EL GUARDIÁN

Newsletter of the New Mexico Protection and Advocacy System

Vol. 11, No. 1 Winter 1998

DISCRIMINATION PROHIBITED IN PUBLIC ASSISTANCE

New Mexico’s Protection and Advocacy System along with the New Mexico Center on Law and Poverty, has successfully challenged a discriminatory reduction in General Assistance benefits. The State Supreme Court recently decided that a regulation created by the New Mexico Human Services Department last year violated the Americans with Disabilities Act because the regulation explicitly provided that disability was a distinguishing criteria in the allocation of public benefits.

The State of New Mexico has a public assistance program called General Assistance. The purpose of the program is to provide aid to people unable to work, both "temporarily" and "permanently" and children who are financially AFDC eligible but living with someone not eligible for AFDC.

The Human Services Department claimed it was going to run out of money during the 1995-1996 fiscal year. To prevent that, HSD decided to stretch its budget by creating a regulation that placed time limits on the GA benefits it gave to adults with disabilities. The regulation, called FAP-419, limited the General Assistance benefits for adults with disabilities to 12 months in any 21-month period. HSD placed no such restriction on the other recipients: children in foster-type homes.

The Supreme Court’s decision affirms that of the district court on May 28, 1996. The Human Services Department must notify all people affected by the time limits, assess whether or not they are entitled to back benefits and pay the money illegally withheld.

The Supreme Court was very clear that people who receive benefits under a single program were entitled to equivalent benefits. A state agency cannot deny people benefits by reason of their disability. --Nancy Koenigsberg

SAVE IN ORDER TO SERVE

The Department of Health has begun a program to reduce the money it now spends on those in the DD service system, in order to use the savings to serve people now on the waiting list. The "Save in Order to Serve" initiative has created considerable controversy within the disability community.

The cost reduction plan is the result of action by the 1997 state legislature. At the request of Governor Johnson, an additional $2 million in state funds was appropriated to meet the needs of persons with developmental disabilities currently on waiting lists for services. Through the Medicaid waiver, these state funds can generate matching federal funds at $0.75 for every $0.25 (state) spent.

However, there is a "catch": the new state and federal money can only be spent if an equal amount of money is saved from the total spending on persons currently served in the DD community system, and if these savings are also used to serve people on the waiting list. Thus, the state may have up to $15 million to meet the needs of people on the waiting list, but half of this total money must come from cost-savings in the current system. Although the P&A System supported additional funding for the waiting list, it did not support the contingency language due to concerns over the impact of forced cost-savings.

Proponents of "Save in Order to Serve" see it as a practical way of addressing the waiting list in times of limited resources. They point to the large amount of money spent per capita on persons in the state DD system (one of the highest rates in the country), relate anecdotes of families who receive services that are not needed but are provided because they are available, and note that many families and case managers build in a high level of service in order to hedge against future needs.

Opponents fear that current clients will lose services that they need and will be at greater risk to their health and safety, that certain service models may be eliminated if not funded sufficiently, and that budget concerns rather than individual needs will drive the service system. A voluntary reduction approach to savings, combined with the long term effects of some earlier cuts, has already generated enough savings that the Department expects to begin drawing down some of the new money for people on the waiting list.

However, the savings to date are not enough to reach the target of $2 million in state money, so the state is also proposing changes to some of the rates it pays for certain services. One of the targets for rate changes is the family-based residential living model, under which families of adults with disabilities, as well as surrogate families, are paid to provide home-based care for adults.

The state is expected to propose a two-track rate based on level of client need. Families providing care for those with intensive needs would receive approximately $2,000 per month, with an additional $1,400 per month going to respite, supplemental in-home services, and an overhead fee to the administering agency; this is comparable to the current rate, which is not adjusted for level of client need. A new rate would be paid to families caring for adults with less intensive needs; such families would receive approximately $1,700 per month, with additional funds for support services and overhead of over $500.

The rate changes will be done through state regulations, and thus the subject of a public hearing. No actual changes to the rates will be implemented until at least next March.

Since the New Mexico P&A played a lead role, through the Jackson case, in assuring that the community-based system would be built upon a person-centered planning model that identifies long term goals and the services and supports necessary to achieve them, P&A will monitor this issue closely. Action will be taken as necessary, to assure that cost-cutting measures do not interfere with the continued growth in quality within the community service system. As explained elsewhere in the newsletter, P&A is seeking court approval of a plan which commits the state to continued, measurable improvements in community-based services. --Jim Jackson

JACKSON SETTLEMENT MARKS NEW ERA

The Parties in Jackson v. Ft. Stanton Hospital presented a stipulated agreement to the court in November, 1997, setting out the tasks that must be done to bring the case to an end. The Joint Stipulation on Disengagement envisions broad enhancements to the developmental disabilities service system in the community and sets standards for improvements in individual program needs, with the intent of ending the decade-old lawsuit within the next few years.

In 1987 New Mexico’s Protection and Advocacy System, the Public Interest Law Center of Philadelphia and other attorneys filed the Jackson lawsuit. The lawsuit challenged conditions in state institutions and alleged that the community discriminated against individuals with severe disabilities by restricting them to institutions by lack of intensive, community-based programs. Over the last ten years since the filing of the Jackson lawsuit, intensive planning for each individual’s transition back into the community has taken place. The meetings have included the individuals and their families, advocates, and service providers from both the institution where they were residing and the residence to where they were transitioned.

In March, 1995, the last person living in Fort Stanton Hospital and Training School transitioned into the community and that facility was closed. In July, 1997, Los Lunas closed its residential services. New Mexico is now the fifth state in the country that has closed the doors to its institutions for people with developmental disabilities. Since the individuals have moved to homes and services in the community have been secured, a comprehensive plan for ending the Jackson litigation has been developed. The plan states that current regulations governing community placements and establishing client rights will remain in place. It provides that class members will receive certain services and protections as the case ends. It ensures that the State of New Mexico will enhance the community service system, and that all class members will see continuous improvements in their individual plans. The Stipulation also describes the process by which the case will end.

In nearly all situations, people leaving the institutions have moved into homes or apartments with one or two roommates, having in-home support services, rather than large group homes or nursing homes. Follow-up studies show a high level of satisfaction with services among individuals who have moved to the community. Since leaving the institutions, Jackson class members are generally enjoying a wider circle of social contacts and are visiting their families more often (most moved closer to their relatives). Their friendships are more likely to include peers rather than just the staff paid to work with them. They report being able to make more choices in life, including what to wear, having time alone, how to spend their money, and what they do not want to do. More class members are working now that they live in the community as well. Many class members who had self-injurious behaviors while living at the institution have much less dangerous behaviors now; in some cases the self-injurious behaviors have stopped completely.

As the parties work together to implement the Stipulation on Disengagement, the hope is that the class members, already experiencing much more freedom, will be able to enjoy greater integration into their communities. -- Colleen Miller

LOTTERY UPDATE

The Lottery case, Fisher v. State of New Mexico has partially settled. A press release was issued on September 18th and stories ran in several New Mexico papers on September 19th.

Among its provisions, the settlement requires the New Mexico Lottery Authority to train retailers on the use of auxiliary aids and services and requires retailers to certify compliance with the Americans with Disabilities’ Title III requirements for auxiliary aids and services.

There are approximately 1,400 community businesses which are lottery retailers, creating the potential for a very significant impact. The New Mexico Lottery Authority has also agreed to install a TDD and caption their commercials. According to the FCC, "closed captioning is an assistive technology designed to provide access to television for persons with hearing disabilities."

The National Center for Health Statistics estimates that there are 22.4 million Americans with hearing disabilities and the National Association of the Deaf estimates that people with varying degrees of hearing loss compromise 8.6% of the U.S. population. These figures extrapolate to approximately 138,000 New Mexicans who might directly benefit from the settlement and does not include those persons who might be benefited by auxiliary aids and services provided by the 1,400 retailers.

We hope that this settlement will establish a precedent for other public entities to caption commercials and public service announcements -- Greg Trapp

EVERYTHING YOU WANTED TO KNOW ABOUT TRANSLATION BUT WERE AFRAID TO ASK

Because we work in a culturally diverse state, language differences can impose additional barriers to people with disabilities in receiving services. Awareness of sensitive translation issues may help us improve translated materials circulating in our community.

1. If you can speak another language, why can’t you translate it?

Just because you have two hands doesn’t mean that you can play the piano much less that you can become a concert pianist. Spoken language skills and written language skills are separate and must be learned. There are levels of proficiency that also come to bear - spelling, grammar, syntax, vocabulary and other elements all play a part in translation. Bear in mind that one must be proficient in both the source and the target languages.

2. Why does it cost so much?

When you hire a professional translator you are paying for their experience, their education, their area of expertise, their judgment and their accuracy. A good translator will know the culture of both languages and be familiar with the idiomatic expressions. S/he will have excellent resources such as dictionaries, technical manuals, textbooks, journals, or other resources that contain the specialized vocabulary of the topic that s/he has been asked to translate. S/he must know where to get the information if s/he doesn’t have it; i.e., libraries, the internet, or experts in the related field. A good translator is constantly learning and expanding his/her vocabulary base.

3. Can you have this for me tomorrow?

Just as any other job well done, translation takes time. Translation is more than just finding the equivalent word. There is no such thing as a word-for-word translation. It may take up to 1/3 as many words in Spanish to translate a passage from English, for example. "Rush jobs" may require the translator to work around the clock and the client will be charged accordingly.

4. Why are all those accent marks so important?

Accent marks do make a difference in both pronunciation and meaning. For example, in Spanish sabana means savanna, a geographical term for a plain, and sábana means a bed sheet. Similarly, el means the article "the", while él means "he", the male pronoun. There are very precise rules for accent marks that affect the pronunciation of a word; for instance, in Spanish, a word that ends in "s" is always accented on the second to last syllable. Exceptions to this rule, words like revés (which means reverse or the other side), use the accent mark to show this exception. There are more letters in the Spanish alphabet than in the English one. Letters such as ñ, ll, and rr all have different sounds attributed to them.

5. How can it be that translators can produce more than one version of the same text - Isn’t there just one correct way to translate something?

There are differences in style, slang, neologisms, ("new" words such as computer, LASER, mammogram), etc., that account for this. There are different ways of looking at the world. The word "neighborhood", for example, may be translated as vecindad or barrio, depending on the speaker and/or the audience.

6. Why should we bother to get a professional translation of a document for our client?

Important decisions can’t be made without information. A client can only make good choices and understand the consequences of those choices when s/he has the complete picture. In team meetings, the client is sometimes present and is supposed to be a major contributor, if s/he is capable, to the important decisions that are being made about his/her future. Persons with disabilities and their families are going through enough already without the added burden of incomplete, inaccurate, confusing or insensitive information. -- Ileana Johnson

Andrew Cuomo, U.S. Department of Housing & Urban Development Secretary, recently notified New Mexico’s P&A that we were awarded a 1997 Fair Housing Initiatives Project (FHIP) grant to enforce the nation’s fair housing laws. Ellen Corbet, a previous New Mexico and Hawaii P&A advocate is the coordinator of the new project. The New Mexico P&A also continues to provide services under Developmental Disabilities (DD), Protection & Advocacy for Individuals with Mental Illness (PAIMI), Client Assistance Project (CAP), Assistive Technology (PAAT), and Protection and Advocacy for Individual Rights (PAIR).

Q. Is there a program to help an individual with mental illness if he or she is arrested in Albuquerque, Bernalillo County?

A. Yes, there is a jail diversion program. First, there is screening to decide if the person is appropriate for the program. If so, the individual gets a case manager who helps coordinate with Pre-Trial Services. Once there are community resources and a treatment plan in place, the individual may be released from jail.

Q. If you enter a psychiatric treatment facility on a voluntary basis, can you leave at any time?

A. As a voluntary patient, you have the right to ask to leave, but that might not necessarily happen. Once a voluntary patient asks to leave, one of two things must occur:

• If the doctor feels you are well enough you must be immediately discharged.
• If the doctor believes that you present a likelihood of serious harm to yourself or others, that you need medication and can benefit from the treatment, and that the proposed commitment fits in with your treatment needs, the doctor may refuse to discharge you.

Technically, at that point you are no longer a voluntary patient, but are placed on a hold. By the next business day after your request to leave, the hospital must petition the court for a commitment hearing. This hearing must be held within 5 days of your request to leave.

Q. What exactly is the Americans with Disabilities Act (ADA)?

A. This Act gives civil rights protections to those with disabilities. It guarantees equal opportunity for them in employment, transportation, public accommodations, state and local government services and telecommunications.

Q. How do you know if an individual meets the criteria for having a disability?

A. For purposes of the ADA, one is considered to have a disability if he or she:

• has a mental or physical impairment that substantially limits one or more major life activities;
• has a record or history of such an impairment; or
• is regarded as having such an impairment; an example of this might be someone who is suspected of being HIV positive.

Q. Is there an ADA number I can call if I have a question?

A. Yes - the ADA Information Line is 800-514-0301 (Voice); 800 514-0383 (TDD). -- Roslyn Byron

RESTRUCTURING AT P&A

In an effort to respond to changing resources, and to more effectively focus on the most important advocacy issues, Protection and Advocacy reorganized in 1997. Instead of having a few staff persons assigned to each grant-funded program, the agency now features an Information and Training (I&T) Unit and an Advocacy Services Unit. Each unit is assisted by staff from a Support Services Unit. Each unit carries out work within all the grant programs operated by P&A. New callers to the agency are received by the I&T staff, who provide information and referral covering all agency programs. Those with problems that might require intervention by P&A are screened by this unit to determine whether their problem falls within the annual priorities established by the agency. Priority cases are referred for follow-up by the Advocacy Services unit. Others may receive short-term assistance from the I&T unit, if staff time is available, or may only receive information and referral. The I&T unit is also responsible for the agency’s state-wide outreach and its training activities, including the development of brochures and training materials.

In addition to its client advocacy work, the Advocacy Services unit is involved in class action or other litigation, as well as the "systems" advocacy work which impacts the legislative process and state agency policies and practices. -- Jim Jackson