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SB 271 "Revise laws related to the closure of the Montana Developmental Center," sponsored by Senate Majority Leader Fred Thomas, is the more conservative of the MDC bills to be presented this session. It would extend the closure of MDC for two more years as does HB 387 sponsored by Rep. Wagoner, but it does not ask the legislature to rename part of MDC and keep that 12 bed unit open for the foreseeable future.
The bill also addresses the main problem that providers of community services for developmental disability services identified that interferes with the closure of the Montana Developmental Center – the way that people are reimbursed for services provided to people with developmental disabilities or the "0208 waiver."
Since the last legislative session, the Montana Developmental Center (MDC) Transition Planning Advisory Council met nearly every month. The process to transition people into community services has been very successful. MDC started at a census of 54 and now it is at a census of 25.
Many issues were discussed in these meetings, but a constant issue was the difficulty that providers of community services have with the method of payment for services. Many of these individuals are assigned cost plans, which assess the type of services that they need. These cost plans range greatly in Montana. The average cost is around $40,000 a year. With more challenging to serve individuals, with autism, or with developmental disabilities and co-occurring mental illness, cost plans are larger - in the range of $180,000 or $200,000 a year.
Unfortunately, because of the way that the payment system works - which is called a waiver system - providers and individuals cannot access all of the funds in each cost plan. Many providers need to return money that was allocated to services for clients at the end of the year. This is not because they couldn’t have used that money to pay for professional intervention, or for raises for their workers. This is because of the unwieldy way that the waiver (designated the 0208 waiver) works. This problem makes it difficult for providers to get sufficient staff to help more complicated clients.
As part of the plan to close the facility, the Department did promise to work on amending the 0208 waiver in May 2017. This was frustrating as solving the problem with the 0208 waiver is critical to the successful completion of the MDC closure that started in May 2015. This bill requires that the Department follow through with this promise and submit a waiver amendment to the federal government by the end of September 2017.
As this process will take some time, the second part of the bill extends the MDC closure process by two more years as the 25 individuals who are currently there have not been transitioned to the community yet, though 11 have been referred to community providers. The bill allows individuals in crisis to be involuntarily committed to MDC, but caps the census of MDC at 26 to ensure that closure can still occur.
Sponsored by Rep. Kirk Wagoner, HB 387 "Authorize establishment of a 12-bed intensive behavioral center" claims to do two things. It claims to close the Montana Developmental Center in two years but it also renames part of MDC as an "intensive behavioral center" and keeps it open into the foreseeable future.
Disability Rights Montana has participated in the process to close Montana Developmental Center, and it has been a tremendous success so far. MDC started with a census of 54 in 2015 when the bill to close MDC was passed. Two years later, MDC is at a census of 25, after the rest of the residents have been transitioned into community life. Currently 11 more people at the facility have been referred to community placements.
DRM does not object to part of what HB 387 does - the extending of the closure process for two more years. These transitions take time and providers need to purchase property, hire staff and train them to prepare for the transition of more residents.
However, DRM does object to the other part of the bill - the renaming of the ASU portion of MDC and the establishment of this 12 bed facility to be used for the foreseeable future.
We at DRM are provided all of the investigations of abuse and neglect allegations that are conducted by the Department of Justice. We are sad to report that the rate of abuse and neglect at MDC has not appreciably declined in the last two years. We are also aware of situations where residents did not get appropriate services while in MDC, who improved markedly after receiving services from providers in the community. We do not trust that people receive appropriate, professional treatment at MDC. Click here to read more.
Tal M. Goldin, DRM attorney, spoke at the MLK Day Rally on January 16, 2017. Below is an exerpt from his remarks.
Today, as the nation gathers to honor the life and work of Dr. Martin Luther King, Jr., I am reminded that Dr. King served as a luminary for justice and equality for all. Not just racial minorities, but for all people marginalized on the basis of “immutable traits” over which they have no control. “Justice [Dr. King wrote] is the same for all issues; it cannot be categorized. It is not possible to be in favor of justice for some people and not be in favor of justice for all people. Justice cannot be divided.”
Dr. King’s teachings in non-violent protest formed the backbone of the disability rights movement that came of age in the 1970s. Indeed, Section 504 of the Rehabilitation Act of 1973, the groundbreaking federal law prohibiting disability discrimination in federally funded programs, was crafted in the image of the Civil Rights Act of 1964. However, it was not until 1977 that the regulations which implement Section 504 were finally put into place following a series of non-violent protests building on the model set by Dr. King.
* * * *
[I]t was not until 1990 that the civil rights movement was truly realized for people with disabilities. That year, Congress, enacted the Americans with Disabilities Act, which brought civil rights protections to people with disabilities in all areas of public life, from government buildings, to movie theatres, to telecommunications and beyond. Passage of the ADA was aided by strong bipartisan support, including Republican Sen. Bob Dole, himself a wounded World War II veteran, and Democratic Senator Tom Harkin, whose brother was deaf.
* * * *
[T]o paraphrase Senator Dole, disability is the one club that is always accepting new members. As a colleague of mine says, we are all just temporarily able bodied. At any point, walking down the stairs of our beautiful Capitol, or crossing the street, any one of us could be personally and fundamentally changed by disability.
Whether you believe, as Dr. King did, that “whatever affects one directly affects all indirectly” or whether you believe it is best to act only in your self-interest, the required course of action on this issue is the same. Some might consider it good will, other insurance. Either way, I implore you, as you do the difficult work of legislating this session, take the spirit of Dr. King with you and remember, “the time is always right to do what is right.”
Undeterred by Gov. Steve Bullock’s veto two years ago, Sen. Roger Webb introduced a bill Monday that would require a hearing before a patient found “guilty but mentally ill” can be transferred from the Montana State Hospital to the State Prison.
The three-term Republican argued that the current transfer procedure -- which involves a review board composed of state employees and does not grant the patient any representation or notice -- is a violation of due process rights and undermines the intent of judges who sentence convicts to intensive treatment only found at the hospital.
“All we’re asking for is an independent review board. Absolutely I don’t want just folks employed by (the Department of Public Health and Human Services), which is kinda like the fox watching the hen house,” he said. “This is about accountability. And it gives the individual a fighting chance at his own civil rights.”
Supporters included Disability Rights Montana, the National Alliance on Mental Illness of Montana, a father whose son at the state hospital was threatened with transfer to the state prison, and former judge Nels Swandal, a Republican senator from Wilsall.
“What we’re most concerned about as judges is making sure the individual who is guilty but mentally ill is taken care of. Most of the time it’s not their fault what happens,” he said. “They don’t belong in prison. They can’t get along (in general population) and end up in solitary confinement … All this bill does is make the Department prove before they transfer somebody that it’s in their best interest.”
Webb’s measure is similar to one he carried in 2015. It passed the Senate, 45-5, and the House, 97-1, but was vetoed by Bullock. A mail vote to override the veto failed to reach the necessary two-thirds approval, falling short 16 votes in the House and 6 votes in the Senate.
In a May 2015 veto letter, Bullock wrote the bill would create “an additional and costly taxpayer-funded hearing to second-guess the recommendations of the inmate treating professionals. It gives GBMI inmates special rights after they have already received full due process of law when they were found guilty, sentenced and had the right to appeal.”
His letter also noted overcrowding at the forensic unit of the state hospital and called the transfer process “rare.”
In the last five years, 26 people have been transferred from the state hospital to the state prison and only two have been transferred back, Webb, DPHHS officials and others testified.
Bullock Communications Director Ronja Abel said in a written statement that Bullock is monitoring the bill, but declined to say whether he intended to veto it this year.
“The governor continues to have concerns about the potential cost to taxpayers resulting from the bill, the failure to recognize the recommendations of treatment professionals, and the safety of staff and patients,” she said.
On Monday, February 13, 2017, at 3:00 p.m., in Room 152, the House Human Services Committee will hear, HB 364 "Revise service animal laws." Sponsored by Rep. Denley Loge, this bill attempts to ensure that people who misrepresent their animals as service animals are dissuaded from doing so. This is a reasonable goal, but we are concerned that the state of federal law and the language of this bill would encourage confrontations and investigations of people with disabilities who legitimately use service animals.
Federal law currently does not allow a business owner to require proof that a service animal is a service animal. There are a number of reasons for this, but one significant reason is that there is no generally accepted certification for service animals. Thus, no legitimate user has the ability to show a generally accepted document that proves that a service animal is a service animal. Some are trained by private entities who do it for a living, who may or may not provide their own "certification." Others are trained by their owners to assist them. Thus, many legitimate users of service animals may have no document at all that proves that their animals are service animals, thus have no way to defend themselves against a criminal charge.
This is problematic as HB 364 assumes that there is a clear way to prove that one’s service animal is not "fraudulent." It enacts a misdemeanor penalty for misrepresenting an animal as a service animal. Inevitably, this will encourage business owners and law enforcement to make inquiries of people with service animals about the legitimacy of that animal. This inquiry is not allowed by federal law, which allows business owners only to ask if the animal is a service animal for a disability and what tasks the animal performs. Even so, if the inquiry occurs, many legitimate service animal users will not have documentation to defend themselves.
We believe this will create unnecessary conflict and confrontation which is not the result that anyone wants. Although we, as a disability rights law firm, have heard stories of frustration about individuals who have misidentified their animals as service animals, our firm has received far more reports of people with legitimate service animals having difficulty using their animals in schools, at work, and in private businesses.
We don’t believe that law enforcement should be injected into these disputes, nor would it be a positive step to apply a criminal penalty. We are especially concerned that individuals that do not have obvious disabilities, such as serious mental illness, will be subjected to greater scrutiny.
Then SUPPORT HB 274 by contacting the House Education Committee members listed below.
The hearing on January 30, 2017, went very well. Make sure that the members of the House Education Committee hear from you about support for HB 274. They will be voting soon in executive session whether to send it to the House floor with a "do pass," or do not. All interested parties are urged to provide input either through public testimony, calls, letters, faxes, or through the legislative online message system.
Sponsored by Rep. Kathy Kelker, this bill entitled “Allow ANB funding for students with disabilities up to age 22" would allow students with disabilities who have not reached 22 years of age by September 10 of the school year and have not yet met graduation requirements, to be included in the calculation of the average number belonging (ANB) in a school district for purposes of their funding.
Montana is an outlier. This has cost Montana in various ways, as Congress now sets policy and appropriations based upon the assumption that all states provide special education services past age 18. Making this change is a good idea and will support real and successful transitions of students with disabilities into meaningful employment. All interested parties are urged to provide input either through public testimony, calls, letters, faxes, or through the legislative online message system.
On Wednesday, February 1, 2017, the House Judiciary Committee voted to table HB 268, which established a felony penalty for a misdemeanor assault on nurses or emergency heathcare providers. Prior to tabling the bill, the Committee amended the bill to exempt people with serious mental illness or developmental disabilities from prosecution, which was our greatest concern about the bill. The vote to table was largely based on the fact that committing felonies against nurses is already illegal and that there was not a good reason to sentence someone to up to 10 years in prison for committing a misdemeanor against a nurse. Given the rate of violence against nurses that came up in testimony, DRM hopes that there are initiatives for employers to provide security personnel to protect these critical professionals.
On August 15, 2016, four patients at Montana State Hospital sued state officials and staff for the isolation, abusive and deficient treatment they have been subjected to at the Hospital in Warm Springs. The lawsuit alleges that officials at the Montana Department of Public Health and Human Services as well as staff at the Montana State Hospital have violated state and federal law in their treatment of the four patients. The lawsuit seeks an injunction to stop these practices as well as damages for the patients for the harm they have suffered.
Two of the patients have been subjected to long-term isolation nearly 24 hours a day for more than a year. This has markedly worsened their conditions and caused them extreme psychological and emotional harm.
A third patient was subjected to a traumatic forced "take-down" in the Galen facility, which is administrated by the Montana State Hospital. This was done as punishment for his behavior, even though his behavior is a predictable result of his mental state and illness, which is why he was sent to the facility for treatment in the first place. The entire "take-down" was video recorded.
The fourth patient was subjected, like all others patients in the hospital, to a harsh, illogical, and nonsensical "level system." The "level system" forces patients to "earn" psychiatric treatment, or basic human privileges such as sleeping without the lights on. This system routinely punishes patients for infractions including small acts of kindnesses, like giving someone a cup of coffee.
"We rely on the Montana State Hospital to care for people with serious mental illnesses who need thoughtful, professional, and therapeutic interventions," said Bernie Franks Ongoy, executive director of Disability Rights Montana, which is representing these patients. "Instead these patients have been the victims of abusive, antiquated, and unprofessional treatment, which has made their conditions worse than when they arrived at the facility in the first place."
After the case was filed, District Court Judge Kathy Seeley set a hearing at which the defendants must show cause why a temporary restraining order should not be issued against them. This hearing was held September 19 - 20 and will continue on December 13, 2016.
The drawing for the Disability Rights Montana raffle was held on June 14, 2016. The raffle for a fishing trip was valued at $500, and included a licensed, insured, professional guide, boat and shuttle service, fishing instruction, terminal tackle such as flies, leaders & tippet, and lunch, all donated by God's Country Outfitters of Lincoln, Montana. The winning ticket holder, Mark Kelley, of Helena, donated the trip back to DRM to be given to a person with a disability. Names were submitted by DRM staff and then drawn out of a hat. The lucky winner was Melvin Noon, who has a passion for fishing. The fishing trip took place on the Blackfoot River on August 4th. Mel caught nine fish! He had a good time laughing and joking with his staff and Shane Erickson, the fishing guide. He thoroughly enjoyed his day on the Blackfoot River. Thank you to all that supported Disability Rights Montana by purchasing raffle tickets. A special thank you to Mark Kelley for donating the trip to a person with a disability and to Shane Erickson, owner and guide with God's Country Outfitters of Lincoln, Montana. A total of $2900 was raised through the raffle and will be used to support Disability Rights Montana and its work to protect the rights of Montanans with disabilities.
Mountain Outlaw magazine released its Winter 2015-2016 edition. John S. Adams, an award-winning investigative journalist, explores the use of solitary confinement in the Montana State Prison. DRM Executive Director, Bernadette Franks-Ongoy, and DRM advocate, Charlie McCarthey were interviewed for the story. Click here to read the magazine online. The solitary confinement article begins on page 39.
The Department of Justice released its 2015 statistics regarding abuse and neglect at the Montana Developmental Center. Additionally, DRM has obtained the MDC staff injury data for 2014, 2015, and 2016. Click links below for the information.
This position will work under the supervision of the Attorney Work Group to support and assist four staff attorneys to carry out the legal priorities, objectives, and casework of the agency.
The applicant must be self-motivated, have the ability to problem solve through research, demonstrate proficient writing skills, have fluent computer knowledge, and be able to communicate effectively with people with disabilities, family members, and providers. The applicant must also be familiar with Federal and Montana Rules of Civil Procedure, Federal and Montana Rules of Evidence, Federal and Montana Uniform District Court Rules, and local court rules.
Applicant must have a minimum of three years of qualifying experience and a diploma or degree in paralegal studies.
The position is located in Helena, Montana. Some travel may be required. Salary is commensurate with experience. A generous benefit package includes paid time off, 403(b) retirement plan, health, life, dental, vision, and long term care insurance.
Please submit a letter of interest and resume by September 23, 2016, to:
Kelli KaufmanDirector of Finance & Administration1022 Chestnut StreetHelena, MT 59601
Disability Rights Montana is developing its goals and objectives for the upcoming 2017 fiscal year that starts October 1, 2016. We depend on people with disabilities, family members of people with disabilities, and the public to tell us what disability issues are most important. Our planning survey is one way for us to gather information. Please help us by answering the questions in this survey by Tuesday, September 6, 2016.
On May 6, 2015, Governor Bullock signed SB 411 into law. SB 411 directed the Department of Public Health and Human Services to close the Montana Developmental Center by July 2017. The bill created a committee to advise DPHHS on how best to close MDC and to minimize the impact to the city of Boulder and the work force. Specifically the committee is charged to:
(a) design and recommend a plan to close the Montana Developmental Center and transition residents into community-based services; (b) propose a rate structure for providers of community-based services; (c) identify potential sources of funding to support the proposed rate structure; (d) recommend community-based services necessary to allow for the closure of the Montana Developmental Center; (e) identify potential options for repurposing of the Montana Developmental Center campus; (f) recommend workforce planning and transition options for the Montana Developmental Center workforce; and(g) recommend secure facilities necessary to allow for the closure of the Montana Developmental Center.
In signing the bill, Governor Bullock knew the work was not going to be easy. He knew it could be done if people of goodwill work together to accomplish the goals of SB 411 which are to protect the rights of people with disabilities to live in community settings and to minimize the impact to the city of Boulder and the work force.
Civil rights for people with disabilities and the survival of a community are not mutually exclusive.
The MDC transition committee has met eight times and is not close to accomplishing the goals of the bill. Instead, the committee has spent most of its time debating the merits of the bill. The only way people with diverse perspectives can reach common ground is to truly listen, have honest dialogue, and respect each other's positions, concerns, and fears. Bulling, vilifying, and fear-mongering do not inspire cooperation and understanding. Instead, all of the members on the committee are digging their heels deeper in their respective positions.
We must find a way to alter the trajectory of the transition committee or we will miss the opportunity to protect the civil rights of people with disabilities. The committee only has eight months left to do its work.
Doing the right thing for people with disabilities and for the people of Boulder is compatible with meeting the objective of closing the institution. If we start the conversation with that premise, we will craft a solution that honors the will of the legislature in the passing of SB 411, uphold the civil rights of people with disabilities, and respects the people who live and work in the city of Boulder.
As the Executive Director of Disability Rights Montana, I will own my part of the discourse but I will not apologize for defending the rights of people with disabilities to live integrated lives. Boulder is a lovely town with wonderful people. The people are scared about the future, their livelihood, and their town. That is a real, understandable fear.
The residents of MDC are people with disabilities whose civil rights need to be protected. That is a reality, and requires the closure of MDC.
Many states have closed institutions for people with developmental and intellectual disabilities. We should learn from those states; invite those leaders to share their experience with us on what worked and what didn't. We should consider other purposes for the MDC campus. There are viable facility uses that can replace MDC.
If we all put our boxing gloves away and bring out olive branches, we may be able to start again and work together to bring about the changes required by SB 411 with little or no negative impact. I believe in the core of my being that we can do the right thing for people with disabilities and for the people and city of Boulder without compromising the civil rights of people with disabilities and without negative impact to Boulder.
DRM hereby extends an olive branch to all parties involved.
Below is a video of a converation with Allan Bergman with a positive view of the national movement to close institutions, as it has led to the creation of systems that help people live fuller and more positive lives than they had in institutional settings.
This video is a follow-up to the first in the bipartisan public education series "Best Practices in Community Services for People who have Developmental and Intellectual Disabilities" which was held on March 23, 2016, at the Montana Capitol. The bipartisan public education series was developed by Senator Ed Buttrey and Senator Mary Caferroto to help build understanding of critical issues impacting community services in Montana.
The guest speaker was Allan I. Bergman, a leading national expert on community programming and public policy related to persons with disabilities.
Allan, President and CEO of HIGH IMPACT Mission-based Consulting & Training, is a nationally recognized leader in influencing the development of federal and state policy reflecting “best practice” community integrated supports and services, including effective Medicaid policy and practices, for persons with disabilities and their families. During his career, Allan has engaged with and trained over 65,000 people working with over 370 organizations and government agencies in 45 states as well as internationally.
Legislators, MDC Transition Committee members, providers, and the public were invited by Senator Buttrey and Senator Caferro for this rare opportunity to tap into the expertise of Allan to utilize his decades of experience assisting with developing community living infrastructure for people who have disabilities. Allan highlighted pressing issues such as community provider transformation, community integration, ADA compliance, integrated community supports, and Olmstead plan requirements. You can view his presentation at the Capitol by clicking here.
On January 22nd, a state hearing officer granted Run Wild Missoula’s request that judgment be entered against it in a discrimination complaint filed by local Missoula athlete Joe Stone. The order requires Run Wild Missoula to allow people with disabilities who use hand cycles or racing wheelchairs to participate in the Missoula Marathon and prohibits them from implementing discriminatory rules, including greatly limiting the speed of these athletes for almost the whole second half of the marathon and requiring that they yield to all other racers. It also must provide its board of directors and executive director at least two hours of training on the Montana Human Rights Act, with an emphasis in providing accommodations for people with disabilities. Finally it must pay Mr. Stone $13,000 for the damages caused to him through its discriminatory practices.
“I’m very pleased that we have finally resolved this issue so people with disabilities can be full participants in all phases of the Missoula Marathon,” said Stone. “This is an incredible weight off my shoulders. This is all I ever wanted to accomplish when I first contacted Run Wild Missoula in 2012.”
Stone began trying to work with staff at Run Wild Missoula three years ago after learning that the Missoula Marathon did not allow people who use racing wheelchairs or hand cycles in the full marathon. Stone experienced a spinal cord injury in 2010 and uses assistive technology to compete in triathlons, marathons, and other races across the U.S.
“I never wanted to initiate legal action, but at a certain point I had to acknowledge the unfair way in which people with disabilities were being treated. I spent several years trying to educate, collaborate, and participate in what Run Wild Missoula calls ‘an inclusive race for all participants.’ I just could not sit by and have myself and others treated like second-class citizens. We are part of the community and we have the right to fully participate in our community like anyone else.”
Through Stone's advocacy and public pressure, Run Wild Missoula belatedly agreed to allow racing wheelchairs and hand cycles in the full marathon in 2014, only a month prior to the race, but still imposed discriminatory rules on wheeled participants. Stone, represented by Disability Rights Montana, argued that those rules were discriminatory, and an investigator from the Montana Human Rights Bureau agreed in July 2015. The case was set for hearing in February 2016.
“It is unfortunate that it took so much time and effort to be treated equally, but I am very pleased with the outcome,” Stone added. “Not only will disabled athletes be treated equally in the Missoula Marathon, but this case can now be used as a tool for other athletes across the country who are struggling with similar issues. Inclusive races and events across the country are the ultimate goal, and our case puts us all one push closer to that outcome for everyone.” Click here for Press Release.
"The state of Montana has taken on an urgent mission to do better by our most severely disabled residents. 'Bullock signs bill to close Montana Developmental Center in Boulder,' a Gazette headline said last week. The bigger story is the state accepting responsibility to create better services for each of the 53 men and women - all seriously developmentally disabled and some with mental illnesses as well - now housed at this institution in a small community in Western Montana." The opinion goes on to read:
"As seriously disabled adults are transitioned to new community services, new jobs will [be] created. They should be created closer to clients' families. New services should take advantage of other community strengths, such as a sufficient labor pool, availability of physical, speech, psychiatric and occupational therapists, nurses and physicians, as well as opportunities to interact positively with family, friends and neighbors." "We agree with Caffero, who said Bullock put 'people ahead of politics.'" Billings Gazette Opinion May 11, 2015
The Americans with Disabilities Act is 25 years old. Where do we go from here? Is the ADA under threat? Find out in NDRN's latest report: The Americans with Disability Act at 25: Cause for Celebration and Renewed Resolve. In the 25 years since the historic enactment of the Americans with Disabilities Act (ADA), there has been an increase in the number of people with disabilities participating in all aspects of community life, from home ownership and employment, to sports and the arts. But where to we go from here? In the report, NDRN reviews the progress our nation has made since the historic enactment of the ADA in 1990. It highlights the critical role that P&As have in enforcing the ADA integration mandate, protecting and advocating for people with disabilities still trapped in institutions and ensuring those now living in their community of choice are able to access the supports and services they need to be successful. The report calls attention to disturbing national trends that threaten to distort and weaken the promise of full community integration. Please click here to read the entire report.
Office of Public Instruction Preserves Requirement of Parental Consent, makes changes to regulations under Individuals with Disabilities Education Act (IDEA)
Due in part to DRM’s advocacy efforts, Montana’s Office of Public Instruction (OPI) has abandoned a proposed regulatory change that would have removed the requirement that parents of a child with a disability consent to initial and annual individualized education programs (IEP). DRM’s education attorneys provided comment on the proposed regulations, both at public hearing and in formal written comment. This decision by OPI preserves the long established right of Montana parents to refuse to consent to all or part of an IEP when the parent believes the IEP provides inadequate services to the student. Agreed upon portions of an IEP are implemented while any disputed issues are resolved.
This important procedural protection helps preserve the collaborative process envisioned in IDEA and incentivizes the school and the parents to return to the negotiating table and try and problem solve issues together when they arise. It helps reduce the likelihood that parents will have to resort to litigation and expedites the delivery of a free appropriate public education to children.
OPI also made significant regulatory changes in other areas impacting special education, including a change to the residency rule, which formerly provided that an IDEA eligible student received services from the school district where he lived during the school week. Under the new regulation, residency is governed by a general residency statute, which makes the determination of residency more complicated and, in some cases would require litigation to determine which school district must serve the student. DRM continues to have concern about the implementation of this regulation.
Montana’s Office of Public Instruction (OPI) is the statewide agency with ultimate responsibility for ensuring the provisions of federal special education law are carried out in Montana under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). Under Montana law, OPI has the authority to make regulations implementing the IDEA in Montana. OPI recently proposed substantial amendments and repeal of some of the existing special education regulations. The proposed changes are described in the official rule notice published on October 15, 2015 in the Montana Administrative Register. A copy of the rule notice is available at: http://www.mtrules.org/gateway/ShowNoticeFile.asp?TID=6698.
DRM appreciates OPI seeking comment from DRM education attorneys while OPI prepared the proposed regulations. DRM continues to have concern about two proposed changes: first, a change to Rule 10.16.3505, Admin. R. Mont., which would remove the longstanding requirement that school districts obtain parental consent prior to initial and annual placement of a student with disabilities in special education and related services. DRM believes this will effectively remove the opportunity for parents to refuse to consent to portions of an individualized education program (IEP) with which they do not agree and will leave parents having to pursue administrative hearings and/or court litigation when disputes with school districts arise.
Second, OPI proposes to change the definition of a student’s residency for special education purposes under Rule 10.16.3122(2), Admin. R. Mont. The existing rule simply provides that a child’s residency (and the school district required to serve the child) is the place where the child lives during the school week. OPI proposes to define residency under Montana’s general residency statute, Mont. Code Ann. 1-1-215. This statute is antiquated and generally defines the child’s residence by where the parent or custodian lives, even when the child doesn’t live with that parent or custodian. DRM believes this change would introduce significant conflict between parents and districts over where a child should attend school.
More information about DRM’s objections to the proposed rules is contained in the talking points summary available here. Parents Let’s Unite for Kids, Montana’s Parent Information and Training Center, has also put out a summary with its view of the proposed changes, available at http://pluk.org/opi-rules/PLUK-OPI-rules-info-packet-102315.pdf.
A public hearing was held November 6, 2015, at OPI in Helena. Positive feedback and constructive criticism of the proposed rules was heard. Interested persons had until 5:00 p.m., November 12, 2015, to submit their comments.If you have questions regarding the possible impact of these rules, please feel free to contact Tal Goldin, DRM Education Unit supervising attorney at firstname.lastname@example.org.
Montana Op-Ed Article - Medicaid Expansion of Autism Services - March 27, 2015:
Montana is at a critical juncture in deciding how it chooses to serve children with an autism spectrum disorder under Medicaid. We are members of a Medicaid State Plan Autism Advisory Group who offer only our thoughts about the options and are not speaking on behalf of the whole group or necessarily our respective organizations.
On February 6, 2015, DRM released an opinion regarding the Montana Developmental Center as the most expensive facility in the state.
In 2013 and 2014, Montana Developmental Center (MDC) had an average of 50 residents in its facility. Every day for the past two years on average, 24 of the 50 residents have been determined eligible for and referred to the community for services. In other words, everyday 24 residents are ready and waiting to move into community services. Many of the 24 have been waiting two years. See Exhibits 1 and 2 attached to the link to the complete article below.
The waiting cost is $849 per day or $310,074 per year, per person. Per person, MDC is the most expensive facility operated in the state of Montana with an operating budget that exceeds $17 million. Click "View Attachment" below to read the entire opinion and attached exhibits.
DPHHS Quality Assurance Licensing issued the Montana Developmental Center Notice of Violations and Order for Corrective Action (ICF-DD ASU Secure Unit) on March 10, 2015:
The notice states in part "The Department has investigated the three incidents and found in each case that the ICF-DD has been inconsistent in the application of its policies and procedures and that it did not implement specific actions contained within Individual Treatment plans (ITP) of the clients involved. The policies and procedures have been established for the overall health, safety and welfare of residents receiving services through the ICF-DD at MDC. Treatment plans reflect a course of action that has been determined to be necessary not only for the individual's health and safety as well as others as may be applicable, but also to assist the individual to develop to the best of his/her potential. The findings of ICF-DD non-compliance along with the ICF-DD's general disregard for policies and procedures, combined with a failure to implement individual treatment plans when placing residents into the ICF-DD create a substantial risk of harm not only for the individual being placed into the ICF-DD but for other residents of the ICF-DD. These incidents bear witness to this substantial risk of harm."
The notice goes on to say "MDC's response to past findings of non-compliance typically involve a review (and possible revision) of policy and procedure and retraining of staff; however, given that the ICF-DD has had three serious incidents -- involving a misapplication of policy, failure to adequately provide appropriate supervision of residents, and failure to implement policy as it pertains to fulfilling individual treatment plans--within a short period of time, it is obvious that the MDC ICF-DD's remedial efforts have not been effective."
Section II of the Order states: "Pursuant to 50-5-207(2) MCA, the department has reduced the ICF-DD's license to a PROVISIONAL status for the period ending March 8, 2016."
The Quality Assurance Division of the Department of Public Health and Human Services issued a Notice of Violations and Order on March 23, 2015, to the Montana Developmental Center citing its Intermediate Care Facility for nine violations of state law and administrative rule from abusing residents and violating their rights to keeping poor records and failing to train staff, and ordered the unit to cease taking new admissions until the violations could be corrected.
“The Department concludes that the MDC ICF-DD has not established and does not maintain a humane and safe environment for the residents. MDC ICF-DD staff is ill-trained and inadequately supervised resulting in their inability to properly engage with residents. This failure to adequately train and supervise has resulted in an increasingly hazardous situation that is affecting the safety of residents and staff.”
The Administrator of the facility, Gene Haire, to whom the Notice is addressed, was cited also. “The Administrator of the Montana Developmental Center Intermediate Care Facility for Developmentally Disabled has been unable to assure a safe environment for the residents at MDC ICF-DD. The number of substantiated reports of abuse and or neglect has increased at an alarming rate which places residents and staff at an unacceptable risk of harm.”
DRM Releases Report:
Disability Rights Montana released a report January 23, 2015, with significant details of numerous case stories of abuse and neglect at the Montana Developmental Center. Investigations conducted by the Department of Justice over the course of the past year reveal that twenty-seven staff members, including the Director of Quality Assurance and Superintendent, have been involved in the case stories. Some of the cases involve serious injuries, rape, and felony assault.
DRM has monitored MDC for more than twenty years, and cites a climate and culture at MDC that perpetuates and tolerates abuse. The cases cited in the report document slapping, grabbing, squeezing, pulling residents by the ankles, throwing them hard to the ground, kneeling on them, grabbing them by their clothing, and other efforts to control residents. Abuse and neglect has been substantiated against 27 employees this past year.
Residents cannot be reassured they are safe when 20 of the 27 staff who engaged in the abusive and neglectful behavior return to work. MDC Administration is not taking action to keep residents safe.
MDC is not able to hire and maintain adequately trained staff. The facility is consistently understaffed which leads to limited treatment and unfavorable conditions. Today there are at least 22 job vacancies to include direct care and professional staff.
The average population in 2014 at Montana Developmental Center was 50 residents. The cost to operate MDC is in excess of $15M per year.
DRM is asking the 2015 Legislature to issue a directive to close MDC, and treat our fellow citizens with dignity and respect by providing appropriate community services. “A transition plan, developed by stakeholders that closes MDC and shifts resources into community services can be done. Montana needs leadership to make it happen,” said Bernadette Franks-Ongoy, the executive director of Disability Rights Montana. “The Legislature can be that leader.”
A Department of Justice Report dated November 12, 2014, reveals that a female resident at Montana Developmental Center was raped on November 3rd by a male resident due to the neglect of the staff. Click here for the complete Press Release.
“I sought Disability Rights Montana’s help because my foster son wasn’t doing well at the group home and in school. With Disability Rights Montana’s assistance we were able to move my son to another group home in Bozeman, he enrolled in Bozeman High School, graduated, and is now working.”
November 19, 2014
During 2014 Disability Rights Montana (DRM) provided training, advocacy, legal services, and protected the rights of 1,116 Montanans with disabilities. We advocated for children to obtain appropriate services in school, assisted adults to keep their jobs through advocacy for reasonable accommodations in the workplace, and worked to protect vulnerable persons in institutions from abuse and neglect.
DRM sponsored its second annual Special Education Symposium in Great Falls. These symposiums have provided outreach to 200 parents and families, educators, attorneys, care-givers, and professionals providing training on education law and special education from experts in their fields.
As this year comes to a close, we ask you to consider a year end charitable contribution to Disability Rights Montana because in addition to those we served, we turned away hundreds of requests for help because of lack of financial resources.
Gifts of all sizes will directly benefit Montanans and their families. One hundred percent of your gift will be used to provide advocacy and legal services for Montanans with disabilities. A gift of $50 will help a child to receive a consultation for appropriate education services. A gift of $500 assures representation in a disability discrimination matter in the workplace.
Our efforts at DRM are well underway and with your support we can reach more families that need our services.
In this season of Thanksgiving, Disability Rights Montana appreciates your consideration of a charitable tax deductible donation to our organization to help us fulfill our mission: To protect and advocate for the human, legal and civil rights of Montanans with disabilities while advancing dignity, equality and self-determination. Sincerely, Bernadette Franks-Ongoy Executive Director
“I got my dream job working at the Veterans Administration because of my lawyer at Disability Rights Montana.”
Special Education KIDS, FAMILIES, SCHOOLS & THE LAW: Working Together for Success October 24-25, 2014 Great Falls College MSU, Great Falls, Montana
Disability Rights Montana sponsored a two day symposium featuring presentations from experts in the fields of special education law, community and school-based mental health services, assistive technology, and transition services. Ron Hager, Senior Staff Attorney with the National Disability Rights Network, was a presenter both days. Ron has specialized in disability law, particularly special education, since 1979. Montana attorneys Megan Morris, Andree Larose, and Betty Carlson presented with Ron. Professionals from Shodair Children’s Hospital, Children’s Mental Health Bureau, Office of Public Instruction, Great Falls Public Schools, The Center for Mental Health, and Brett Gilleo, MSC, LCPC, LMFT, presented Saturday morning on Coordinating Mental Health Systems in Montana and Community and School Based Mental Health Services. The afternoon focused on Assistive Technology and Transition Services with professionals from MonTECH, Great Falls and Bozeman Public Schools, Disability Services - College of Great Falls MSU, and the state Disability Employment and Transitions Division. We would like to thank all of our presenters and collaborators for being a part of this event.
Having trouble understanding and responding to non-verbal cues?
Individuals who have social learning challenges and solid cognitive and language skills from grades 6-12 can participate in small groups rich in social learning opportunities and facilitated by speech-language pathologists, occupational therapists and teachers. Adolescents are placed in groups with others of similar ages and social communication learning styles. Concepts from Social Thinking® and other similar methodologies are incorporated to address different aspects of social interactions such as sharing space with others, relating to others, and reading and responding to non-verbal/situation cues.
8 socially enriched classes provided one time per week
Show your support for Montana Shares, a partnership of Montana-based nonprofit groups dedicated to improving the quality of life in communities throughout the state. Enter to win one of the 28 fabulous prizes. Suggested donation: $10 each or three for $25. Lots of winners and for a wonderful cause. The drawing will be held on Saturday, September 6, 2014, at the Fall meeting.
Print the form by clicking the link below and send your check, made payable to Montana Shares, and the completed raffle tickets, to Montana Shares at the address below. Montana Shares must receive your raffle ticket and donation by Wednesday, September 3, 2014. Click here to download the raffle ticket.Mail to: Montana Shares P.O. Box 883 Helena, MT 59624
Disability Rights Montana is a proud member of Montana Shares.
A Complete Memoir of Autism (Abridged) by Emily Armstrong:
Did I think she was a doctor? Probably not. I was seven years old and knew almost nothing about doctors, and besides, my mom hadn’t called her a doctor. Mom called her a “psychologist.” The visit left me with few memories save one: Even eleven years later, I can still remember the space shuttle she let me play with, and how excited I was that she had one – we were studying space in Mrs. Burk’s class.
It was another three years before I learned the reason for that visit. And it wasn’t to play with a space shuttle.
There’s really no point in me telling you what exactly the visit was for – unless you’ve completely skipped over the title, you’ve probably already guessed – so let’s just get down to brass tacks:
Yes, I am autistic.
That psychologist-lady diagnosed me with Asperger’s syndrome, a mild autistic spectrum disorder. For those readers not in the medical field, that means that although I did not experience any delay in language or cognition (as most people with autism do), I struggle learning certain subjects (-cough- math), I have a lower-than-normal empathy level (i.e., I don’t relate to other people’s feelings very well), the finer points of social interaction go over my head, and I display behaviors characteristic of the autistic spectrum, such as fixated interests, a lack of eye contact, having certain senses constantly on overdrive, physical clumsiness, extreme literalness, a positive response to physical pressure, a reliance on routine and predictability, and having repetitive, self-stimulating behaviors known as “tics.” I had the majority of these problems as a child, and even with treatment I still had many of them by the time I started high school.
Any senior will tell you that high school is little more than a rat race riddled with monotony, filled with stress, and bereft of personal satisfaction (or something along those lines). I’m inclined to agree with them – as a senior myself I have had ample time to observe the absurdity of the whole institution – but because I have a mental illness (a learning disorder, no less), I’ve had other frustrations added on. I work slower than most people, I have crappy handwriting, I don’t like working in groups, and, Rain Man be damned, I hate math and have no talent for it. Compounded on top of this was the constant pressure to succeed (from both the school and my parents), which exacerbated my perfectionistic tendencies, and despite my IEP (Individualized Education Plan) I sometimes struggled to keep up. As if that wasn’t enough, I had an unpredictable and unstable home life that lasted till last November, which only added to the stress. The lack of predictability made me prone to anxiety, depression, mood swings and meltdowns – yet another condition of my Asperger’s.
I want to make something clear: I didn’t write this article to complain about my Asperger’s. There are plenty of subjects that I would happily complain about, but Asperger’s isn’t one of them. It’s not like anyone had any control over whether or not I got it; it’s just something that happened to be in the fine print of a non-negotiable contract that I don’t remember signing, even though I apparently did. It’s a condition of my existence that I’ve long since accepted and learned to live with. No, this article wasn’t written for the sake of complaint, but education.
Even in this enlightened era of “It’s a Brain Thing” stickers, guidance counselors and organizations such as NAMI (National Alliance on Mental Illness), the progress towards de-stigmatizing mental illness has been minimal. Health classes only brush over mental illnesses, usually touching only on schizophrenia, depression, and maybe a few others – and the textbook explanations of the these illnesses tend to make mentally ill people sound either insane or pitiful. History classes go into great detail about how the U.S. discriminated against people of different races and against women, but never about how the mentally ill were discriminated against unless it’s a brief footnote referring to the Nazis. Why, I wonder, don’t they ditch the empty platitudes and just give us high schoolers a frank, informed talk about mental illness? Why don’t we let our mentally ill student population reveal what life is like for them? It wouldn’t hurt anything; indeed, it would help. It would be an important step towards removing mental illness from the shadowy stigma that now overpowers it. *This article was originally published in the Helena High Nugget and reprinted here with the express permission of the author, Emily Armstrong, and her mother.
Board of Directors Meeting - July 2014:
The Disability Rights Montana Board of Directors will hold its quarterly meeting on Friday, July 25, 2014, from 9:00 a.m. until 2:00 p.m. at the Disability Rights Montana office at 1022 Chestnut Street in Helena. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
PAIMI Advisory Council Meeting - July 2014:
The PAIMI Advisory Council will hold its quarterly meeting on Thursday, July 24, 2014, from 10:00 a.m. until 3:00 p.m. at the Disability Rights Montana office at 1022 Chestnut Street in Helena. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
Legislators and candidates vying for different House and Senate positions in the Montana Legislature joined together to learn about different challenges faced by the disabled community Tuesday night. The forum on disabilities at City College in Billings helped to shed light on issues that many families with disabled children or family members face. The event, put on by the ARC of Montana, Disability Rights Montana, and Parents Let's Unite for Kids (PLUK) hosted 14 candidates campaigning for House and Senate seats, a few of whom are running for re-election. Click here to read the story on the Billings Gazette website.
Disability Rights Montana Board of Directors meeting scheduled for April 25, 2014:
The Disability Rights Montana Board of Directors will hold its quarterly meeting on Friday, April 25, 2014, from 9:00 a.m. until 2:00 p.m. at the Disability Rights Montana office at 1022 Chestnut Street in Helena. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
PAIMI Advisory Council meeting scheduled for April 24, 2014:
The PAIMI Advisory Council will hold its quarterly meeting on Thursday, April 24, 2014, from 10:00 a.m. until 2:00 p.m., at the Disability Rights Montana office at 1022 Chestnut Street in Helena. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
Montana Supreme Court Finds for DRM Client and Reverses Appointment of Virtual Stranger To Be the Surrogate Parent of a Student With a Disability:
In this case decided on March 18, 2014, the Montana Supreme Court reversed the decision of the district court and required that a student's foster father be appointed as his surrogate parent for IDEA proceedings, replacing a virtual stranger who had been appointed to this position at the request of the Butte School District. Once appointed, this unrelated individual hastily agreed to a long-disputed IEP. Neither the student's foster father nor his DRM attorney were even notified of the proceeding to appoint the surrogate. The student appealed this decision and the Montana Supreme Court found in his favor and remanded the matter to the district court to remove the current surrogate and appoint the student's foster father instead.
PAK Meeting - Butte - April 8, 2014:
Disability Rights Montana and Parents, Let's Unite for Kids (PLUK) invite you to attend the upcoming special education seminar on Tuesday, April 8, 2014, in Butte.
Do you have questions regarding your child's test scores?
Wade Harper, School Psychologist, will be personally assisting families on how to interpret their child's evaluations. Please bring your child's evaluation to the meeting!
Mr. Harper specializes in student-centered behavior programming based on psychoeducational assessments; individual, group, and classroom counseling; bullying prevention programs; and assessing student performance to assist IEP teams in their development of individualized education programs (IEPs).
Please join us March 18th in Great Falls for this forum to educate and inform Legislators about the issues facing families each day.
PAK Meeting - Butte - March 11, 2014:
Disability Rights Montana and Parents, Let's Unite for Kids (PLUK) invite you to attend our upcoming special education seminar on Tuesday, March 11, 2014, in Butte. The presenter will be Wade Harper, school psychologist for the Anaconda School District. Mr. Harper specializes in student-centered behavior programming based on psychoeducational assessments; individual, group, and classroom counseling; bullying prevention programs; and assessing student performance to assist IEP teams in their development of individualized education programs (IEPs). Questions or need an accommodation? Contact Diana Tavary in Helena at 439-5570, or Disability Rights Montana at 800-245-4743. If you are unable to attend but would like more information and be notified of future meetings, please send your contact information to email@example.com.
Help expand the vision of what is possible for youth and young adults with developmental disabilities! Transition & Employment Projects are looking for examples of Montanans who have a developmental disability and who learn, live, work and/or play in inclusive ways in their communities. ("Inclusive" means alongside people without disabilities.) Click here to read more.
OPI presented a one day special education law training feathuring National Special Education Law Specialist Attorney Art Cernosia on November 28, 2013, in Helena. Mr. Cernosia's presentation included legal updates and case review on hot topics in special education law. The presentation has been archived on the PLUK website at http://live.pluk.org/.
The Board of Directors held will hold its annual meeting Friday, January 31, 2014, from 9:00 a.m. until 2:00 p.m., at the Disability Rights Montana office. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
The PAIMI Advisory Council will hold its annual meeting Thursday, January 30, 2014, from 10:00 a.m. until 2:00 p.m., at the Disability Rights Montana office. The public is welcome. If you plan to attend the meeting and need an accommodation, please call Disability Rights Montana prior to the meeting.
Great Falls PAK Meeting - December 3, 2013:
Disability Rights Montana and Parents, Let's Unite for Kids (PLUK) invite you to attend our third special education seminar. Our presenter, Jackie Carlson, Principal of Lewis and Clark Elementary, will be presenting information on school based services for kids who are in special education or under 504 plans. As a former Special Education Teacher, Behavior/Intervention Specialist, and Elementary Teacher on Special Assignment with the Great Falls Public School System, Jackie has a wealth of knowledge about special education procedures and the district / community resources that are available for children. Jackie will present to share her unique perspectives as she’s worked on both sides of the equation – as a teacher and now as an administrator of Lewis and Clark Elementary. Please join us on December 3rd for this free presentation to learn more about the resources that are available for your children.
PAK Meeting - Butte - November 16, 2013:
Disability Rights Montana and Parents, Let's Unite for Kids (PLUK) invite you to attend our next special education seminar. Jennifer Pierce, owner of Communication Matters, LLC, will be discussing speech language therapy and the importance of improving your child's functional communication skills via communication strategies, speech therapy, and assistive technology.
Great Falls PAK Meeting - November 12, 2013:
Disability Rights Montana and Parents, Let's Unite for Kids (PLUK) invite you to attend our second special education seminar. Come meet your Director of Student Services, Dale Lambert, and Great Falls Superintendent, Tammy Lacey. This is a free information seminar where your administrators will be available to answer questions, discuss services, network, and help you better understand the IEP/504 process.
Special Education Symposium - Kalispell:This two day event was sponsored by DRM in partnership with Flathead Valley Community College, with support from Parents Let’s Unite for Kids (PLUK) and the University of Montana Rural Institute on Disabilities (RI). There were continuing education units (CEU’s) for teachers and continuing legal education (CLE) credits for attorneys. Workshops were offered to parents, family members, paraprofessionals, teachers, school administrators, and members of the community. Parents and family members learned about their children’s legal rights to a free and appropriate education through informed IEP planning. Teachers, administrators, and other professionals learned how to better serve children for a more comprehensive education. Attorneys gained a basic understanding of special education law. Eleven highly qualified speakers were presenters.
Disability Rights Montana is the federally mandated protection and advocacy system for Montana which receives part of its funding from the Administration on the Developmental Disabilities, the Center for Mental Health Services - Substance Abuse and Mental Health Services Administration, the Rehabilitation Services Administration, and the Social Security Administration.
Member of the National Disability Rights Network
Donate to DRM through Montana Shares, State Employees' Charitable Giving Campaign (SECGC-8093), or Combined Federal Campaign (CFC-96184)