Buy Justice for Children
Due to problems with the Agency for Persons with Disabilities' mailing of the notices of settlement agreement, the federal court has changed the date for objections to be filed and for the fair hearing. Objections are now due November 22, 2013, and the hearing will be held on November 27, 2013. Reinstatement of iBudget allocations will still be completed byJanuary 15, 2014.
SLC FILES FIRST AMENDMENT CHALLENGE AGAINST CITY OF ST. PETERSBURG
SLC, on behalf of Rev. Bruce Wright, filed a federal lawsuit today against the City of St. Petersburg, alleging violations of his First and Fourteenth Amendment rights. The City banned him for one year from Williams Park where the Reverand frequently advocated for homeless individuals and protested City policies. Rev. Wright, an ordained minister and longtime homeless advocate, is challenging his year-long exclusion. Rev. Wright is not allowed to go into the park for any reason without risking arrest for trespassing. The City's trespass ordinance has a provision that allows people to petition the City for permission to re-enter the park, but the procedure gives too much discretion to city officials to grant/deny permits and fails to contain adequate procedural safeguards. Rev. Wright is separately challenging the City’'s decision to issue him a trespass warning in a case filed in state circuit court in Pinellas County. The federal lawsuit filed today focuses on Rev. Wright’s freedom of expression rights caused by the trespass warning. Read the press release and the complaint. Posted 10/30/2013.
APD AGREES TO REINSTATE iBUDGETS AND ISSUE NEW NOTICES TO ABOUT 9,000 INDIVIDUALS
Roddie Moreland has an intellectual disability and significant other medical conditions, including epilepsy, that require 24 hour supervision and care to ensure his health and safety. To allow him to live in the community with his family instead of in an institution, Mr. Moreland receives Medicaid waiver services for persons with Developmental Disabilities, a program administered by the Agency for Persons with Disabilities (APD). On June 1, 2012, Mr. Moreland received a letter from APD stating that he was going to receive a $15,000 cut to his benefits. APD gave no explanation for its decision to cut his benefits by this amount.
Mr. Moreland was not alone; more than 9,000 Medicaid waiver clients received similar notices that their benefits were going to be reduced without an adequate explanation. Mr. Moreland, and nine other individuals, filed Moreland, et. al. v. Palmer against APD based on the inadequate notices for violations of their due process rights under the Fourteenth Amendment of the U.S. Constitution and the federal Medicaid Act. SLC, in cooperation with private disability rights attorney Nancy E. Wright, obtained a preliminary injunction against APD. After two oral arguments and a 10 hour evidentiary hearing, the Honorable Mark Walker, U.S. District Court Judge for the Northern District of Florida, found the notices were inadequate and ordered the agency not to reduce Plaintiffs’ benefits until it provided adequate notice.
After a 14 hour mediation, the parties reached a settlement agreement that includes the following policy changes: reinstatement of all benefits for clients whose benefits were reduced based on the notices; APD will send a new notice to a settlement class of 9,000 people; the parties agreed to language for a new notice so that people understand why they are receiving reductions in benefits and know whether to request a hearing; APD agreed to send notices to the clients and to their guardian advocates or other legal representatives and in their primary language. The Court preliminarily approved the settlement on October 3, 2013. A fair hearing is scheduled for November 13. Follow these links to read the Settlement Agreement and Notice of Proposed Class Action Settlement.
SLC CO-COUNSELS LANDMARK CASE TO BROADEN ACCESS TO EMERGENCY CONTRACEPTION
SLC is co-counsel representing some of the plaintiffs in Tummino v. Hamburg with the Center for Reproductive Rights and Andrea Costello of the Partnership for Civil Justice Fund in the Eastern District of New York. In a landmark decision (click here for opinion), the Court ruled that the U.S. Food and Drug Administration (FDA) must allow over-the-counter sale of the “morning-after pill” to women of all ages and lift current point-of-sale restrictions.
The federal judge ordered the FDA to lift longstanding restrictions that impede and delay women’s access to emergency contraception and make levonorgestrel-based emergency contraception available over-the-counter without age or point of sale restriction. The judge cited the actions by the U.S. Department of Health and Human Services Secretary Kathleen Sebelius as “politically motivated, scientifically unjustified, and contrary to agency precedent.”
SLC attorney Kirsten Clanton said, "This court decision recognized that the government cannot justify denying women access to emergency contraception by politically motivated considerations. This victory ensures that women do not continue to face unnecessary barriers in obtaining access to safe and effective emergency contraception."
The court ordered the FDA to make emergency contraception available without a prescription and without point-of-sale or age restrictions within 30 days—with the option to limit the change to only Plan B One-Step if the agency “actually believes there is any significant difference between the one- and two-pill products” and to require new labeling if necessary. Currently, emergency contraceptives (EC) are available to women 17 and older without a prescription, with young women under 17 required to obtain a prescription from a physician. Even for women 17 and older, however, the medication is available only at health clinics or pharmacies, upon request and with adequate identification. This unique and unnecessary dual scheme has impeded access even for women who are allowed to obtain the drug without a prescription, as evidenced by several studies, including one published in the journal Pediatrics earlier this year.
The lawsuit, originally filed on January 21, 2005, uncovered evidence that the Bush Administration pressured FDA review staff to enact an age limit on the pill for political reasons. On March 23, 2009, the Court ruled that the FDA "acted in bad faith and in response to political pressure," "departed in significant ways from the agency's normal procedures," and engaged in "repeated and unreasonable delays." The Court ordered the FDA to make Plan B available over-the-counter without a prescription to 17 year olds (the drug was previously limited to women ages 18 and up). The Court also ruled that the FDA had to reconsider whether to approve a Citizen Petition, filed by women's health and reproductive rights organizations in 2001, asking for unrestricted over-the-counter status for women and girls of all ages.
In December 2011, the FDA finally decided to eliminate the unnecessary age restriction, but in an unprecedented move, HHS blocked the change with President Obama's support. The FDA then denied the Citizen Petition. On February 8, 2012, Plaintiffs moved to re-open the case and added HHS Secretary Kathleen Sebelius as a Defendant.
SLC FILES CLASS ACTION SEEKING DUE PROCESS FOR PERSONS WITH DEVELOPMENTAL DISABILITIES
Life hasn't been easy for Roddie. When he was just 2-years-old, he suffered from a stroke that left him with a severe seizure disorder and without the ability to speak. Although loving him is easy, caring for him is difficult and expensive.
Roddie, now 38, requires constant supervision, so when his parents are at work, an attendant comes to assist him with tasks most other people take for granted. Showering, eating or simply going for a walk would not be possible without assistance. Roddie and his parents alone could not manage his care without the assistance of a special Medicaid Waiver program for community services.
Last year, Roddie received a letter from the Florida Agency for Persons with Disabilities informing him that he would be receiving nearly $15,000 less each year from Medicaid. There was no explanation for the reductions.
Roddie wasn't the only Floridian with a disability to receive that letter. Approximately 11,850 others were mailed the same letter – none receiving an explanation. Some put the letter in a drawer out of confusion while others never opened it. Roddie's parents, however, contacted Southern Legal Counsel.
Along with nine other people, in November 2012, Roddie and SLC filed a class action seeking due process - an explanation for the reductions and a meaningful opportunity to challenge them. No money is to be gained from winning this case, but rather systemic change to ensure that the state operates the Medicaid Waiver program fairly and in accordance with the US Constitution. In many cases over the years, SLC has successfully demanded that government provide due process to the citizens it serves. We will continue to do so.
Jodi Siegel, Neil Chonin and Nell Page were interviewed by Kevin Coulson for his weekly radio show Meridian Behavioral Healthcare Home Page. The half-hour show aired on June 17 on WIND-FM and K-Country. To listen to the show, go to: http://www.mbhci.org/templates/meridian/articlepdfs/SLC-061712.mp3
COURT FINDS THAT STATE NOW HAS EFFECTIVE NURSING HOME TRANSITION PROGRAM
In 2008, when Southern Legal Counsel and three national co-counsel filed Lee v. Dudek, a class action systemic reform case, about 8,500 Medicaid-eligible individuals were stuck in nursing homes because the State had no system to identify Medicaid recipients who wanted to move into the community, had waiting lists for Medicaid Waiver services, and failed to offer services in community settings. The Supreme Court had years earlier found such unnecessary segregation to be discrimination under the Americans with Disabilities Act. After four years of litigation, the Court found that Florida Medicaid now has a functioning nursing home transition program, as well as a virtually unlimited funding source for individuals who wish to transition from nursing homes to community placements. Approximately 1,600 Medicaid recipients were transitioned between March 2009 and February 2011. The Court therefore found there was no longer a need for class relief and decertified the class, but ordered a permanent injunction for the named plaintiff who had previously obtained a preliminary injunction.
EDITED BY SLC, COPAA PUBLISHES MANUAL ON RESTRAINT AND SECLUSION IN SCHOOLS
"The Right to be Safe In School: Advocacy and Litigation Strategies to Combat the Use of Restraint and Seclusion," has just been published by the Council for Parent Attorneys and Advocates (COPAA). Written by Kristine Sullivan, and edited by SLC attorneys Jodi Siegel and Alice K. Nelson, and Leslie Seid Margolis and Denise Stile Marshall, this manual is intended as a practice guide for attorneys and advocates representing children with disabilities who have been injured or damaged by such unsound techniques in the educational setting. It is available to download for free for COPAA members and $30 for non-members. To purchase, visit www.copaa.org.
FIRST DCA DENIES STATE’S EFFORTS TO AVOID EDUCATION CASE
On November 23, 2011, the First District Court of Appeals issued an En Banc Order in Haridopolos, et. al. v. Citizens for Strong Schools, et al., denying the state’s motion for a writ of prohibition, and certifying a question of public importance to the Florida Supreme Court.
A majority of the judges agreed that the lower court has subject matter jurisdiction and, therefore, can interpret the education clause, which says that the state must provide a uniform, efficient, safe, secure and high quality public education system.
The DCA certified the following question to be answered by the Florida Supreme Court: Does Article IX, Section 1(a), Florida Constitution, set forth judicially ascertainable standards that can be used to determine the adequacy, efficiency, safety, security, and high quality of public education on a statewide basis, so as to permit a court to decide claims for declaratory judgment (and supplemental relief) alleging noncompliance with article IX, Section 1(a) of the Florida Constitution?
The lawsuit was filed by Southern Legal Counsel in November 2009 representing Citizens for Strong Schools, Fund Education Now, two students in Duval County schools and four parents in Duval and Pasco counties. The suit alleges deficiencies in the public education system that violates the state’s constitutional duty.
Co-counsel in the case are Jon Mills, Tim McLendon and Deborah Cupples.
ELEVENTH CIRCUIT COURT OF APPEALS ISSUES OPINION IN CATRON ET AL. V. CITY OF ST. PETERSBURG
On September 28, 2011, a federal appellate court has ruled that a lawsuit challenging the constitutionality of a St. Petersburg trespassing ordinance may proceed.
The opinion, issued by the 11th Circuit Court of Appeals in Catron et al. v. City of St. Petersburg, overturns a lower court’s decision to dismiss a lawsuit brought by Southern Legal Counsel (SLC), Florida Institutional Legal Services (FILS), and the National Law Center on Homelessness & Poverty (the Law Center). The Plaintiffs assert that the ordinance violates their rights to freedom of movement and procedural due process.
The 11th Circuit ruled that the trespassing ordinance violates the due process clause of the Fourteenth Amendment of the U.S. Constitution. The ordinance authorizes the City to exclude people from public property by issuing a trespass warning. The lawsuit alleges that the City has used the ordinance to ban Plaintiffs and other homeless individuals from public parks, as well as surrounding sidewalks and bus stops. Under the ordinance, people are not given an avenue to challenge any warnings they receive without risking arrest. The City has requested a rehearing en banc, which is pending.
Click here for press release.
Click here to view the opinion.
SLC SELECTED FOR NORTHEASTERN’S LEGAL SKILLS IN SOCIAL CONTEXT SOCIAL JUSTICE PROGRAM
SLC was selected as a client organization for the Northeastern Law School Legal Skills in Social Context (LSSC) Social Justice Program for the second year in a row. The LSSC program is a partnership between the law school and community or not-for-profit organizations to address unmet social needs.
This year’s project will result in Northeastern students developing model legislation based on best practices to reduce and eliminate restraint and seclusion policies in schools. The project will also include an accompanying report for educating legislative bodies and regulatory policymakers about the need for changes to federal and state laws. The project will include legislative survey, scientific literature review and investigative field research. SLC will use the model legislation and report for its state and national advocacy efforts with special education partners nationwide to end these practices that sometimes end in death or cruel and unusual punishment for restrained and/or secluded students.
The student project will be completed by May 2012.
ORAL ARGUMENT IN HARIDOPOLOS, ET AL. V. CITIZENS FOR STRONG SCHOOLS, ET AL.
On Thursday, June 30, 2011, Florida’s First District Court of Appeals heard oral argument in Haridopolos, et al. v. Citizens for Strong Schools, et al., a Petition for Writ of Prohibition filed by the State of Florida challenging Judge Fulford’s subject matter jurisdiction to hear Citizens for Strong Schools, et al. v. Florida State Bd. of Educ., et al. Watch the oral argument live at: http://www.1dca.org/video.html.
Southern Legal Counsel filed Citizens for Strong Schools in November 2009, alleging that Florida is violating its own constitution by failing to provide a system of high quality public schools or adequately fund education. The suit was filed on behalf of citizen organizations, parents and students and seeks a declaration that Florida is breaching its duty to provide a high quality system of free public schools that allows students to obtain a high quality education, as required by Article IX of Florida’s Constitution. In August 2010, Leon County Circuit Court Judge Jackie Fulford rejected the State’s motion to dismiss. The State had argued that courts have no authority to review the quality of the education system, and that “the Legislature has absolute discretion to implement any system, checked only by the ballot box.” The State then filed Haridopolos, a Petition for Writ of Prohibition in the First District Court of Appeal.
SLC ATTORNEY TESTIFIES AT CONGRESSIONAL BRIEFING ON HOMELESSNESS
Attorney Kirsten Clanton testified at a congressional briefing on June 8, 2011 in Washington D.C. about the Federal Strategic Plan to Prevent and End Homelessness. This briefing featured a panel of advocates assessing various aspects of the plan including housing, vacant property, education and the criminalization of homelessness through a human rights perspective. Her testimony focused on steps members of Congress can take to implement the plan’s objectives to reduce the criminalization of homelessness. “The federal plan to end homelessness clearly states that criminalizing acts of survival is not a solution to homelessness. Not only does the criminalization of homelessness result in unnecessary public costs for police, courts and jails, but it also systematically violates the civil and human rights of our most vulnerable and poorest citizens,” Clanton said.
SLC CONCLUDES 5-DAY TRIAL IN LEE, ET. AL. V. DUDEK, ET. AL.
SLC concluded a 5-day trial in Lee, et al. v. Dudek, et al. A bench trial was held before Judge Hinkle in the Tallahassee division of the U.S. Northern District Court of Florida. A decision is expected shortly.
The suit, which was filed in January 2008, seeks injunctive relief to provide sufficient Medicaid-funded services to persons with disabilities on a long term basis in the community. According to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act the state is required to provide services in the most integrated setting for the individual. However, the current lack of integrated community-based services has forced many individuals, especially the elderly, to live in nursing homes for the sole purpose of receiving the services they require.
See press coverage of the trial in the St. Petersburg Times.
SLC'S NEW WEB DESIGN WAS GENEROUSLY DONATED BY TONY PECORA AT NORTHC CONSULTING. THANK YOU TONY!