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Washington Protection & Advocacy System Pursuing justice on behalf of people with disabilities on matters related to their human, legal, and civil rights. Promoting Dignity, Equality and Self-Determination.
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ENVOY ON-LINEThe Newsletter of the Washington Protection & Advocacy SystemSummer 2004 Contents:
Victory for Low-Income Health CareAdvocacy in Action - Harmful "Waiver" was Opposed by Strong Coalitionby Phil Jordan June 15, 2004 It wasn't that long ago that WPAS and other groups were rallying people to oppose the state's new Medicaid waiver. The state was asking the federal government for permission to make changes to Medicaid that would have made it difficult or impossible for many low-income people to receive the health care they need. Now, after almost three years of non-stop advocacy, it appears that every piece of the state's plan to weaken Medicaid has been stopped. Governor Locke announced recently that the state would delay imposing premiums on children who were on Medicaid's "Medically Needy" program. The proposed premiums were the only remaining provision from the state's original waiver request. Advocates are hopeful that the delay can become permanent with a new governor and legislature next year. The calls, e-mails and letters sent by people to policy makers played a huge role in keeping Medicaid strong. Every person who responded to a "call to action" such as the ones sent out by WPAS E-Mail Updates can be proud of the fact that their work has helped preserve health care for people with disabilities and low-income people. Don't Waiver on Health CareWhen it all began back in the summer of 2001, it didn't look very promising for people who rely on Medicaid for their health care. The Medical Assistance Administration was proposing sweeping changes that would allow the state to reduce benefits, impose premiums and cost-sharing, and deny coverage to people with disabilities, low-income families, and elderly citizens. The proposal involved asking the federal government for a Medicaid "waiver," which would allow the state to do all of these things. A group of advocacy organizations and health care providers came together to oppose the waiver, calling themselves the Don't Waiver on Health Care coalition. Among the groups that formed the coalition were WPAS, the Children's Alliance, March of Dimes, Northwest Federation of Community Organizations, Northwest Health Law Advocates, Northwest Women's Law Center, Service Employees International Union, Washington Alliance for Immigrant and Refugee Justice, Washington Community Mental Health Council, the Washington State Hospital Association and the Welfare Rights Organizing Committee. Among the goals of the Don't Waiver coalition were to:
The coalition used many strategies to stop the waiver. Letters were written to federal and state government officials, legislation was introduced to require public hearings before a waiver could be implemented, and the grassroots networks of all the organizations was mobilized. The disability community played a major role in the grassroots pressure that was put on state officials. In the end, it was calls, letters and e-mails from people all across the state that forced the state to do the right thing. Advocacy WorksJanet Varon, director of the Northwest Health Law Advocates, recently sent a letter out summarizing the successful advocacy effort. Here is what she said. About three years ago, DSHS first announced its intention to seek a broad waiver of federal Medicaid law. The first phase of advocacy successfully resulted in a federal response requiring the state to be more specific in what it planned to do. What followed was a series of narrower and narrower proposals for waivers to allow the state to cut services, cap eligibility and impose cost sharing. Each time, advocates responded, pointing out the flaws and policy implications. The state withdrew or modified successive versions of its proposal. Finally, in July 2003, the state was directed by the Legislature to seek a waiver to impose premiums on Medicaid children, seeing it as a way of reducing the cost of the program primarily by cutting the caseload (i.e., terminating those children whose parents didn't pay the premiums). Advocates rallied against this plan. The federal government granted the waiver, shifting the focus back to the state. During the 2004 legislative session, groups lobbied against implementing the premiums, but in a compromise plan, the Legislature authorized DSHS to require payment by a smaller group of children (excluding children below 150% of federal poverty) and with a reduced premium amount ($10 per child per month). The plan was to implement this July 1, but advocates once again rallied in opposition, pointing out that other legislative and administrative changes in 2003-04 had already resulted in a large drop in the children's caseload, saving the state plenty of money. The issue garnered much sympathetic press attention. A legal team was in the process of developing litigation, should the premiums be implemented. Then, last week, Democratic gubernatorial candidate and current Attorney General Christine Gregoire sent the Governor a letter urging him to hold off on the premiums. The Governor agreed and announced the 1-year delay, just a few days before notices were scheduled to go out to families. It's an exciting development for advocates. It's clear that the many and varied efforts to point out the potential impacts and consequences of the waiver at each stage of its evolution combined to create a force for maintaining access to health care. However, it may not be over. This was characterized as a delay, not a cancellation of the premium policy, and it is not at all clear how things will play out. We should continue to gather and share information, especially after the elections, and we should continue to vigorously promote our agenda of maintaining - and improving - access to health care. Medicaid - Target for Cuts For several years, Medicaid has been the target for budget cuts and service reductions by Governor Locke and the state Legislature. Although advocates for people with disabilities and low-income folks have won this round, it is clear that Medicaid will continue to be a target. Medicaid is a health care program that is paid for by both the federal and state governments. In recent years, health care costs have been sky-rocketing across the country. The increasingly high cost of health care is happening for several reasons, but one of the main causes is the cost of prescription drugs. There are other factors in the spiraling increase in Medicaid costs but the important fact is that the federal and state governments are looking to save money and Medicaid costs continue to increase. The state agency that runs Medicaid, the Medical Assistance Administration (MAA), has been aggressive in seeking to cut Medicaid costs. Many of the tactics used by the MAA are designed to make it difficult for people to understand and comply with the complex process of applying for and remaining eligible for Medicaid. By making it difficult for people to understand how they can apply for or continue to receive Medicaid services, many people have simply given up on Medicaid and live without any health care insurance at all. In fact, in a study released this month by the advocacy organization Families USA, one in three Americans under the age of 65 were without health insurance for all or part of 2002 and 2003. Most of those people were uninsured for six months or more. (To read the report, go to http://www.familiesusa.org/site/DocServer/82million_uninsured_report.pdf?docID=3641) The state Legislature is very concerned about the cost of Medicaid, too. Legislators are responsible for creating and passing the state's budget every two years, and the increasing costs of Medicaid force them to make tough decisions. Unlike the federal government, the state must pass a "balanced budget," meaning that they can only spend the amount of money that they take in through taxes and fees (revenue). The last several years have been especially tough on state lawmakers because revenues have been lower, due to a sluggish economy and anti-tax sentiment among the voters. With decreased revenue, the state must find a way to pay for the services that they provide - either by cutting spending or increasing revenue. The state provides hefty tax breaks to business and major corporations. Eliminating these tax breaks would be a way that the Legislature could continue its commitment to provide services to people with disabilities and others who most need them. Unfortunately, the Legislature has chosen instead to seek ways to cut spending on programs for low-income people, including people with disabilities. The federal government has not been friendly toward people receiving Medicaid, either. "Medicaid reform" is being discussed in Washington DC, and the debate is not centered on how to best provide the needed services, but on how to cut spending on the program. The current administration continues to assert that the best way to reform Medicaid is to give more flexibility to the states, at the same time limiting their funds. By "capping" or limiting the funds available to states for their Medicaid programs, the federal government would create a profound change that will negatively affect Medicaid recipients everywhere. It would change Medicaid from an "entitlement" program to a "block grant" program. Medicaid is currently an entitlement, meaning that once you are eligible for services, you must receive all the Medicaid services that you need, no matter how much it costs. This is a part of the critical "safety net" that ensures that people with low incomes and major health care needs will get the help that they need. Although this description of Medicaid as an entitlement is overly simplified (portions of the Medicaid program have limits and restrictions), the basic premise of Medicaid is that there is a safety net for those who fall between the cracks of society. If Medicaid were to become a block grant program, it would no longer guarantee services to the people who need them. The federal government would provide a set amount of money (block grant) each year to the states. If the states ran out of that money, there would be no more Medicaid services. Each year would be a struggle to make sure that enough money was allocated for the state's Medicaid needs. Advocacy Will ContinueThe state's harmful waiver has been defeated and this victory shows that advocacy works. The fight to keep Medicaid strong will continue, and it is clear that an organized and vocal group of energetic advocates can make the difference. So let's take a deep breath and celebrate this important event - then get ready for the next round! ●
Canada Elects Member of Parliament with a DisabilityManitoban with Quadriplegia Set to Take Officeby Dave Reynolds, Inclusion Daily Express for daily news about disability issues, check out Inclusion Daily Express at http://www.inclusiondaily.com/ July 2, 2004 WINNIPEG, MANITOBA--Steven Fletcher is bringing an agenda to Ottawa. The Progressive Conservative says he plans to focus on health care, education, accountability in government and defense spending. He will also be bringing his electric wheelchair -- which he operates with a switch he taps with his head -- and a 24-hour assistant. Voters in his district of Winnipeg elected Fletcher on Monday to the House of Commons where he becomes Canada's first quadriplegic member of Parliament. Before he can work on his campaign priorities, however, Fletcher will have to make sure he can get into Parliament buildings and chambers, which had not been made accessible when he visited two years ago. "The codes are out of date in many cases and quite frankly, it's overdue," he said. "These changes should have been made a generation ago." Parliamentary rules will also have to be adjusted so that Fletcher can have a personal assistant in the chambers with him to handle documents and possibly to help him vote. Those rules currently state that only members of Parliament are permitted on the floor of the House of Commons "when the House is sitting". According to various media reports, Canadian disability groups are considering Fletcher's election win a victory for them as well. "It's great that Steven's there," Laurie Beachell, a coordinator with the Council of Canadians with Disabilities, told the Toronto Star. "What truly changes and removes barriers is a . . . policy approach to ensuring inclusion." Fletcher accepts the role of being a national advocate for Canadians with disabilities. "The only visible minority that hasn't been represented in Parliament so far is the disabled," Fletcher told the Winnipeg Sun. "I'm happy that I have a unique perspective." Related:
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Supreme Court says You Don't Have to Crawl for JusticeSlim Majority of Justices Believe People with Disabilities are Entitled to Equal Access to the Justice Systemby Phil Jordan July 7, 2004 Excerpt from an editorial in the New York Times, by Adam Cohen - When George Lane showed up at the Polk County Courthouse with a crushed hip and pelvis, he had a problem. His hearing was on the second floor, there was no elevator, and the judge said he had better get upstairs. Mr. Lane, both of whose legs were in casts, somehow managed to get out of his wheelchair and crawl up two flights of stairs. "On a pain scale of 1 to 10, it was way past 10," he says. While Mr. Lane crawled up, he says, the judge and other courthouse employees "stood at the top of the stairs and laughed at me." His case was not heard in the morning session, he says, and at the lunch break he crawled back down. That afternoon, when he refused to crawl upstairs again, he was arrested for failing to appear, and put in jail. The state of Tennessee thought that George Lane should have to crawl up the stairs for his day in court. Five of the nine Supreme Court Justices thought otherwise. In a so-called "narrow" ruling that has wide-spread implications for people with disabilities, the Supreme Court has ruled that when courthouses are inaccessible, states are illegally denying access to justice. In Tennessee v Lane, defendant George Lane claimed that he was denied access to court proceedings when he refused to be carried up two flights of stairs. Lane, who has paraplegia, had managed to attend the morning session in the court by crawling up the stairs. Court has History of Protecting States from being SuedThe state of Tennessee contended that not only was the offer to carry Lane to the court room a sufficient accommodation, but that citizens have no right to sue states for discrimination under the Americans with Disabilities Act (ADA). Disability rights advocates were concerned that the court would rule in favor of the states because of earlier cases (most notably, Garrett v Alabama) in which the court ruled that people with disabilities could not sue states for money damages because of employment discrimination. In Tennessee v Lane, Lane and fellow plaintiff Beverly Jones were suing because they were being denied access to the courts. Lower courts had given differing opinions as to whether people with disabilities could sue states because they were denied equal protection under the law. Although it seems obvious that the ADA does not allow states to deny access to the courts for people with disabilities, the Supreme Court has issued several rulings that say that Congress (who passed the ADA in 1990) overstepped their authority in doing so. The constitution says that states may not be sued for discrimination unless Congress finds a history of such discrimination. In passing the ADA, Congress documented literally thousands of cases of discrimination against people with disabilities, yet many of the Supreme Court justices have remained unconvinced. Ruling Preserves Constitutional Rights for People with DisabilitiesTennessee v Lane is different from previous Supreme Court opinions that have allowed states to discriminate against people with disabilities because it involves the constitutional right of access to court. Justice Sandra Day O'Connor who previously voted that states were immune from other types of discrimination suits, sided on this case with the four Justices who have been supportive of the rights of people with disabilities. Justice O'Connor's vote turned the tide and gave Lane and Jones (and people with disabilities across the country) a slim 5-4 victory. Justice John Paul Stevens wrote for the majority, saying "Congress enacted Title II [of the ADA] against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights." Justice David Souter agreed with Stevens when he wrote, "In sustaining the application of Title II today, the court takes a welcome step away from the judiciary's prior endorsement of blunt instruments imposing legal handicaps." Six Opinions, One RulingThe Tennessee v Lane case brought out the deep disagreements among the nine Supreme Court Justices. Six Justices wrote opinions about the case - three supporting the majority and three disagreeing. You can read all six opinions on the internet by visiting: http://supct.law.cornell.edu/supct/html/02-1667.ZS.html Opinions and Analysis of Tennessee v LaneBecause this case is so important, many people have written about it. Below are some of the analyses of the case: Ragged Edge Magazine: Yes, but . . . by Mary Johnson http://www.raggededgemagazine.com/focus/laneanddisc0504.html NY Times Magazine: Stairway to Justice, by Harriet McBride Johnson http://www.aapd-dc.org/News/lanetenn/johnsonLane.html Bazelon Center for Mental Health Law: Tennessee v Lane and Jones http://www.bazelon.org/issues/disabilityrights/lane/ New York Times Editorial: Can Disabled People be Forced to Crawl up the Courthouse Steps? by Adam Cohen http://www.ilusa.com/News/lane_editorial01104.htm
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Advocacy Camp 2004Children's Alliance Seeking People Who Want to Improve Advocacy Skillsby Phil Jordan July 7, 2004 The Children's Alliance is looking for campers! If you want to improve your advocacy skills, this camp is for you. For three days - September 27 - 29 you will learn about how to make your voice heard. Advocacy Camp is a three-day interactive training to help you become a better public policy advocate. Effective advocacy rests on a three–legged stool:
Training cost: What is includedChildren’s Alliance members pay $150.00 for Advocacy Camp. If you are not a member of the Children’s Alliance, the cost is $200.00 per person. Scholarships are available for low-income people. Depending on available resources, child care and transportation assistance will be available. The fee covers room and board, tuition and materials. In addition, we make sure that campers get a first hand experience learning from those who are in the front lines of advocacy. All trainers come with a diverse background and experience in advocacy work. Our past speakers include:
Become a member of the Children’s Alliance and save on registration costs. Who should attend?Advocacy Camp is open to anyone who wants to create change in their community and improve the lives of children and families and anyone who wants to sharpen or learn new advocacy skills. Download your application today! Find out what past Advocacy Camp graduates have to say about their experience"Advocacy Camp’s
overall message is that we are the people who will make the difference. We are
already doing the work – we just need to expand our scope" "Really practical, hands-on help instead of a
lot of theory" "Having the privilege of attending was powerful
not just for the very important information, but for the assurance that we do
not struggle in vain, that we are not alone" "I knew very little about the issues and the
tools. This gave me very practical skills to use in my work" "I just can’t say enough good things about
Advocacy Camp. I’ve gone through courses that last a semester and come out with
less information than you manage to pull into such a short time frame"
To learn more about the Children's Alliance, visit their web site at http://www.childrensalliance.org/ ●
What Others are SayingEssays, Thoughts and Musings about Disability Issuescompiled by Phil Jordan June 16, 2004 Here are some of the articles and essays about disability issues that can be found on the internet. Enjoy! From Ragged Edge Magazine, Harry Potter and the Allure of Separatism, by Cal Montgomery http://www.raggededgemagazine.com/focus/potter0604.html Also from Ragged Edge, The ADA is Constitutional, says the Supreme Court. Yes, but . . . , by Mary Johnson http://www.raggededgemagazine.com/focus/laneanddisc0504.html From Disability World Magazine, U.S. Government's Crackdown on Wheelchairs Highlights Tensions between Health and Disability Policy, by Katherine D. Seelman, PhD http://www.disabilityworld.org/04-05_04/news/crackdown.shtml From BBC News, The Modern Day Venus de Milo: Alison Lapper Opens London Show http://news.bbc.co.uk/1/hi/magazine/3515560.stm http://news.bbc.co.uk/1/hi/entertainment/arts/3714397.stm http://www.fourthplinth.co.uk/marc_quinn.htm From The Nth Degree Magazine, Thoughts on Our Disability Culture, by Dan Wilkins http://www.thenthdegree.com/hword.asp
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Seattle, WA 98104 |
The priorities that are listed on the web site are very general. If you want more detail on what we are working on, write (at the address above) or call us at 1-800-562-2702 voice or 1-800-957-0728 tty.
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P&A Q&A - Answers to Questions People Ask WPAS
Prepared by: Beth Stevens, Legal Advocacy Team
for the Summer 2004 edition of Envoy On-Line
Yes. Under Washington law, anyone can request the court in which the guardianship was established to terminate the guardianship, modify the guardian’s duties, or have the guardian remove and replaced with another guardian. See RCW 11.88.120.
A guardian is appointed for people who have an illness or disability that prevents them from taking care of themselves or managing their own property. To end the guardianship, the court has to find that the person (the law refers to them as "an incapacitated person") can take care of himself or herself and/or his or her own property. The guardian may be changed if the guardian can no longer perform his or her duties as guardian (for example, if the guardian dies, becomes incapacitated, no longer has time to take care of his or her duties as guardian, etc.). The guardianship can be limited if someone only needs help in certain areas of his or her life, such as finances.
Any time after a guardianship has been established, the court may, for good reason, change the conditions of a guardianship or terminate the guardianship completely. The court can also appoint a new guardian or limit the guardian’s duties if the court thinks that would be more appropriate.
Any person, including the person who has the guardian, can apply to the court for an order to modify or terminate the guardianship or replace the guardian with a new guardian or limited guardian. You are not required to hire an attorney to represent you, but if you do have an attorney, your attorney must file a motion in court telling the court why the guardianship should be changed or terminated. If you do not have an attorney, you can simply give a written request to the clerk of the court where the guardianship was created explaining the reasons for wanting the guardianship ended or modified. The court clerk will give your written request to a judge the next day the court is in session. The written request can include, for example:
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Your name, address and date of birth |
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Your guardian’s name and address |
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How long the guardianship has been in place |
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Where and when the guardianship was created |
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Why you think the guardianship should be modified or terminated |
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Any circumstances that have changed since the guardianship was put in place. |
Maybe. After the court clerk has given your request to a judge, the judge can do one of three things:
Direct the court clerk to schedule a court hearing on your guardianship,
Appoint a guardian ad litem to investigate the issues raised by your request (the guardian ad litem can also be asked to take any emergency action the court may think necessary to protect the "incapacitated person" until a hearing can be held); or
Deny the request without scheduling a hearing if it appears based on documents in the court file that your request is not for a good reason.
Yes. If the court denies your application without scheduling a hearing, the court must tell you in writing the reasons for the denial.
If the judge decides to schedule a hearing, then the court clerk will schedule the hearing within 30 days of when the court clerk gave your application to the judge. You will be notified of the date and time of the hearing. This is called being given "notice." Under the statute, the clerk must give "notice" of the hearing to the applicant, the guardian, the "incapacitated person," all attorneys of record, and anyone else entitled to be given notice of the proceedings. The court clerk will mail a copy of any court order resulting from the hearing to the applicant, the guardian, and to any other person entitled to receive notice of the hearing.
Yes. At the hearing, the court may also grant other relief that it believes to be appropriate and in the best interests of the person who has the guardian. For example, if the guardian is removed, the judge can order the guardian to return any property and records to the person who had the guardian. If the guardian does not follow the judge’s order, the guardian can be held in contempt of court.
If you need more information about the guardianship process, you can contact the court clerk for your county. The address and phone number for your county’s court clerk is in the government section of the phone book under Superior Courts for your county.
F.Y.I Service is an information service of the
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Editor and Webmaster: Phil Jordan
Contributing Editors: Andrea Abrahamson, Andrea Amaya, David Lord, Gillian Maguire, Betty Schwieterman, Annaliza Torres
Envoy On-Line is the newsletter of the Washington Protection and Advocacy System (WPAS), a private, non-profit agency that has been protecting the rights of people with disabilities since 1972. WPAS is a member of the National Association of Protection and Advocacy Systems. Eligibility for WPAS services is determined by federal law. Contact WPAS if you would like more information about our current priorities and available services.
Envoy On-Line is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may only be given in response to inquiries regarding particular factual situations.
Envoy On-Line is available at no charge to interested persons in Washington and is available in alternative formats upon request. To add your name to the ENVOY mailing list, call or write:
Washington Protection and Advocacy System
315 - Fifth Avenue South, Suite 850
Seattle, WA 98104
Phone: (800) 562-2702 or (206) 324-1521
TTY: (800) 905-0209 or (206) 957-0728
Fax: (206) 957-0729
E-mail: webmaster@wpas-rights.org
Do you have feedback, questions or an opinion about one of the stories in Envoy On-Line? Email Us.
Interested in past issues of Envoy On-Line? You can find them in the Envoy On-Line Archives.
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