9^TH CIRCUIT APPEAL SUCCESSFUL

The Arc of Washington State, et al v. Quasim/Braddock et al is the lawsuit that the Arc and three named plaintiffs filed in November 1999 against the State of Washington. Our law firm is 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 and in the least restrictive environment necessary.

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 began fulfilling its obligations under the proposed settlement, providing $6 million in new services. After it was fully phased in, the settlement would have delivered $105 million a year in additional services for persons with developmental disabilities.

However, after objections to the settlement were raised, the court eventually dismissed the lawsuit in its entirety on June 17, 2003. The board of directors of the Arc of Washington State decided to appeal the court’s ruling to the Ninth Circuit Court of Appeals. The Ninth Circuit is the federal court of appeals for the western United States.

The appeal was assigned to a three judge panel of Kozinski, Fernandez, and Clifton. The plaintiffs and the State submitted their written arguments to the court. On October 4, 2004, we argued the case before the judges and took their questions. The court issued an opinion and accompanying memorandum in March 2005, but The Arc successfully argued that the court’s opinion contained errors. The court withdrew its opinion and published a new one October 14, 2005.

The Ninth Circuit said that the district court judge had been wrong to dismiss the case and ordered that the lawsuit go forward. The case is now assigned to a different federal judge, J. Kelley Arnold. The Arc has decided to enter into new settlement negotiations with the State. If the settlement does not succeed, trial is set to begin in Tacoma in September 2007.

Are you the guardian of a person who had wages (not Social Security) of over $500 per month for the past three months? Did you know that it is the law that you have to file an "Annual Statement of Income" if the person does NOT have more than $3,000?

According to RCW 11.88.100, a guardian does not have to post a bond or get an order blocking guardianship funds, if the amount is less than $3,000. In those cases, however, "the guardian or limited guardian shall file a yearly statement showing the monthly income of the incapacitated person if said monthly income, excluding moneys from state or federal benefits, is over the sum of five hundred dollars per month for any three consecutive months."

We suggest filing an annual statement of income in February after receipt of all W-2's. Please contact this office if you need to file such a statement. No hearing is required and the statement can be mailed in.

Special Education Complaints

Parents and educators may have different opinions about how to best serve a student with disabilities. In their efforts to resolve conflicts with school districts, parents may apply different options, ranging from the informal to the formal.

Many special education conflicts can be resolved through collaborative problem solving. A letter to a district administrator clarifying the student’s educational needs may be all it takes to resolve the conflict. Other conflicts are resolved through Individualized Education Program (IEP) meetings. When parents and educators work together, the student benefits because the focus is on the needs of the student, not on the conflict.

When the parents and district disagree over a student’s educational program, either party may request mediation. Through mediation, the parents and district work with a neutral third party to help resolve the conflict, clarify issues, and come up with a mutually acceptable agreement to best meet the student’s educational needs. Mediation is less formal, adversarial, and costly than a due process hearing.

Parents may also file a citizen complaint against the district. Such a complaint can be filed with the Office of the Superintendent for Public Instruction (OSPI). OSPI is the state agency in Olympia. OSPI will investigate the complaint and determine whether any of the applicable special education laws were not followed. The only disadvantage to filing a complaint is that it may take OSPI some time to investigate the circumstances. If you are interested in this option, contact the OSPI Special Education Section at (360) 725-6075.

Any person who believes there has been an act of discrimination on the basis of disability against a student by a school receiving federal education dollars may file a complaint with the Office for Civil Rights (OCR). Contact the Washington OCR office at (206) 220-7900 for information about the process for filing a formal complaint.

When a school district is refusing to provide appropriate services to or has discriminated against multiple students, parents can come together and file a group complaint against the district with OSPI or OCR.

Should a conflict not be resolved through collaborative problem solving, mediation, or a complaint to OSPI or OCE, parents may request a due process hearing. At the hearing, an Administrative Law Judge (ALJ) hears the evidence and arguments of the parents and the district. The ALJ then makes a decision based on the special education laws.

If you are interested in any of these different options to resolve a special education dispute, you may contact Elizabeth Brownhill in our office.

When do I need a . . .

When any person turns 18, he or she is presumed to be competent. This means that he or she can begin using credit cards, signing leases, and purchasing cars. With a guardianship in place, any contracts made by the person with the disability are void. Guardianship also permits the guardian to make medical decisions on the disabled person’s behalf, which is necessary if the disabled person is unable to give informed consent or to execute a power of attorney. The guardian can also obtain health records and medical test results.

Because guardianships restrict the rights of a person with disabilities, they are used only when necessary, and less restrictive alternatives are always considered. These may include a power of attorney or a trust. Guardianships can also be limited and narrowly tailored to restrict only certain rights of a person.

A power of attorney is a less restrictive option than a guardianship. A power of attorney is a document in which you give another person the power to make decisions on your behalf. Powers of attorney can be solely for health care, solely for finances, or for both. Powers of attorney are revocable.

Testamentary special needs trusts allow people with disabilities to inherit money without losing their SSI and Medicaid benefits. They must be properly drafted in order to work. This type of trust becomes effective only after the person with the will dies.

This type of trust can exist right away. If someone wants to give money to a disabled family member, or if the person with disabilities wants to save more than the $2000 allowed by Medicaid, these trusts are very useful. It is important not to mix the disabled person’s money with money from other sources, and so sometimes two trusts are needed.

Health care directives, also known as living wills or advance directives, are directions on whether a person wants artificial nutrition and hydration.

Please contact our office if you would like to discuss any of these documents.

We are pleased to announce that Jeanette Stengel and Cristy Denton have joined the firm as paralegals. They are engaged in the full gamut of legal work here, including guardianships, trusts and estate planning, special education and Social Security cases. We are sure that you will be delighted with the professional service that they provide you.

Jeanette Stengel was hired in May 2006. She graduated cum laude with a degree in Human Development from Washington State University in 2003. She worked as a legal assistant at Thompson & Howle for two years. She has worked with persons with disabilities as both a legal assistant and a care provider. Outside of work, she enjoys gardening, hiking and biking with her son, husband and two overfed, badly behaved dogs.

Cristy Denton joined us in July 2006. She has lived in Seattle for 11 years and is a graduate of the University of Washington with a BA in Law, Politics & the Economy. In her spare time she enjoys reading and traveling with her husband.