Weekly Update - June 25, 2012

Editorial:  Hold Gov. Patrick Responsible!         

It is Time to hold Governor Patrick Responsible

In five short days people with disabilities and seniors in the Boston area will be hit with one of the most regressive and cruel policy changes ever in Massachusetts. That this change is coming under the watch of Governor Patrick a "progressive" who grew up a poor child in Chicago is both mind-numbing and disheartening. On July 1, fares on The Ride, the MBTA's paratransit service will double from $2 to $4, one way an increase of 100%. A trip on the bus for the same communities will rise from $.40 to $.75 and increase of 87%. A subway ride will increase from $.60 to $1.00 an increase of 66%. All these increases come as the T has worked diligently to hold general rider increases to about 23%.

In October the MBTA will also be implementing a new premium area. Trips outside of the ADA area or booked on the same day will cost $5 one way. This change is going to be an unmitigated disaster. Understand the ADA area will change during depending on the time of day, as bus routes stop during the evening. The result is that a trip costing $4 one way may be $5 on the return trip.

What is most disturbing about all these changes is that last year the Governor established the 530 Commission to study the issue of rising paratransit costs. The work of the Commission concluded in March.   Have you seen the report yet? Neither have we, and we have asked. Members of the Commission have been told that they cannot find a time to meet with the Governor and present the report. What? If this is true it is time for the Governor to stop traveling and stay home for a while. We have come to the conclusion that the Administration is sitting on the report.

We understand that paratransit cost as currently delivered is costly. We have recommended ways to cut costs. One way is to encourage people to use fixed route transportation. But if you want this to occur why would raise fares for seniors and people with disabilities? The Legislature has voted to study the impact of the fare increases. We have asked the Governor and the T to hold off on fare increases until the report comes out. No response has been received or expected.

The other news about to emerge is that the T has chosen a new Assistant General Manager for System Wide Accessibility. Rather than hire a strong advocate like Gary Talbot, the T has decided to hire an apologist for the system. The person they are hiring has a history of limiting accessibility, and not rocking the boat. When the T contacted several of us privately to ask about this person they were told not to hire them. They were told the individual did not have the respect of our community. Our words did not matter.

When Harry Truman was President he had a sign that said "The buck stops here." To the disability community we say, starting next week all those extra bucks you are spending, they stop with Governor Deval Patrick.

John E. Winske

Chair, DPC Legal Committee

Advocates Corner: Big Changes Coming - T

The Bay State Council of the Blind (BSCBBay State Council of the Blind (BSCB) ) has created a publication to inform RIDE riders of changes that will occur July 1.  The purpose is to encourage you to contact your state legislators.

Below you will find the text below. PLEASE COPY & PRINT THIS  AND GIVE COPIES  TO YOUR FELLOW RIDE RIDERS. ASK THAT THEY PASS THE FLYER ON TO OTHER RIDE RIDERS.
 

Many people are still unaware of the impending changes and this is intended to generate a grass routes effort to apply pressure to the state legislators. Thanks for your work on this and we all appreciate you spreading this to all.

(Copy text below)
 

Ride Alert" Big Changes Coming! Your Ride is at risk!

Here are some important things you need to know about major changes coming soon: On July 1, MBTA fares for the general public will rise by an average of 23 percent while doubling for Ride clients. Even though the new $4 Ride fare will result in significant hardship for persons with disabilities, particularly those on fixed incomes, it will contribute only2.8 percent to MBTA operating deficit reduction, or just one-tenth of one percent of total expenses, including debt service;

The MBTA is the most heavily indebted public transit authority in the nation: 98 cents of every dollar of fare revenue goes to pay off debt. MBTA officials have repeatedly referred to The Ride as a "budget buster." The real budget buster is out-of-control debt;

While we all need to do our part on the revenue side, cost savings hold the greatest promise for reducing The Ride's financial burden. Currently, the MBTA reimburses a whopping $39 per trip to service providers. Cutting that figure by just 8 percent would generate cost savings equivalent to the additional revenue generated from doubling Ride fares;

Here's an example of easily avoidable waste: no-shows currently total 8 percent of Ride requests but no penalties are applied to negligent clients. Full fare should be charged and repeat offenders temporarily suspended. Cutting the number of no-shows in half would generate as much deficit reduction as a 50 cent fare increase. Using local taxis for short trips and informing Mass Health recipients that they can seek fully-paid alternative transportation for medical appointments would also generate big savings;

No account has been taken of the effects of fare increases on low-income groups. We strongly recommend that Social Security Disability (SSDI) and Mass Health recipients be exempt from The Ride fare increases. The Hecht Amendment to the 2013 state budget requires an analysis be carried out on the effects of MBTA policy changes on persons with disabilities, senior citizens and youth, and identification of ways to mitigate negative impacts. We advocate that no further fare increases or service cuts be introduced until after that study has been completed and publicly discussed;

As if a 100 percent fare hike were not already enough, on October 1, the MBTA will also introduce a premium fare of $5 for Ride trips beginning in and/or ending more than three-quarters mile beyond the fixed route. This will create many headaches while only reducing the annual operating deficit by a meager one-tenth of one percent over what it would be with a flat $4 fare. Schedulers and clients will wind up arguing endlessly about whether addresses are inside or outside the premium zone. Do you know what zone you live or work in? How about your doctor's' offices? Do you have any idea when you will be told?

MBTA officials claim that their computerized system will run smoothly in sorting out premium from regular fares. We have our doubts. How often have you been sent on bizarre, gas and time-wasting routes by their computerized dispatching system?

Act now and you can still make a difference. If enough citizens and legislators understand what's at stake, the premium fare does not have to be a done deal. Nor do even more fare hikes in the future, because exclusive resort to fare hikes and service cuts without addressing the crushing debt burden and other inefficiencies will solve nothing. Contact your state representative and senator and let them know you are opposed to additional fare hikes for The Ride, including imposition of a premium fare. Tell them too that you support the Hecht Amendment. You can find your legislators' contact information at: www.mass.gov/legis. You can also call the State House at 617-722-2000.

Prepared by the Bay State Council of the Blind, Massachusetts affiliate of the American Council of the Blind. If you wish this in accessible format, please contact Bob Hachey (email: bhachey@verizon.net; phone: 781-893-6251). To learn more about impacts of MBTA fare increases and service cuts, visit our website: www.acb.org/baystate.

Regards, Rick Morin
 

Advocates Corner:  Fresh Air (finally?)    

from Jon Dosick:

Greetings allies and supporters!

The "fresh air" bill (formerly the 'Five Fundamental Rights/Fresh Air' bill has passed the second legislative committee it has been heard by. As with the original bill (House Bill #1430), which was passed by the Mental Health and Substance Abuse Committee, this version of the bill is significantly rewritten. I have attached .pdf copies of:

1.)    The original bill, House Bill #1430;

2.)    The Mental Health-Substance Abuse Committee version, House #4023; and

3.)    The current (post-Health Care Finance) bill, House #4191.

I don't want to confuse people or write a book here, but I wish to let people know as clearly as I can what has happened to the original bill.

THE ORIGINAL FIVE FUNDAMENTAL RIGHTS AND FRESH AIR BILL (HOUSE BILL #1430)

The original bill called for two things:

1.)    The addition of a sixth Fundamental Right to the "Five Fundamental Rights" law - the right to daily access to fresh air and the outdoors.

• The right would be automatically enacted on admission to an inpatient facility.
• A person hospitalized at the facility may have to wait no more than 48 hours from admission for a clinical assessment before he/she can have access.
• This right may be temporarily suspended, but only in writing, by a clinician, provided that exercising the right would post an immediate, substantial risk to self or others. The denial can only last as long as the 'harm' lasts, and it must be documented in the patient's record.
• If someone signs a "three-day" notice to get out of the hospital, that action can not be used as a reason to deny fresh air.

2.)    The creation of an appeals process for violations of the Five Fundamental Rights law (access to phones, mail, visitors, dignity and privacy, and attorneys), in which someone who feels their rights have been violated can have a legal hearing with a neutral, third party legal representative making the judgment. The judgment made can include consequences for the hospital, and appeals can be speeded up if necessary.

MENTAL HEALTH-SUBSTANCE ABUSE REDRAFT (HOUSE BILL #4023) - FRESH AIR ONLY

The version passed the Mental Health and Substance Abuse Committee in April 2012, with major revisions. It was renumbered and sent to the Health Care Finance Committee.

The biggest revision was that all of the language to provide appeal for violations of the Five Fundamental Rights law was eliminated. The law is violated so often, it's practically not even the law!

So what was left was the "fresh air" portion of the bill, and this was heavily modified (not to our benefit, in most cases) as well: 

• Language was added making the proposed fresh air access "reasonable," which leaves it open to interpretation;
• The edited bill contained the following words, which have been long-favored by the hospital lobbyists who oppose the bill: [Access to fresh air would be]..."consistent with the ability of such facilities [hospitals] to provide such access." This creates another loophole for hospitals to avoid providing access.
• The new version of the bill specifically calls on the Department of Mental Health (DMH) to create regulations which would:
  • Create regulations defining "safe and reasonable" access; and
  • Create regulations defining when people are deemed a risk to self or others.           

HEALTH CARE FINANCE COMMITTEE REDRAFT (HOUSE BILL #4191) - FRESH AIR ONLY

The newest version as passed by the Health Care Finance Committee on June 21. It is now House Bill #4191. Although it simplifies the bill a little, it changes the bill (again) pretty significantly: 

• The bill adds language early on saying that fresh air access would be granted based on each person's "clinical condition and safety."
• The language that refers to when access to fresh air can start has been deleted:
  • The statement that the fresh air right is automatically granted on admission to a hospital unit is gone; and
  • The language which sets forth a timeframe for a clinical assessment (no more than 48 hours) to "clear" someone to go outdoors is deleted, which begs the question, 'how long will people wait?'

• The language that says that signing a three-day notice cannot be used as a reason to deny access to fresh air (which has happened) is deleted. (For those unfamiliar with the three-day notice, it is when people who admit themselves voluntarily and decide they want to leave may ask to be discharged within three business days).

WHAT NEXT?

The bill has been sent to the House Committee on Steering, Policy and Scheduling. Hopefully, it will go a step or steps further and be discussed on the House floor (which no other version of the bill has done yet). The legislative session ends next Saturday, and we have very little time. If you can, please call the Chair and Vice Chair of that committee, and your local Representative (and ask them to put pressure on these two!) Ask them to please discharge this bill, House #4191, ASAP to the House of Representatives.

Committee Chair:

Rep. Louis L. Kafka, D-Stoughton

Phone: 617-722-2960

Committee Vice Chair:

Rep. Stephen Stat Smith, D-Everett

Phone: 617-722-2013

You can find who your legislator is by going to:

http://www.malegislature.gov/People/Search

Other members of the Committee are:

Rep.Demetrius J. Atsalis, D-Barnstable

Phone: 617-722-2080

Rep.James J. Dwyer, D-Woburn

Phone: 617-722-2220

Rep.John V. Fernandes, D-Milford

Phone: 617-722-2396

Rep.Gloria L. Fox, D-Roxbury (Co-Sponsor of bill)

Phone: 617-722-2810

Rep.Susan Williams Gifford, R-Wareham

Phone: 617-722-2976

Rep.Thomas A. Golden, Jr., D-Lowell

Phone: 617-722-2020

Rep.Bradford Hill, R-Ipswich

Phone: 617-722-2100

Rep. James M. Murphy, D-Weymouth

Phone: 617-722-2140

Perspective:      Malawi - Generous of Spirit

From Charlie Fiske:

Perhaps the biggest shock in Malawi is not the stark poverty, the miserable transportation infrastructure, the trounled economy or even the overall lack of electricity or running water but the warmth and friendliness of the Malawi people. Their generous spirit is part of every generation. Not saying hello is an oddity. Even this morning as I walked along a Dedza dirt road a conversation developed with a total stranger which lasted more than 15 minutes. My willingness to initiate the hello opens a flood of greetings and often exchanging information. This is the Malawi I see and it seems the only way to get a genuine sense of its people is to be here. It is my hope to shed some light about a Malawi world that will be home for the next two years. I had started a blog but because of internet speeds here it got too cumbersome. I had originally reached and spoken with friends at the Enterprise and Patriot Ledger who will hopefully continue working with me as we move forward. They've been great to work with. Currently I've been using facebook as a communication of a sorts for photos. Part of it is the logistics of communication. My hope is that whatever we do will be simple, effective and share the world of Malawi in all its details.

If you are in the neighborhood, the door is always open

Charlie Fiske 

Charles Fiske Email          

Advocates Corner: MASS ID Bill

Following is a message from the Mass Office of Disability urging support for S.1718, a bill relating to the Mass ID card.  I have attached a fact sheet about the bill.  For more information contact Allan Motenka as listed below.

This bill would add the official Massachusetts ID as an acceptable form of identification to purchase alcohol, cold medicine, and other similarly regulated products, thus eliminating the confusion and expense for individuals who for various reasons, including disability, do not qualify for a driver's license. This is an issue that impacts many in the disability community but is often not realized until an individual has been turned away from their favorite restaurant or local pharmacy counter due to their type of identification.

Here is the pertinent background:

Currently, the RMV issues three official identification cards to those who do not have a Massachusetts driver's license:

• A Massachusetts ID for people under 21
• A Massachusetts ID for people over 21, and
• A  Massachusetts Liquor ID.

The Massachusetts ID and the Liquor ID are identical save for one line that alternatively says either "IDENTIFICATION CARD" or "LIQUOR ID CARD."  The practical differences between the cards are:

• The Liquor ID may not be accepted by the TSA as an official form of identification
• The Massachusetts ID costs $25
• The Liquor ID costs $25 (this would be in addition to the Mass ID card), and
• The Massachusetts ID may not be used to purchase alcoholic beverages under Chapter 138, Section 34B.

The Problem:

Because the Massachusetts ID is not currently one of four acceptable forms of identification that establishments may rely on before selling alcohol to a patron, establishments very often refuse to sell alcohol and cold medicine to patrons who only have the Massachusetts IDs. This creates an unfortunate situation for people with disabilities who, for various reasons, do not have a driver's license but are still over 21.  People with disabilities who want to purchase alcohol or cold medicine are forced to either get a driver's license (which may be impossible) or purchase a second form of identification.

The bill was authored by former Sen. Baddour and is co-sponsored by Reps. T. Speliotis, Andrews, Hill, Kafka, Scibak, & Walsh, as well as Sens. Jehlen and Pacheco.  So far, we've encountered no opposition to the bill, and yet it remains stuck in the legislative process.

We believe that the bill remedies a civil rights issue for individuals with disabilities in the Commonwealth, so time is of the essence. We are anxious for the House of Representatives to move the bill out of Third Reading and pass it before the end of the legislative session.

We encourage interested members of the community contact their legislators to ask that S.1718 be put to a vote before the House of Representatives.

A fact sheet is attached with additional information. Anyone with questions about the legislation should feel free to contact me.

Allan B. Motenko

Policy and Planning Specialist

Massachusetts Office on Disability

One Ashburton Place, Room 1305

Boston, MA 02108

Phone: 617-727-7440 or 800-322-2020

Fax: 617-727-0965

Email: Allan.Motenko@massmail.state.ma.us

Website: www.mass.gov/mod

Calendar:  DISABILITY REFRAMED

 A FREE Community Film Series Presents:

Net News:  NETFLIX  Loses!

 A great outcome for the ADA and web access! 

Judge Ponsor denied Netflix's Motion for Judgment on the Pleadings in NAD, et al. v.Netflix.

In relevant part he stated that:

Plaintiffs convincingly argue that the Watch Instantly web site falls within at least one, if not more, of the enumerated ADA categories.The web site may qualify as: a "service establishment" in that it provides customers with the ability to stream video programming through the internet; a "place of exhibition or entertainment" in that it displays movies, television programming, and other content; and a "rental
 establishment" in that it engages customers to pay for the rental of video programming. 42 U.S.C. § 12181(7).

He stated that the ADA covers the services "of" a public accommodation, not services "at" or "in" a public accommodation. 42 U.S.C. § 12182(a). This distinction is
 crucial. Accord Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) ("The statute applies to the services of a place of public accommodation, not services in a place of public
 accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute."). Consequently, while
 the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation. Under Defendant's reading of the statute, many businesses that provide services to a customer's home -- such as
 plumbers, pizza delivery services, or moving companies --would be exempt from the ADA. The First Circuit held in Carparts that such an interpretation is absurd. 37 F.3d at 19 (extending the ADA to businesses that offers services to customers in their homes through the telephone or mail). Under the Carparts decision, the Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation -- streaming video -- even if those services are accessed exclusively in the home.

 He also found that there was not an irreconcilable conflict between the CVAA and the ADA.
--
Charlotte Lanvers, Staff Attorney
Disability Rights Education and Defense Fund
3075 Adeline Street, Suite 210
 Berkeley, CA  94703

Net News:   Olmstead Reaffirmed by Obama

On Anniversary of Olmstead, Obama Administration Reaffirms Commitment to Assist Americans with Disabilities

On June 22, 1999, the Supreme Court ruled in Olmstead v. L.C. that the unjustified institutional isolation of people with disabilities is a form of unlawful discrimination under the Americans with Disabilities Act (ADA).  The Obama Administration has made significant progress continuing to enforce Olmstead as well as more broadly helping to level the playing field for people with disabilities.

"Olmstead affirmed the rights of Americans with disabilities to live in their communities," said President Obama.  "As we mark the anniversary of this historic civil rights decision, we reaffirm our commitment to fighting discrimination, and to addressing the needs and concerns of those living with disabilities."

In April of this year, the Department of Health and Human Services (HHS) announced the creation (http://www.hhs.gov/news/press/2012pres/04/20120416a.html)  of the Administration for Community Living (http://www.hhs.gov/acl/)  (ACL), which brings together key HHS organizations and offices dedicated to improving the lives of those with functional  needs into one coordinated, focused and stronger entity.  ACL combined the Administration on Aging, the Office on Disability and the Administration on Developmental Disabilities into a single agency that supports both cross-cutting initiatives and efforts focused on the unique needs of individual groups, such as children with developmental disabilities or seniors with dementia. This agency will work on increasing access to community supports and achieving full community participation for people with disabilities and seniors.

HHS also has worked closely with the Department of Housing and Urban Development (HUD) to develop and subsidize rental housing for very low-income adults with disabilities and implement the new Section 811 Project Rental Assistance Program, which will assist extremely low-income adults with disabilities in accessing integrated affordable housing.  Last month, HUD announced (http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2012/HUDNo.12-084) a new $85 million funding opportunity under the Section 811 program for state housing agencies that meet certain eligibility criteria, including having a partnership with a state health and human services agency and Medicaid agency, to provide essential support and services  that help people live in integrated settings in the community.  This funding opportunity works to align critical health and housing services and aims to assure integration by promoting Medicaid efforts to serve people in the most appropriate integrated setting.

The Department of Justice also continues to enforce the ADA and Olmstead.  Over the last three years, the Civil Rights Division at the Department has been involved in more than 40 Olmstead matters in 25 states.   Recently, in Virginia, the Department entered into a landmark settlement agreement (http://www.justice.gov/opa/pr/2012/January/12-crt-111.html) with the Commonwealth, which will shift Virginia's developmental disabilities system from one heavily reliant on large, state-run institutions to one focused on safe, individualized, and community-based services that promote integration, independence and full participation by people with disabilities in community life. The agreement expands and strengthens every aspect of the Commonwealth's system of serving people with intellectual and developmental disabilities in integrated settings, and it does so through a number of services and supports.  The Department has a website (http://www.ada.gov/olmstead/) dedicated to Olmstead enforcement, which includes links to settlements, briefs, findings letters, and other materials.

Net News: United Nations Investigates JRC

Fox News, BOSTON - 

Powerful video of a Judge Rotenberg Center student shocked and restrained for hours continues to reverberate on Beacon Hill and beyond, with opponents of the treatment stepping up efforts to ban the shocks as the United Nations expert on torture says he's investigating the school.

The video has helped fuel a renewed lobbying effort to ban the long-controversial shocks. Several opponents of the shocks, including the mother of the student in that video, visited lawmakers' offices today to press for the ban.

"We're going to continue to let our children be tortured? I just hope that they come to their senses are realize this is wrong and it's been wrong for the last 27 years," said Cheryl McCollins, mother of former Rotenberg Center student Andre McCollins.

Opponents want the full Legislature to adopt a Senate budget amendment to ban the shocks. The measure is being considered by a joint House-Senate conference committee that is hashing out the state budget for the fiscal year beginning July 1. Word on whether it's included in the Legislature's final budget could come any day.

The Judge Rotenberg Center is the only place in the country to use this kind of shock treatment, and now scrutiny is also coming from Juan Mendez, the United Nations' Special Rapporteur on Torture.

"It raises a very serious concern," Mendez told FOX Undercover. "The passage of electricity through anybody's body is clearly associated with pain and suffering. Now it depends on the level and time and whether there's any rationale for it."

Mendez knows well the subject of torture. He was a human rights lawyer during Argentina's dirty way, and was himself tortured with electricity.

Mendez is investigating after receiving a complaint from Disability Rights International, which examines treatment of the disabled around the world, including a 2010 report highly critical of the Judge Rotenberg Center.

"I imagine this isn't the typical type of complaint regarding torture that you receive?" FOX Undercover reporter Mike Beaudet asked Mendez.

"No it isn't," Mendez replied. "Most cases I receive are about torture in the course of interrogations, for example, or for reasons of punishment. But the definition I have to operate under is very clear: that any pain and suffering inflicted on a person with the participation or complicity of state authorities might give rise to a concern under the (United Nations) convention against torture and therefore to a concern under my mandate."

Mendez has seen the video of Andre McCollins' treatment, which first came to light in April during his civil trial. It shows him being shocked for refusing to take off his coat. He's then restrained, face-down, a helmet on his head, and shocked 31 times over seven hours for tensing his body and yelling.

It was all part of his court-approved treatment plan, but the ordeal left McCollins in a catatonic state and hospitalized for five-and-a-half weeks.

Mendez has asked the US government to report back to him within two months before reporting his own findings to the United Nations.

Meanwhile, the Judge Rotenberg Center has also come to the attention of a US Senate committee which is going to hold a hearing next week on alternatives to aversive therapies like the shocks. The Senate Health, Education, Labor and Pension Committee's hearing, titled "Beyond Seclusion and Restraint," is going to focus on positive therapies with the hope of eliminating the perceived need for aversive therapies.

A spokeswoman for the Judge Rotenberg Center released a statement from the school's parent association which did not address the UN investigation but called the lobbying effort at the State House a "political stunt."

"We are outraged that these people would use our vulnerable children as pawns. The right to choose the appropriate and safe treatment for our children, when nothing else has worked, must remain an option for the small percentage of children for whom this is a matter of life or death," the parents' statement said in part.