PROTECTION & ADVOCACY
Oklahoma Disability Law Center, Inc.	March, 2003

IN THIS ISSUE:

US Supreme Court Update

Online Links to Olmstead Plans

NCD Releases §504 Analysis

NCD Policy Brief Series

Ninth Circuit Finds Obligation for Mental Health Services for Persons Unfit to Stand Trial

US SUPREME COURT UPDATE

Washington State Dept. of Social and Health Servs. V. Guardianship Estate of Keffler, http://www.supremecourtus.gov/opinions/02pdf/01-1420.pdf

Although Old-Age, Survivors, and Disability Insurance (OASDI) benefits under Title II of the Social Security Act, 42 U.S.C. sect. 401 et seq., and Supplemental Security Income (SSI) benefits under Title XVI, sect. 1381 et seq., are generally paid directly to the beneficiary, the Social Security Administration may distribute them to another individual or entity as the beneficiary's " 'representative payee,' " sects. 405(j)(1)(A), 1383(a)(2)(A)(i)(I). Regulations provide, inter alia, that social service agencies and custodial institutions may serve as representative payees, but follow a parent, legal guardian, or relative in the order of preference for appointment to that position. E.g., 20 CFR sects. 404.2021(b)(7), 416.621(b)(7).

Such a payee may expend funds "only for the use and benefit of the beneficiary," in a way the payee determines "to be in the [beneficiary's] best interests." sects. 404.2035(a), 416.635(a). Payments made for "current maintenance" are "for the use and benefit of the beneficiary," and "current maintenance" includes "cost[s] incurred in obtaining food, shelter, clothing, medical care, and personal comfort items," sects. 404.2040(a), 416.640(a). A representative payee "may not be required to use benefit payments to satisfy a [beneficiary's] debt" that arose before the period the benefit payments are certified to cover, but a payee may discharge such a debt if the beneficiary's "current and reasonably foreseeable needs" are met and it is in the beneficiary's interest to do so, sects. 404.2040(d), 416.640(d). Washington State, through petitioner Department of Social and Health Services (Department), provides foster care to certain children removed from their parents' custody, and it also receives and manages Social Security benefits as representative payee for many of those children. Pursuant to its regulation requiring that public benefits for a child, including SSI or OASDI benefits, be used on behalf of the child to help pay for the child's foster care costs, the Department generally credits the Social Security benefits it receives to a special account for the beneficiary child, and debits the account to pay foster care providers. Respondents, who include such beneficiary children, filed this class action in state court, alleging, among other

things, that the Department's use of their OASDI or SSI benefits to reimburse itself for the foster care costs violated 42 U.S.C. sect. 407(a) and 1383(d)(1). Section 407(a), the Act's "anti-attachment" provision, protects Title II benefits from "execution, levy, attachment, garnishment, or other legal process." Section 1383(d)(1) applies sect. 407(a) to Title XVI. In granting respondents summary judgment, the trial court enjoined the Department from continuing to charge its foster care costs against Social Security benefits, ordered restitution of previous reimbursement transfers, and awarded attorney's fees. The State Court of Appeals certified the case to the Washington Supreme Court, which ultimately affirmed the trial court's holding that the Department's practices violated the antiattachment provisions.

Held: The State's use of respondents' Social Security benefits to reimburse itself does not violate 42 U.S. C. sect. 407(a).

Pp. 8-19.

(a) Neither the Department's effort to become a representative payee, nor its use of respondents' Social Security benefits when it acts in that capacity, amounts to employing an "execution, levy, attachment, garnishment, or other legal process" under sect. 407(a). Because the

Department's activities do not involve any of the specified formal procedures, the case boils down to whether those activities are "other legal process." The statute uses that term restrictively, for under the established interpretative canons of noscitur a sociis and ejusdem

generis, where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar to those enumerated by the specific words. E.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115. Thus, "other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability. This conclusion is confirmed by the definition of "legal process" in the Social Security Administration's Program Operations Manual System (POMS). On this restrictive understanding, it is apparent that the Department's activities do not involve "legal process." Whereas the object of the specifically named processes is to discharge, or secure discharge of, some enforceable obligation, the State has no enforceable claim against its foster children. And while execution, levy, attachment, and garnishment typically involve the exercise of some sort of judicial or quasi-judicial authority to gain control over another's property, the Department's reimbursement scheme operates on funds already in the Department's possession and control, held on terms that allow the reimbursement. Additionally, although the State uses a reimbursement method of accounting, there is no question that the funds were spent for items of "current maintenance" within the meaning of the regulations. That the State is dealing with the funds consistently with the regulations is confirmed by the POMS. The Government has gone even further to support this as a reasonable interpretation, text aside, owing to significant advantages of the reimbursement method in providing accurate documentation and allowing for easy monitoring of representative payees in administering Social Security. Philpott v. Essex County Welfare Bd., 409 U.S. 413, and Bennett v. Arkansas, 485 U.S. 395 (per curiam), distinguished. Pp. 8-15.

(b) The Court rejects the view that this construction of sect. 407(a), allowing a state agency to reimburse itself for foster care costs, is antithetical to the child's best interests. Respondents' premise that promoting those interests requires maximizing resources from left-over benefit income ignores the settled administrative law principle that an open-ended and potentially vague term is highly susceptible to administrative interpretation subject to judicial deference. See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843. Under her statutory authority, the Commissioner has read the beneficiary's "interest" in light of the Act's basic

objectives: to provide a minimum level of income to children who would not otherwise have sufficient resources, see, e.g., Sullivan v. Zebley, 493 U.S. 521, 524, and to provide workers and their families the income required for ordinary and necessary living expenses, see, e.g., Califano v. Jobst, 434 U.S. 47, 50. The Commissioner, that is, has decided that a representative payee serves the beneficiary's interest by seeing that basic needs are met, not by maximizing a trust fund attributable to fortuitously overlapping state and federal grants. This judgment not only is obviously within reasonable bounds, but is confirmed by the demonstrably antithetical character of respondents' position to the best interest of many foster care children. If respondents prevailed, many foster children would lose SSI benefits altogether, since eligibility for such benefits is lost if a child's resources creep above a certain minimal level, currently $2,000. E.g., 20 CFR sect. 416.1205(c). In addition, respondents' argument forgets that public institutions like the Department are last in line for appointment as representative payees. If respondents had their way, public offices might well not be there to serve as payees even as the last resort, because many States would be discouraged from accepting appointment as representative payees by the administrative costs of acting in that capacity. With a smaller total pool of money for their potential use, the chances of having funds for genuine needs beyond immediate support would obviously shrink to the children's loss. Pp. 16-19.

145 Wash. 2d 1, 32 P.3d 267, reversed and remanded.

Souter, J., delivered the opinion for a unanimous Court.

IOLTA FUND OPINION

In a 5-4 decision issued by Justice Stevens, the U.S. Supreme Court held that IOLTA does not violate the Fifth Amendment. Link to the syllabus, opinion, etc.
http://supct.law.cornell.edu/supct/html/01-1325.ZS.html

OLMSTEAD PLANS: Online Links

The links connect to each state's Olmstead plan. As more plans are developed, they will be added to this website. A few states have "draft" plans. They are listed at the bottom of the page.

Online links to state Olmstead plans:
http://www.ncsl.org/programs/health/olmplans.htm

"NCD Releases 504 Analysis" 
National Council on Disability Evaluates Federal 
Enforcement of Section 504 of the Rehabilitation Act
 
The National Council on Disability (NCD) finds that five federal agencies (Departments of Education, Health and Human Services, Justice, Labor, and State) responsible for enforcement of disability rights provided by Section 504 of the Rehabilitation Act have given the task low priority and minimal leadership, although some progress has been made. Section 504 of the 1973 Rehabilitation Act is acknowledged as the first national civil rights law to view the exclusion and segregation of people with disabilities as discrimination. NCD's findings are contained in its report, Rehabilitating Section 504 (http://www.ncd.gov/newsroom/publications/section504.html).
 
NCD chairperson Lex Frieden said, "Section 504 is a powerful enfranchisement tool for people with disabilities 
if used with due diligence, but that has not been the case. 
Although a number of these issues are now being addressed 
by some of the agencies, more needs to be done." In its 
report, NCD found that:
 
* The Department of Justice, which has oversight 
 responsibility to coordinate compliance with Section 504 
 across the agencies, provided insufficient leadership 
 and failed in its Interagency Disability Coordinating 
 Council (IDCC) coordination duties; 
 
* The IDCC, that was set up to ensure coordination 
 functions across federal agencies, never met; and
 
* The Department of State has never had a Section 504 
 federally assisted program. It has not allocated any 
 resources to determine whether the recipients of its 
 grant funds comply with any of the civil rights laws.
 
During the course of its study, NCD encountered a number of successful practices that should be reviewed by other federal agencies. For instance, the Department of Health and Human Services Web (HHS) site is exemplary and should be emulated in how it provides relevant Section 504 information in a user-friendly format. The HHS online material is rich in detail and includes helpful case studies and links to other relevant Web sites. Agencies should also review and consider including in their Web sites information similar to that provided by the Department of Education's (ED) technical assistance guidance to recipients and the Department of Labor's (DOL) list of reasonable accommodation information resources. In addition, ED has successfully expanded its Section 504 program resources and effectiveness in a number of innovative ways.
 
ED has demonstrated noteworthy and successful efforts to shorten the time it takes to conduct investigations. Quicker investigations and resolutions result in increased 
confidence in the investigation process, both by potential 
complainants and by recipients of funding. 
 
NCD recommends that federal agencies in question re-
evaluate in-house activities, to ensure the ability of 
people with disabilities to fully participate in their 
programs, policies, regulations, and practices. NCD also 
recommends that the Department of Justice revive the IDCC 
to facilitate its guidance and coordination functions 
across the various agencies. 
 
"People with disabilities continue to look to, and must 
rely on, effective enforcement of Section 504 to be able to 
access important federal programs and services," said 
Frieden. "As recipients of federal funds better understand 
their responsibilities, they can conduct their programs in 
a way that maximizes full participation by people with 
disabilities."
 
NCD is an independent federal agency making recommendations 
to the President and Congress on disability policy. For more information, contact Mark Quigley or Martin Gould 
at 202-272-2004. TTY: 202-272-2074.
 
 
 
NCD Policy Brief Series

Policy Brief Series: Righting the ADA--No. 10, Reasonable Accommodation After Barnett (March 5, 2003) (PDF) http://www.ncd.gov/newsroom/publications/accommodation.html

Policy Brief Series: Righting the ADA--No. 9, Chevron v. Echazabal: The ADA's "Direct Threat to Self" Defense (February 27, 2003) (PDF) http://www.ncd.gov/newsroom/publications/directthreat.html

Policy Brief Series: Righting the ADA--No. 8, The Implications of the Supreme Court's Decision in Board of Trustees of the University of Alabama v. Garrett (February 26, 2003) (PDF) http://www.ncd.gov/newsroom/publications/alvgarrett.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 7, The Impact of the Supreme Court's ADA Decisions on the Rights of Persons With Disabilities (February 25, 2003) (PDF) http://www.ncd.gov/newsroom/publications/decisionsimpact.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 6, Defining "Disability" in a Civil Rights Context: The Courts' Focus on Extent of Limitations as Opposed to Fair Treatment and Equal Opportunity (February 24, 2003) (PDF) http://www.ncd.gov/newsroom/publications/extentoflimitations.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 5, Negative Media Portrayals of the ADA (February 20, 2003) (PDF) http://www.ncd.gov/newsroom/publications/negativemedia.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 4, Broad or Narrow Construction of the ADA (December 16, 2002) (PDF) http://www.ncd.gov/newsroom/publications/broadnarrowconstruction.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 3, Significance of the ADA Finding That Some 43 Million Americans Have Disabilities (November 15, 2002) (PDF) http://www.ncd.gov/newsroom/publications/43million.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 2, A Carefully Constructed Law (October 30, 2002) (PDF) http://www.ncd.gov/newsroom/publications/carefullyconstructedlaw.html

The Americans with Disabilities Act Policy Brief Series: Righting the ADA - No. 1, The Americans with Disabilities Act (October 16, 2002) (PDF) http://www.ncd.gov/newsroom/publications/rightingtheada.html

NINTH CIRCUIT HOLDING ON MENTAL HEALTH TREATMENT TO PERSONS FOUND UNFIT TO PROCEED TO TRIAL

On March 6, 2003, the Ninth Circuit upheld the constitutional (and statutory) right of persons found unfit to proceed to trial to prompt restorative mental health treatment.  The state hospital was full and refusing to take these people for periods of months, on the grounds of overcrowding.  The Court said resources are not an excuse for a constitutional violation, and required transfer within 7 days of the finding of unfitness.

The opinion is located online at: http://caselaw.lp.findlaw.com/data2/circs/9th/0235530p.pdf

---

This page created by: