In This Issue
- Disability Law Center Sues State For Jailing Those Presumed Innocent
- Aubry Alldredge: Finding Her Wings and Learning to Soar
- Ending Cruel Discipline in Utah Schools
- Wait for VR Services, Over for Some
- Facts Behind Disability Advocacy
Disability Law Center Sues State For Jailing Those Presumed Innocent
Under state and federal law, people who lack the ability to understand the nature of criminal court proceedings due to mental illness cannot be tried or sentenced. While investigating conditions in county jails, we met a Utah County man who has a history of schizophrenia and was arrested on November 25, 2014, for shoplifting. He did not have the resources to post bail and was booked into the Utah County Jail. His public defender was concerned that he did not understand the charges he faced or how the criminal proceedings worked, and petitioned the court for a competency evaluation on December 17th. On March 11th, after three separate evaluations, he was found to suffer from a substantial mental illness and deemed incompetent to stand trial. He was ordered by the court to receive mental health treatment at the Utah State Hospital in order to allow him to participate in his case. Due to a chronic shortage of funding, beds, and staff at the Utah State Hospital, he remained confined in the Utah County Jail waiting for mental health treatment for six months while his condition deteriorated. He continued to hear voices, and was placed on suicide watch. He was finally transferred to the Utah State Hospital at the end of September 2015 when a bed became available.
Unfortunately, his situation is not unique. This is one of a growing number of cases where presumptively innocent men and women with serious mental illnesses languish in jails for months awaiting court-ordered mental health treatment so that they can participate in their criminal proceedings.
On September 8, 2015, the Disability Law Center, along with the private law firm Snell & Wilmer, filed a class action lawsuit alleging that the state hospital system’s failure to provide incompetent criminal defendants with court-ordered mental health restoration treatment within a reasonable time frame violates their due process rights under the 14th Amendment and the Utah Constitution. The lawsuit asserts that criminal defendants who have been declared incompetent to stand trial should be transported from jail to the Utah State Hospital in a timely fashion after the Department of Human Service receives the court’s order, and should be provided the needed treatment upon arrival.
“For defendants with mental illness stuck in this jail ‘limbo,’ these long delays result in needless suffering, including steadily worsening symptoms, self-mutilation, suicide attempts, and prolonged detention in solitary confinement. The DLC and the other plaintiffs allege that warehousing these very ill people in jail when they have not been convicted of any crime, and are legally unable to stand trial for a crime, is both cruel and unconstitutional,” said DLC Legal Director, Aaron Kinikini.
Aubry Alldredge: Finding Her Wings and Learning to Soar
When Aubry Alldredge began kindergarten, the school district automatically placed her
in a functional skills class in a different school than the one the other neighborhood children attended. At her school, Aubry had limited interaction with her peers and she was always separated for learning activities.
Aubry loved playing with her classmates at school. After spending the day in the functional skills classroom, she often asked her mother, Cindy, to “find a friend” for her. Cindy invited neighbor kids to their house to play games, sing karaoke, and read together with Aubry. Every year at her daughter’s IEP meetings, Cindy would ask if Aubry could “spend more time together with her peers?”
Cindy was very involved at her daughter’s school. She volunteered in the classroom and joined her daughter for lunch once a week. She observed how the behaviors of some of the other students could disrupt the learning environment of the functional skills class, sometimes suspending learning activities for extended amounts of time. She wished that her daughter’s life at school could be different.
During the fifth grade, school became worse for Aubry. The classroom teacher, and a new Special Education teacher, wouldn’t follow the “integration” portion of Aubry’s IEP and as a result Aubry was not allowed to attend activities, eat lunch, or go to recess with the other students. The disdain and callousness of these educators became clear to Cindy when she contacted the teacher to ask what her daughter needed to prepare for the Fifth Grade Program. The teacher informed Cindy that Aubry wouldn’t need anything. On the day of the Program, Cindy arrived early, excited to see Aubry’s perform.
“As the fifth grade classes filed in,” recalls Cindy, “I could see every child was in a beautiful costume. Aubry, of course, didn’t have one. Every child had the opportunity to have a speaking part. Aubry, again, was never given the option. The climax of the Program was a song where every child held a flashlight in the dark room and sang about how there was no longer discrimination. Aubry was never given a flashlight or even asked to bring one.” Cindy was angry and heartbroken. “I wondered how they could sing about discrimination being behind us while my daughter was not allowed to speak, wear a costume, or even hold a prop.”
Although Cindy generally knew about the law and her rights as a parent of a child with a disability, Aubry’s treatment during the fifth grade encouraged her to learn more. She reviewed the law, talked to the Disability Law Center, and discovered that placement decisions should be made by Aubry’s entire IEP Team, including the parents. At Aubry’s next IEP meeting, Cindy refused to accept the district’s automatic placement of Aubry in a functional skills class just because Aubry has Down’s Syndrome. As a result, Aubry was allowed to start the sixth grade in a regular classroom at her neighborhood school.
“This is the best year she has ever had!” says Cindy. “In just six weeks, she’s become so much more independent. She walks to and from school. She has a great time on field trips. She works hard on her schoolwork, benefiting from the example of her classmates. The difference is night and day. I feel like we’ve taken her out of a cage and given her wings! Every parent should understand, much earlier than I did, that a child’s diagnosis does not determine their placement. The child’s individual needs and goals should be considered first, then the placement chosen.”
Ending Cruel Discipline in Utah Schools
For decades, special education students exhibiting behaviors related to their disability have been victimized in school. Christopher Stackhouse is one of those students. On more than one occasion, Christopher’s grandmother, Neomi, noticed scrapes and bruises on her grandson’s body. She went on to discover that her grandson’s injuries weren’t coming from peer-to-peer bullying, but rather from his teachers, who chose to discipline him by strapping him to a wooden chair originally designed as an assistive device. The Disability Law Center (DLC) worked with the family and the school district to end this discipline. However, the DLC heard from Neomi again.
“We went to pick him up and he was in a locked booth, naked, with feces and urine all over himself and the walls,” she reported. Time and again, when Christopher acted out, the school locked him in the booth. “He’d scratch his face until he bled. He’d come home covered in urine, with scars on his arms from bite marks,” says Neomi. One day, when his feeding tube was exposed to contaminants, Christopher became very ill and had to be transported from the booth to Primary Children’s Hospital.
The DLC filed a state complaint on Christopher’s behalf with the Utah Office of Education (USOE). The State found that his school used seclusion excessively without considering the student’s disability. Christopher was moved to a new classroom without a seclusion booth and provided more support and extra instruction. The District went on to forbid the use of posture chairs as restraint devices.
In September, after five years of perseverance by the DLC and Christopher’s family, the USOE finally published administrative rules of law that define how restraint and seclusion can be used. “In the past, each school district was allowed to develop their own guidelines for restraining and secluding students,” explains DLC Attorney, Lauralee Gillespie. “There was no administrative oversight by the USOE. We could only work with individual schools to develop appropriate behavior plans for students and there was no recourse for the harm done to these children. Now, Utah schools can be held accountable by law for their wrongful actions.
The new restraint and seclusion laws in Utah schools include:
- The student must be behaving in a way that is a threat to themselves or others.
- Restraint and seclusion are not to be used as discipline or in place of behavior management.
- Seclusion for fifteen (15) minutes with no change in behavior needs to be reconsidered and parents contacted.
- Excessive use of seclusion without contacting the parent or guardian in thirty (30) minutes would be a denial of education regardless of disability.
- Posture chairs are prohibited for disciplinary purposes as a mechanical restraint.
Wait for VR Services, Over for Some
The wait for Vocational Rehabilitation (VR) services may finally be over for some eligible clients. VR has announced they will once again serve clients on the wait list beginning November 1, 2015.
The agency will first serve individuals in the Most Significant Disabilities (MSD) category who have been waiting the longest. Not all clients in the Most Significant Disabilities category will be served right away. Instead, VR will begin serving a select number of individuals in this category while they monitor their budget to try to avoid the need to fully suspend services again. VR’s goal is to move all individuals in the Most Significant Disabilities category off the wait list by early-2016.
In case you missed it, Utah’s Vocational Rehabilitation program suspended services to new clients earlier this year. Since then, everyone who applies for services is placed on a wait list and assigned to one of three priority categories: 1) Most Significant Disabilities, 2) Significant Disabilities, and 3) Disabilities. On September 30, 2015, VR reported that 4,937 individuals are on the wait list for services, which includes:
- 1,388 individuals with Most Significant Disabilities
- 2,802 individuals with Significant Disabilities
- 747 individuals with Disabilities
For more information about the latest VR eligibility news or to find the answers to frequently asked questions, visit: usor.utah.gov.
As always, if you have questions about your rights as a VR applicant or client, please contact us at (800) 622-9080 or disabilitylawcenter.org/contact.
Facts Behind Disability Advocacy
- Over 622,000 Utah students will be impacted by new laws limiting the use of restraint and seclusion in Utah schools.Of these, almost 69,000 are students receiving special education.
- If the Utah legislature passes proposed Medicaid expansion in the upcoming session, around 38,000 more Utahns with one or more behavioral health conditions will become eligible for mental health care.
- More than 4,500 people receive support in their home or community from DSPD. However, due to underfunding, approximately 35,000 eligible Utahns are not getting DSPD services that can help them live as independently as possible, get jobs, and remain in their homes or communities.
- In the past year, the DLC has evaluated 220 housing providers. As a result, we filed 20 complaints citing evidence that the provider violated the Fair Housing Act by discriminating against one or more protected classes.
- Last year, the DLC negotiated on behalf of 11 clients to help them acquire or maintain a job.