New York Governor Pataki and the Burden of Proof

New York Governor Pataki and the Burden of Proof

The New York State Legislature passed S.8354, legislation that placed the burden of proof in special education impartial hearings on the school district, thus maintaining the status quo in New York State for the last 30 years. The legislation was passed in response to the Schaeffer v. Weast case decided by the U.S. Supreme Court last year (see prior posts). In spite of widespread support not only from parents of children with disabilities but numerous other groups, including the teacher’s unions, the Governor last week vetoed Senate bill 8354. The veto message was full of misinformation and misrepresentations.

 

Parents, advocates and others concerned about the rights of children with disabilities to obtain special education services must contact their State Assemblymen and Senators as well as the Governor to let them know that the Governor’s veto is unacceptable.

 

EXPRESS YOUR OUTRAGE TO YOUR STATE LEGISLATORS IT IS CRITICAL NOT TO LET THE VETO OF S.8354, REGARDING THE BURDEN OF PROOF, PASS QUIETLY, AS IF NO ONE CARES.

 

TELL YOUR STATE LEGISLATORS THAT THE GOVERNOR?S VETO OF SENATE 8354 IS TOTALLY UNACCEPTABLE.

 

TELL THEM THAT YOU EXPECT THEM TO OVERRIDE THE VETO OF SENATE 8354 WHEN THEY RETURN FOR SPECIAL SESSION IN SEPTEMBER. Let them know that the veto is unacceptable.

 

THE LEGISLATURE CAN OVERRIDE THAT VETO BY A TWO-THIRDS VOTE IN EACH HOUSE. THAT SHOULD NOT BE DIFFICULT SINCE THE BILL WAS APPROVED BY A 100% VOTE IN THE SENATE AND A 95% VOTE IN THE ASSEMBLY.

 

The failure of the Governor to sign this legislation puts the rights of children with disabilities to a free and public education in the least restrictive environment addressed to their individual needs at risk. Without this bill, the right to an appropriate public education for students with disabilities will belong only to those whose parents can pay for it by hiring expensive legal help. You can contact your New York State legislator at:

New York State Assembly…

The Special Needs Community Thanks NY Governor Spitzer!!

Governor Spitzer

Governor Elliot Spitzer signed the Burden of Proof legislation on August 15 thus showing his continued support for children with disabilities and their families. This legislation was vigorously opposed by the New York State School Boards Association and the NYS Department of Education among others. A grass roots movement by NYS advocates resulted in thousands of you calling the Governor’s office urging him to sign the Burden of the Proof bill. Special thanks go to Ben Golden of NYSARC whose outstanding efforts in shepherding this bill through the NYS legislature for two successive years has finally met success.

 

We also thank Assemblywoman Catherine Nolan and Senator Andrew J. Lanza for sponsoring the bill and working so hard for its passage. The legislation places the burden of proof in special education impartial hearings on school districts except in the limited circumstance where parents have unilaterally placed their child in a private school. New York law from 1975 to 2005 held that the burden of proof was on the school districts. In 2005 the U.S. Supreme Court held in the Schafer v. Wiest that the burden of proof should be born by the party objecting to the individualized education plan (IEP), which was usually the parent, in states that had no statute allocating the burden of proof. The legislation signed by Governor Spitzer preserves New York practice prior to the Schafer case and levels the playing field by requiring school districts to justify their positions regarding student placement and services.…

First Appellate Division Upholds Health Care Decisions Act for Persons with Mental Retardation

First Appellate Division Upholds Health Care Decisions Act for Persons with Mental Retardation

The First Appellate Division affirmed a lower court ruling by New York County Surrogate Eve Preminger upholding the constitutionality of the Health Care Decisions Act in The Matter of Chantel R.New York States Mental Hygiene Legal Service (MHLS) argued that the Act was unconstitutional because it violated the Equal Protection clause of the U.S. Constitution by treating persons with mental retardation differently than people without mental retardation in regard to health care decision making.

 

The issue arose during a proceeding to appoint Chantel R.s mother as guardian. When asked how she would regard a decision by her mother to withhold life sustaining treatment, Chantel appeared to object to the hypothetical question. MHLS then insisted that her mother be precluded from making such decisions. New York Surrogate Eve Preminger held a hearing and heard evidence in this case which substantiated that Chantel was unable to make health care decisions herself. MHLS appealed to the Appellate Division.

 

The Court stated that The Surrogate properly concluded that a person with mental retardations expression of a desire to continue life-sustaining measures is categorically distinguishable from the same desire expressed by a mentally competent individual because only the latter has the capacity to appreciate the consequences of the decision. The Court recognized that a person with mental retardation has never had the capacity to make these decisions and understand the consequences of such decisions.

 

First Appellate Division Upholds Health Care Decisions Act for Persons with Mental Retardation2

 

To go back to the days before the Health Care Decisions Act, when there was no one to make an end of life decisions for persons with mental retardation, would be condemning them to unnecessary suffering as was illustrated in the Pouliot case credited with spurring the passage of the Act. In that case, Sheila Pouliot, a severely mentally retarded person, became terminally ill and, in spite of the fact that her doctors felt it was futile and her sister and the ethics board of the treating hospital objected, she was kept alive for several weeks. It is alleged that she was in pain and suffered. This is the situation that must be avoided.

 

It is unknown whether or not NY MHLS will appeal the Appellate Division decision. For the sake of all individuals with mental retardation and/or developmental disabilities in New York State I hope they do not. The fact that one has a developmental disability should not deny such individual the right to have an advocate, in this case, a court-appointed 17A Guardian, to provide the same rights to a death with dignity and without pain as you and I .

 

The Court held that any disparity in treatment of a mentally retarded person is justified by legitimate state interests, that respondent has been accorded due process and is not aggrieved on such grounds and that the asserted vagueness of any statutory provision with respect to the withholding or withdrawal of medical treatment is not before us. Therefore, we affirm the ruling in all respects.…

Support the Rehabilitation Moratorium: Call Senators Schumer and Clinton Today

Support the Rehabilitation Moratorium: Call Senators Schumer and Clinton Today

 

THE CONGRESSIONAL DEMOCRATIC LEADERSHIP AIMS TO HAVE THE CHIP BILL ON THE FLOOR THIS TUESDAY -We want our rehab reg. moratorium included

 

MAKE YOUR PHONE CALLS NOW/ASAP, AS MANY AS POSSIBLE. URGE SENATORS CLINTON AND SCHUMER TO INCLUDE THE MORATORIUM ON CMS PROPOSED REHABILITATION REGULATIONS (ELIMINATING MEDICAID FOR HABILITATION SERVICES) IN THE SENATE VERSION OF CHIP (Children?s Health Insurance Program) REAUTHORIZATION – S. 1893.

 

Tell them: The House bill (HR 3162) to reauthorize the Children?s Health Insurance Program (CHIP) includes a moratorium to stop regulations proposed by the Bush Administration which eliminate federal Medicaid for habilitation services. These regulations would be devastating to many individuals with mental retardation and other developmental disabilities served in New York State. Therefore, we strongly support the moratorium.

 

Unfortunately, the Senates version of CHIP reauthorization (S. 1893) does not include the moratorium on these regulations.

 

Please fight for inclusion of the moratorium in the Senate bill. Protect the needs of our most vulnerable citizens.

 

REMEMBER: PROPOSED CMS REGULATIONS WILL STOP MEDICAID FUNDING FOR HABILITATION SERVICES RENDERED OUTSIDE OF HCBS WAIVER PROGRAMS AND ICFs if they are implemented as scheduled in January.

 

CMS has published regulations (42 CFR Parts 440 and 441, published August 13, page 45201) which, if finalized, will deny federal Medicaid for Day Treatment, Article 16 Clinics and long term developmental disabilities habilitative therapies in Article 28 clinics. The regulations will badly undermine the ability to provide medical and dental in clinics, given fixed pricing methodologies. Habilitation services include, ie, OT, PT, Speech, Psychological, Rehabilitation counseling.

 

(Note: I use the term mental retardation in the message above because it is politically potent, gets the point across quickly and this is an emergency situation.)

 

Thank you to Ben Golden of NYSARC for providing this information. This is the first attempt to make inroads on services to those with intellectual disabilities. We cannot let it pass.…