Disability Advocates/Consultants of South Texas

 

This Website is dedicated to providing information to individuals with disabilities, their families, their friends and their service providers. Updates and current information will be addressed based upon the questions received from the readers. Your questions are welcomed and should be addressed to me, Karen Dalglish Seal, at:

 

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What's New/News:                                               Vol. 2, Issue 9

ADVOCACY NEWS

Hello Everyone,

You may have read that the Supreme Court ruled that state workers cannot sue under the Americans with Disabilities Act. That's true. Now it is up to the states to provide its workers with laws that protect each person with a disability. That means we need to be lobbying. Many state workers have disabilities and this ruling from a very conservative Supreme Court will hurt them. For one thing, if the state does not establish some laws to protect their workers, then employees with disabilities will never have adequate protection from discrimination. Second, and closer to home, few citizens with disabilities who have sued this state in the past ten years have met much sympathy from the Texas Supreme Court. The key is to contact our representatives.

Texas is one of the worst states for protecting its disabled population. Without the ADA, many counties would never have put an elevator in their courthouses (and, all or most of the courtrooms are on the second floor in many courthouses). Some county courthouses have never installed ramps or elevators. Even the Texas Supreme Court is almost inaccessible. So, we will need to work hard to demand that laws be passed now. We need to be lobbying the legislature. Remember, no change has ever been made by compliant citizens who are unwilling to stand up for what is right.

Someone said (and I'm paraphrasing) that the reasonable man conforms himself to the world. The unreasonable man demands that the world conform to him. Therefore, all changes in this world are made my the unreasonable man. Let's be a little unreasonable and insist that the laws get passed quickly so that all citizens have equal protection under the law.


Second, I'd like to take the time to respond to some emails I have received.


Ms. Seal,

I found your site in some desperation this evening and am writing in the hope you may have some thoughts to share with me on our situation. My son is 20 years old and joined the Army in northern Arizona six months ago. At the time, the recruiter assured him that the Army could assist with care for his wife who has Muscular Dystrophy during his military service. She has no function in her legs, some in her arms, and is very clearly in need of 24-hour care. She has little ability to care for herself. My son graduated from basic training and completed Military Police training. He was then given a 20-day leave and allowed to return to his wife who traveled with her mother for my son's graduation, meeting many of his commanding officers during her visit there. Her doctor completed all the paperwork requested by the Army that stated her limitations and recommendations for her future care, and these were submitted to my son's commander prior to his leaving in January. While on duty last month, my son was engaged in recruiting activities in the local high school at the Army's direction. My son and the other recruiters returned to the base as directed last week, spent one night on base and were given written orders to proceed to another base. My son told me that his wife was "written into" the orders, which is apparently unusual. He was told to report the the Housing office and they would put him in touch with the Exceptional Family Member Program which would arrange for care for his wife while he was oriented to his new assignment, located housing, etc...

However, after traveling by car for several days on arrival and report at the new base, my son has been told that the Army has no provision for assisting with his wife's care. He was given three options:

  1. Send his wife back to live with her mother while he applies for a caretaker through the State of Texas.
  2. Pay $12.50/hour for care.
  3. Take an administrative discharge from the Army immediately.

These are all very difficult options for my son. His wife was separated from him for five months during his training and they were led to believe they could be together following completion. He doesn't make $12.50/hour to cover the cost of a paid caretaker. My son really loves the Army, has been very committed to learning and focusing on a career in the military. Tonight his hopes are pretty slim. He chose to marry young, has little training and is responsible for the care of his wife. His job options are very limited. His wife previously received disability benefits in the previous state, however, they were denied based on my son's minimum wage income, prior to his entering the Army. They were told if they had benefits in place in the other state, those would be transferable; however, at this point they'll need to go through the entire process again and hope to have benefits reinstated in the future. Meanwhile, he's being advised that the administrative discharge is in his best interest. Do you have any experience with the military in this area?


Dear Parents,

I know the military. They are pretty inflexible and work by their own rules. I would suggest going to the chaplain and to a military attorney. It is possible that the military might be willing to at least pay for some employment training for your son. I would also suggest that your son begin the process of applying for benefits immediately. Have your son contact Advocacy, Inc... They can provide a list of other resources who might be able to help your son. Also, have your son contact United Way. At the very least, United Way has a book of resources that can be useful. I would not suggest that your son voluntarily leave the Army. They did make a promise to him. I would suggest a call to your son's representative in Austin but the Army has a severe negative reaction to anyone going outside the system. However, that might be a last resource.

Believe me, your son will be fighting an uphill battle but there are resources in Texas that can help including adult daycare programs. Please suggest that he do the research. I wish him and his wife the best of luck. Please contact me again if your son needs more suggestions.

Karen

P.S. Please see the letter below regarding the Exceptional Family Member Program of the Army from Kerry C. Dauphinee.


Dear Karen,

I was just trying to get information on disability & not sure if you can help or not. I was trying to find out if you could help or give me tips on where to look for info on disabilities on who is eligible? I have a daughter that is a senior in high school & was trying to find out if she will be able to receive help when she moves out going to college. She has a handicap on her left leg she is unable to bend it the knee has been fused & it limits her qualifications to get a job. So if you have info I would greatly appreciate the help to get started looking for her some help.. Thanks so much & Have a super day!!

Liz


Dear Liz,

Please contact the Texas Rehabilitation Commission immediately (or your local rehabilitation agency if you are not in Texas). Also, contact Terragenesis. (I do not promise that the spelling is correct but I'll get back to you if I am wrong.) They publish a booklet called, The Solution. They can provide you with a rich source of information.

Thank you for writing. Let me know if I can provide you with more information.

Karen


Dear Karen,

We have a 3 year old boy who has hearing loss. We have done the tests but they are not sure how significant the loss of hearing is. They will put hearing aids on him but the insurance company will not pay for them. The initial cost is about $2500 and every six months part of the hearing aid will have to be replaced. Is there any state assistance or some organization to help defer the cost? We live in Florida.


Dear Parents,

Contact your local school district. Under the Individuals with Disabilities Education Act, your child is entitled to a free and appropriate public education and any and all adaptive equipment (including hearing aids) that he may need. The school district will provide speech and language services. Contact me if you have any problems obtaining the services you need. (The school can also guide you to local resources.)

Karen


Dear Karen,

My name is Vincent Beanes, I am 37 and was recently diagnosed with degenerative disc disease, I undergone l-4, l-5 lumbar disctectomy, Jan 4 and currently in P.T. for the next 4 weeks, my neurologist gave me a unfavorable prognosis. the disease is spreading up my spinal column and I may need spinal fusion, I know my condition may not qualify as a disability but I work in an environment where heavy lifting is a daily requirement.... I work for a VA medical center, and their policy will not give me any accommodation nor light duty, unless the injury is job-related.... my condition is not job-related..... I sought assistance from their union... but they could not help me in my case..... I also sought assistance from a veteran outreach worker.... and still found no help....I explained my need for accommodation with the labor relations specialist representing my dept.... having medical documentation explaining that on-going heavy lifting will accelerate my condition unfavorably....but was turned away I was told to "deal with it or quit"......I am the sole breadwinner for my family of 4, my wife and my two stepdaughters moved from another state last May, our son was born here in September, I am pleading for any assistance or information you could spare. Thank You and may God Bless You.

Sincerely,

Vincent


Dear Vincent,

Unfortunately, employment law is not on your side. And, even if you had a case against the VA, the court system is so conservative that you would be unlikely to prevail. That's the bad news. Apparently, a large enough percentage of the population support the conservative trend so I do not see that changing.

On the brighter side, you can continue to ask for a move to another department. You can also seek employment elsewhere. You can sue the VA under the Americans with Disabilities Act or, at least threaten to do so. You live in an area where there are numerous resources including organizations that will legally support people with disabilities. Start calling around. Let me know what you find out. Finally, call the state bar and ask for a lawyer in your area who specializes in disability law. You may be surprised at the help you can get.

Karen


Dear Karen,

I am a 100% disabled veteran and recently had a specially adapted home (wheelchair accessible) built. My biggest problem is the driveway, which has a 14 degree slope which I believe is excessive , but I have been unable to find any information on any standard degree number as acceptable. The VA only says that the driveway should be relatively flat. The builder keeps saying that the present driveway cannot be leveled and their proposals are not really solutions to the problem. And there are other things wrong with the property as I am almost a prisoner in my own home. The yard is also not accessible to me due to the slopes.

Do you think you can help?


Dear Sir:

I do have to ask why you purchased property with all of those slopes when you knew you had a disability that would limit your use of that land comfortably. But, regardless of the answer, please get a copy of the Americans with Disabilities Act. Then check your local building code. Both should help you on the slope of the driveway. Have somebody from Advocacy, Inc... or another local agency that assists the disabled, do a walk-through of your home and property. Ask them for suggestions.

If your house is already built, go see an attorney who works in the area of disability law. Call the state or local bar for a referral to a nearby attorney. Also, contact your state representative for assistance.

Finally, and I hate to suggest this solution, you may have to sell your home and buy or build another that meets your needs. An able-bodied person might buy your house.

Best of luck. I sincerely hope that your property and home problems can be resolved in some manner. It would be terrible to be a prisoner in one's own home.

Karen


Dear Karen,

Need to know where to find educational programs for educable mentally retarded after my son graduates WITHOUT diploma in June. The only option being offered by our school district is three more years in food service. He's pealed cucumbers and cleaned up the kitchen for three years. He wants to do more and deserves the chance for a more meaningful education. Help!

Thank you!


Dear Parent,

Please contact your school and ask for an A.R.D. to consider other options. Also, contact the Center for Health Care Services and Texas Rehabilitation Commission. Ask them to attend the A.R.D. Both agencies can assist you after graduation. Personally, I would not allow the student to graduate yet unless the school is absolutely useless. They can provide additional job skills. You may need to get Advocacy, Inc... to provide an advocate or contact an attorney to assist you if you believe your child's rights are being overlooked.

Karen


Third, I'd like to share the following information with everyone who has written and my readers:

All - The following is a listing of some resources for special needs...as I find more I will post them.

Regards,

Kerry C. Dauphinee`
Exceptional Family Member Program Manager
Army Community Service
Fort Sam Houston, TX
210-221-2705/2418

  1. Council for Exceptional Children: www.cec.sped.org
  2. LD Online: www.ldonline.org
  3. National Association of Private Schools for Exceptional Children: www.napsec.com
  4. National Information Center for Children and Youth with Disabilities: www.nichcy.org

Here is the memorandum about Medicaid rehabilitative services that Richard Lavallo mentioned during his presentation on Friday. If any one has any questions about the memo or knows of children who are having problems accessing such services, please email Richard at rlavallo@advocacyinc.org or call him at 512-454-4816.

REHABILITATIVE SERVICES COVERED UNDER STATE MEDICAID REGULATIONS

Chapter 419, Subchapter L of Title 25 of the Texas Administrative Code describes the requirements for the delivery of rehabilitative services reimbursed by Medicaid. Section 419.453 (21) defines "rehabilitative services" as including the following medical and remedial services:

  1. Community support services;
  2. Day programs for acute needs;
  3. Day programs for skills training;
  4. Day programs for skills maintenance; and
  5. Rehabilitative treatment plan oversight.

This memorandum will review each of the above-referenced services under the state regulations and focus solely on the services that could be provided to children or adolescents.

ELIGIBILITY

In order for a child or adolescent to be eligible for rehabilitative services covered under Medicaid, he or she must meet the following eligibility criteria (419.454):

  1. be under 18 years of age with a diagnosis of mental illness (but not a sole diagnosis of substance abuse, mental retardation, autism, or pervasive developmental disorder) and exhibit a serious emotional, behavioral or mental disorder;
  2. be enrolled in a school system's special education program because of a serious emotional disturbance; or
  3. be at risk of disruption of the preferred living or child care environment due to psychiatric symptoms.

COVERED REHABILITATIVE SERVICES

Under the state Medicaid regulations, rehabilitative services include:

  1. Community Support Services (419.456):

Community support services are provided in person one-on-one or in a small group (2 to 8 children and at least one staff), either on site (location operated by the Medicaid provider at which the service will be provided such as clinic, clubhouse, school, or day treatment setting) or in the community (including the individual's home).

The services include:

  1. initial and ongoing assessment of the child's psychiatric symptoms and skills and deficits and their impact of child's ability to integrate into the community (e.g. employment, school, housing, role-appropriate behavior, family and social relationships);
  2. designing, implementing and modifying interventions that are appropriate for the child's needs as well as monitoring and evaluating outcomes of interventions;
  3. symptom management and support services which include nursing services (e.g. administration of medication, monitoring efficacy and/or side-effects of medication, and other nursing services that enable the child to attain or maintain an optimal level of functioning); medication training and monitoring (e.g. information pertaining to the purpose and side effects of medications and self-administration of medication provided to primary care-giver of the child); other services to assist individual in the management of symptoms of his or her mental illness (e.g. stress management, behavioral strategies or techniques for coping with and managing symptoms, reality orientation and support services during times of crisis or episodes of acute psychiatric symptoms); and other support services to primary caretaker of child (e.g. training in stress management, behavioral strategies or techniques for coping with or managing child as well as supportive activities for the child when the child is in crisis);
  4. community living skills training which includes training in self-help skills such as personal hygiene, household tasks and money management, supporting and training access to community services such as medical care, legal services, transportation and living accommodation; training in communication, interpersonal interactions and behaviors and leisure time activities, and interventions to develop natural supports at home, work, school and social settings; and
  5. employment-related supports and skills training which include interventions on or off the job site or in school to reduce behaviors that interfere with job performance or development of skills that would enable the child to obtain or retain employment.
  1. Day Programs for Acute Needs (419.457):

Day programs for acute needs consist of short-term, intensive treatment provided in highly structured and safe environment with constant supervision. Day programs for acute needs include assessing child's psychiatric symptoms and current functional skills level and identifying those skills necessary for the child to be maintained at home and designing, implementing and modifying interventions as well as monitoring outcomes of interventions. Unlike an adult receiving services in a day program for acute needs, a child's length of stay per episode is not limited to 10 consecutive days. Day programs for acute needs must be provided on site with staffing patterns to include a RN during all hours of operation. Components of day programs for acute needs include:

  1. psychiatric nursing services, including crisis medical interventions (as ordered by a physician);
  2. behavior skills training; and
  3. independent daily living skills training in self-care, social skills, integrating into community services and other developmentally appropriate skills.
  1. Day Programs for Skill Training (419.458):

Day programs for skill training focuses on amelioration of mental illness and functional deficits through skill training and supportive interventions. Day programs for skill training must be provided on site with at least one professional (e.g. a qualified mental health professional-community services [QMHP-CS] as defined in 25 TAC 412.303) at the day program's location during all hours of operation. Components of day programs for skill training include:

  1. nursing services;
  2. medication training and monitoring;
  3. community integration skills training which includes instruction in behavioral skills necessary for child to be maintained in his/her home or school, socialization skills, stress management skills and other developmentally appropriate skills and for older adolescents (16 and 17 years old) instruction in community integration (e.g. personal safety, home maintenance, employment, security, mobility, accessing services, social appropriateness), self-care tasks (e.g. personal hygiene, health, dress, grooming), functioning as independently as possible (e.g. completion of education, money management); and
  4. (d) symptoms management training (e.g. managing stress, behavioral strategies and techniques).
  1. Day Programs for Skills Maintenance ( 419.459):

May not be provided to children or adolescents.

  1. Rehabilitative Treatment Plan Oversight (419.460):

Rehabilitative treatment plan oversight is a face to face assessment and/or evaluation of the child performed by a LPHA (e.g. a licensed practitioner of the healing arts such as a physician, licensed professional counselor, master level social worker, psychologist or advanced practice nurse) for purpose of determining child's continued need for and appropriateness of rehabilitative services in child's rehabilitative treatment plan. Rehabilitative treatment plan oversight must be provided not less than once every 90 days.

GENERAL REQUIREMENTS FOR REHABILITATIVE SERVICES

Section 419.455 establishes prerequisites for the delivery of rehabilitative services. First, before rehabilitative services may be delivered, a child must have a current rehabilitative treatment plan that is developed by a LPHA who has personally assessed the child. A child experiencing a crisis that requires immediate rehabilitative services that are medically necessary may be provided the services before having a rehabilitative treatment plan. Second, a Medicaid provider must use a professional or paraprofessional to deliver rehabilitative services. Third, community support services provided in response to a crisis must be provided one-on-one and not in a small group. Fourth, multiple community services occurring at the same time and at the same facility must be conducted by separate staff and provided in separate locations within the facility. Fifth, with respect to providing more than one rehabilitative service at the same time and on the same day, a Medicaid provider is not prohibited from providing a community support service to the child's parent or primary caregiver at the same time and on the same day the child is receiving a separate community support service or attending a day program; but is prohibited from providing more than one rehabilitative service to a child at the same time and on the same day.

LIMITATIONS ON MEDICAID REIMBURSEMENT

Section 419.462 sets limitations on Medicaid reimbursement. Under the state regulations, Medicaid will not pay for rehabilitative services delivered in excess of 12 hours per child per day. In addition, the state Medicaid regulations place a 6 hour per day per child cap on one-on-one services, small group services and day program services. Medicaid reimbursement for day programs is inclusive of all services provided within day program delivered by day program staff including crisis intervention services. Medicaid will not pay for community support services provided to a child on the same day as day programming if the community support services are similar to day programming services unless the services are in response to a crisis that occurred outside of the day program or of such specificity as to enhance or reinforce training or services begun in a day program. Medicaid will not reimburse services as rehabilitative services such as nursing services that are incidental to another Medicaid covered service (e.g. office visit with a physician); services that are integral and inseparable part of another Medicaid service; outreach activities designed to locate potential Medicaid eligible clients; any medical evaluation, examination or treatment that is billable as a separate and distinct Medicaid covered service; educational or vocational services; services provided in an inpatient hospital setting; services provided to children with single diagnosis of mental retardation or developmentally disability without a dual diagnosis of mental illness; or services provided to inmates of a public institution (e.g. penal institution) as defined by 42 C.F.R. 435.1009.  

You should be receiving another newsletter shortly.

Take care,

Karen

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About the writer:

Karen Dalglish Seal has a Bachelor’s Degree in Education of the Hearing Impaired from Trinity University in San Antonio, Texas and a Master’s Degree in Education with certifications in Supervision and Curriculum from the University of Texas at San Antonio. She is qualified to teach in almost all areas of special education and has taught children who are deaf, deaf-blind, learning disabled, emotionally disturbed, physically challenged and mentally retarded.

Dr. Seal has been in the field of Special Education for twenty years as a teacher, administrator, interpreter for the deaf and program coordinator. She has presented numerous workshops and spoken at local, state and national conventions. Dr. Seal has received her Doctorate of Jurisprudence from St. Mary’s University School of Law and plans to continue to work for individuals with disabilities as an attorney.

Karen Dalglish Seal, Attorney at Law
284 Thorain
San Antonio, Texas 78212
(210) 829-5033

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