Service Animals in 2015

Senator Reeves presented a bill recently that would offer some greater protection to individuals with disabilities who use service animals. The senator was especially concerned about the number of veterans who are returning from combat with serious injuries and may be able to utilize service animals to assist with new physical and mental challenges. Some veterans complained to him that they are not treated well by businesses when they try to enter with their animals.

“Wait a second,” another senator challenged him, “you mean that if I own a restaurant and don’t want dogs to come in, I can’t make them leave? What if the health department fines me?”

Decades after the passage of the Americans with Disabilities Act, there is still much misunderstanding about service animals. Under the ADA, a public accommodation can not deny entry to a person with a disability who uses a service dog, unless the dog is out of control or dangerous. The business can not require “proof” of training or proof of disability. The business can ask what tasks or work the dog does and whether that is needed because of a disability. But the inquiry must end there. Even if the business has a “no pets” policy, they must permit a service dog to enter.

There is good reason for the confusion, however. The ADA originally protected all service animals, but it was recently revised to protect only service dogs, as well as miniature horses that do work for people with disabilities. Other federal laws, like the Fair Housing Act and the Air Carriers Act, offer protection to service animals, without limit to dogs. Adding to that confusion, Virginia law protects service dogs, even making it a misdemeanor to deny access to a service dog.

Senator Reeves eventually withdrew his proposal, promising to work on the idea before the next session of the General Assembly. But it was clear to everyone in the room that there is a need for greater education about the use of service animals.

Send it to Finance?

In the process of lawmaking in Virginia, there is one tactic that is almost certain to kill a bill. Send it upstairs, Send it to Finance, Send it to Appropriations. When a committee hears a bill and decides to send it to one of the money committees — Finance or Appropriations — it is an almost certain death sentence.

Committees send proposed legislation to their money committees to review if it seems like there may be some cost associated with the bill. The money committees decide whether there actually is a cost and if so, how it will be paid for. With the Commonwealth’s notoriously tight budget practices, if there is a cost to a bill, the bill will be almost certainly defeated, no matter how worthy the cause.

That’s why advocates supporting the bill to reduce seclusion and restraint in public schools were so alarmed this morning. The Senate bill, which had been unanimously approved in subcommittee, was now before the full committee for consideration. The Chair said he’d been asked by some members of the committee to send the bill to Finance, to determine whether there will be any cost associated with the bill. “I mean no harm to the bill,” the chair insisted. He just thought that Finance ought to take a look at it.

The bill calls for the Department of Education to develop regulations that would govern if and when schools can restrain or isolate children with disabilities. The process of developing regulations is complex and slow. It often takes several years to develop the regulations, receive public comment, consider and respond to the comment, re-write the regulations, and then process them through layers of internal review, ultimately by the Governor. Any costs associated with the regulations would not come into play for years, well beyond any budget that the current legislature can affect.

Some school officials have argued that the training costs associated with the new requirements will be prohibitive. In fact, in places where schools have eliminated the use of restraints, their overall costs have gone down. They have had fewer staff injuries and fewer lost days of work. More importantly, they have fewer costs associated with injured children.

In the end, the Senate Committee was not fooled by the tactic. The committee defeated the motion to “send it to Finance,” and instead reported the bill directly to the full Senate. The committee chair chuckled at the end result. “In my 24 years,” he said, “I have never seen a motion to refer to Finance defeated like that.”

Traumatizing our Children

A Senate Subcommittee met yesterday to hear testimony about the use of seclusion and restraint in the Commonwealth’s public schools. Children, parents, and advocates testified about the dangerous practices in use in several school districts. The stories were alarming.

But even more surprising was the story told by Senator Thomas Garrett, a Republican senator from Hadensville. Senator Garrett told the story of having been repeatedly restrained and placed in locked seclusion as a first grader, for behaviors that any first grade kid might do. When his parents found out –after many, many incidents — they removed him from that abusive environment. In a new school, he went on to be a straight A student, eventually voted most likely to succeed.

His experience, decades ago, clearly left a strong, traumatizing impact on him. He became a successful lawyer and a state legislator, yet the tale of his first grade experience brought his emotions to the surface.

Restraint and seclusion is always traumatizing to a child. Restraint and seclusion is an indicator that treatment has failed, that educational plans have failed, that educators have abandoned any hope for creating a learning environment.

The bill under consideration by the Virginia Legislature would, eventually, dramatically restrict schools from inflicting that kind of trauma on any kid. As Senator Garrett eloquently stated at the hearing, somewhere out there in Virginia, there is a kid in a locked seclusion room who could become a great success in life, if he is only treated with respect, instead of treated with trauma. It is our hope that Virginia will move in that direction.

Danger in the public schools

Did you know that staff in your public school may physically restrain your child, or place your child in locked seclusion room — that there is no law or regulation in Virginia that sets any limits on that?

Students with disabilities are disproportionately subjected to restraints and seclusion. Most alarmingly, public schools do not even have to notify the parents when a child has been tied up or locked up in school.

note to hospitals: just tell them!

Medicare patients may be in the hospital for several days without actually being admitted as an inpatient. Instead, they are considered to be in for “observation” only. Observation outpatient status can result in greater out-of-pocket expenses for the hospital stay and can result in denial of Medicare coverage of a subsequent skilled nursing facility stay because the patient lacks the prerequisite of a 3-day hospital stay.

Patients may not even know, until it is too late, that they have not actually been admitted to the hospital!

The Virginia legislature could require hospitals to give patients notice if they are on “observation” status. There is a proposal before the General Assembly to do just that. SB 750 and HB 1509 (identical bills) would make sure that hospitals provide notice, within 24 hours, and that the notice lets patients know that serious financial repercussions can result from their observation status. The proposals require hospitals to recommend to the individual on observation status that they contact their treating physician or others to advocate for their admission as an inpatient and to obtain further information about their rights and potential liabilities.

This sounds like a good idea to us. It seems like simple fair play. What do you think?

The 2015 Virginia legislative session begins soon

The 2015 legislative session in Virginia begins at noon on January 14, 2015.  This is a “short” session, meaning that the legislature plans to be in session for 45 days, rather than the 60 days of the “long” session.

The disAbility law Center of Virginia will be monitoring developments in the legislature that may be of interest to people with disabilities.  We are available to educate policy makers about the potential impact of legislative proposals.  Please let us know of any legislative proposals or budget issues that you think we should be following.  Contact us at info@dlcv.org or by calling 1-800-552-3962 or 804-225-2042.

The mission of the disAbility Law Center of Virginia is, through zealous and effective advocacy and legal representation, to protect and advance the legal, human and civil rights of people with disabilities, to combat and prevent abuse, neglect and discrimination, and to promote independence, choice and self-determination by persons with disabilities.

Does Virginia Need Training Centers? — Continuing Discussion

In the 2014 session of the Virginia General Assembly, the legislature passed Senate Bill 627, which instructed the Department of Behavioral Health to convene a work group to consider options for expanding the number of training centers that remain open in Virginia.

That work group has now met twice. It is clear that the Commonwealth remains committed to supporting a community based service system. There are many advocates on the workgroup who support that commitment, especially in light of the growing numbers of people who are on the waiting list for services. It is equally clear that a small group of parents are resistant to that service system shift.

Read more about the information being considered by the workgroup at this link: http://www.dbhds.virginia.gov/ODS (Scroll down about half way to the section called “announcements.”)

If you want to comment on the Commonwealth’s commitment to community based services for people with intellectual disabilities and the prospect of keeping more training centers open, you can email to sb627@dbhds.virginia.gov

or send your comments by hard copy to

SB627 Work Group
DBHDS
1220 Bank Street, Room 1323
Richmond, VA 23219

The next meeting of the work group will be on September 5, 2014 at 10 am. The group meets in the capital building in downtown Richmond.

Does Virginia need training centers?

Virginia operates five large institutions for people with developmental disabilities, which we call “training centers,” and which have a total population of just under seven hundred people. In a few months, the Commonwealth will close just one of those institutions, Southside Virginia Training Center, in Petersburg. Four other institutions will remain open for a little while.

However, in order to improve services in the community, under an agreement with the United States Department of Justice, the state plans to close three more of the training centers over the next six years. Eventually, just one institution will remain, in Chesapeake, for no more than 75 people.

At least, that is the plan. And that plan has some people worried. Last month, some family members testified before the General Assembly, arguing that the state needs to keep its training centers open. Only in training centers, they argue, will their family members be safe and cared for. These citizens believe that their loved ones have needs that are far too complex to be served in community settings.

Is it true? Does Virginia need training centers? The General Assembly seems unsure. The House and Senate passed legislation, now on its way to the Governor, that calls for a stakeholder group to consider keeping more training centers open. What is happening in Virginia? Is this the right direction for us?

A long time to be in crisis.

The Virginia General Assembly is considering several changes to the process by which someone in a mental health crisis will access emergency services. While the House of Delegates and the Senate agree on many of the changes they intend to make, they differ in some significant details.

For example, the Senate proposes that a person in crisis can be held by law enforcement for a total of 24 hours, instead of the current limitation of six hours. The House of Delegates would extend the period from six hours to eight hours, and then only in limited circumstances.

On the surface, it seems like a better idea to hold someone for as long as necessary to get them into treatment. But that does not account for what is actually happening to the individual who is being held. When a person is in crisis and being held under an emergency custody order, often they are in a sheriff’s office or in an emergency room. They may be handcuffed to a conference table, strapped to a bed, given injections of potentially dangerous but tranquilizing drugs. No matter the location, the person in crisis is inevitably restrained, chemically or physically, for the entire time. Most alarmingly, the person is never receiving any treatment during the initial emergency custody period.

For a person in crisis — a person who needs emergency treatment now — being held in restraints and without treatment for 24 hours is inexcusable. We hope that the negotiators for the two houses take the time to think about the real life implications of their decision, and avoid the solution that makes for a better headline, but with possibly cruel outcomes.

Expanding Capacity

A senate subcommittee met this morning to decide the fate of several mental health bills in the state legislature. The committee heard a presentation from Dr. Bill Hazel, Secretary of Health and Human Resources, explaining the proposed funding in the budget. Secretary Hazel made the argument that it is important to expand state hospital beds, to expand state facility capacity. There is an additional 2.2 million dollars in the Governor’s budget to do that expansion, more than twice as much as the budget includes to expand community based responses.

With respect to the Secretary, we disagree. Expanding state bed capacity is the wrong direction for us in Virginia. State facilities are already filled with people who could live in less restrictive settings, if the community based services were available. Expanding services in the community would enable the state to serve many more people overall, and reduce the life threatening delays in obtaining services that currently exist.

The problem is complex, but the math is simple: It costs the state nearly five times as much to serve the same person in a hospital as it does to serve him in the community.

Yes, let’s expand capacity, but lets do it where it makes fiscal sense AND protects the civil rights of those needing help.