Judge's Dismissal Limits Recovery to $6Million
Appeal in Progress

The Arc of Washington State, et al v. Quasim, et al is the class action lawsuit our firm filed on behalf of the Arc of Washington and three named plaintiffs in November 1999 against the State of Washington. We are the law firm representing the plaintiffs, including the Arc. The lawsuit demands that clients of the Division of Developmental Disabilities who have requested Medicaid-funded services, and who have been found eligible for those services, be given those services with reasonable promptness.

After extensive litigation, the State of Washington agreed to provide millions of dollars in new Medicaid services for persons with developmental disabilities. Beginning in July 2002, the State did begin fulfilling its obligations under the proposed settlement, providing an estimated $6 million in new services, according to Sue Elliott, executive director of the Arc. After it was fully phased in, the settlement would have delivered $105 million a year in additional services for persons with developmental disabilities.

However, in December 2002 the court rejected the settlement agreement and decertified the class, apparently because of objections raised by attorneys for Columbia Legal Services and the Washington State Protection and Advocacy System, who claimed that the settlement was inadequate. Because of this, the State immediately stopped spending the new dollars that had been appropriated and no new persons were added to those receiving developmental disabilities services.

After the parties made additional motions, the court dismissed the lawsuit in its entirety on June 17, 2003. In its ruling the court reversed some of its earlier rulings and said that the Arc did not have "standing" to bring the suit, that is, did not satisfy the rule for a party being able to sue. For example, the court said the lawsuit would require the needs of each individual Arc member to be ascertained, so an organization could not sue on their behalf. It also threw out the three individuals who were suing, saying that they should have gone through individual administrative hearings before being able to bring the lawsuit.

The board of directors of the Arc of Washington State, and the three individuals, decided to appeal the court's ruling to the Ninth Circuit Court of Appeals. The process is likely to delay any additional recovery for individuals for many years.

HIPAA & FMLA

Two of the laws coming out of Congress in the last few years that affect people with disabilities are HIPAA and FMLA. The article provides a little background on each. HIPAA was passed in 1996, but its privacy regulations are only taking effect now. It provides increased privacy protections for medical information about disabilities. FMLA, which took effect ten years ago, is an underutilized law that protects workers who have to take time off to care for a family member with disabilities.

HIPAA
The Health Insurance Portability and Accountability Act sets national privacy standards for medical records. Generally, it provides that covered companies and individuals may not release information about you - or your minor children - without first obtaining your written consent.

Covered entities include almost all health care providers - like doctors, dentists, and hospitals - and most kinds of health insurance programs. Schools are not covered, because they are already covered by the Family Educational Rights and Privacy Act (FERPA).

What information is covered. "Individually identifiable health information" is information that relates to the individual's past, present or future physical or mental condition, the provision of health care to the individual, or the payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).

Guardianships require supporting medical evidence to evaluate disability. Under HIPAA, some health care providers will require a court order be obtained before they will release information to the guardian ad litem. HIPAA provides that a "personal representative" can both obtain, and consent to the release of, medical information. Therefore parents of minor children with disabilities can consent for them. Guardians may also obtain medical information and consent to its release, for the individual with disabilities of whom they are guardians. 45 C.F.R. Section 164.502(g).

Personsl who violate HIPAA are subject to civil sanctions by the federal government; "knowing violators" are subject to criminal penalties.

FMLA
Under the Family Medical Leave Act, parents and stepparents who are employees of certain companies are entitled to unpaid time off to care for their family member with a "serious health condition."

A covered company is one with at least 50 employees within 75 miles of the jobsite. The employee must have worked for the company for twelve months, putting in at least 1,250 hours. A "serious health condition" is one that requires inpatient care or "continuing treatment by a physician or other health care professional." Many disabilities will qualify.

A covered employer must allow the worker who takes an extended leave to return to the same job. Twelve weeks is the maximum leave allowed. Workers can be required to use accumulated sick leave or vacation time as part of the twelve weeks.

A family member may need intermittent medical care (for example, an employee may have to take a child to periodic doctor's appointments for scheduled treatments). In that case, a company is allowed to transfer the employee temporarily to a different job, as long as it has the same wages and benefits. When absences are forseeable, the employee must notify the company ahead of time about the need for leave.

Contact your company or this office for further information.

Getting Paid for Caring for Your Disabled Adult Child

Research proves that families who care for their disabled children at home earn less money than comparable families, because they have to skip better-paying jobs, or any job at all, to care for their son or daughter. Fortunately, there are two government programs that help fight that income loss a little. The programs make good sense to the government, because it is much cheaper to have families care for persons with severe disabilities than paying anyone else to do it.

There are two primary programs through which benefits may be payable to you for the care of your adult child with disabilities. The first, Medicaid Personal Care, is better known and available to more people. The second program is a Social Security benefit for spouses of a retired worker - even if the child does not live with you! (This is in addition to the "room and board" that families may charge their child for living with them out of the child's Social Security benefits.)

Medicaid Personal Care
If your son or daughter is an adult, is a client of the Division of Developmental Disabilities (DDD), has less than $2,000 in assets, and lives with you, call his or her case manager today if you are not receiving this benefit! DDD will arrange an assessment to determine how much you may be due for performing the tasks that you did for free when he or she was a child. (If your child has over $2,000, call this office for help qualifying. If your child is under 18 and the whole family is poor, or your child is on the CAP waiver program, your child is also eligible for these benefits, but not from you.)

You will be eligible if your son or daughter needs help with ambulation, bathing, body care, dressing, eating, personal hygiene, posititioning, self-medication, toileting, transfer, help with related household tasks, supervision, transportation, wood supply, lifting, some skin care and exercise, changing dry dressing, general catheter and colostomy care. If you are the one who provides this help for your child, you can get paid for it.

The amount you will be paid depends on how much care your son or daughter needs, up to about $780 per month. That money is taxable income to you.

Social Security for Spouses of Retirees
If you are under 62 years old and the spouse of a person who is retired drawing Social Security benefits, you are eligible for spouse's benefits if you are "exercising parental control and responsibility" over your son or daughter with mental disabilities or are "performing personal services" for your physically disabled child.

"Exercising parental control and responsibility" means that your child does not even have to live at home, as long as you are directing the care received, participate in the important decisions about the care, and measurably control the child's upbringing and development. In fact, you cannot have the benefit even if your child does live at home, if all you do is provide food and shelter, because the child does not need any other assistance. You must still provide the kind of parenting that is required to raise a minor child. If someone else is the guardian, you are not eligible for the benefit.

How much does it pay?
AS a spouse, you are eligible for one half the amount of your retired spouse's Social Security retirement benefit. (This is in addition to what he or she receives.) That amount is reduced by one dollar for every two "excess" dollars you earn if you are younger than full retirement age. If you are under full retirement age, the excess earned dollar amount for 2003 is $11,520. If you are full retirement age, the amount is reduced by one dollar for every three "excess" dollars you earn. If you are of the full retirement age, the excess earned dollar amount for 2003 is $30,720.

These benefits for you are reduced, and often eliminated, if you are already receiving other Social Security benefits. Apply to Social Security for details of this program and the amount of your benefit.

Office News

We are very pleased to welcome Elizabeth Brownhill to the firm! She graduated from Seattle University School of Law in 2001. Beth has a brother with developmental disabilities. Her practice here has concentrated on special education and Social Security disability law.

Christy Ibrahim continues to teach Disability Law at the University of Washington School of Law. This autumn quarter there will be the first clinical practice training program in disability law. Christy is one of the leaders of that clinic.

Rachel Miller (formerly Ennis) has been working for our firm since 1999 and received her paralegal certification in 2001.

Chris French has been our general legal assistant since last year while he continues his college work.

Larry Jones continues his regular practice of public speaking to parents of persons with developmental disabilities. Earlier this year he was an organizer and invitee to the first National Goals Conference for research in the field of intellectual and developmental disabilities in Washington, D.C., a conference organized by the Arc. The conference report, entitled "Keeping the Promises" is accessible at www.thearc.org.