Voting in Virginia

Virginia values its traditions.  This is true in many aspects of our civic life in the Commonwealth, but perhaps no more so than in the way we conduct our elections.   While many other states are willing to experiment with new fangled ideas like early voting or same day registration, Virginia resists change.  Virginia likes things just the way they are, thank you very much.

The problem for us is that “just the way they are” often works to exclude people with disabilities.

Virginia was very slow to allow people with disabilities to vote “absentee” if they were unable to get to the polling place.  The idea of increased use of absentee voting was just too much of a change.  Although the legislature eventually adopted that tiny bit of reform seven years ago, each year the legislature rejects proposals to allow changes like no-excuse absentee voting or even absentee voting for people over the age of 65.  Ideas like automatic voter registration when you get a driver’s license (“motor voter” laws) don’t even make it to committee in our legislature.

Most people with disabilities would prefer to have the option to vote on election day, in the same polling place as their neighbors.  But that option is not a real one throughout Virginia.  In March, dLCV surveyed more than 200 polling places, and found that 24% of the locations we visited had some barrier to voting for people with disabilities.  If that percentage bears out across the Commonwealth, it means that hundreds of polling locations are, in some way, inaccessible to people with disabilities.

We recently shared our survey results with the State Board of Elections, with the hope that they will take action to improve opportunities to vote for people with disabilities prior to the general election in November.  We will let you know whether they do that, or if they, too, like to keep things “just the way they are.”

Antonin Scalia

The late Justice Antonin Scalia will be remembered for many things.  Here at the disAbility Law Center of Virginia, we remember him as the author of the Supreme Court’s 2011 opinion in VOPA v. Stewart, the decision that ultimately lead to the complete independence of Virginia’s protection and advocacy system.

A few years ago, Virginia’s protection and advocacy organization was a somewhat independent state agency, the Virginia Office for Protection and Advocacy.  Although state law referred to VOPA as “independent,” its state agency status still presented serious obstacles.  For example, when VOPA investigated suspicious deaths and injuries at state-operated facilities, the state refused to provide all the relevant evidence requested.  VOPA sued the state to get that information, but the Fourth Circuit Court of Appeals ruled that one state agency could not sue another state agency.   The investigations came to a halt.

VOPA appealed the 4th Circuit decision to the United States Supreme Court, arguing that the special role, created by federal law, of the watchdog agency should give it the ability to sue the state when necessary.   This is the bargain, VOPA argued, that the state entered into when it accepted federal money under these programs. In oral argument,  the Commonwealth’s attorney, William Thro, complained that allowing one state agency to sue another “offends the dignity of the sovereign state.”  Justice Scalia snapped back, “a dignified sovereign would never accept this bargain.”

Justice Scalia went on to author the opinion in VOPA v. Stewart that gave the P & A the authority to sue the state if necessary.  It was a 6-2 opinion, solidly in favor of the P & A’s investigative authority.  The Commonwealth of Virginia relented, and produced the investigative records in short order.  Within the next year, the Commonwealth began the process of establishing the P & A as a fully independent, private non profit organization.

The P & A left state government, to become the disAbility Law Center of Virginia, on October 1, 2013, in large part because of the decision written by Antonin Scalia.

Justice Scalia died this past Saturday, February 13, 2016.

Brain Injury Services in Virginia

Did you know that in Virginia individuals who sustain a traumatic brain injury (TBI) are still at risk of placement in a state hospital or sent out of state for rehabilitation? Many end up in our legal system or on the streets.  Children reside in nursing homes.

Advocates for improved brain injury supports gathered today at the legislature to seek better services, through better funding, from the upcoming budget.   That additional funding is critical.

During 2015, the disAbility Law Center of Virginia (dLCV) studied Virginia’s system and identified serious deficiencies in our TBI system of care.  You can find a short summary of that study on our website at:

http://dlcv.org/publications/tbi-report

“Snapshot: State of Services for Virginians with TBI (2015)” brings into focus the gross failure of Virginia to meet the needs of the ever expanding brain-injury population.  For example, the CDC estimates that there are likely 166,525 Virginians currently living with long term disabilities resulting from a TBI, many of whom are veterans. In contrast, in 2014, only 4000 individuals with TBI received community based services.

In response to our study, Secretary William Hazel, Health and Human Resources, stated, “the Governor understands the importance of support for consumers with Brain Injuries and their families.”  We had hoped for a more substantive response.

Virginia’s current system of care relies on institutionalization and out of state placements for most, almost guaranteeing poor long term outcomes.  Moreover, a segregation-oriented system of services is clearly out of sync with the Olmstead requirements.   Virginia is at risk for a finding that is it violating the Americans with Disabilities Act.  Maybe then, we will see a serious response to this underfunded system of care.

More on mental health courts

After our blog a few days ago, one of our readers questioned whether “mental health courts” are really a good idea.  If our overall goal as a disability movement is full inclusion, this reader asked, isn’t creating a “special” court moving us in the wrong direction?

There are many problems with the concept of a “mental health court.”  Creating a separate justice system for people with mental illness is of concern for a number of reasons.  A mental health court could actually result in fewer overall resources available in the community.  To be effective, the court requires intensive supports, which are usually taken away from community services.  In some parts of the country, mental health resources are so limited that the only way to get critical services is to get arrested.  Further, depending on how the court is operated, an individual may be required to give up his rights to due process of law.  It is far from a perfect solution.

Mental health courts do address the crisis created when people with serious mental illness encounter the criminal justice system.  There is little disagreement that the criminal justice system is poorly equipped to respond to most mental health needs of inmates.  Virginia Beach Sheriff Ken Stolle reportedly claimed that inmates with mental illness in his jail have a 100% recidivism rate.   Regional and local jails all over Virginia beg for alternative ways to provide mental health treatment, believing that they have become the state’s largest mental health hospitals by default.  A study by the Urban Institute claims that 64 % of jail inmates have a serious mental illness, while Virginia’s State Inspector General found that the Commonwealth’s local and regional jails housed more than 6000 persons with mental illness in 2013 alone.

Mental health courts are a tool to divert some small number of those thousands away from jails and into treatment, with better prospects for success.  In essence, mental health courts would serve as a tiny bandage on a badly bleeding mental health system.  It is clear that we need to do something in Virginia.  Even the highly inadequate tool of mental health courts seems out of our reach.

 

Mental Health Courts in Virginia

A few legislators are trying to promote “specialty” courts, but they are not seeing much success.  A “specialty” court is a criminal court with a focused docket, designed in a way to divert certain populations from jails or from having criminal records.  The proposals include a specialty court for veterans, for people with substance abuse issues, and for people with behavioral health issues.

Here at the disAbility Law Center of Virginia, we are most familiar with the latter court, often known as a mental health court.  In theory, a mental health court brings together dedicated resources to address the needs of people with mental illness who have encountered the criminal justice system.

In Norfolk, for example, the court operates a mental health court in an effort to divert people with mental illness away from the jails, where treatment is difficult to find. The Norfolk court  incorporates the resources of professionals with experience in mental health — case mangers, prosecutors and defenders — and other intensive resources, to support a small group of criminal offenders who are mentally ill.  The court establishes a strict plan of treatment compliance, along with frequent reporting and check-ins, after a person with mental illness has been found guilty of a crime.  The strict treatment plan is offered in lieu of jail time.

These kinds of specialized dockets do exist in Virginia, but they are not common.  The few that do exist are strapped for adequate resources.  Moreover, the operating procedures for each specialty court vary from jurisdiction to jurisdiction.  So legislators have proposed bills to better support the specialty courts as well as to regulate them.

But in the Virginia Senate, at least, all of the proposals have been tabled for the year.  Two proposals are currently still alive on the House side, but they are unlikely to get out of subcommittee.

 

The number one song in America this week….

What does American Top 40 have to do with the Virginia legislature?

As it turns out, this week, some members had the opportunity to boast of their love of that radio show from the 70’s, 80’s and 90’s.  Many of us fondly recall the voice of the ever affable Casey Kasem, countin’ em down each week, adding bits of trivia and excitement as we got closer to number one.

Casey Kasem’s final countdown, however, was not a pleasant one. He developed dementia and other chronic conditions, and as his health declined, his family relations likewise deteriorated.  His then-current wife blocked visits from the children of Kasem’s first marriage.  Custody and guardianship battles raged in the courts for years.

Casey Kasem died in 2014, but the battles raged on.  And Virginia is now one of the battlefields.  Kasem’s daughter was in Richmond this week, urging legislative reforms that would protect the right of visitation for a person under guardianship.  Kerri Kasem has devoted enormous resources and energy to this cause all over the country, determined, she says, that no one should be forced to go through what she and her father had to endure.

This morning, a senate committee agreed with her.  The Senate Committee on Rehabilitation approved SB 466, ensuring that a person under guardianship will retain “the right of communication, visitation, or interaction with other persons with whom the incapacitated person has expressed a desire to communicate, visit, or interact.”

This is a very basic human right.  We are grateful to Senator Wagner for sponsoring the bill, and to all who told their stories of unnecessary separation from their loved ones during a critical time in their lives, a time when being able to be with friends and family is number one.

 

 

 

 

Service animals — once again

The Virginia Legislature is considering, once more, legislation addressing the use of service animals.  Concerned about people who may be trying to pass off a “pet” as a service animal, Senator Bryce Reeves proposed legislation that would make that conduct a crime.   He offered his proposal after working with veterans groups who believe that fraudulent claims about service animals is a widespread practice and that those fraudulent claims harm people with legitimate service animals.

The problem, of course, comes down to who gets to decide whether it is a legitimate service animal.  Does a business owner decide?  And how will they make that decision?  Federal law makes clear that no business can require proof or certification of a service animal, but will a business know that?

Thankfully, the Senator included additional language, hoping to discourage businesses from discriminating and reinforcing the federal protections under the ADA.  This is the version currently before the Senate:

Any person who knowingly, willfully, and fraudulently fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor. When it is not obvious what service a dog provides, an entity may only ask (1) whether the dog is a service dog whose presence is necessary due to a disability and (2) what tasks the dog is trained to perform. An entity may not require documentation of certification, training, or licensing of a service dog or documentation of the person’s disability.

The disability Law Center will be following the development of this bill as it proceeds through the legislative process, hoping that people with disabilities who use service animals will not face even greater obstacles to access than they currently face.