- Tika’s Story
- Dennis and Valerie’s Story
- Brent’s Story
- Grace’s Story
- Steven’s Story
- Ashley’s Story
- Ron’s Story
- Patty’s Story
DLC Helps Family Overcome Housing Discrimination
After the birth of their second child, Tika’s landlord insisted that his family couldn’t occupy a single-bedroom apartment anymore and that they should move into a two-bedroom unit. The Timsinas paid an additional $600 deposit and signed a new lease for a two-bedroom unit, however after doing so, the landlord simply ignored them and moved other families into the available units while refusing to return their money.
When Tika confronted the landlord about being moved into a two-bedroom unit, he was told that their current unit needed a pest inspection before they could move. After conducting several inspections, the landlord insisted pests had been detected and said the Timsinas could not move to a new unit until they paid half of the extermination cost—an additional $650 to the already-paid deposit. Reluctantly, Tika paid the fee, however, the months continued to pass and the Timsinas were never moved to a new unit. Feeling hopeless and scared of eviction, Tika contacted the Disability Law Center (DLC).
“The landlord was unwilling to work with Tika on a personal level,” explains Nick Jackson, Fair Housing Attorney at the DLC. “We investigated [the] landlord and found that other people of Tika’s race and ethnicity and refugee status had been subjected to the same treatment so we believed that there had been unlawful discrimination [and] we filed a complaint on Tika’s behalf with the state of Utah.”
In mediation, the DLC was successful in having the initial deposit returned and the Timsinas decided to move away from the complex when their lease expired.
Several months after leaving the complex, Tika received a notice from the landlord demanding $800 for attorney fees acquired during the mediation process. Again, Tika reached out to the DLC for help. After making several attempts to convince the landlord to dismiss the fees, the DLC filed a complaint on Tika’s behalf with the U.S. Department of Housing and Urban Development (HUD). The Department sided with the DLC and awarded Tika a settlement.
As a result of their experience with their discriminatory landlord, the Timsinas were motivated to find the means necessary to purchase a home to avoid ever experiencing the same situation again. “I think the DLC is a reason to smile,” says Tika, “because they resolved this case. I’m happy now. I’m proud to say that the DLC has done a wonderful job for people like me.”
Dennis and Valerie’s Story
Medicaid Appeals Enable Family to Continue Providing for Loved Ones
Valerie Scholes, 29, and her brother, Dennis (Den), 31, live in rural ranch country, together with their parents and several more siblings. Their entire family participates in their physical and emotional care and Valerie and Dennis always have company, spending their days in their bright, cozy living room engaging with their family. At night, their mother, Carol, sleeps in a recliner next to Valerie and Den’s father shares a room with him. Their three siblings also pitch in, delighting in the way Den teases and shares his passion for cars and supporting Valerie’s love for babies, jewelry, and “anything with four-legs.”
In the past, Valerie and Den’s disability caused them to aspirate when eating. As a result, ten-years ago, Valerie began using a feeding tube and four-years later, Den did also. Medicaid covered the cost of their liquid diet, their only source of nutrition—at least until this year. When Den’s annual reauthorization of services came around this year, Medicaid declined to pay for the food, stating there was no medical need for it and suggested the family purchase the food with Food Stamps. When Valerie’s review came around a few months later, Medicaid issued the same decision. The cost of just one-month’s food for the two siblings is $700 and Medicaid’s decision hit the Scholes family hard. Fearful for Valerie and Den’s health, they reached out to the DLC for help.
“Nate [Crippes] was awesome,” said Carol of the DLC attorney that helped them. “Medicaid gave us the run-around and [Nate] waded through 300-pages of medical records to find the three that would help us with our case. He went above and beyond, even accompanying us to an appointment with the nutritionist to gather information to prove the liquid food is specialized and serves a medical purpose.”
Nate represented the Scholes through the Medicaid appeal process, and as a result of his efforts, Medicaid reversed their decision and began to pay for Valerie and Den’s food again. Several months later, the Scholes are still thrilled with the result and grateful that their full focus could shift back to giving Valerie and Den a meaningful life.
10th Circuit Declares Plasma-Donation Centers are Public Accommodations
For years, Brent donated plasma in exchange for money in an effort to supplement his limited income. And in May 2013, he attempted to do just that at a Salt Lake City branch of Octapharma Plasma, Inc. (Octapharma). But when an Octapharma employee learned that Brent was diagnosed with borderline schizophrenia, the employee became concerned that he might have a schizophrenic episode while donating and dislodge the collecting needle, possibly injuring himself or someone else. The employee told Brent that he was ineligible to donate plasma due to his mental illness. And though Brent supplied Octapharma with two recommendations from medical providers certifying that he was healthy enough to give plasma safely, Octapharma banned him from donating at all plasma-donation centers (“PDCs”) nationwide.
Brent came to the DLC for legal assistance. On his behalf, the DLC demanded that Octapharma allow Brent to resume donations, arguing that his exclusion violated the Americans with Disabilities Act (ADA). Octapharma refused—claiming that its PDCs were not covered by the ADA, and that it was entitled to refuse donor privileges to anyone it deemed unsuitable. In response, the DLC brought a lawsuit on Brent’s behalf in 2014. The lawsuit hinged on the ADA’s “public accommodation” rules for entities like grocery stores, laundromats, restaurants and a wide variety of other businesses and service providers, all of which must provide equal access and services to people with disabilities.
After the lawsuit was filed, Octapharma responded with a motion to dismiss, arguing that PDCs are not covered under Title III of the ADA because they don’t provide traditional goods or services in exchange for customers’ money—instead, they pay donors money for their plasma. The trial court judge agreed with Octapharma, dismissing the case and concluding that PDCs did not fit under any of the categories Congress listed as “public accommodations” under the ADA. As such, the court found that Octapharma could continue deny Levorsen access—because its PDCs are simply not covered by the law.
The DLC, with co-counsel from the Washington, D.C. civil rights law firm, Relman, Dane & Colfax, appealed the dismissal. Then on July 12, 2016 the U.S. Court of Appeals for the Tenth Circuit ruled that Octapharma and its PDCs—like virtually all other commercial establishments open to the public—are public accommodations subject to the non-discrimination requirements of the ADA. This ruling, the first on this issue by a federal appellate court, overturns the holding of the trial court and rejects the multi-billion-dollar plasma industry’s position that PDCs may freely turn away people with disabilities or otherwise discriminate with impunity. Under the plain language of the ADA, which explicitly covers “other service establishments”, the Tenth Circuit found that a PDC was a “’service establishment’ for two exceedingly simple reasons: It’s an establishment. And it provides a service.”
Reflecting on the broad importance of the decision, DLC Legal Director Aaron Kinikini said: “When an industry depends on humans as the source of the raw materials which it transforms into billions of dollars in profits, it should be required to comply with the civil rights laws intended to protect those humans. This decision goes a long way to ensure that the ADA’s protections reach as many people, in as many places, as Congress intended.” While binding only on Tenth Circuit states– Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming – the decision is likely to alter the plasma industry’s discriminatory behavior around the country.
The Sound of Success
When Grace Larsen was born, it was soon discovered that her hearing was impaired. As Grace grew, so did her love for cuddling with mom, adventures with her brother, coloring, playing with dolls and anything Cinderella. Maybe it was her father’s strong tenor voice or some genetic disposition that drew Grace to music. One thing she insisted on, she had to wear her hearing aids whenever she was awake. When Grace was two, routine hearing tests showed that her hearing loss had progressed. She had severe/profound loss in one ear and moderate/severe loss in the other. The Larsens discussed their options with a specialist and chose to proceed with cochlear implants. The surgery was scheduled and other arrangements made. Then, only days before the surgery, the Larsens got the heartbreaking news that Medicaid wouldn’t cover the costs. Why? Grace’s speech wasn’t delayed enough yet to classify the procedure as “medically necessary”. Lainee, Grace’s mom, expressed her frustration on Facebook. She mourned that those early years for developing speech would expire while Medicaid waited for Grace to be significantly behind her peers. One of Lainee’s Facebook friends recommended that she call the Disability Law Center. After discussing it with her husband Kevin, they decided to give it a shot. Once Laura Boswell, Disability Law Center Attorney, reviewed Grace’s medical records she knew what course to take. She represented Grace in the hearing process. Laura demonstrated how the medical records did indicate that the surgery was medically necessary and Medicaid reversed its decision. Within a few months of contacting the DLC, Grace had her implants. “They took care of everything” Kevin reports, “they submitted the information to Medicaid and we had an advocate there that was saying, ‘did you see this, did you notice that?’ ” The Larsens are grateful that Grace got her surgery when she did. “It was just a miracle to see that my daughter can progress. She talks, she sings, she pronounces better. We’re just so grateful.”
View this story in a short video at http://disabilitylawcenter.org/thesoundofvictory
Father’s Right to ASL Interpreter for Daughter’s Performance Secured
Last spring, Steven Dearinger made plans to attend his daughter’s elementary school performance of The Little Mermaid. His daughter has big dreams of being an actress someday. Her roles of a butterﬂy and a princess in the show were an opportunity to cast aside her tomboy nature and stretch her acting skills. Steven’s native language is American Sign Language. Steven and his wife made three separate requests for ASL interpretation for the production and were denied each time. Finally, they contacted the Disability Law Center for help. We wrote a letter thoroughly outlining the laws that require an interpreter to be provided. With an explanation of the laws in front of them, we felt conﬁdent the school district would comply. However, the district again denied the request. The school only provided a seat in the corner and the option to try and follow along using a ﬂashlight and script. Having given the district every opportunity to abide by the law, Steven and Ann agreed with the Disability Law Center’s assessment that further action was warranted. DLC Attorney, Aaron Kinikini ﬁled a complaint with the Ofﬁce of Civil Rights (OCR) on Steven’s behalf. Once OCR began investigating the matter, the district decided to take voluntary steps to ensure its compliance with the law. OCR entered an agreement with the district that involves monitoring how they implement requested accommodations such as interpreters. Steven can now feel conﬁdent that he will be able to watch every moment of his daughter’s future performances and understand the dialogue at the same time. A right he deserves and is entitled to, not one of privilege. We at the DLC concur with Mr. Kinikini’s comments. His closing letter to Steven states, “We are pleased that we could facilitate a policy change that will beneﬁt not just your family, but all deaf individuals who have friends, neighbors and family within the School District.”
View this story in ASL at http://disabilitylawcenter.org/afamilysright
The Right to a Free, Appropriate Education in the Least Restrictive Setting
Ashley loves the outdoors and sitting on the grass in the sunshine. Her sense of touch is especially strong. She enjoys the swirling of water around her in a swimming pool, lotion, and the texture of fabric as she folds clothes.
Ashley has limited verbal communication. She communicates feelings of affection by reaching out to hold the hands of family or friends. She loves saying “mom” and asking “you have a purple pen?” As a girl, being unable to articulate her desires or frustrations sometimes led to her lash out physically. Over time, the physical outbursts led to destruction of property and began to threaten the safety of the people around her.
When she tore the refrigerator door from its hinges, her parents sought the advice of professionals. They were informed that a state institution for people with intellectual disabilities had specialized programming that could help Ashley manage her behavior. They admitted Ashley to the facility with the understanding that she would stay there for a few weeks or months and then return to her home and community.
Five years later, Ashley was still under the supervision of the institution. She spent long years in the ward with cinder-block walls and few choices. Finally, she was able to move into a town-home on the campus and attend a self-contained classroom in a local high school. Unfortunately, one day she ran into the street without clothing on. Thankfully, she was returned to the ward safely. However, she lost her apartment, freedom and access to outdoors.
Not surprisingly, her socially inappropriate behaviors increased. She hit, kicked and pulled hair and stripped off her clothes in front of peers. Before long, the school district refused to serve her in a classroom. She went from five hours a day of school to having an instructor visit for 2 hours a week. When she wouldn’t engage with the male teacher assigned to her, his visits trailed off.
When her mother visited, she found Ashley spending day after day in her room without clothing, attention to personal hygiene, or any kind of activity. As she had done for years, Ashley’s mom advocated for a less restrictive placement and appropriate educational services. When her efforts were met with failure, she called the DLC for help. Our Abuse and Neglect Team went to work seeking a less restrictive residential placement. They contacted the Division of Services for People with Disabilities and requested that Ashley’s case be sent out to community residential providers in the hopes of finding other options. Multiple providers responded. Ashley’s parents were concerned about switching schools. They thought that moving to a new home and a new school would be too much for Ashley to handle all at once. After several months, Eaton Alliance offered a placement within the boundaries of the local school district, where Ashley had been attending school before she was removed from the classroom.
To address Ashley’s educational needs, our education team filed a State Complaint against the school district, asserting that they had not placed the client in the least restrictive environment and had failed to provide her with a free appropriate public education. DLC attorney, Laura Lee Gillespie, remembers, “It was clear that the focus was on control of Ashley, not on her potential as a productive member of society and a student in the public schools.” The Utah State Office of Education agreed. Ashley was awarded over 100 hours of extra instruction time to compensate for the district’s failures. She has since returned to school full time.
Now Ashley returns from school to a lovely apartment that she shares with a roommate. She is learning to shop at the grocery store and engage in other community activities. She enjoys sitting on the grass. When she arrives home, she is already looking forward to the next day. She loves making choices at snack time. She has a chair of her own where she can sit and choose what TV show she wants to watch. Many days she relaxes by just folding clothes. But recently, she went out for pizza with her roommates and staff. She has a lot to learn about the world outside the institution, but seems happy.
The DLC hopes other clients can experience similar success, in both school and residential settings.
DLC Smooths the Path for Negotiations Regarding ADA and Fair Housing Act Requirements
Ron Tollefson and his wife enjoyed living in Vernal, where their home was an important part of their lives. Unfortunately, after he broke his back Ron’s mobility was limited. Around the same time, his wife underwent surgery to remove a brain tumor. This left her with some cognitive challenges and difficulty maintaining her balance.
Together, they made the difficult decision to leave their home behind and purchase a new one in a Planned Unit Development (PUD). It was on one level. Yard work and snow removal would be taken care of. At least that’s what they were told. Like many of the residents in the new development, the Tollefsons were friends with the developer, and his son, who was the builder. “We were totally shocked when we found out that they were not honest.” says Ron. “Almost all of us moved in before the development was finished. Instead of it turning out to be a very good thing it has turned out to be a nightmare.”
Here is the rest of the story in Ron’s words:
During the construction phase of our PUD, several of us were concerned about what would happen with the street when all 17 homes were completed. We looked forward to putting the dust and mess behind us and enjoying the benefits of a PUD. We asked the developer [what would happen when construction was complete] and he said that Vernal City would take over the street when the last home was finished.
The developer held a barbecue at his home where all 17 home owners signed off on taking over the responsibility of organizing and operating a Home Owners Association (HOA). Once again, with more than 30 people present, we asked about the street. The developer stated that now that the homes were all completed, the City would be taking it over.
Sometime later, when it snowed, the city plows did not come. We were then aware that the city had not taken over our street. We also learned that when a Vernal City inspector had come to do an inspection, he informed the developer of changes that needed to be made to make the development compliant with the Americans with Disabilities Act. The builder ran him off and told him to never come back, because the street was never going to be a city street.
After attending a training conducted by the Disability Law Center, I told the advocate about our problem. I explained that many of my neighbors who use wheelchairs and walkers can’t navigate our neighborhood because there are no curb cuts. Every driveway and sidewalk was not accessible. I asked the advocate if she knew a way that we could get some help.
The DLC looked into the matter and took the case. On our behalf, [they] filed a discrimination complaint with the Utah Antidiscrimination & Labor Division (UALD). Sometime later, three of us from our association and the DLC met in Salt Lake City for a reconciliation hearing at UALD. The developer, his son (the builder), and their attorney attended by telephone. That hearing was very positive for us as the DLC Attorney came well prepared. He demonstrated that the builder and developer had violated the design/construction provisions of the Fair Housing Act and the accessibility guidelines of the ADA by failing to design and construct the sidewalks, curbs and common use areas of the subdivision in a manner that made them usable by persons with disabilities. The hearing officer got worked up, commenting that, “this is the most egregious example of not following ADA standards that I have ever seen.”
I thought that the meeting was more of a public reprimand of the builder than any kind of reconciliation. A few days later, the DLC attorney informed us that the developer admitted that he was in violation of ADA/Fair Housing Act standards and agreed to make the necessary changes, [totaling $144,000], so it could become a city street. The UALD Fair Housing enforcement office will monitor the result for compliance with the agreement.
After our first meeting with the DLC, we knew we were in the right place. It was a difficult situation for us and our neighbors. My wife and I, as well as others, didn’t want to sue the developer because we had known him for a really long time. Given the difficult circumstances and complicated personal relationships in this case, we achieved a very good result for all the residents of Rockville Estates. Instead of making a big mess of things, we were able to handle the situation professionally. On behalf of our HOA, we thank the DLC for your assistance.
Medicaid Appeal Secures Speech Augmentative Communication Devices for Utahns with Disabilities
In September 2012, the Utah Court of Appeals overturned a state Medicaid policy denying coverage for speech augmentative communication devices (SACDs) to adults over 21. SACDs were made famous by world-renown scientist, Stephen Hawking.
The appeal was originally filed in 2010 on behalf of Patty Olguin and Nicholas Conley, whose requests for SACDs were denied by Utah’s Medicaid agency. Ms. Olguin was diagnosed with multiple sclerosis at the age of eight. After a medical procedure in 2002, she had a stroke and lost the ability to speak clearly. Since then, she has been unable to communicate effectively with the people around her. But Patty knows what she wants to say. For a decade, she has relied on nursing staff to guess at what may be causing her to feel pain or discomfort. Choosing the color of a shirt or a picture on a wall may seem small. For Patty, however, it represents the beginning of freedom and independence.
Mr. Conley has cerebral palsy. Until the age of 22, the school district provided him with an SACD. After leaving school he lost access to the device. Since then, he has been unable to communicate his most basic wants and needs. He misses communicating meaningfully with friends and family.
During the appeal, Managing Attorney Robert Denton argued that Medicaid’s policy of denying SACDs to Utahns over 21 should be overturned because it violates the Federal Medicaid Act.
The court agreed, ruling that Utah Medicaid did not have the discretion to deny SACDs to adults. It also agreed that the policy was not reasonable, and illegally treated people differently. The decision makes it clear that the agency cannot deny adults many of the other services and devices it covers for children.
When DLC staff visited Patty to tell her she had won, her smile was immediate and overwhelming. Since the ruling, the DLC has been working with speech therapists to let people know that they can now ask for communication devices for adults. Our hope is that all eligible Medicaid clients will get the services and equipment they need. Like Nicholas and Patty, we feel the decision has the potential to be far reaching.