HB2: Bad for People with Disabilities
Disability Rights NC finds HB2, The Public Facilities Privacy and Security Act, to be harmful to people with disabilities in North Carolina. HB2 contains three major provisions, all of which negatively impact people with disabilities. It is harmful both because people with disabilites are adversely affected based on other facets of their identity and because it specifically limits women and men and gender nonconforming people, people of color, and people of diverse religions and national origins. Many people with disabilities are part of the LGBT community. For all the ways this legislation limits our clients' lives, Disability Rights NC condemns it.
There are also specific disability-related consequences of HB2. It narrows our state law protections against discrimination in the use of public restroom facilities in public agencies and public schools. It eliminates a state law right to take employers to state court for employment discrimination and takes away the authority of local governments to pass laws that contain greater protections against discrimination or that create better working conditions. Though the bill strips North Carolinians of important state rights, other state and federal protections against discrimination based on disability and other protected classes remain.
Read additional analysis here.
Federal Court Approves Settlement in Medicaid Case
April 1, 2016, Raleigh, NC: A federal District Court approved the settlement of Pettigrew v. Brajer, taking an important step to ensure older adults and people with disabilities who need assistance can stay at home rather than moving to an institutional setting.
The class action lawsuit against the State of North Carolina challenged the denials and terminations of Medicaid-funded personal care services provided to tens of thousands of North Carolinians in their homes. The settlement requires the Medicaid agency to use comparable practices and procedures for assessing a person’s need for the service as well as reinstate or reassess some class members who were previously denied or lost the service.
National Health Law Program attorney Elizabeth Edwards welcomed the court’s approval of the settlement. “As a result of this settlement, people living in their homes will no longer find it harder to get personal care services than they would if they lived in an institution.
The lawsuit, initially named Pashby v. Cansler, was filed in 2011, alleging that the state violated federal Medicaid law and the Americans with Disabilities Act by determining eligibility for personal care services under more restrictive criteria for persons living at home than for those who live in institutional settings known as adult care homes. In December 2011 U.S. District Judge Terrence Boyle ruled in favor of plaintiffs, issuing a preliminary injunction ordering the state agency to restore lost services until the state Medicaid agency and its contractor ended their discrimination based on the setting where the Medicaid beneficiary resides. The Court found that the plaintiffs faced the threat of having to go into institutions to get the care they needed. In March 2013, the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court order, ruling for the first time that the Americans with Disabilities Act prohibits discrimination in the Medicaid program which results in a serious risk of institutionalization.
“This case was important because the court held that the desire to save resources does not allow the state to require Medicaid recipients to enter institutions to receive the services they need,” said Disability Rights North Carolina attorney John Rittelmeyer.
Doug Sea, an attorney at Legal Services of Southern Piedmont in Charlotte, added “Thousands of North Carolina’s most vulnerable citizens who need these services to safely remain in their homes have been protected and had their services restored.”
Independent Reviewer Releases Report on Status of the State's Compliance with the Terms of Its Settlement with the US Department of Justice
On October 14, 2015, Martha Knisley released her annual report on the State's progress towards establishing community supports and services to create opportunities for people with mental illness to live independently. Knisley says progress is "slow but steady" toward compliance with most of the obligations set out in the settlement. Over 100 measures are discussed in the 61-page document. The report indicates that people leaving state psychiatric hospitals are still very unlikely to get community integrated supportive housing, and the situation is not much better for people living in adult care homes. Knisley calls for additional capacity and other changes to supported employment services offered pursuant to the settlement as well as better and more consistent access to community-based mental health services necessary for the success of the settlement.
In response to a letter from the U.S. Department of Justice expressing concern that North Carolina is not living up to a 2012 settlement agreement, the North Carolina Department of Health and Human Services has developed a corrective action plan designed to speed up its progress in providing supported housing and supported employment to eligible individuals. The Transitions to Community Living Initiative (TCLI) is designed to coordinate services from the various agencies involved in providing services for the target populations. To receive services through the TCLI program, individuals must meet the following criteria:
- Reside in a state psychiatric hospital (Broughton, Central Regional, or Cherry), reside in an adult care home, or be undergoing assessment for placement in an adult care home;
- Have a serious mental illness or a serious and persistent mental illness; and
- Be able to live independently with supportive housing services.
Eligible individuals (or their representatives) can request services from the managed care organization (LME/MCO) responsible for serving the county in which they live. Directory of LME/MCO’s
By the year 2020, the end of an 8-year plan, the state should have provided 3000 housing slots to members of the target population, according to the settlement agreement. An independent reviewer reported last fall that only 417 slots had been filled by July of 2015. By that date supported housing should have been provided to 708 people.
Each year, Disability Rights North Carolina adopts a plan to focus its work on the largest threats to the independence of people with disabilities and the most prevalent violations of disability rights laws. The plan includes target areas for our work. We developed the 2016 targets based on information our staff obtained during the Listening Sessions held across the state from January through May 2015, from responses to the online survey in July, from people who call our office for assistance, and from other disability rights advocates.
Are you looking for the handouts and online evaluations for the 2015 Disability Advocacy Conference? Click here.
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NOTICE OF SETTLEMENT – To Consumers Served by the N.C. Innovations Waiver, Their Families, and Legal Guardians
On April 6, 2015, U.S. District Court Judge Louise Flanagan gave her final approval to the settlement in L.S. v. Wos, a class action involving participants in the Innovations Waiver program administered by the North Carolina Medicaid agency. Click here to read Highlights of the Settlement. If you believe you are a member of the class and would like more information, call toll free 877-235-4210 or write to John Rittelmeyer or Jennifer Bills, Attorneys at Law, Disability Rights NC, 3724 National Drive, Suite 100, Raleigh, NC 27612.
Federal Judge Stops NC DMV from Conducting Discriminatory Hearings While Case is Pending
On December 23, 2014, US District Court Judge Terrence Boyle stopped the NC Division of Motor Vehicles (DMV) from making further demands on two plaintiffs in current litigation that challenges the DMV’s administration of its Medical Review Program for licensed drivers.
In February 2014, Disability Rights NC filed a lawsuit in US District Court against the DMV claiming that the DMV’s administration of its Medical Review Program discriminated against individuals with disabilities and deprived them of due process. The lawsuit alleges that the DMV unnecessarily requires people with disabilities to undergo repeated testing or to periodically submit medical information to maintain their driving privileges.
Months after the case had been filed, one of the plaintiffs was served with a demand for yet another assurance from her doctor that she is able to drive safely, even though she had previously submitted at least two statements from her doctor that she was competent to safely operate a motor vehicle and there was no need for continued medical review. Another plaintiff was ordered by the DMV to appear at a hearing to determine whether she was competent to drive, even though she had undergone a road test in February and submitted documentation from her doctor in May 2014.
In granting the preliminary injunction, Judge Boyle found that the DMV’s repeated demands “to report on non-degenerative conditions is discriminatory because, as plaintiffs point out, the reporting requirements are not based on actuarial risk, but instead are based upon the existence of a disability.”
The case will now proceed to the discovery phase, where the operation of the DMV’s medical review program will be more deeply explored.
Read Judge Boyle's Order here.
Disability Rights NC Urges Governor to Declare Hiring Emergency to Protect Prisoners with Mental Illness
In the wake of the tragic death of Michael Anthony Kerr, a prisoner at Alexander Correctional Institution, Disability Rights NC calls on Gov. Pat McCrory to take immediate action to authorize the Department of Public Safety to implement an emergency hiring process to fill longstanding mental health vacancies. The vacant positions have created understaffed facilities where humane care and treatment of inmates with mental illness is jeopardized. Immediate hiring is necessary to assist DPS with its dedicated effort to improve the provision of care for prisoners with mental illness.
“We applaud the Department for announcing several reform measures yesterday,” said Vicki Smith, Executive Director of Disability Rights NC. “However, they will not achieve their goals until the crisis in staff vacancies is addressed. Staff vacancies are a fundamental and crucial barrier to the Department’s success. Currently the bureaucratic and protected hiring process cripples its ability to adequately care for prisoners with mental illness.”
Staffing vacancies have been identified as a critical issue for the Department. In 2012, consulting experts found that staffing vacancies in the NC prison system had "a very negative impact on mental health services in the facilities." At that time, the consultants said necessary reforms would "not be accomplished unless the vacancy rate is significantly reduced."
Letter to Gov. Pat McCrory from Disability Rights NC, October 3, 2014
Recommendations of Disability Rights NC delivered to NC DPS, June 27, 2014
Court Finds NC DHHS Improperly Excluded Certain Workers with Disabilities from Medicaid
An Order filed this week brings to a conclusion a lawsuit filed by Disability Rights NC that sought access to Medicaid for working people with disabilities. Disability Rights NC filed suit in June 2013 alleging that the NC Department of Health and Human Services had wrongly suspended implementation of the Health Coverage for Workers with Disabilities Act. The law allows people with disabilities to work and maintain Medicaid coverage. In November 2013, a Superior Court judge issued a Preliminary Injunction requiring DHHS to make the program available to all eligible individuals. As a result, DHHS amended the Medicaid State Plan and took other steps to make the program available to the named Plaintiffs and other qualified individuals. Today’s ruling confirms that DHHS’s suspension of the law violated the North Carolina Constitution. DHHS may no longer exclude eligible individuals, as it had prior to the action, based on earned income or on whether the individual participates in a Medicaid waiver program.
Read full press release here.
Federal Judge Allows Lawsuit to Proceed Against the NC Division of Motor Vehicles
August 21, 2014: Yesterday, US District Court Judge Terrence Boyle denied the NC Division of Motor Vehicle’s motion to dismiss a lawsuit that alleges it systemically discriminates against people with disabilities. This ruling could have widespread implications for drivers with disabilities. The ruling stems from a lawsuit filed by drivers with disabilities who were subjected to unnecessary road testing and medical exams based on stereotypes and generalizations about people with physical disabilities.
Read the full press release. Read the Judge's order.
Disability Rights NC Sues Duke University for Failing to Provide Accommodations to a Student with Disabilities
August 18, 2014, Raleigh, NC: Last week, Disability Rights North Carolina filed a lawsuit against Duke University for discriminating against a student with Dyslexia in its Master of Divinity program. The lawsuit alleges that Duke University made false and deceptive statements to Plaintiff Bradley Elmendorf about its ability to accommodate him.
Read the full press release here.
Disability Rights NC Is Here for You -- New Partnership Expectations
As a young agency, Disability Rights NC frequently reviews how it provides services to people with disabilities. We consider every person with a disability living in North Carolina to be our client. While our limited resources do not allow us to provide direct advocacy to everyone who calls us for assistance, we strive to provide as much help as possible in every case.
We recently developed a set of principles to guide our work. We set high expectations for ourselves. We want you to know what those expectations are, and we invite you to hold us accountable.
Click here to see the Partnership Expectations. You'll find the NDRN Protection and Advocacy Standards here. Or, call our office at 877-235-4210 to request a copy be sent to you by email or US postal mail.
Have You Lost Eligibility for Medicaid Reimbursement of Your Personal Care Services?
The State Division of Medical Assistance estimates that between 10,000 and 12,000 people will lose eligibility for Medicaid reimbursement of personal care services as a result of a change in state law. About 1,000 of the people at risk live in group homes with the remainder in adult care homes and family care homes.
If you received a letter that says the Medicaid-funded service or equipment you asked for is denied, terminated, suspended, or reduced, you have the right to appeal within a specific amount of time. Check out the fact sheets on our Resources page for guidance on how to appeal a Medicaid determination.