Focus on Special Education

VOR's February 20, 2004 edition of the Weekly E-Mail Updated focused on Special Education. Offered was a collection of articles and other resources for families of children with special needs. Specifically,

1. About this issue: Special Education
2. VOR Position on Special Education: Choices for a lifetime; Options for all
3. Laws and Special Education
4. Individuals with Disabilities Education Act (IDEA)
5. Does "Full Inclusion" Violate Federal Law?
6. Don't Take Sides on Inclusion
7. No Child Left Behind (NCLB)
8. NCLB Analogy: No Dentist Left Behind
9. Against full inclusion: Special Ed Suit Is Filed in Orange County (excerpts)
10. Case for inclusion: Chicago's schools warned on special ed (excerpts)

Don’t take sides on inclusion

By Marcie Roth
The Ragged Edge

Marcie Roth is a well-respected, longtime national disability rights advocate.

September 2003

I have been fighting for children with disabilities to be able to receive a
free appropriate public education since before PL 94-142 -- now called the
Individuals with Disabilities Education Act, or IDEA -- was passed, back in
1975. I have represented hundreds of families as they fought to get their
children that free appropriate public education in their neighborhood
school, in the classroom the child would have attended if they didn't have
a disability.

California: Procedural win is moral victory for family

On June 22, 2010, a California appellate court found that Gail Bowen’s legal battles on behalf of her profoundly disabled son, Michael, should never have been. The Court overturned a lower court ruling on a January 2009 lawsuit filed the public defender to force Michael into a “community setting.”  The court found the filing improper because just one month earlier (December 2008), an Administrative Law Judge (AJL) had held that Sonoma was the least restrictive environment. The lawsuit filed by the public defender amounted to a re-litigation of issues that had already been resolved.

Gail Bowen, along with Michael’s father and co-conservator (James), will be the first to agree that their legal struggles, which began following a 2007 Interdisciplinary Team (IDT) meeting for Michael, were unnecessary and unjustified.

Tennessee Judge Rules for Families, against People First and DOJ

As families prepare for the closure of the Clover Bottom Developmental Center, on May 28, 2010, a court ruled in favor of the right individuals and legal guardians the right to choose another ICF/MR (deemed a “congregate” setting), even when professionals have determined the individuals could be provided in a more integrated setting. 

The question before the federal district court in Tennessee was whether the Americans with Disabilities Act (ADA) precluded Clover Bottom residents, or their legal guardians, from choosing “congregate care.”  The U.S. Department of Justice and People First of Tennessee argued against the right of choice when professionals have deemed another setting to be more “integrated.”

Citing Olmstead and Medicaid law, the Court ruled in favor of the state and families, recognizing the freedom to choose a large ICFs/MR placement even if the individual could be appropriately served in a more integrated setting. 

“The intersection of citizen choice and the ADA was addressed by the Supreme Court in Olmstead v. L.C.,” wrote the court.  “[T]here is no federal requirement under the ADA that community-based treatment must be imposed on citizens who do not desire it.”  

Click here for the decision and order.

Virginia Judge Dismisses Arc-VA lawsuit; Olmstead relied on

A federal judge has dismissed a lawsuit brought by The Arc of Virginia against the State of Virginia challenging a state plan to renovate and resize the Southeastern Virginia Training Center (SEVTC). Judge Robert Payne held that The Arc failed to establish a "case or controversy" ripe for judicial review and, thus, the court lacked jurisdiction to hear the case. The Virginia Office of Protection & Advocacy represented the Arc. The U.S. Department of Justice participated as Amicus ("Friend of the Court") in support of the plaintiffs.

Noting that deinstitutionalization was the plaintiff's central motivation in this case, Judge Payne held that, in this situation, the State has indicated that no one will reside at the new SEVTC who doesn't want to be there.

"Here, there is evidence that shows that many individuals will choose to live in the new facility. In fact, at least 84 of the 155 legal representatives of the current SEVTC residents have made formal pleas to permit their loved one to remain in the new facility rather than be placed in community housing (citation omitted). Thus, the argument made by Arc and the United States regarding the risk of institutionalization fails to account for a key principle in the Olmstead decision: personal choice. And here, where more residents desire to remain in institutional care than the new facility can provide for, there is little to no risk of institutionalization for those whose needs do not require it and who do not desire it."

Click here to read the full decision.

Bequests

The foresight of past VOR supporters and members has helped VOR plan for tomorrow by building a permanent growing fund that will provide for advocacy and all of the critical VOR services for future generations. Founded more than 25 years ago in 1983, VOR is a national 501(c)(3) organization governed by a volunteer board of directors and funded solely by dues and donations. We receive no government support. Through generous donations and bequests, VOR is able to represent individuals with mental retardation and their families/guardians.