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PROTECTION & ADVOCACY |
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Oklahoma Disability Law Center, Inc. |
September, 2002 |
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State Department of Education Sends Handbook
to RESC’s “Protecting Students from Harassment and Hate Crimes: A Guide for
Public Schools”
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SPECIAL EDUCATION: Wrightslaw “Boot Camp” Scheduled for December
in
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Secretary Thompson Announces HHS Creation of
New Office of Disability
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Children with Emotional Disorders in the
Juvenile Justice System (NMHA)
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NCD Releases Report on Mental Health Services
and Supports
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Letter Sent to State Medicaid Directors
Regarding Olmstead Opinion and Best Practices
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NASMHPD’s “Eliminating the Use of Seclusion
and Restraint” Available Online
US SUPREME COURT UPDATE
Below is language from
the new Oklahoma Court of Criminal Appeals opinion adopting standards for
mental retardation in capital trials involving the death penalty.
The case is known as MURPHY v. STATE, 2002 OK CR 32, Case
Number: PCD-2001-1197, Decided:
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeID=413135
Excerpt of the Court's opinion on mental
retardation:
According, we hereby adopt the
following definition for mental retardation that will apply to individuals
alleging they are not eligible to be sentenced to the death penalty, for use in
capital trials: (FN18)
A person is "mentally
retarded": (1) If he or she functions at a significantly sub-average
intellectual level that substantially limits his or her ability to understand
and process information, to communicate, to learn from experience or mistakes,
to engage in logical reasoning, to control impulses, and to understand the
reactions of others; (2) The mental retardation manifested itself before the
age of eighteen (18) (FN19); and (3) The mental retardation is accompanied by significant
limitations in adaptive functioning in at least two of the following skill
areas: communication; self-care; social/interpersonal
skills; home living; self-direction;
academics; health and safety; use of community resources; and work.
It is the defendant's burden to prove
he or she is mentally retarded by a preponderance of the evidence (FN20) at
trial. Intelligence quotients are one of the many factors that may be considered,
but are not alone determinative. However, no person shall be eligible to be
considered mentally retarded unless he or she has an intelligence quotient of
seventy or below, as reflected by at least one
scientifically recognized,
scientifically approved, and contemporary (FN21) intelligent quotient test.
This standard shall be used at all
future and pending capital trials, until such time as it may be replaced by a
suitable legislative enactment.
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FOOTNOTES:
18 Our use of the terms mentally
retarded and mental retardation is limited to cases where a person claims he or
she is mentally retarded to the extent to be ineligible for the death penalty.
19 "Manifestation before the age
of eighteen" is a fact question intended to establish
that the first signs of mental retardation appeared and were recognized
before the defendant turned eighteen. Lay opinion and poor school records may
be considered. Thus, a defendant need not, necessarily, introduce an
intelligent quotient test
administered before the age of
eighteen or a medical opinion given before the age of eighteen in order to
prove his or her mental retardation manifested before the age of eighteen,
although such proof would surely be the more credible of that fact.
20 We adopt a preponderance of the
evidence standard here in spite of the "clear and convincing"
standard adopted by our Legislature in House Bill 2635, which was patterned
after
21 By contemporary, we mean the
intelligent quotient test registering seventy or below was
administered some time after the capital crime was committed or is one that may
be understood by contemporary standards.
22 The defendant's request for an Atkins
hearing shall be made in writing, filed of record, and submitted to the trial
judge within ten (10) days of the jury verdict and prior to formal sentencing.
The hearing thereon shall be held on the date set for sentencing but prior to
formal sentencing. No additional evidence from that entered into the trial
record may be used, but the par ties shall be allowed to make oral arguments
from such trial evidence.
SDE SENDS HANDBOOK TO RESC’S “PROTECTING STUDENTS FROM
HARASSMENT AND HATE CRIMES: A GUIDE FOR
PUBLIC SCHOOLS”
By letter dated July 29,
2002, Darla Griffin sent the following handbook to the RESC's the Regional
Accreditation Officers and the IDEA State Advisory Panel: "Protecting
Students from Harassment and Hate Crimes: A Guide for Public Schools." The
guide provides schools and others with practical guidance for developing a
comprehensive approach to protecting all students from harassment and violence.
Permission to reprint this public domain publication is not necessary. The
document is available in alternate formats for people with disabilities.
Also, you may get a copy on the
internet at:
http://www.ed.gov/pubs/Harassment/
http://www.ed.gov/pubs/Harassment/attygens.html
You should ensure that your local
school has the appropriate policies and
practices in place as you start the school year. Your school should have a copy
of this book plus additional resources. If you need any information to share
with your school, please let ODLC know.
SPECIAL EDUCATION:
Wrightslaw “Boot Camp” Scheduled for December in
Wrightslaw Boot Camp: Two-Day
Training Session
http://www.wrightslaw.com/speak/index.htm#bootcamp
Constitution Hall,
No charge to students with
disabilities and their families if registered 30 days before conference. Reasonable fee for others. Circulate this information to interested
persons.
SECRETARY THOMPSON ANNOUNCES CREATION OF THE HHS
OFFICE ON DISABILITY
HHS Secretary Tommy G. Thompson announced the creation of the HHS Office on
Disability to oversee the coordination, development and implementation of
programs and special initiatives within HHS that impact people with
disabilities. Margaret J. Giannini, M.D., F.A.A.P., currently the principal
deputy assistant secretary for aging at the Administration on Aging (AoA), has
been appointed the director to the new HHS Office on Disability.
The announcement builds on the work
of President Bush's New Freedom Initiative, a comprehensive plan to tear down
barriers facing people with disabilities, which prevent them from fully participating
in community life. The new office will
help centralize many of the recommended strategies outlined in a report to
President Bush, which explored solutions to reducing barriers in all areas of
society for people with disabilities.
"HHS is engaged in
important and dynamic work to help the nearly 54 million Americans living with
disabilities," Secretary Thompson said. "The new Office on Disability
will bring increased focus and awareness to the issue, and will allow the
department to interact with valuable partners in the most effective manner.
Margaret Giannini will bring a wealth of expertise to the position and we look
forward to her leadership."
As head of the new
office, Giannini will oversee the coordination of HHS disability issues and
special initiatives. Preparations are currently underway to officially open the
new office in the fall of 2002.
Prior to joining AoA,
Giannini was the deputy assistant chief medical director for Rehabilitation and
Prosthetics of the Department of Veterans Affairs in
Additionally, Giannini
was a founder and director of the University Center of Excellence on Developmental Disabilities
of New York Medical College, the first and largest facility for the
developmentally disabled in the
US DOT AVIATION CONSUMER DISABILITY TOLL-FREE HOTLINE
The U. S. Department of
Transportation's aviation consumer disability toll-free hotline became
operational on
DOT is asking disability
organizations and agencies to help spread the word about the establishment of
the hotline. People with disabilities are encouraged to call the hotline for
information and assistance if they should experience disability-related air
service problems.
Disability groups helped to test out
the hotline before it became operational and DOT will use caller feedback to fine
tune the system for effective response to disability issues in air travel.
Children with Emotional Disorders In
the Juvenile Justice System
http://www.nmha.org/children/justjuv/
Each year one million
children come into contact in some way with the juvenile justice system. Over
100,000 of these youth are detained each day in a correctional facility.
Studies have consistently found the rate of mental disorders to be higher among the
juvenile justice population than among youths in the general population. In
fact, federal studies suggest that as many as 60-75 percent of incarcerated
youth have a mental health disorder and 20 percent have a severe disorder. As many as half have substance abuse problems.
NMHA's Justice for Juveniles Program
http://www.nmha.org/children/justjuv/jjprogram.cfm
Checking Up on Juvenile Justice
Facilities: A Best Practices Guide
http://www.nmha.org/children/justjuv/checkingUpOnJJFacilities.cfm
Go to this page for a downloadable
version.
Or, for a free hard copy of the
booklet, call the NMHA Affiliate Helpline at 800-969-NMHA (6642) and select
option 5.
NMHA has another booklet entitled,
"When Your Child is Behind Bars: A Family Guide to Surviving the Juvenile
Justice System." In order to get a copy, go to this page: http://www.nmha.org/children/justjuv/
Then, go to the list of documents on the right and click
on, "When Your Child is Behind Bars" It will download as a pdf file.
Community Perspectives on the Mental
Health and Substance Abuse Treatment Needs of Youth Involved in the Juvenile
Justice System: Commentary and Call To Action
http://www.nmha.org/children/justjuv/youth_treatment.cfm
NCD RELEASES REPORT MENTAL HEALTH SERVICES AND
SUPPORTS
The National Council on
Disability (NCD) Released its
report The Well Being of our Nation:
An Inter-Generational Vision of Effective Mental Health Services and Supports, http://www.ncd.gov/newsroom/publications/mentalhealth.html,
calling for fundamental reform in a mental health system in crisis.
This report examines some of the root
causes of the crisis in mental health, and seeks to "connect the
dots" concerning the dysfunction of
a number of public systems that are charged with providing mental health services
and supports for children, youth, adults and seniors who have
been diagnosed with mental illnesses.
This report is intended to provide an overview and is not a comprehensive
review of all that is known about the public mental health system and its
shortcomings. That undertaking has been begun by the U.S. Surgeon General, in
the massive 1999 report entitled Mental Health: A Report of the Surgeon General
(located online at: http://www.surgeongeneral.gov/library/mentalhealth/home.html),
and will be carried on with President Bush's New Freedom Commission on Mental Health,
which held its first public hearings in July 2002.
One of the most significant findings
of this report is that children and youth who experience dysfunction at the
hands of mental health and educational systems are much more likely to become
dependent on failing systems that are supposed to serve adults. In parallel
fashion, adults
whose mental health service and
support needs are not fulfilled are very likely to become seniors who are
dependent on failing public systems of care. In this fashion, hundreds of
thousands of children, youth, adults and seniors experience poor services and
poor life outcomes, literally from cradle to grave.
The mental health system in this
country is in crisis. For decades, state mental health systems have been
burdened with ineffective service-delivery programs and stagnant bureaucracies.
There is no single antidote for the
current dysfunction of the public mental health system. Clearly, visionary
leadership, adequate funding and expansion of proven models (including
consumer-directed programs) are essential ingredients. More than these,
however, there needs to be a
dramatic shift in aspirations for
people with psychiatric disabilities.
What is most needed now is a
dramatically new vision of what people with psychiatric disabilities can
achieve, if given the supports they need to succeed. That vision must start
with the premise that recovery is possible and ought to be seen as an objective
for every person with a psychiatric disability. The vision must also
incorporate the principles of the Americans with Disabilities Act (ADA) and the
Supreme Court's Olmstead decision. A final component of this new vision will
require a commitment to fund effective supports and services and to fund enforcement
of the rights guaranteed under ADA, the Individuals
with Disabilities Education Act, Medicaid, and other federal statutes.
The Federal Government can play an
important role in establishing funding and other incentives for state mental
health systems to adopt new models that support this vision and that are
consistent with Olmstead and President Bush's New Freedom Initiative.
LETTER SENT TO STATE MEDICAID DIRECTORS REGARDING
OLMSTEAD DECISION & BEST PRACTICES
Below is a link to the
latest letter to State Medicaid Directors regarding the Olmstead decision. It
is
a compilation of state
"Promising practices".
http://www.cms.hhs.gov/states/letters/smd81302.pdf
In the “Progress on the Promise” Report to the President
under the New Freedom Initiative, the Department of Health and Human Services
promised to work with states and people with disabilities to assure
Medicaid-eligible persons with disabilities of all ages are served in the most
appropriate setting according to their needs and preferences. This letter
focuses on strategies available to states under current authority to assist individuals
to avoid or leave
unnecessary nursing facility
placement. This letter highlights promising state practices,
such as programs in which “money follows the person,” and outlines some early
lessons learned from states that
previously awarded nursing facility transition grants.
NASMHPD’s “Eliminating the Use of Seclusion and
Restraint” Available Online
A double issue of
NASMHPD's "networks" newsletter entitled "Eliminating the Use of
Seclusion and Restraint" is available in PDF format at http://www.nasmhpd.org/ntac/networks/SummerFall2002.pdf
There are several excellent articles, including one by
Susan Stefan of the Center for Public Representation, on the legal and
regulatory aspects of restraint. The newsletter is in the public domain and may
be reproduced.
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