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

District of Columbia (DC-RSA / UNIVERSITY LEGAL SERVICES) - H240A130059 - FY2013

General Information

Designated Agency Identification

NameUniversity Legal Services
Address220 I St NE 130
Address Line 2
CityWashington
StateDistrict of Columbia
Zip Code20002
E-mail Addressjbrown@uls-dc.org
Website Addresshttp://www.uls-dc.org
Phone202-547-0198
TTY 202-547-2657
Toll-free Phone877-221-4638
Toll-free TTY
Fax202-547-2662
Name of P&A Executive DirectorJane Brown
Name of PAIR Director/CoordinatorMarjorie Rifkin
Person to contact regarding reportMarjorie Rifkin
Contact Person phone202-547-0198
Ext.128

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 areas41
2. Individuals receiving I&R outside PAIR priority areas227
3. Total individuals receiving I&R (lines A1 + A2)268

B. Training Activities

1. Number of trainings presented by PAIR staff8
2. Number of individuals who attended training (approximate)138

ULS conducted trainings for 91 nursing facility residents and staff at 5 nursing facilities. The purpose of these trainings was to educate participants about residents’ rights under ADA Title II to access services in more integrated community settings. ULS also discussed its role as class counsel in Thorpe v. District of Columbia and residents’ rights as class members to transition assistance from the DC government and the nursing facilities to access community services.

ULS also conducted a training at the Columbia Lighthouse for the Blind for 20 staff, most of whom are blind. The Lighthouse requested ULS to present on its role in assisting people with low vision and blindness to get the accommodations they need from DC government and schools, among other issues.

C. Information Disseminated to the Public

1. Radio and TV appearances by PAIR staff0
2. Newspaper/magazine/journal articles3
3. PSAs/videos aired1
4. Hits on the PAIR/P&A website63,049
5. Publications/booklets/brochures disseminated11
6. Other (specify separately)7,525

Narrative

ULS set up a Facebook page which had 7,525 hits this year. The page includes news items and notices of events of particular interest to the disability community and the general public.

The Washington Post featured ULS’ clients and quoted ULS in three articles this year. An article in October 2012 discussed DC’s and other states’ difficulties in transitioning people from nursing facilities. Seehttp://www.washingtonpost.com/national/health-science/moving-people-out-of-nursing-homes-proves-to-be-difficult-despite-federal-funding/2012/10/22/74748e3a-e30f-11e1-ae7f-d2a13e249eb2_print.html. A second article in August 2013 featured a ULS client whose Medicaid waiver services were terminated by DC government due to DC’s failure to process her recertification. Seehttp://www.washingtonpost.com/local/dc-dropped-hundreds-of-people-from-medicaid-rolls-without-cause-attorneys-say/2013/08/11/63d9ec54-002e-11e3-9711-3708310f6f4d_story.html. Another article described the US Department of Education’s Agreement mandating diabetes care in DC public charter schools, and Section 504 Plans and grievance procedures that incorporate diabetes care. Seehttp://dcist.com/2013/08/district_cuts_medicaid_assistance_f.php.

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)10
2. Additional individuals served during the year29
3. Total individuals served (lines A1 + A2)39
4. Individuals w. more than 1 case opened/closed during the FY. (Do not add this number to total on line A3 above.)1

B. Individuals served as of September 30

Carryover to next FY may not exceed total on line II. A.3 above 20

C. Problem Areas/Complaints of Individuals Served

1. Architectural accessibility0
2. Employment0
3. Program access0
4. Housing1
5. Government benefits/services27
6. Transportation0
7. Education2
8. Assistive technology0
9. Voting0
10. Health care1
11. Insurance0
12. Non-government services1
13. Privacy rights0
14. Access to records0
15. Abuse6
16. Neglect1
17. Other0

D. Reasons for Closing Individual Case Files

1. Issues resolved partially or completely in individual favor14
2. Other representation found0
3. Individual withdrew complaint1
4. Appeals unsuccessful0
5. PAIR Services not needed due to individual's death, relocation etc.2
6. PAIR withdrew from case1
7. PAIR unable to take case because of lack of resources0
8. Individual case lacks legal merit0
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-advocacy0
2. Short-term assistance6
3. Investigation/monitoring0
4. Negotiation1
5. Mediation/alternative dispute resolution0
6. Administrative hearings9
7. Litigation (including class actions)3
8. Systemic/policy activities1

Part III. Statistical Information on Individuals Served

A. Age of Individuals Served as of October 1

Multiple responses not permitted.

1. 0 - 41
2. 5 - 221
3. 23 - 5916
4. 60 - 643
5. 65 and over18

B. Gender of Individuals Served

Multiple responses not permitted.

1. Females24
2. Males15

C. Race/Ethnicity of Individuals Served

For individuals who are non-Hispanic/Latino only

1. Hispanic/Latino of any race4
2. American Indian or Alaskan Native0
3. Asian0
4. Black or African American33
5. Native Hawaiian or Other Pacific Islander0
6. White1
7. Two or more races1
8. Race/ethnicity unknown0

D. Living Arrangements of Individuals Served

Multiple responses not permitted.

1. Independent20
2. Parental or other family home3
3. Community residential home1
4. Foster care0
5. Nursing home14
6. Public institutional living arrangement0
7. Private institutional living arrangement0
8. Jail/prison/detention center0
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 impairment3
2. Deaf/hard of hearing2
3. Deaf-blind0
4. Orthopedic impairment26
5. Mental illness0
6. Substance abuse0
7. Mental retardation0
8. Learning disability0
9. Neurological impairment1
10. Respiratory impairment0
11. Heart/other circulatory impairment0
12. Muscular/skeletal impairment1
13. Speech impairment0
14. AIDS/HIV1
15. Traumatic brain injury0
16. Other disability5

Part IV. Systemic Activities and Litigation

A. Systemic Activities

1. Number of policies/practices changed as a result of non-litigation systemic activities5

2. Number of individuals potentially impacted by policy changes64,089

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.

Diabetes Work: In response to ULS’ complaint on behalf of LT and all students with diabetes in DC Public Schools (DCPS) and DC Public Charter Schools to the U.S. Department of Education’s Office of Civil Rights (OCR), DCPS signed a comprehensive Resolution Agreement during Fiscal Year 2012 with the OCR. The Agreement requires DCPS to implement its provisions by deadlines set in FY 13. During this fiscal year, ULS has tracked DCPS’ implementation of the Agreement by: providing comments and technical assistance to OCR and DCPS, representing individual students with diabetes and enforcing their rights under the Agreement, and collaborating with OCR to ensure that all students with diabetes in DCPS and DC Public Charters have access to diabetes care and related accommodations and rights.

In an effort to comply with the Agreement, the DC Department of Health finalized regulations in November 2012, on which ULS previously submitted comments. These regulations clarify the DC Student Access to Treatment Act and apply to private, public, and charter schools. The regulations state that students with diabetes are entitled to carry their diabetes supplies (including needles) if they are capable of self-administration and to self-administer their diabetes care anywhere, anytime; and allow unlicensed school staff, in addition to the school nurse, to be trained to administer routine (insulin) and emergency (glucagon) diabetes care. As a result of these regulatory changes, all students in the District who attend schools covered by the ADA and/or Section 504 (including religious private schools that receive federal funding such as the school lunch program and private non-religious schools) will receive equal access to school programs. Students who, due to lack of diabetes care, may have had to stay home from school on days the school nurse was not there, or were forced to miss class to self-administer blood sugar tests throughout the day, or who experienced or were at risk for potentially deadly low blood sugar episodes with no one available to give emergency injections, can now get the care they need in integrated school settings. DCPS also held trainings for unlicensed backup school staff at DCPS and DC Public Charter Schools to administer diabetes care when nurses are not available, in an effort to ensure students with diabetes can attend school and school events safely.

DCPS also sent notification to families of students with diabetes in DCPS and DC Public Charter Schools of their rights under Section 504 of the Rehabilitation Act and the ADA, and created 504 complaint procedures for use by students and parents. Students in DCPS and DC Public Charter Schools have access to the same 504 complaint procedures which involve appeals handled by a neutral third party, rather than DCPS or District government staff.

DCPS ULS collaborated with OCR regarding their enforcement of the District’s compliance with the FY 13 elements of the Agreement. ULS provided technical assistance and recommendations based on information derived from ULS’ representation of individual students and collaboration with other education advocates. For example, ULS confirmed that DCPS implemented a new policy regarding the right of all students with diabetes to diabetes care by trained staff on which ULS submitted comments. ULS created a comprehensive 504 diabetes Plan for an individual elementary school client which OCR and enforced as the model 504 Plan without attribution to ULS’ individual client.

DCPS issued regulations that formally set forth the decades-old federal rights and complaint process for students’ family members under the ADA, Section 504, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title IX of the Education Amendments of 1972.

ULS brought to OCR’s attention the fact that preschoolers are included in the Agreement and entitled to the same trained staff to administer diabetes care as well as comprehensive 504 Plan detailing diabetes-related accommodations. We pointed out DCPS’ failure to comply with the Agreement regarding DCPS preschoolers, and urged OCR to enforce the Agreement in this respect.

As a result of ULS’ complaint and enforcement efforts, DCPS identified 90 students with diabetes enrolled in public schools as of September 2013. At schools with identified students with diabetes, DCPS and the DC Public Charters, in conjunction with the DC Department of Health, conducted a training for school staff to administer vital routine and emergency injections. However, as of the end of FY13, DCPS had only submitted 16 compliant 504 plans, rather than the 90 required by the Resolution Agreement (and Section 504 and the ADA) to OCR. As a result of DCPS’ failure to comply with the Agreement, OCR informed ULS of plans to initiate Federal funding cutoff proceedings against DCPS. DC Public Charters In FY 13, OCR took action arising from ULS’ systemic complaint against the Public Charter schools that culminated in OCR’s filing systemic complaints last year. During this year, OCR required two Charter schools to sign Resolution Agreements identical to the DCPS Agreement, and the remaining 42 Charters demonstrated that they had voluntarily come into compliance with the terms of the Agreement. In order to resolve the complaints, OCR required the Charter schools to identify all students with diabetes enrolled and submit 504 Plans for each of those students that accommodated the students’ diabetes-related needs. In order to be “compliant,” the Charters were required to implement 504 Plans that: include trained school staff to administer diabetes care throughout the school day and on field trips; allow students capable of self-administering diabetes care to carry diabetes supplies and self-administer diabetes care anywhere, anytime; and modify policies to offer make-up assignments and tests with no penalty if students experience low and high blood sugar, blood sugar tests to determine whether a students’ behavior is related to diabetes prior to disciplinary action because high or low blood sugar is linked with behavioral changes. OCR also required each Public Charter School to create, implement, and publish notifications to students and families regarding their rights under all civil rights laws. The DC Public Charter Schools created policies regarding the decades-old federal rights of students and their families to freedom from not only disability discrimination, but also race, color, national origin, age, and gender discrimination under Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title IX of the Education Amendments of 1972. Case Example: ULS successfully advocated for JL, a 3-year-old boy with type 1 diabetes, to access proper care at his DCPS preschool, in accordance with a comprehensive 504 Plan. JL’s school initially had refused to provide trained school staff until November 2013 when ULS sent a complaint to DCPS enforcing the diabetes Resolution Agreement between DCPS and OCR that required trained backup school staff at all times. DCPS agreed to train staff in time for the first day of school and put in place a comprehensive 504 Plan. ULS sent a second demand letter to DCPS because the trained school staff failed to access his diabetes supplies needed for JL’s blood sugar emergency that were locked in the nurse’s office. DCPS agreed to allow the trained staff both to perform the diabetes care AND to access the diabetes supplies. DCPS agreed to allow the trained staff both to perform the diabetes care AND to access the diabetes supplies.

Challenging Illegal Disability-based Discrimination by Community Residential Facilities:

In response to a complaint by a senior citizen with disabilities who was illegally evicted based on her disability from her community residential facility (CRF), ULS challenged the provider’s discriminatory practice by filing a comprehensive complaint in June 2013 with the District’s Health Regulations Licensing Administration (HRLA) of the DC Department of Health. According to the provider, HRLA had dictated, if not condoned the illegal eviction. In its complaint, ULS cited the provider’s and the District’s violations of the Fair Housing and Americans with Disabilities Act, as well as the District’s own regulations governing eligibility for continuing residency at CRFs that are designed for senior citizens and people with disabilities. ULS urged the District to amend its regulations which, on their face, foster disability-based discrimination by, for example, requiring CRF applicants and residents to prove they need only “minimal assistance” and do not need nursing care. Most CRF residents are entitled to rely on their health insurance to seek the personal care or nursing services they need while residing in CRFs, just as they rely on other health care services.

In July 2013, ULS met with the head and staff of HRLA, along with Department of Health counsel, regarding the need for systemic changes to the DC regulations governing CRFs and its practices in monitoring and administering the CRF provider network. HRLA staff agreed that the regulations needed to be revised, although they failed to prioritize revisions to the regulations. They acknowledged that the provider was at fault in illegally evicting the resident, and supported ULS’ advocacy to allow the resident to return to her home. HRLA further acknowledged that CRF residents should be entitled to access PCA services covered by Medicaid or Medicare or other forms of health insurance providers, even though CRFs do not typically provide such care. HRLA also agreed that the CRF providers must follow the District’s notice and due process requirements in all cases as mandated by DC regulations. The District acknowledged that ULS’ client’s rights were violated by the provider which failed to provide legally sufficient advance notice prior to evicting her. As mentioned, due to ULS advocacy, the client was reinstated at her CRF within days of ULS’ complaint.

Case Example: ULS successfully advocated on behalf of Ms. J, a 73-year-old woman living in a community residential facility for seniors. Ms. J underwent a routine surgical procedure after which she was evicted from her home because she had a temporary indwelling catheter and an order for short-term urinary catheterization four times a day. ULS sent a complaint letter to the provider and to the District’s Health Regulations and Licensing Administration (HRLA). Within hours of getting ULS’ demand letter, Ms. J’s CRF provider allowed her to return to her home and later apologized and acknowledged the termination was improper, lacked adequate notice, and was based on Ms. J’s disability.

Promoting Access in Polling Places: In preparation for the Nov. 6, 2012 Presidential Election, ULS organized 90 volunteers to monitor the accessibility of 123 of the District’s 144 polling places in accordance with an accessibility checklist that ULS developed. ULS reported issues directly to the DC Board of Elections (BOE) on election day, resulting in the following accessibility improvements: BOE repaired doorbells to enable voters with disabilities to request assistance at the entrances of the West End Library (Precinct 4) and Oyster Elementary School (Precinct 6); the police stationed a staff person at the door to assist voters who could not enter the narrow doorway by opening a second door at Metropolitan Police Department Regional Operation Command (Precinct 5); staff repaired the accessible voting machine at LaSalle Elementary (Precinct 65); and staff removed chairs that blocked the entrance to Nalle Elementary School (Precinct 104), preventing wheelchair access.

ULS and its monitors addressed common accessibility barriers such as lack of turning space for wheelchairs near the touch screen machines through advocacy with on-site with BOE staff who agreed to unlock accessible doors, prop open heavy doors, or station poll workers at doors to accessible entrances at Takoma Education Campus (Precinct 63), Burroughs Elementary (Precinct 70), and Watkins Elementary (Precinct 91). BOE relocated one precinct, Janney School, after ULS’ report of an abrupt rise in the path to the voting area. ULS testified at three hearings regarding barriers during the Presidential Election and recommendations to resolve them: a hearing held by City Council Representative Muriel Bowser , chair of the DC Council Government Operations Committee; and two Board of Elections roundtables.

On April 1, 2013 ULS issued its report on the November 2012 Presidential Election detailing which polling places had accessibility barriers, and listing recommendations to the BOE. ULS found that 6% (7 precincts) of the surveyed precincts were structurally inaccessible, and 47% (58 precincts) of the surveyed precincts were operationally inaccessible. This is a lower rate than we found during the April 2012 Presidential Primary, when 68% of the surveyed precincts were operationally inaccessible. 65% of the surveyed precincts were operationally inaccessible in the 2011 Special Election. The access problems this year resulted from locked or closed heavy doors, which prevent voters with mobility disabilities from entering the voting area independently. ULS again organized volunteers to survey 27 polling precincts (focusing on those that had accessibility barriers during the Presidential election) during the April 23, 2013 Special Election. During the April 23, 2013 election, BOE improved four polling precincts’ accessibility in accordance with ULS’ recommendations from ULS’ Presidential Election Report. For example, in keeping with ULS’ past reports and recommendations, the wheelchair-accessible route was not blocked by parked cars for the first time in three years at a local school, Precinct 104. ULS successfully advocated that poll staff address accessibility barriers during the Special Election at four precincts by, for example, requesting that polling staff move accessible touch screen machines to provide sufficient turning space for wheelchair riders at MPD Regional Operation Command (Precinct 45) and prop heavy doors at LaSalle Elementary School (Precinct 65). ULS issued its Special Election Accessibility Report on July 17, 2013, with the following major findings: 8% (2 locations) of the surveyed precincts were structurally inaccessible, and 50% (12 locations) of the surveyed precincts were operationally inaccessible. Promoting Access in Public Accommodations:

ULS continued to promote accessibility at restaurants and other public accommodations this year, particularly in newly-renovated sites that have 1-step entries within gentrifying neighborhoods. We developed a campaign to “Make H Street Accessible for All,” complete with fliers and stickers which we distributed to participants at a major street festival on H Street NE. ULS sent letters to 22 businesses across the city urging compliance with Title III of the ADA. One business ULS has advocated for accessibility modifications finally installed a permanent concrete ramp with two sets of handrails in June 2013. The National Gallery of Art finally installed consumer-activated wall buttons for closed captioning on audio-visual exhibits such as films, following two complaints by ULS in the past. ULS also collaborated with the Equal Rights Center to report businesses that sell lottery tickets which are inaccessible and therefore noncompliant with a settlement agreement entered with the District in a lawsuit several years ago.

ULS will continue to advocate for full access and compliance monitoring of businesses issued certificates of occupancy and building permits by, for example, advocating for more aggressive code monitoring by the DC Department of Consumer and Regulatory Affairs.

Challenging DC’s Olmstead Violations The District continued to violate the Title II ADA rights of people with disabilities by erecting barriers to community integration including development of more stringent eligibility requirements for access to day treatment programs that affect people across all disabilities and approximately 250 senior citizens. ULS, together with day treatment providers and advocates, participated in a stakeholder committee to advise the District on changes made to the admission criteria and reimbursement methods for day treatment. ULS drafted and submitted formal comments to DC’s proposed regulations that barred new admissions to day treatment programs funded by DC Medicaid effective January 2013. ULS expressed significant concern that seniors and people with physical disabilities who are Medicaid beneficiaries in need of day treatment might not get adequate Personal Care Assistance (PCA) services under the Medicaid State Plan as an alternative to day treatment. Moreover, they would be subject to isolation at home with services, rather than exposed to the group activities available in day treatment. ULS also stressed that many seniors in need of day treatment could not qualify for DC Medicaid, and would thereby need to rely on the EPD Waiver Program, which has consistently had a waiting list, in order to get personal care assistance services in their homes. All in all, by barring new day program admissions, the District jeopardized the community integration options for many people with disabilities and seniors. The District asserted its intention of revamping the eligibility criteria for day treatment, based on development of a 1915(i) waiver program at a future date.

ULS continues to provide critical comments about the level of care requirements and assessment tool to be used for EPD Waiver and Nursing Facility placement to provider and advocacy partners, as well as the District’s Department of Health Care Finance. At ULS’ urging through the Long-term Care Coalition and others, the District contracted with local nurses to pilot-test the proposed assessment tool on hundreds of individuals currently receiving EPD Waiver or nursing facility services. The new tool, level of care criteria and process for service enrollment were not yet finalized by the District as of the end of Fiscal Year 2013. ULS will continue to monitor and review the new system as it evolves, and issue critical comments about the impact on people with disabilities. ULS also voiced concern to City Council Representative Yvette Alexander(Chair of the Health Committee) regarding the District’s ongoing termination of EPD Waiver services when participants are admitted to hospitals or short-term rehabilitation for more than 30 days. This unwritten policy and District practice has placed people with disabilities and seniors at risk of permanent nursing home placement when they cannot restart their EPD Waiver service. Those who are not Medicaid eligible instead face the choice of returning home with no services whatsoever. ULS pointed out to Council member Alexander that DHCF had testified at a public hearing regarding its pledge to expand the time limit to 90 days, and not to terminate anyone within 30 days during its reformulation of a policy. ULS also pointed out that the District’s 30-day limit on holding EPD Waiver slots for people who are hospitalized is not based on any federal law or guidance, contrary to the District’s claims.

Case Example: ULS advocated for MW, a 65-year-old woman with diabetes and mobility limitations who was in a rehabilitation facility following the amputation of both her legs, to be discharged home within the 30-day limit initially set by the District in the Fall 2012. Ms. W’s senior citizen program social worker requested ULS’ assistance because her EPD Waiver provider agency and facility discharge staff did not respond to her requests. In fact, her waiver provider never reached out to assist her for any purpose when she was hospitalized. Although Ms. W could have benefitted medically from longer rehab stay, she insisted on returning home so as not to jeopardize her EPD Waiver services. Ms. W was successfully transitioned to her home on the 29th day following her hospitalization and her EPD Waiver services were restored and increased to 16 hours of daily services, along with nursing visits and scheduled physical therapy appointments.

ULS also successfully represented Ms. CB, a 70-year-old woman who uses a wheelchair and has a surgical wound, in an appeal to the Office of Administrative Hearings (OAH). ULS sought to reinstate Ms. B’s 8 hours per day of daily EPD Waiver home health services and to initiate case management after the District threatened service termination. Ms. B received a termination notice from her home health agency related to a hospital stay of less than 30 days while her appeal of DHCF’s termination due to failure to recertify was still pending. ULS represented her to get the EPD case management services, to require DHCF to withdraw the improper termination notice for her hospital stay, and reinstate and recertify her EPD services. ULS sent a demand letter to DHCF’s general counsel regarding DHCF’s general continued practice of terminating individuals for 30+ day hospital stays.

B. Litigation/Class Actions

1. Number of individuals potentially impacted by changes as a result of PAIR litigation/class action efforts9,000
2. Number of individuals named in class actions19

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.

Class Actions: Thorpe v. District of Columbia ULS filed a class action lawsuit against the District of Columbia in December 2010 on behalf of all DC residents with disabilities in nursing facilities who seek transition assistance to move back to the community with the long-term care services they need. The plaintiff class is between 500 and 3,000 DC residents in nursing facilities who seek transition assistance and services under the DC Medicaid Program, among other long-term care services offered by the District. ULS is co-counseling this case under Title II of the Americans with Disabilities Act (ADA) with AARP Foundation Litigation and Arent Fox, LLP. The US Department of Justice’s Office of Civil Rights has filed statements of interests to support plaintiffs in opposition to the District’s motion for summary judgment and this year, to support plaintiffs’ renewed motion for class certification. ULS acts as the sole liaison with plaintiff class representatives and class members in addition to the litigation responsibilities with co-counsel that involves research, brief writing, court appearances (oral arguments), discovery requests, review of voluminous discovery materials, and conducting depositions to master the facts over the course of the litigation. Plaintiffs seek injunctive and declaratory relief, that is, the District’s development and implementation of a system of transition assistance that will effectively move people who choose to move out of nursing facilities to live integrated in the community with long-term care services needed to help with their activities of daily living (e.g., bathing, dressing, toileting, eating, transferring from their wheelchairs). At 95-98%, the District’s nursing facility occupancy rate continues to rank as the highest in the nation, even though the Department of Healthcare Finance (DHCF) controls the entry gate to nursing facilities, based on the same level of care needs used to serve people in the community under the EPD Waiver Program at less than half the cost of nursing facilities. During this year, ULS appeared in Federal Court, completed a 6-month federal court mediation process, reviewed and digested thousands of documents produced by the District, amended the complaint to add more named plaintiffs and revise the class definition, conducted 6 depositions of DC officials and defended 11 depositions of named plaintiffs. By year’s end, we were awaiting the Court’s decision on the District’s motion to dismiss and plaintiffs’ renewed class certification motion.

The District reported that 17 nursing facility residents moved back to the community under the under-utilized Money Follows the Person Program (MFP) in 2012, which is less than half of the allotted MFP slots. Three of the named plaintiffs are now back in the community due largely to their own advocacy and ULS’ help. Young v. DC Housing Authority In 2001, ULS filed Young v. DC Housing Authority, a class action lawsuit, on behalf of DC residents with mobility limitations who need wheelchair-accessible public housing under Section 504 of the Rehabilitation Act of 1973. The named plaintiffs included children living in inaccessible privately-owned, subsidized housing who could not get to school or other places because there was no accessible public housing, as well as people in inaccessible public housing, and nursing facilities similarly constrained from free movement in and out of their homes. We negotiated a consent decree with the DC Housing Authority (DCHA) in 2002 to settle the case. The consent decree required DCHA to build or renovate 565 fully accessible public housing units in accordance with a schedule calling for completion by December 2007. In 2008, ULS moved for contempt because DCHA did not complete all the units. Following evidentiary hearings, ULS negotiated an amended consent decree with DCHA for completion of the final 90 units by December 2013. ULS has continued to monitor DCHA’s compliance with the amended consent decree by inspecting completed units against federal accessibility standards. We requested a final inventory of completed accessible units from DCHA to verify that all units are completed, inspected, and leased to people who need the accessible features. During this year, ULS also advocated on behalf of class members when DCHA suspended the public housing waiting list for the first time in years.

Other Litigation: Challenging Guardianship Appointments ULS litigated two compelling individual cases in Probate Court to challenge the illegal imposition of court-appointed guardians for nursing facility residents who are competent in all respects to make decisions for themselves. In both cases, ULS intervened to assert the desires of the individuals to make decisions including the choice to move out of the nursing facility back to live in the community. Both individuals were appointed counsel through the court who failed to take the steps or argue in support of their competency, opposition to guardianship, and desire to move back to the community. ULS’ role in this forum is two-fold: to advance the individuals’ right under the Title II of the ADA to transition assistance from the District to move out of nursing facilities, and second, to reform and reduce the overreliance on guardianship appointments in the District without regard to the rights of people with disabilities to independent decision-making and choices in their lives. ULS has undertaken a systemic, cross-disability approach in this regard. Under PAIR, our focus is on nursing facilities’ common practice of petitioning for guardianship. ULS will continue to challenge inappropriate guardianship appointments.

Case example: ULS assisted CM, a 78-year-old man with visual and mobility disabilities due to a left leg amputation. The nursing facility where he resides filed a petition seeking a court-appointed guardian over Mr. M despite the lack of any evidence that he lacked competence to to make his own decisions. The court examiner who interviewed Mr. M to evaluate him prior to recommending the need for a guardian made clear in her report that the primary concern spurring the guardianship petition was Mr. M’s interest in living in the community. The examiner, court-appointed attorney, and nursing facility attorney contacted Mr. M’s estranged son with the goal of appointing the son as Mr. M’s guardian and moving Mr. M to assisted living in New Jersey. Mr. M opposed this plan and preferred to move to an apartment in DC with home health services. In response to Mr. M’s request, ULS intervened and represented Mr. M along with a court-appointed attorney assigned to Mr. M. ULS arranged for Mr. M to be examined by a neurologist who confirmed that he scored very highly on a mental status test, demonstrating his ability to make decisions. ULS provided to the nursing facility Mr. M’s advanced directive in the event he becomes unable to make medical decisions. Due to ULS’ advocacy, the facility agreed to withdraw the petition for a guardian. As a result, the probate court dismissed the case and Mr. M retained his independence. OAH Cases Challenging EPD Terminations or Reductions ULS continued to challenge the District’s illegal termination and reduction of EPD Waiver services for people with disabilities. We litigated eight cases in the Office of Administrative Hearings to restore and preserve life-sustaining EPD Waiver services. We handled two additional cases without the need for litigation and successfully got the needed waiver services in place. ULS met with the chief judge and staff of the Office of Administrative Hearings (OAH) regarding the trends encountered in these cases, and developed materials for the OAH to share with people who call to request appeals of their service termination and reduction. Among the issues discussed were a series of myths asserted by the District and reality-based responses crafted by ULS to clarify that there is no federal requirement for the District’s termination of people’s waiver slots after 30 days of hospitalization, that the District, not CMS, sets the number of EPD Waiver slots, among other issues. ULS committed to updating the OAH staff periodically with new developments such as changes to the District’s eligibility criteria and process for accessing long-term care services under DC Medicaid. Such changes invariably impact hundreds, if not thousands, of people receiving services under the State Plan PCA Program and the EPD Waiver Program which, in turn, lead to termination of their services. The OAH staff committed to tracking the number of such cases filed and resolved, and to referring individuals to ULS for representation. Case example: ULS successfully represented Ms. B, a 70-year-old woman who uses a wheelchair and has a surgical wound, in an appeal to the OAH to reinstate her EPD Waiver home health services to 8 hours per day, 7 days per week. During the pendency of her appeal, Ms. B received a termination notice from her home health agency because she was hospitalized less than 30 days and the District failed to timely recertify her waiver services. ULS represented her to get the case management services she needed, to require DHCF to withdraw the improper termination notice for her hospital stay, and for DHCF to reinstate and recertify her. ULS sent a demand letter to DHCF’s general counsel regarding DHCF’s ongoing practice of terminating individuals for 30+ day hospital stays.

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.

OBJECTIVE: Advocate on behalf of people with disabilities to ensure their access to DC government services and supports in the most integrated settings appropriate to their needs, public accommodations, and wheelchair-accessible, integrated, federally-subsidized housing. Priorities: A. Represent class members in Thorpe v. District of Columbia to promote their rights under Title II of the Americans with Disabilities Act (ADA) to information about alternatives to nursing facility placement, transitional assistance, and quality home-based personal care services and supports through the Medicaid Waiver Program for People who are Elderly and/or have Physical Disabilities (EPD Waiver) and the DC Medicaid State Plan to enable them to move out of nursing facilities. 1.A. In December 2010, ULS, together with AARP Foundation Litigation and Arent Fox LLP, filed Thorpe v. District of Columbia under Title II of the Americans with Disabilities Act (ADA) on behalf of all DC residents in nursing facilities who seek transition assistance from the District to move back to the community with the services and supports they need. We filed the case under the PAIR and PAIMI grants. There are 500-3,000 plaintiff class members in this case who seek to move from nursing facilities back to the community with the services they need. 2A. Under the Thorpe case, ULS is challenging the District’s illegal segregation of people with disabilities in nursing facilities under ADA Title II, and its failure to implement a system that actually transitions people to the community pursuant to their choice of settings. During this fiscal year, ULS litigated the case aggressively. We defeated a motion to dismiss two named plaintiffs who transitioned to the community. In the Fall 2012, ULS served interrogatories and document requests on the District seeking updated information about the District’s failure to provide transition assistance to prospective class members. Over a 5-month period, we reviewed and summarized several thousand documents, conducted depositions of eight District officials including the Deputy Mayor, Directors of the Medicaid agency (Department of Healthcare Finance), Aging, Money Follows the Person Program, and Aging and Disability Resource Center, as well as MFP staff. We argued before a Magistrate Judge regarding the scope of depositions relating to the use of web-based documents that were not produced by the District. Through discovery, we learned that 17 class members transitioned to the community through MFP in CY 2012. The unused 23 slots were supposed to roll over to 2013 to be added to the 40 new slots for a total of 63 slots available. We also learned that the District has the highest rate of nursing facility occupancy in the nation at 95%, despite the fact that it controls the admission and continued stay of people in nursing facilities. In March, we filed our third Amended Complaint in which we added six new named plaintiffs (for a total of 11) at seven nursing facilities and revised the definition of the plaintiff class. On March 1, 2013, the District held its long-overdue lottery selection of 40 people in nursing facilities to participate in the MFP Program. As of September 30, 2013, none of the 40 selected MFP participants had reportedly transitioned to the community.

The Court accepted our argument that PAIR plaintiff CW remains in the case as a class representative because he may be re-hospitalized and subjected to placement in a nursing facility in light of his chronic health conditions. In January 2013, ULS presented at two Court hearings regarding the litigation schedule, motion to dismiss, and pending class certification motion. In April, ULS attorneys defended the depositions of 11 named plaintiffs. ULS filed a Renewed Motion for Class Certification in which we revised the class definition as:

All persons with physical disabilities who, now or during the pendency of this lawsuit:

(1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days;

(2) are eligible to live in the community; and

(3) would live in the community instead of a nursing facility if the District of Columbia would provide transition assistance to facilitate their access to long-term care services in the community.

We supplemented the class certification motion with declarations gathered from the new named plaintiffs in addition to declarations from eight unnamed plaintiffs in nursing facilities attesting to their unsuccessful attempts to get transition assistance from the District. We filed a Reply brief in support of our class certification motion and the U.S. Department of Justice filed a Statement of Interest in support of class certification. We have been awaiting the Court’s decision since July 2013. Unfortunately, LC, one of the named plaintiffs, passed away in the Spring 2013.

Over the Summer 2013, we compiled a statement of undisputed material facts based on the deposition and document discovery we conducted. We also began drafting a motion for summary judgment for future filing.

3A. Successful outcomes for Thorpe will be tied to the District’s development of a system of transition assistance for people in nursing homes seeking to move back to the community with the services they need, and transition of sufficient numbers of nursing facility residents to the community with the services and supports they need under the Medicaid State Plan PCA Program, EPD Waiver Program and Department on Aging home health programs. 4A. ULS collaborated with Thorpe co-counsel AARP Foundation Litigation and Arent Fox LLP, the U.S. Department of Justice, staff at several nursing facilities, several home health Medicaid Waiver provider agencies, Medstar Medical Housecalls Program, the DC Long-term Care Coalition, Long-term Care Ombudsman Office, DC Healthcare Ombudsman Office, the DC Housing Authority, D.C. Center for Independent Living, and National Rehabilitation Hospital. 5A. ULS handled 17 individual cases under this priority. This is a class action lawsuit involving 500-3,000 class members. In addition to these cases, we met with 21 individual class members in nursing facilities to explain their rights under Title II of the ADA and the Thorpe litigation. 6A. Case examples: ULS represents R.F., a 68-year-old man who uses a wheelchair and has a Stage IV decubitus ulcer. He is a named Plaintiff in Thorpe; he wanted to transition to the community rather than continue residing in a nursing facility where he has lived since 2006. Eleven months after leasing a wheelchair accessible public housing apartment, Mr. F had still not received transition assistance from DC government to help him transition out of the nursing facility and into his apartment with the home health services he needed. Due to his non-payment of rent and the fact that he was not occupying the unit because he was in the nursing facility, Mr. F was at risk of eviction. ULS negotiated a settlement with DCHA to reduce his back rent from more than $2,000 that DC Housing Authority charged him to $252. This agreement, brokered by ULS, enabled Mr. F to retain his lease as long as he agreed to move in no later than Oct. 1, 2013. Because the DC government took no steps to enable Mr. F to move out of the nursing facility, ULS connected Mr. F to: a non-profit agency willing to pay his $252 in back rent, a home health agency provider to provide 16 hours per day of home health services and case management, and a Medical House Calls doctor and nurse health team. ULS also prepared a detailed discharge plan, represented Mr. F during a discharge meeting at the nursing facility, coordinated the fulfillment of durable medical equipment orders, prescription medication orders, and gathered donated supplies and furniture for his apartment. When Mr. F moved to his apartment in late September after seven years in the nursing facility, the nursing facility attempted to illegally withhold his remaining SSDI benefits. ULS consequently sent a demand letter to the administrator, resulting in the facility’s agreement to pay him his SSDI benefits for the remainder of September including additional retroactive benefits that would have enabled him to pay rent during his nursing facility stay. ULS notified SSA and DC agencies of Mr. F’s discharge so that his benefits would be sent to his new address in the community. ULS also negotiated with SSA to issue Mr. F an emergency SSDI check.

ULS represented H.P., a 93-year-old woman with some memory loss and physical orthopedic limitations requiring her to use a cane who has resided in a nursing facility after a hospitalization in the Summer of 2012. ULS assisted her to request help from her nursing facility to access daily home health services of 8 hours (or less) so that she could return to her home in the community. The nursing facility refused to assist her to prepare to return home, alleging that she had dementia and was not capable of living in the community. ULS assisted her to get an evaluation by a neurologist who debunked the facility’s dementia claim and issued orders stating that Ms. P had no health or neurological conditions that would prevent her from living at home. The doctor also completed the required paperwork for home health services. ULS demanded a discharge planning meeting for Ms. P with nursing facility staff. The DC Office on Aging attended the meeting at the nursing facility at which they and the nursing facility staff insisted that Ms. P could not return to her home and refused to take steps to assist Ms. P. In September, ULS submitted a comprehensive complaint to the DC Health Regulation and Licensing Administration (HRLA) about the nursing facility’s neglect in discharge planning under federal and DC law. ULS also collaborated with the Long Term Care Ombudsman Program to urge follow-up steps to prepare Ms. P’s home for her return and access to transition assistance through the DC Money Follows the Person or Department on Aging. HRLA refused to take action because the nursing facility doctor (who ULS and Ms. P had repeatedly asked be removed from Ms. P’s care) believed she needed to remain at the nursing facility. However, as a result of ULS’ complaint, the DC Money Follows the Person (MFP) Program agreed to revisit Ms. P, and to assist her. As of December 2013, she remains in the nursing facility. ************************** B. Advocate and litigate on behalf of people with disabilities to challenge the District’s improper termination of Medicaid home health services.

1B. The District continued to terminate EPD Medicaid Waiver services for people living in the community, due to the District’s failure to properly recertify waiver services—a process that by regulation can only be done by case managers, not by the waiver participants. These illegal terminations jeopardized individuals’ health and ability to continue living at home. At ULS’ urging, the District revised some of the notices and advance warning letters, but continued terminating or reducing services improperly in some cases, and failed to properly train waiver provider agencies on proper, timely recertification procedures.

2B. People who rely on the District’s EPD Waiver and PCA State Plan services are at risk of nursing home placement and serious health deterioration when faced with termination of their life-sustaining services. In an effort to address the systemic issues, PAIR staff met with the chief judge of the Office of Administrative Hearings [OAH] and two OAH staff regarding the District’s planned policy changes governing level of care criteria and ULS’ handling of termination cases. We developed informational fliers to debunk the District’s myths about EPD Waiver and PCA State Plan services and reasons for termination, among other materials for sharing with people who are faced with reduction or termination of home health services. We also shared information about the District’s shifting policies on termination of services following hospital and short rehabilitation placement.

3B. Success on this priority will be marked by the end of the District’s termination of EPD Waiver and PCA State Plan services without sufficient notice or due process, particularly terminations that are due to the District’s and its providers’ failure to properly or timely recertify the services.

4B. ULS collaborated with the Office of Administrative Hearings (OAH), DC Healthcare Ombudsman’s Office, several nursing facilities, home health EPD Waiver provider agencies, Washington Home & Hospice Agency, Legal Aid Society, Legal Counsel for the Elderly, George Washington University Healthcare Counseling Project, Long-term Care Ombudsman Office, Washington Post, Iona Senior Center, Long-term Care Coalition, and Lisner Louise Hurt Home.

5B. ULS handled a total of 11 cases under this priority. ULS successfully litigated eight individual cases under the Medicaid fair hearing process described above under Section IV.B. ULS resolved waiver terminations and restored services on behalf of an additional two individuals without litigating their claims.

6B. Case examples: ULS filed a Medicaid Fair Hearing request to challenge the District’s reduction in EPD Waiver services for EV, an 82-yr-old woman with dementia and mobility disabilities who lived alone in an accessible apartment for senior citizens. ULS successfully argued for the 16 hours of daily EPD Waiver services that EV needs, as supported by documentation submitted by her EPD Waiver case manager and her daughter. ULS appeared at the Office of Administrative Hearings on behalf of Ms. V and submitted a status report on DHCF’s failure to increase her hours upon documentation of the need, as well as timely process her EPD Waiver recertification. At ULS’ request, the OAH held the case open until DHCF formally issued the needed prior authorization for the 16 hours of daily EPD Waiver services. ULS successfully represented Ms. GZ, a 66-year-old woman who uses a wheelchair and has a wound, in two separate OAH appeals to reinstate and authorize Ms. Z’s EPD Waiver services for 8 hours per day, 7 days per week after DHCF repeatedly failed to recertify her. DHCF initially reinstated Ms. Z and provided an authorization for services. Shortly after ULS requested voluntary dismissal of the appeal, DC sent Ms. Z a second termination notice because DHCF had not actually processed her recertification to approve her services through 2014 and had issued her authorization paperwork fraudulently. ULS filed a request for fair hearing and benefits pending to OAH citing DHCF’s misconduct; DHCF agreed to properly re-authorize Ms. Z for EPD Waiver services through Jan 31, 2014.

ULS advocated on behalf of MV, a 45-year-old man with terminal cancer, for increased home health services and access to the hospice facility to relieve his wife as his primary caregiver. The provider refused to supplement the drop-in nurse visits in MV’s last days; it ultimately scheduled MV for admission to the hospice facility where he died within hours. ULS sent detailed complaints to the executive director of the hospice agency exposing the unprofessional conduct by staff and irrational assessments that barred Mr. V’s admission to the facility on the false assumption that his condition was not sufficiently acute. ************************************* C. Work to ensure that public accommodations, polling sites, and governmental facilities and programs are accessible to people with mobility, hearing and visual disabilities in the District of Columbia under the Americans with Disabilities Act.

Public accommodations: Accessible public accommodations such as museums and restaurants allow people with mobility, hearing and vision disabilities to fully participate in community living. To increase equal access and promote compliance with Title III of the ADA, ULS embarked on a campaign to promote accessibility, particularly in new restaurants around the District. We sent letters to 22 business managers urging them to comply with federal ADA access guidelines in their restaurants and shops. Following 18 months of aggressive advocacy, in June 2013, Bethesda Bagels shop in DC completed a permanent concrete wheelchair ramp with two sets of handrails to ensure access by people who use wheelchairs. Former owners of this shop had been sued twice for ADA violations and installed a portable ramp which the bagel shop discarded when it moved into the location in December 2011. The owner initially argued that his small family business was exempt from the ADA’s access requirements, but changed that position as a result of ULS’ demands, prompting him to seek legal representation. Construction was delayed by the District’s permitting process, architectural plans and landlord approvals. ULS witnessed deaf customers unable to communicate with a local coffee shop to place and receive their food orders. Consequently, ULS advocated for the shop to provide written menu choices for customers who are deaf. The shop, which is located in the vicinity of Gallaudet University, adopted ULS’ recommendations to facilitate its communication with customers. The National Gallery of Art finally installed buttons in the walls of its audio-visual exhibits to allow people with hearing disabilities to activate captioning. This is the result of ULS’ previous complaints about the Gallery’s film programs. ULS handled 4 individual cases under this priority. Several of our complaints and advocacy efforts were initiated by organizations and in one case, by a nursing facility because residents were not able to access a convenience store nearby due to the entrance stairs.

Polling sites: ULS reached out to its 90 HAVA volunteers and organized those volunteers to monitor 123 of the District’s 144 polling places for disability access during the Nov. 6, 2012 Presidential Election. ULS testified at 3 separate hearings regarding barriers (and recommendations to resolve them) found during the Presidential Election: a hearing held by Muriel Bowser on behalf of the DC Council Government Operations Committee; and two Board of Elections roundtables. On April 1, 2013, ULS issued its report on which polling places had accessibility barriers, listing recommendations to the DC Board of Elections. ULS again organized its volunteers to survey 27 polling precincts (focusing on those that had accessibility barriers during the Presidential election) during the April 23, 2013 Special Election, and issued the resulting report in July 17, 2013. On both election days and thereafter, ULS and volunteers communicated accessibility complaints directly to polling staff, resulting in the resolution of at least 3 readily addressable barriers during the Presidential Election and 9 during the Special Election. ULS and volunteers also identified at least 10 serious accessibility barriers to the Board of Elections during the Presidential Election and received follow up including actions BOE took to address barriers. During the April 23, 2013 election, BOE improved four polling precincts’ accessibility due to implementation of ULS’ recommendations from ULS’ Presidential Election Report, for example by propping heavy doors. DC moved one precinct, Janney School, after ULS’ report on an abrupt rise in the path to the voting area during the Presidential Election. Governmental programs:

Diabetes care in schools: In response to ULS’ complaint on behalf of LT and all students with diabetes in DC Public Schools (DCPS) or DC Public Charter Schools to the U.S. Department of Education’s Office of Civil Rights (OCR), DCPS signed a comprehensive Resolution Agreement in FY 12, with due dates in FY 13 for implementation of such vital rights enforcement such as identifying all students with diabetes, training sufficient diabetes care staff at all schools with a student with diabetes to ensure students can get assistance with routine and emergency diabetes injections at school and school events, sending a notification to families of students with diabetes of their rights, creation of 504 complaint procedures, and implementing legally sufficient individual student 504 Plans/services in FY 13.

DCPS ULS collaborated with OCR regarding enforcement of the FY 13 elements of the Agreement through technical assistance and recommendations (based on representation of individual students and collaboration with other education advocates). ULS also provided technical assistance to other education advocates in DC regarding diabetes cases. For example, DCPS was not in compliance regarding DCPS preschoolers, who were included in the Agreement but not in OCR’s initial enforcement actions. ULS brought to OCR’s attention that preschoolers are included in the Agreement and entitled to the same trained staff to administer diabetes care as well as comprehensive 504 Plan detailing diabetes-related accommodations. ULS created a comprehensive 504 diabetes Plan for an individual client which OCR (de-identified) and enforced as the model 504 Plan. As a result of ULS’ complaint and enforcement efforts, DCPS identified 90 students with diabetes. DCPS and the DC Public Charters, in conjunction with the DC Department of Health, held a FY 13 DC-wide training to train school staff at schools with identified students with diabetes to administer vital routine and emergency injections. However, as of the end of FY13, DCPS had only submitted 16 compliant 504 plans, rather than the 90 required by the Resolution Agreement (and Section 504 and the ADA) to OCR. As a result of DCPS’ failure to comply with the Resolution Agreement based on reporting to OCR and ULS’ individual cases, OCR informed ULS of plans to initiate Federal funding cutoff proceedings against DCPS. DC Public Charters In FY 13, ULS’ complaints against the 44 Charter schools were resolved. OCR required 2 Charter schools to sign Resolution Agreements identical to the DCPS Agreement, and the remaining 42 demonstrated that they had voluntarily come into compliance.

ULS collaborated with nursing facilities, public schools, Legal Aid Society, Equal Rights Center, DIRECT Action, Advocates for Justice and Education, American Association of People with Disabilities American Diabetes Association, D.C. Federation of the Blind, National Disability Rights Network, U.S. Department of Education, Office of Civil Rights, and the DC Board of Elections.

Case examples:

Continuing ULS’ work begun last year on behalf of LT, a 9- year-old girl with type 1 diabetes, and all other DCPS and DC Public Charter School students with diabetes, in FY 13 ULS enforced the Resolution Agreement DCPS signed with the US Dept. of Education’s Office for Civil Rights (OCR) in response to ULS’ complaint on behalf of LT for requiring her to stay home from school and refusing to provide trained staff to administer diabetes care when the nurse was unavailable. ULS wrote and DCPS accepted a comprehensive 504 Plan for LT which OCR enforced as the model diabetes 504 Plan for DCPS. LT returned to her neighborhood school, the ban against her parent was lifted and DCPS trained multiple full-time trained diabetes staff at her school. ULS also successfully advocated for 30 hours of compensatory education time and an additional class field trip—LT’s first ever due to a previous illegal denial by DCPS—with a school nurse available to give diabetes care during the trip. ULS also represented LT in an emergency 504 Plan meeting when she was denied diabetes care during a Saturday study session, and a 504 Meeting to put an appropriate plan, training, and services in place for summer school.

ULS successfully advocated for DCPS to assign sufficient trained staff to provide diabetes care for JL, a 3-year-old boy with type 1 diabetes, in his DCPS preschool pursuant to a comprehensive 504 Plan. Shortly prior to the beginning of the school year, DCPS refused to train any backup staff in addition to the school nurse—who is unavailable during lunch and at other times—to administer diabetes care until November 2013. ULS wrote a demand letter to DCPS enforcing the diabetes Resolution Agreement requiring trained backups at all times, and DCPS agreed to train staff in time for the first day of school and put in place a comprehensive 504 Plan. ULS wrote a second demand letter when JL had a blood sugar emergency because trained school staff could not access his supplies in the locked nurse’s office when the nurse was away. DCPS agreed to allow the trained staff both to perform the diabetes care AND to access the diabetes supplies.

ULS advocated for RM, a blind 51-year-old woman to get accommodations from the DC Department of Environment’s energy assistance program. That program had refused her request to tape record her phone conversations with the department, demanded she sign printed documents she could not read, and treated her rudely. ULS filed a complaint with the DC Office on Disability Rights (ODR) and asked ODR to investigate how Ms. M was treated when she visited the energy agency and provide training for agency staff to prevent them from mistreating people with disabilities and require them to provide accommodations. ODR agreed to train all DOE staff on the effective communication requirements of ADA Title I and ADA Title II and ‘people-first’/respectful language. ********************************* D. Represent plaintiff class members with mobility disabilities under the Young v. DC Housing Authority (DCHA) case to ensure the completion by December 31, 2013 and inspection of all the remaining 90 accessible public housing units pursuant to the July 2008 Amended Consent Order, which brings the total completed accessible public housing units to 565.

1D. The DC Housing Authority (DCHA) notified ULS that it has nearly completed construction of the last wheelchair-accessible UFAS-compliant units mandated by the 2008 Amended Consent Order. ULS twice requested a comprehensive inventory of completed units in order to compare it with the list of units inspected by ULS to determine which units need inspections. Although we fully expect DCHA to complete all 565 accessible units prior to the December 2013 deadline, DCHA has not yet submitted a final inventory of units.

2D. The lack of wheelchair accessible public housing has traditionally been an obstacle to community integration for people who rely on wheelchairs. Through the Young lawsuit, thousands of families have moved into accessible housing from nursing facilities and inaccessible community housing. In April 2013 for the first time in recent memory, DCHA suspended the waiting list for public housing which poses a new barrier to those people who were not already on the wait list. ULS expressed our serious concern about this suspension and urged DCHA to partner with nursing facilities to ensure that people in need of accessible housing apply prior to the suspension. ULS also submitted the required supporting documentation for several Thorpe class members who had pending applications. According to DCHA, there were approximately 300 applicants on the wait list as of April 2013.

3D. The successful outcome of this lawsuit is the completion of 565 fully wheelchair accessible public housing units, managed by DCHA and by private management companies.

4D. ULS collaborated with DCHA and private residential management companies, the Legal Counsel for the Elderly, Legal Aid Society, Legal Clinic for the Homeless, Bread for the City, and nursing facilities.

5.D. ULS verified the submission of documentation to accompany the applications of several class members, but did not handle individual cases under this class action lawsuit as it reaches the final stage of completion of the court-ordered renovation and construction of accessible public housing units.

6.D. No case examples. ************************************ E. Investigate and remedy allegations of abuse and/or neglect against people with disabilities who transition from nursing homes and/or live in the community.

1.E. This priority involves ULS’ work on investigations and critical actions against private providers as well as DC government agencies to expose and demand resolution of abusive and neglectful practices against people with disabilities.

2.E. ULS advocates to resolve incidents of abuse or neglect committed against individuals with disabilities through individual cases as well as systemically.

3. E. ULS determines the successful outcome of our work based on whether the abuse and/or neglect is remedied or abated.

4.E. ULS collaborated with the DC Long-term Ombudsman Program, nursing facilities, home health agencies, Metropolitan Police Department, Probate Court examiners, court-appointed counsel, DC’s Health Regulations Licensing Administration, and Adult Protective Services, among others.

5.E. ULS handled 8 individual cases under this priority.

6.E Case examples: In June, ULS wrote a scathing letter to a group home provider that illegally evicted AJ, a 73-year-old tenant who had undergone a routine surgical procedure because she had a temporary indwelling catheter and an order for short-term urinary catheterization four times a day. Ms. J’s daughter had been trained to provide her mother’s catheter care, but the group home operator refused to allow her to return to live in her apartment. The written notice of the contemporaneous eviction stated that Ms. J must leave the facility immediately “to seek skilled medical care to care for catheter” because “Home First is not licensed to provide skilled care.” The illegal eviction was apparently supported by the District’s licensing agency. Ms. J was informed that she could only return to her apartment after her “catheter and follow-up needs have been attended to.”

ULS cited the group home’s illegal exclusion of Ms. J based on her disabilities, in violation of Title III of the ADA. In addition, ULS cited the failure to provide Ms. J with legally sufficient advance notice of her involuntary discharge at least 21 days prior to the discharge, or sufficient reasons for the discharge, or instructions on how to appeal the discharge. At ULS’ urging, the provider allowed Ms. J. to return to her apartment and issued an apology about their violations of her rights. The District’s licensing agency denied their involvement in the illegal discharge and vowed to revise the statute governing eligibility and continued stay for residents of group homes. **************** In July, ULS filed a complaint against the Metropolitan Police Department for their mistreatment and ADA violations of HH, a 26-year-old deaf man who was stopped, frisked, handcuffed and detained by police for alleged traffic violations. MPD failed to afford Mr. H an ASL interpreter as required by Title II of the ADA and the DC Human Rights Act, and mistreated him in violation of his constitutional rights. We submitted a request for relevant MPD records corresponding to all officers’ notes regarding the traffic stop and detention of Mr. H. We also interviewed Mr. H. and his witnesses regarding the incident, all of whom declined to be interviewed by MPD to undergo the agency’s internal investigation. ULS represented Mr. H before the Department of Motor Vehicles to challenge three traffic citations he received. As a result of ULS advocacy, the District dropped the highest priced traffic citation prior to the scheduled hearing. Mr. H then paid and resolved the remaining two citations enabling him to get his license reinstated. **********************

3) ULS represents JG, a 66-year-old man with blindness, who resides in a nursing facility that improperly placed him on anti-psychotic medication despite the lack of any diagnosis to support the medication. To make matters worse, the nursing facility failed to inform him he was on the medication; he did not know until ULS informed him. ULS staff, together with ULS’ nurse consultant, interviewed Mr. G, reviewed his nursing facility record. After conferring with Mr. G, the nurse drafted a complaint with a declaration stating that there was no evidence to support the use of the anti-psychotic. She also noted that Mr. G. exhibited side effects of the medication that caused him to make repetitive hand movements that he could not control. His record documented these extra-pyramidal side effects (Parkinson-like symptoms). ULS successfully filed a complaint with the nursing facility regarding the abusive use of the psychotropic without Mr. G’s consent or medical indication. The facility weaned Mr. G off of the medication with great success. F. Provide outreach and education to administrative and policy-making bodies, advocates and under-served individuals to promote self-determination, consumer choice, and high quality services for people with disabilities in the most integrated, appropriate settings. 1. In January 2013, ULS drafted formal comments criticizing the District’s emergency regulations that bar all new admissions to day treatment programs. These regulations affect people who are elderly and those who have dementia, and physical disabilities, among others. ULS also commented informally on proposed new screening assessment criteria and tools which the District is developing to guide admissions and continued stays in day treatment programs as well as the EPD Waiver and nursing facility long-term care programs. At ULS’ urging, the District pledged to pilot test the new criteria and assessment tool to determine their impact on the current population of people in affected programs.

ULS underwent an audit by the US Department of Education of the PAIR Program over a three-day period in June which required the gathering of documents, materials and case files for review as well as outreach to advocacy organizations with whom we collaborate. ULS prepared and presented information about PAIR activities under each priority as well as the principles that guide our work. We also participated in a telephone conference with the US Department of Education regarding the results of the audit which yielded no programmatic findings. 2. ULS sent a letter to City Council Representative Yvette Alexander complaining about DHCF’s termination of EPD Waiver services for people hospitalized or in short-term rehabilitation for longer than 30 days. ULS cited the ongoing problem even after a District Medicaid official’s testimony at Council hearing that the agency would extend the limit on holding EPD Waiver slots for participants hospitalized up to 90 days. This case example illustrates the impact of the District’s rule: ULS preserved the EPD Waiver services for MW, a 64-yr-old woman who underwent a double leg amputation after which she was hospitalized and ordered into short-term rehabilitation at the National Rehabilitation Hospital. MW’s home health Waiver agency failed to visit her or assist her to restore her services despite her requests to return to her home. ULS expedited the authorization for restoration of EPD Waiver services at an increased level, 16 hours per day. Her services started prior to the end of her 30-day hospitalization so that she was able to move back to her apartment before the end of the necessary rehab period which would have exceeded the District’s firm (but unpublished) 30 day limit. 3. ULS collaborated with the Long-term Care Ombudsman Program, DC Senior Citizen Advisory Council, Legal Counsel for the Elderly, Long-term Care Coalition, DC Fiscal Policy Institute, DIRECT Action, Family Matters of Greater Washington, VMT Home Health Services, DC City Council, Iona Senior Center, DC Nursing Home Association.

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.

THE MISSION of University Legal Services’ Protection and Advocacy Program (ULS-P&A) is to ensure that District of Columbia residents with disabilities have the legal rights to which they are entitled, including the right to be free from harm, the right to individual choice and the right to full inclusion in the community.

The following are the priority and objectives for the Protection and Advocacy Program for Individual Rights (PAIR) for 2014:

1. Advocate on behalf of people with disabilities to ensure their access to DC government services and supports in the most integrated settings appropriate to their needs and to public accommodations.

a. Advocate and litigate on behalf of people with disabilities to challenge the District’s improper termination of Medicaid home health services.

b. Work to ensure that public accommodations (private businesses open to the public), polling sites, and governmental facilities and programs (including public schools and public charter schools) in the District of Columbia are accessible to:

1. People with mobility, hearing, and visual disabilities as required by the Americans with Disabilities Act (ADA) and/or Section 504 of the Rehabilitation Act;

2. Students with chronic diseases who require medication administered at school as required by the ADA, Section 504 of the Rehabilitation Act, and/or the 2012 U.S. Department of Education Resolution Agreements regarding administration of diabetes medications at school.

c. Investigate and remedy allegations of abuse and/or neglect against people with disabilities who transition from nursing facilities and/or live in the community.

d. Provide outreach and education to administrative and policy-making bodies, advocates, and people in nursing facilities, among others, to promote self-determination, consumer choice, and high quality services for people with disabilities in the most integrated, appropriate settings.

e. Represent class members in Thorpe v. District of Columbia to promote their rights under Title II of the Americans with Disabilities Act (ADA) to information about alternatives to nursing facility services, transitional assistance, and quality home-based personal care assistance through the Medicaid Waiver Program for People who are Elderly and/or have Physical Disabilities (EPD Waiver), the DC Medicaid State Plan, and other DC government services to enable them to move out of nursing facilities.

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: Source of Funding Amount Rec’d Amount Spent Federal (section 509) 175,300.00 205,284.24 State Program Income - - Private All other funds Total (all sources) 175,300.00 205,284.24 B. Budget for the fiscal year covered by the report: Category Prior Fiscal Yr Current Fiscal Yr Wages/salaries 118,820.55 114,575 Fringe benefits 35,646.15 34,373 Materials/supplies 2,847.07 1,926 Postage 173.34 203 Telephone 1,493.24 1,394 Rent/occupancy 28,009.07 20,059 Travel 855.49 1,816 Copying 0 0 Bonding/insurance 1,174.63 979 Equipment(rental/purchase)5716.13 3,560 Legal services 0 0 Indirect costs/Consultants 3,638.46 1,669 Miscellaneous/Others 6,910.11 12,446 Total Budget 205,284.24 193,000 C. Description of PAIR staff: Type of Position FTE % of yr filled Person-year Professional Full-time Part-time 6 100% 6 Vacant Clerical Full-time Part-time 3 100% 3 Vacant

Certification

Signed?Yes
Signed ByMarjorie Rifkin
TitleManaging Attorney
Signed Date12/18/2013