, consolidated waiver, the Diamond State Health Plan Plus. The consolidated waiver includes both support services to promote independent living in the community as well as residency in long-term care facilities. The DLP issued a critique which identified three (3) concerns. Multiple councils adopted the critique which was shared with the Division. The Division issued a final regulation which incorporated amendments to address the three (3) concerns. [15 DE Reg. 1414 (4/1/12) (proposed); 15 DE Reg., 1718 (6/1/12) (final)].

The Division of Long Term Care Residents Protection (DLTCRP) proposed amendments to its assisted living regulations. The DLP issued a critique which objected to a more restrictive definition of significant medication error and reduction of time period for retention of records from 5 years to 3 years. Multiple councils adopted the critique which was shared with the Division and Delaware Trial Lawyers Association (DTLA). In turn, the DTLA submitted conforming commentary to the Division. The Division agreed with both DLP concerns and adopted a final regulation which incorporated a broader definition of significant medication error and maintained the current 5-year record retention requirement. [15 DE Reg. 594 (11/1/11) (proposed); 15 DE Reg. 1156 (2/1/12) (final)]

The DLTCRP issued a new licensing regulation to cover Intensive Behavioral Support and Educational Residences (IBSER). The DLP prepared a lengthy set of forty-three (43) comments which was adopted by multiple councils and shared with the Division. Given the extent of concerns, the Division issued a new set of proposed regulations. The DLP issued another lengthy set of thirty-two (32) comments which were adopted by multiple councils and shared with the Division. The Division effected amendments based on 16 of the 32 comments which were incorporated into a final regulation. [15 DE Reg. 600 (11/1/11) (proposed); 15 DE Reg. 1264 (3/1/12) (proposed); 15 DE Reg. 1603 (5/1/12) (final)]

Although a State statute provided residents of long-term care facilities (including nursing homes, assisted living, group homes, and foster homes) with a right to a hearing to contest involuntary discharge, the Division of Long Term Care Residents Protection (DLTCRP) had declined multiple DLP solicitations to issue implementing regulations. The DLP prepared legislation directing the Division to issue regulations. The Division then agreed to issue regulations without the necessity of legislation. The Division issued a highly problematic set of proposed regulations which generated twenty-seven (27) DLP comments. Multiple councils endorsed the commentary which was shared with the Division with a copy to AARP. The Division then issued an entirely new set of proposed regulations which generated twenty-one (21) DLP comments. Multiple councils endorsed the DLP comments which were shared with the Division. The Division adopted a final regulation incorporating amendments based on all but a few comments. [15 DE Reg. 1405 (4/1/12) (proposed); 16 DE Reg. 24 (7/1/12) (proposed); 16 DE Reg. 296 (9/1/12) (final)]

The DLTCRP proposed amendments to its regulation requiring annual training in Alzeimer=s and dementia for CNAs in implementation of a State statute. The training is designed to enhance the quality of care to individuals with Alzheimer’s or dementia receiving home health assistance or residing in long-term care facilities. The DLP had issued a favorable critique with no recommended amendments at the end of FY11. Multiple councils adopted the critique which was shared with the Division. In FY12, the Division acknowledged the endorsements and adopted a final regulation which conformed to the proposed version. [15 DE Reg. 276 (9/1/11) (proposed); 16 DE Reg. 1010 (1/1/12) (final)]

The DLP and SCPD directors provided technical assistance to the Division of Aging & Adults with Physical Disabilities in developing a co-pay policy for the State’s non-Medicaid personal attendant services program. The program had been established by DLP-authored legislation and provides support services to individuals with severe, chronic disabilities to facilitate independent living. The final policy (adopted in 3/12) incorporated liberal co-pay standards which would not be burdensome on participants.

In April, 2012, the DLP submitted a 3-page set of comments on the Division of Aging & Adults with Physical Disabilities draft FY13-15 Delaware State Plan on Aging. The DLP recommended inclusion of references to deterrence of housing discrimination and facilitating transition from nursing homes to community living in the Plan objectives. The Division agreed and inserted conforming references.

In September, 2012 the Public Service Commission (PSC) solicited public input on a proposed regulation to allow termination of residential electric service without an in-person visit to the residence. On September 20, the DLP issued a highly negative critique of the proposal which could place individuals with disabilities at risk, especially those reliant on electricity for health reasons (e.g. oxygen dependent; electronic lift dependent; nebulizer dependent) and those with intellectual disabilities. Multiple councils endorsed the DLP critique and submitted conforming commentary to the PSC. The AARP also submitted a negative critique. As of October 1, 2012, a formal proposed regulation had not been published.

5. Number of Cases (9)

6. Case Summaries

Seventy-six year old lived in subsidized apartment with support from Meals on Wheels and home health services. Landlord filed for eviction based on safety and housekeeping concerns. DLP attorney met with landlord and landlord’s attorney concerning accommodations and eviction action was voluntarily dismissed. Housing was preserved. [10-3028834]

Forty-five year old with chronic impairments due to motorcycle accident lived in supported housing program. He received notice of judicial eviction hearing based on rent arrears. DLP negotiated repayment agreement with automatic debit from client’s checking account to landlord and eviction action was dismissed. [11-2033321]

Forty-eight year old with paraplegia contacted DLP regarding Delaware State Housing Authority denial of her application for a subsidized housing voucher based on criminal history. DLP secured supportive documentation from physician and probation officer and negotiated approval of application. Client obtained subsidized housing. [11-1031936]

Forty-four year old mother of adult child with pulmonary disability contacted DLP when she relocated to new residence and electric utility declined service based on $26,000 arrears from prior residence. Mother had taken advantage of law disallowing termination of utilities at prior residence based on physician certification of reliance on breathing machine. This law did not apply to new service. DLP negotiated with utility which offered service if half of arrears were paid. DLP referred to legal services program which agreed to file bankruptcy application to eliminate entire arrears and ensure qualification for new electric service. [11-1033414]

Fifty-four year old SSI beneficiary with HIV and orthopedic impairments resided in subsidized housing program. She used wheelchair for mobility and requested transfer from third floor unit to first floor unit. DLP negotiated with landlord who agreed to offer first-floor unit. [11-2033358]

**PRIORITIES & OBJECTIVE SECTION IS CONTINUED IN PART VI. NARRATIVE**

B. Priorities and Objectives for the Current Fiscal Year

Please include a statement of priorities and objectives for the current fiscal year (the fiscal year succeeding that covered by this report), which should contain the following information:

  1. a statement of each prioirty;
  2. the need addressed by each priority; and;
  3. a description of the activities to be carried out under each priority.

DISABILITIES LAW PROGRAM FY 2013 P&A FOR INDIVIDUAL RIGHTS (PAIR) PRIORITIES

INTRODUCTION The Disabilities Law Program (DLP) of the Community Legal Aid Society, Inc. (CLASI) provides services to individuals consistent with the following authorizing legislation:

1) Protection & Advocacy for Individual Rights (PAIR);

2) Protection & Advocacy for Individuals with Mental Illness (PAIMI);

3) Protection & Advocacy for Individuals with Developmental Disabilities (PADD);

4) Protection & Advocacy for Assistive Technology (PAAT);

5) Protection & Advocacy for Beneficiaries of Social Security (PABSS);

6) Protection & Advocacy for Individuals with Traumatic Brain Injury (PATBI);

7) Protection & Advocacy for Voting Access (PAVA)

This document defines the priorities for FY 2013 (October 1, 2012 - September 30, 2013) of the first component, PAIR.

INTERAGENCY COORDINATION

The focus of the PAIR program is to provide services to individuals with disabilities ineligible under traditional advocacy projects, i.e., PAIMI, PADD, and client assistance programs (CAPs). See 29 U.S.C. ’794e(f). However, federal law envisions that the PAIR will coordinate advocacy with such organizations as well as the Long-term Care Ombudsman.

In deference to this mandate, the PAIR program closely coordinates with the DLP’s PAIMI and PADD components as follows:

1) PAIMI, PADD, and PAIR program priorities are designed to be complementary;

2) intraoffice referrals among programs are routinely made to ensure that applicants are screened for eligibility by the appropriate DLP subdivision;

3) reference materials and training resources are routinely shared; and

4) the DLP Legal Advocacy Director coordinates advocacy across the three programs to minimize duplication of effort.

Likewise, the CAP director serves on the DLP’s PAIR advisory council and the DLP supplements CAP advocacy in the vocational rehabilitation context as follows:

1) DLP staff member serves as the Chair of the Dept. of Labor’s Division of Vocational Rehabilitation [DVR] advisory council;

2) DLP staff serve on the DVR Client Services Policy Committee;

3) DLP Director and CAP representative serve together on the State’s special education council, the Governor’s Advisory Council for Exceptional Citizens;

4) DLP Project Director and CAP Director serve together on the State Council for Persons with Disabilities Policy & Law Committee which acts on the DLP’s monthly critiques of legislative, regulatory, and policy initiatives;

5) DLP staff responds to CAP requests for technical information on matters within the DLP’s particular expertise;

6) DLP staff screens CAP referrals on matters outside the CAP’s mandate; and

7) DLP staff offers independent or collaborative training on the vocational rehabilitation system on request.

Finally, the Home and Community-based Services Ombudsman serves on the DLP’s PAIR advisory council and the DLP supports and supplements Ombudsman advocacy as follows:

1) DLP responds to Ombudsman requests for technical assistance;

2) DLP staff offers independent and collaborative training on abuse, neglect, and rights of constituents.

3) DLP staff and the Ombudsman serve together on the State Nursing Home Residents Quality Assurance Commission.

4) DLP Project Director and Ombudsman serve together on the State Council for Persons with Disabilities Housing Committee.

5) DLP Project Director and Ombudsman representative serve together on State Council for Persons with Disabilities Policy & Law Committee.

SCOPE OF ADVOCACY

The scope of PAIR program advocacy includes a broad array of activities, including information and referral, counseling and technical assistance, community education, negotiation, litigation, and legislative and regulatory analysis. Given relatively modest funding, the PAIR program is guided by these priorities in determining the type and scope of services provided to eligible constituents.

SPECIFIC PRIORITIES AND OBJECTIVES

I. ACCESSIBILITY

GOAL: The PAIR program will promote and facilitate access to governmental programs and public accommodations.

OBJECTIVES:

0100 A. Provide direct advocacy services if an individual has been prevented from effectively accessing important governmental programs based on systemic policy or barrier(s) contrary to federal or state law.

0102 B. Provide direct advocacy services to individuals prevented from effectively accessing important public accommodations because of barriers or discrimination proscribed by federal or state law.

OUTCOME INDICATORS:

A. As a result of DLP intervention, 40 persons will secure equal or improved access to governmental services or public accommodations.

B. As a result of DLP intervention, 10 laws, regulations, policies or other barriers to government services or public accommodations will be eliminated or reduced.

RATIONALE: This priority encompasses enforcement of both Titles II and III of the ADA, as well as Delaware’s equal accommodations law, Title 6 Del.C. Ch. 45. Both public sector and private sector compliance with the ADA will be promoted. In the public sector, the DLP contemplates legal assistance to protect the rights of Medicaid beneficiaries, particularly those enrolled in the DSHP managed care system. Access to basic health care is a high priority among PAIR constituents and Delaware’s Medicaid MCOs have historically denied, in whole or part, valid claims for services. The transition to a DSHP Plus system effective April, 2012 has significantly increased the number of Medicaid beneficiaries subject to MCO oversight. The DLP anticipates the provision of legal assistance to DSHP and DSHP Plus participants whose eligibility for services has been improperly denied. The DLP expects to support continued implementation of a Medicaid Buy-in program [a/k/a Medicaid for Workers with Disabilities (MWD) program] initiated October 1, 2009. The DLP will also support enhanced implementation of the Money Follows the Person program which has been extended until 2016. The DLP contemplates supporting the work of the Home and Community-based Services Ombudsman (HCBSO). The DLP anticipates continuing efforts to support State planning and implementation of federal health care reform legislation. Apart from health care, the DLP routinely receives requests for assistance with safety-net income-maintenance programs (e.g. preservation of SSI in State child support reimbursement context; preservation of SSI/SSDI benefits through overpayment waivers or incremental repayment agreements). The DLP expects to deter constrictive enforcement of the Delaware Equal Accommodation law through both on-going litigation and collaboration with the SCPD on remedial legislation. Recently enacted legislation (H.B. No. 237 in 145th General Assembly) incorporating DLP-drafted provisions mandates installation of automatic door openers or calling devices in public and private buildings constructed after January 1, 2011. The DLP will promote compliance. The DLP will support implementation of recently enacted universal design legislation (H.S. No. 1 for H.B. No. 227) signed by the Governor in July, 2012. The DLP anticipates on-going advocacy to promote the accessibility of public parks. Finally, a DLP staff attorney will address accessibility of public buildings through participation in the Architectural Review Board and assist with implementation of polling site accessibility legislation drafted by the DLP and enacted in 2011. In the private sector, the DLP anticipates addressing complaints regarding both policy and physical barriers to community integration. Selected long-term care concerns will be addressed in both public and private sector contexts.

II. TRANSPORTATION

GOAL: The PAIR program will promote a consumer-friendly transportation system and reduction of barriers to constituent travel.

OBJECTIVES:

0200 A. Collaborate with advocacy organizations and councils [e.g. Elderly & Disabled Transportation Advisory Council (EDTAC); State Council for Persons with Disabilities (SCPD); ADAPT] to promote improvement in Delaware paratransit system through both systemic and individual constituent advocacy.

0201 B. Collaborate with the State Council for Persons with Disabilities (SCPD) to promote:

1. consumer-oriented motor vehicle license, operation and parking laws, regulations, and policies; and

2. safety-related transportation laws, regulations, and policies to prevent or reduce injuries resulting in disability.

0202 C. Provide direct advocacy services to individuals prevented from effectively accessing public and private vehicular transportation systems or otherwise experiencing significant barriers to travel contrary to Federal or State law.

OUTCOME INDICATORS:

A. As a result of DLP intervention, 5 persons will secure equal or improved access to transportation.

B. As a result of DLP intervention, 5 laws, regulations, or policies will be changed or barriers to transportation eliminated or reduced.

RATIONALE: This priority is intended to facilitate travel both within the State and to regional transportation centers. Advocacy contexts would include improving the public transportation system (including DelDOT paratransit capacity, policies, and practices); promoting the availability of accessible parking; supporting legislative initiative to promote availability of accessible taxi service; and enhancing pedestrian travel through barrier removal (e.g. curb cuts). The DLP envisions collaborating with the recently hired DelDOT ADA Coordinator to promote conformity with the ADA in DelDOT programs. The DLP anticipates continued participation in Logisticare advisory committee to facilitate consumer-oriented access to Medicaid-funded transportation. Since many long-term injuries are transportation-related, the DLP also envisions supporting safety related laws and regulations, including implementation of recently enacted legislation banning handheld cell phone use by drivers effective January 2, 2011 and supporting laws promoting helmet use. The Governor vetoed legislation diluting motorcycle helmet usage on July 14, 2011. Transportation affects access to employment, medical services, shopping, and recreation.

III. HOUSING; INDEPENDENT LIVING

GOAL: The PAIR program will promote freedom from disability-based discrimination in housing and the reduction of barriers to independent living.

OBJECTIVES:

0300 A. Provide direct advocacy services to constituents aggrieved by significant violations of fair housing laws.

0301 B. Collaborate with the SCPD to promote the availability of independent living supports (e.g. attendant services; home health services; private duty nursing services; home modifications; caregiver services, and public financial incentives).

OUTCOME INDICATORS:

A. As a result of DLP intervention, 15 persons with disabilities will secure equal access to or maintain housing or independent living supports.

B. As a result of DLP intervention, 10 laws, regulations, or policies will be changed or other barriers to housing eliminated or reduced.

RATIONALE: This priority addresses both enforcement of fair housing laws and promotion of the availability of community-based housing options. For example, the DLP envisions addressing both individual housing discrimination complaints and, in conjunction with the State Council for Persons with Disabilities, systemic barriers to independent living. For example, the DLP anticipates collaboration with the State Council for Persons with Disabilities to influence consumer-oriented implementation of DSHP Plus Medicaid program. The DLP typically protects client rights to reasonable accommodations by landlords and freedom from discrimination in the housing application context. Clients in institutions (e.g. DHCI) also benefit from advocacy support to facilitate discharge to community-based settings. The DLP envisions continued supprt of DSAAPD efforts to offer community-based options to residents of State-operated long-term care facilities. The DLP anticipates implementation of DLP-authored legislation (H.B. No. 36 in the 145th General Assembly) which enhances protection of rights of long-term care facility residents. Lack of access to community-based housing results in homelessness, resort to substandard living arrangements, and over-institutionalization. The DLP contemplates advocacy to deter adoption of restrictive zoning laws and practices by local governments. The DLP also envisions continued participation in the Governor’s Commission on Community-based Alternatives for Individuals with Disabilities and the Commission’s Housing Committee. In concert with the SCPD, the DLP anticipates continuing advocacy to promote development and implementation of procedural safeguards for residents of long-term care facilities facing involuntary discharge. Finally, the DLP plans to continue participation in Delaware Nursing Home Residents Quality Assurance Commission meetings which address both nursing home regulation and civil rights of residents.

IV. AUTONOMY

GOAL: The PAIR program will promote constituent autonomy and self-assurance through training, information dissemination, and assistance with substitute or advance consent documents.

OBJECTIVES:

0400 A. Offer individual technical assistance and information and referral services on substantive disability law (e.g. employment, housing, public benefits) and enforcement options.

0401 B. Offer group training on substantive disability law, enforcement options, and self- advocacy.

0402 C. If not readily available through other agencies, assist with preparation of a limited number of routine advance directives, powers of attorney, and similar authorizing documents.

OUTCOME INDICATORS:

A. The DLP will provide information and referral services to 150 individuals and agencies.

B. The DLP will provide training to 10,000 individuals through articles, seminars, training events, and dissemination of training materials.

C. The DLP will prepare a minimum of 15 powers of attorney, advance directives, and similar authorizing documents.

RATIONALE: This priority encompasses the provision of individual technical assistance as well as group training activities. For example, the DLP anticipates presentation of seminars, drafting articles, enhancing its Website, and other information dissemination activities to promote informed constituent decision-making and empowerment. An informed constituency is confident, self-reliant, and enabled to engage in proactive advocacy. The DLP leverages resources through wide dissemination of information and advice to consumers.

GENERAL STANDARDS FOR DETERMINATION OF LEVEL AND TYPE OF SERVICES

Recognizing that the demand for assistance has historically outstripped available resources, the following factors will be considered in determining the level and type of services to be offered to an eligible applicant:

(1) potential impact on client;

(2) merits of case (both factually and legally);

(3) realistic alternate sources for referral and assistance;

(4) applicant’s ability to self advocate; and

(5) potential impact on other constituents or systems.

Part VI. Narrative

At a minimum, you must include all of the information requested. You may include any other information, not otherwise collected on this reporting form that would be helpful in describing the extent of PAIR activities during the prior fiscal year. Please limit the narrative portion of this report, including attachments, to 20 pages or less.

The narrative should contain the following information. The instructions for this form outline the information that should be contained in each section.

  1. Sources of funds received and expended
  2. Budget for the fiscal year covered by this report
  3. Description of PAIR staff (duties and person-years)
  4. Involvement with advisory boards (if any)
  5. Grievances filed under the grievance procedure
  6. Coordination with the Client Assistance Program (CAP) and the State long-term care program, if these programs are not part of the P&A agency

A. Sources of Funds Received and Expended - October, 2011 - September, 2012

Source of funding Amount Received $175,300 - FY2012 Funds

Amount Spent $175,300— FY 2012 funds

Total (from all sources) $175,300

B. Budget for FY 12 & Projection for FY ‘13

Category Fiscal Year Actual Spent 10/01/11-9/30/12

Wages/salaries $104,605

Fringe benefits (medical, dental ,FICA, unemployment, etc. $50,818

Materials/supplies $1,410

Postage $538

Telephone $2,603

Occupancy (Rent, Utilities, Bldg & Grounds Maintenance) $6,811

Travel/Training $1,855

Membership dues $842

Bonding/Insurance $1,340

Equipment (rental/purchase) $1,423

Litigation Costs $26

Contractual (Payroll, Audit, Law Library on-line) $2,816

Miscellaneous $213

Total Budget $175,300

C. Description of PAIR staff - October 2011 - September 2012

Type of Position FTE % of year filled Person-years

Professional Full-time FTE - 1.06 % of year filled - 100% Person years - 1.06

Part-time FTE - .46 % of year filled - 100% Person years - .46

Vacant - 0 Clerical Full-time - .29 % of year filled - 100% Person-years - .29

Part-time - 0 Vacant - 0 The PAIR positions for Fiscal Year 2012, October 2011 - September 2012, included the Sr. Project Director and the Legal Advocacy Director, 5 attorneys, 6 paralegals, 4 administrative and 4 support staff required to provide PAIR services in each of Delaware’s three counties. The staff positions, of which 2 were part-time, included the following:

Professional Staff Disabilities Law Program Sr. Project Director FTE- 2.74% Disabilities Law Program Legal Advocacy Director FTE - 1.12% Executive Director FTE - 2.0% Financial Director FTE - 2.0% Accountant FTE - 2.0% Network Administrator FTE - 2.0%

Attorneys New Castle County 1 Senior Attorney - 31.24% 2 Attorneys - .50%

Kent County 1 Attorney - 27.79%

Sussex County 1 Senior Attorney - 13.80% Paralegal New Castle County 4 Paralegals - 41.49%

Kent County 1 Paralegal - 18.83%

Sussex County 1 Paralegal - 12.92%

Clerical Staff Administrative Assistant - 12.65%

Legal Secretary New Castle County 1 Legal Secretary - 3.0%

Kent Count 1 Legal Secretary - 3.0%

Sussex County 1 Office Manager/Legal Secretary - 3.0%

The Executive Director, Chief Financial Officer, Accountant, Administrative Assistant, Network Administrator and Legal Secretary positions are representative of the administrative and clerical positions that provided support to the legal staff. In addition to these positions, the intake receptionists and additional secretaries worked with the program in each county.

D. Involvement with Advisory Board

The DLP maintains a separate PAIR Advisory Council. The Council meets quarterly. In FY 12 the Council met on November 2, 2011; February 8, 2012; May 9, 2012; and July 18, 2012. The membership includes both consumer and agency representatives, including the following: CAP Director, Delaware Paralyzed Veterans representative, Center for Disabilities Studies Director, Division of Services for Aging & Adults with Physical Disabilities representative, Division of Vocational Rehabilitation Administrator, and State Council for Persons with Disabilities Administrator.

The Council reviews and approves priorities and the annual report. At each meeting, DLP staff provided a written and oral statistical update, advocacy update, and Project Director’s report. The Council provides input and advice on current issues affecting persons with disabilities.

E. Grievances Filed

There were no grievances filed during the fiscal year.

F. Coordinating with the CAP & Long-term Care Ombudsman

The DLP maintains a positive relationship with both the CAP and Long-term Care Ombudsman. The CAP Director serves on the DLP’s PAIR Advisory Council and the DLP supplements CAP advocacy in the vocational rehabilitation context as follows:

1) DLP staff member serves as the Chair of the Dept. of Labor’s Division of Vocational Rehabilitation [DVR] advisory council;

2) DLP staff serve on the DVR Client Services Policy Committee;

3) DLP Director and CAP representative serve together on the State’s special education council, the Governor’s Advisory Council for Exceptional Citizens; 4) DLP Project Director and CAP Director serve together on the State Council for Persons with Disabilities Policy & Law Committee which acts on the DLP’s monthly critiques of legislative, regulatory, and policy initiatives;

5) DLP staff responds to CAP requests for technical information on matters within the DLP’s particular expertise;

6) DLP staff screens CAP referrals on matters outside the CAP’s mandate; and

7) DLP staff offers independent or collaborative training on the vocational rehabilitation system on request.

The Home and Community-based services Ombudsman program serves on the DLP’s PAIR advisory council and the DLP supports and supplements Ombudsman advocacy as follows:

1) DLP responds to Ombudsman requests for technical assistance;

2) DLP staff offers independent and collaborative training on abuse, neglect, and rights of constituents.

3) DLP staff and the Ombudsman serve together on the State Nursing Home Residents Quality Assurance Commission.

4) DLP Project Director and Ombudsman serve together on the State Council for Persons with Disabilities Housing Committee. 5) DLP Project Director and Ombudsman representative serve together on State Council for Persons with Disabilities Policy & Law Committee.

**PRIORITIES & OBJECTIVES CONTINUED**

C. THIRD PRIORITY: HOUSING/INDEPENDENT LIVING (Continued)

Fifty-two year old with orthopedic impairments was being evicted from mobile home park due to arrears on lot rent. She needed additional income but had recently received a notice denying her claim for SSDI. The DLP represented her at the Reconsideration level, submitted extensive medical support from five sources, requested expedited decision from DDS, and secured a favorable eligibility decision. [11-1032946]

Forty-eight year old SSI beneficiary living in residence subsidized through USDA Office of Rural Development. USDA regulations allow cohabitation by resident assistants to provide care who are not considered part of household for purposes of rent calculation. Although property managers had historically honored regulations by not counting income of client’s sister who provided caretaker assistance, new property manager began counting sister’s income and demanded $4,000 in retroactive rent adjustment. DLP intervened and prompted adherence to federal regulation and rescission of claim for $4,000 in back rent. [11-3030098] Forty-two year old SSDI beneficiary in State-operated nursing home requested assistance with planning to move to community setting with supports. DLP participated in planning meetings, facilitated direct deposit of Social Security checks, provided input to court-appointed attorney involved in guardianship proceedings, and facilitated referral to Money Follows the Person program. [11-1031888]

Thirty-nine year old alleged financial exploitation by mother-in-law with whom he had resided until recently. He was currently homeless. DLP represented in Family Court which entered a protection from abuse (PFA) order. DLP also facilitated recovery of client’s personal belongings from former residence with police present. DLP initiated assessment of merits of litigation to recover funds from mother-in-law but she filed bankruptcy, undermining viability of litigation. [09-1024932]; 09-1025316]

Fifty-five year old SSDI beneficiary lived in Section 8 housing with son who verbally abused her. DLP represented client in Family Court on petition for protection from abuse order (PFA). DLP facilitated issuance of separate vouchers to client and son and son moved out of premises. Client decided to voluntarily dismiss her PFA petition at Family Court hearing since son had vacated her residence. [12-2033849]

Fifty-six year old SSDI beneficiary with orthopedic disability had been financially exploited by relatives resulting in second mortgage on home in which she resided. DLP assessed and identified legal options. However, client declined to pursue legal remedies against family members. [09-3010181]

Seventy year old suffered brain damage after brain tumor surgery. During his rehabilitation, relative removed $110,000 from savings which jeopardized client’s ability to secure new housing to accommodate his limitations. DLP filed unjust enrichment action in Chancery Court and later transferred representation to CLASI’s elder law program (ELP) when attorney transferred to ELP. [08-2007357]

Relative with power of attorney for forty year old SSDI beneficiary based on stroke requested assistance with rental assistance program which allowed rent reduction for SSDI/SSI beneficiaries. However, relative indicated that beneficiary did not support his request. DLP insisted on direct consultation with beneficiary to ensure lack of conflict. Relative refused to cooperate and DLP declined to act without consultation with beneficiary. [10-1029861]

Forty-two year old SSDI beneficiary with orthopedic impairments had monthly benefits reduced by $850 child support order paid to Division of Child Support Enforcement. Mother was receiving benefits for children based on SSDI. Client had inadequate funds to pay rent. DLP represented in Family Court and reduced child support order to zero. [07-1019836]

D. FOURTH PRIORITY: AUTONOMY.

1. Identification

The PAIR program will promote constituent autonomy and self-assurance through training, information dissemination, and assistance with substitute or advance consent documents.

2. Need, Issue, or Barrier Addressed

The PAIR program promotes consumer self-advocacy through both group training and answering individual inquiries. Autonomy is also enhanced by DLP preparation of advance health care directives and powers of attorney for clients on a limited basis. This facilitates implementation of consumer choice in health care and financial matters.

3. Outcome Indicators

Factors used to determine success include the number of individuals trained in group settings, the number of individuals provided with individual technical assistance, and the number of individuals obtaining advance health care directives or powers of attorney. As reflected in the PAIR FY 12 Priorities, the outcome indicators for this objective were as follows:

a. The DLP will provide information and referral services to 150 individuals and agencies.

b. The DLP will provide training to 10,000 individuals through articles, seminars, training events, and dissemination of training materials.

c. The DLP will prepare a minimum of 10 powers of attorney, advance directives, and similar authorizing documents.

4. Collaborative Efforts

Consistent with PPR, Part 1, Section B, the DLP conducted 25 group training events. Collaborating agencies included the State Council for Persons with Disabilities, Widner University, Department of Health & Social Services, Independent Resources, Inc., and Center for Disabilities Studies.

Since State law requires the Long-term Care Ombudsman to witness execution of advanced health care directives (AHCDs) by nursing home residents, the DLP often collaborated with the Ombudsman in finalizing such documents.

5. Number of Cases (41)

6. Case Summaries

Forty-eight year old SSDI beneficiary with M.S. resided in nursing home. Power of attorney (POA) appointed her mother as agent to assist with financial affairs. However, since mother was advancing in age, client wished to add her daughter as the successor agent. DLP prepared revised POA which client executed. [11-1033312]

Fifty-three year old SSDI beneficiary requested POA since she was dependent on oxygen machine and seldom left home. The DLP prepared POA which client executed. [11-1033073]

Fifty-two year old SSDI beneficiary was scheduled for emergency surgery and requested POA naming sister as agent and an AHCD. The DLP prepared both documents which client executed. [12-1034605]

Forty-seven year old with brain tumors and orthopedic impairments was homeless and requested POA and AHCD on expedited basis due to deteriorating health. DLP prepared documents which client executed. [12-2033722]

Fifty-seven year old SSDI beneficiary had executed POA while in hospital but later determined that agent was misusing funds. DLP assisted with revocation of POA. [11-1032399]

Fifty-two year old with multiple chronic health impairments resided in State-operated nursing home. She requested advance health care directive (AHCD). DLP prepared document which client signed. Ombudsman signed as witness as required by State law for residents of nursing homes. [12-1034459]

Forty-two year old with spinal cord injury residing in nursing home requested durable POA and advance healthcare directive (AHCD). DLP prepared both documents but client left nursing home and did not respond to phone messages and letter requesting him to make appointment to sign documents. [12-1033484]

Fifty-one year old with terminal cancer requested POA and AHCD. DLP prepared documents on expedited basis which client executed. Client died three days after execution of documents. [12-2034731]

Thirty-seven year old SSDI beneficiary with HIV-related impairments requested POA and AHCD. DLP prepared both documents which client signed. [12-1035697]

Fifty-three year old dual SSI/SSDI beneficiary with COPD and cancer requested POA and AHCD. DLP prepared both documents which client executed. [12-2036038]

Forty-four year old SSDI beneficiary with M.S. requested POA and AHCD. DLP prepared both documents which client signed. [12-1033551]

Forty-six year old with terminal liver disease requested POA and AHCD. DLP prepared both documents which client executed. [12-1033602]

Fifty-one year old SSDI beneficiary with chronic impairments due to stroke requested assistance with prompting co-habiting individual to leave her home. DLP facilitated agreement to vacate premises. [11-3031334]

Fifty-four year old was disabled due to auto accident in Florida in 1992. Mother had been appointed guardian in Florida but never registered order in Delaware upon moving here in 2007. Mother was now in nursing home and interested in transferring guardianship to Delaware. DLP contacted Florida Court and provided information to family about process to bring records current to facilitate registration of order in Delaware. [11-3030221]

Fifty-nine year old SSDI beneficiary based on orthopedic disability assisted with care of her grandchildren. Estranged spouse of daughter applied for Protection from Abuse order against client to undermine current custody order and avoid child support. DLP negotiated stipulation of dismissal of application and preserved client’s autonomy. [11-2032714]

Forty-seven year old SSDI beneficiary with diabetes, heart disease, kidney transplant, and blindness resided in State nursing home. He desired regular visitation schedule with his minor son who was living with maternal grandparents. DLP filed visitation petition in Family Court and secured order establishing a set schedule for visitation which preserved family integrity and client’s autonomy. [11-2031589]

Forty-one year old with diabetes was terminated from employment due to excessive absences. He attributed termination to employer’s reluctance to prospectively cover health insurance. However, evidence of improper employer rationale was scanty. DLP provided technical assistance on procedure to file on-line employment discrimination complaint with State DOL. [11-3032713]

Certification

Signed?Yes
Signed ByBrian Hartman
TitleProject Director
Signed Date12/06/2012