by Guest Author | Feb 23, 2022 | Brain Injury Advocacy
Did you know that approximately 10,000 Mainers sustain an acquired or traumatic brain injury every year?[1] Acquired brain injuries include events like strokes, brain tumors or prolonged loss of consciousness. Traumatic brain injuries, on the other hand, result from things like car accidents, falls, and sports injuries. Sometimes brain injuries may even go undiagnosed for a period of time due to other health issues a person may be facing. When you have a brain injury, it can be difficult for you and your loved ones to know where to turn.
Disability Rights Maine (DRM) helps Mainers with brain injury in a number of ways. Our attorneys and advocates assist clients with accessing resources they need, including helping them navigate employment and housing issues, seeking reasonable accommodations, challenging guardianships where appropriate, ensuring that individual rights are protected. We connect with caregivers, providers, and support groups around the state to educate them on how to manage a brain injury and how to get support to make the best recovery possible.
DRM serves on the Acquired Brain Injury Advisory Council of Maine (ABIAC), a group made up of survivors, caregivers, advocates, providers and government representatives. The ABIAC works to identify issues of concern for the brain injury community and recommends state action where necessary to improve the lives of Mainers with brain injury. We also collaborate with other organizations, such as the Brain Injury Association of America’s Maine Chapter (BIAA-ME), to increase brain injury awareness and make sure you have access to the information you need. Neuro Resource Facilitators at BIAA-ME are a great source of information you need to help yourself or a loved one access services.[2]
Brain injured individuals may qualify for the Section 18 Brain Injury Waiver. The waiver is for adults who are eligible to live in a long-term care facility or nursing home but choose to remain in the community with supports. The waiver is intended to empower Mainers with brain injury to have a voice in directing their own care, including choosing what services they want and who provides them. The goal is for them to be as self-sufficient as possible with the greatest independence and community engagement possible.[3]
March is National Brain Injury Awareness Month. This presents a great opportunity to learn more about the resources available in our state and the opportunities for growth and support. There are webinars and other events, which may be found on the BIAA-ME website.[4] Getting involved in the local brain injury community is a good way to connect with other survivors and get information and support.
It is possible to live a fulfilling life as a brain injury survivor. If you or a loved one is facing this challenge, please do not hesitate to reach out to us and to the BIAA[5] so that we can help you navigate the situation and achieve your recovery and future goals.
[1] This data is derived from the Maine Acquired Brain Injury Advisory Council’s 2021 Report to the state legislature, which may be found here. https://legislature.maine.gov/doc/4876#:~:text=It%20is%20estimated%20that%2010%2C000%20Mainers%20experience%20a%20brain%20injury%20every%20year.
[2] Please visit the BIAA Maine Chapter site for more information at https://www.biausa.org/find-bia/maine.
[3] To learn more about the waiver, you can visit https://www.maine.gov/dhhs/oads/get-support/adults-with-brain-injury.
[4] For more information on Brain Injury Awareness Month, visit https://www.biausa.org/public-affairs/media/policy-corner-02-11-2022.
[5] A great place to start is the BIAA-ME Frequently Asked Questions page, https://www.biausa.org/brain-injury/about-brain-injury/faqs.
by Guest Author | Jan 25, 2022 | Children's & Education Rights
Maine students with disabilities are routinely subjected to abbreviated school days due to disability-related behaviors. While federal law requires that schools provide supportive services when a student’s disability-related behaviors interfere with their learning or the learning of others, many schools choose instead to respond by asserting that these students actually need less services and less time in school. DRM is committed to working with others across Maine to put an end to this absurd practice. And the Kids Team at DRM will continue prioritizing these cases for representation.
DRM reviewed its calls for assistance from families for the 2018-2019 and 2019-2020 school years (preceding the COVID-19 pandemic disruption on 3/15/2020). More than 50 families called for help with students whose school days were reduced for disability-related reasons. The calls came from across the state – small districts, large districts, and everything in between, covering 14 of Maine’s 16 counties.
Some students were simply sent home every day after an hour or two at school, which denied them access to the educational opportunities enjoyed by their peers. Many students and families were told that they needed to earn their way back to school, sometimes in 15-minute increments – a process which led to shortened days for an entire school year or more. Other students were removed from their school programs altogether, in the form of segregated tutoring instruction which was often provided after school for two hours per day. In addition to the clear denial of educational opportunities, this discriminatory practice has significant impacts on the ability of parents to maintain employment.
Although it should go without saying, we are aware of no research to support the proposition that less education is an effective way to address the social, emotional and behavioral difficulties that often lead schools to impose shortened school days on families. By contrast, as the United States Department of Education stated in a 2016 Dear Colleague Letter, “Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.” This letter is an excellent resource for families and advocates and clearly identifies the responsibilities of Individualized Education Program (IEP) Teams in the face of challenging disability-related behaviors. The letter can be found here: https://sites.ed.gov/idea/files/dcl-on-pbis-in-ieps-08-01-2016.pdf
The practice of imposing shortened school days is not limited to Maine. And DRM is joining advocates around the country in placing renewed focus on ending this practice. For example, Disability Rights Oregon is working on a class action to address this issue in a systemic way. Information about that litigation is available here: https://www.droregon.org/litigation-resources/jn-v-ode An expert declaration from Dr. Melody Musgrove was submitted in that case, which contains the following: “There is no research showing that removing students from school improves a child’s behavior or provides any academic or social-emotional benefits. Instead, research confirms my opinion that the overwhelming majority of students with disability-related behaviors can be effectively and safely included in school and in the general education classroom if they receive the behavior supports they need to obtain meaningful academic benefits.” J.N. v. Oregon Dep’t of Educ., Case No. 6:19-cv-00096-AA, Decl. of Melody Musgrove ¶ 24 (doc. 67).
The Department of Justice (DOJ) has also taken an interest in this practice, which often violates the rights of youth under the Americans with Disabilities Act. DOJ recently reached a resolution with the Lewiston Public Schools after an investigation based on a complaint filed by Disability Rights Maine in coordination with the ACLU of Maine, Kids Legal at Pine Tree Legal Assistance, and the Cumberland Legal Aid Clinic, a program of the University of Maine School of Law.[1] In a press release, DOJ summarized: “The department’s investigation found that the district routinely shortened the school day for students with disabilities without considering their individual needs or exploring supports to keep them in school for the full day. The district’s lack of training for staff on how to properly respond to students’ disability-related behavior contributed to the over-reliance on “abbreviated” school days.” For more information, see the press release, available here: https://www.justice.gov/opa/pr/justice-department-settles-maine-school-district-protect-educational-rights-students
The resulting settlement agreement requires Lewiston to end its systemic and discriminatory practice of excluding students from full school days because of behavior related to their disabilities. The settlement agreement is available here: https://www.justice.gov/crt/case-document/lewiston-public-schools-settlement-agreement
The Lewiston agreement should be a clear indication to other Maine school districts that providing a student with disabilities with less than a full day of school is an often improper practice and has the potential to violate the students’ federally protected rights.[2] When it is apparent a student requires additional behavioral supports or services, the IEP team should meet to discuss any changes needed to the IEP and maintain a full school day. The decision to shorten a student’s day cannot be based on staff availability, purported safety concerns, or the lack of an appropriate placement. And, as the Lewiston agreement highlights, districts should not use abbreviated school days as transitional placements for students with disabilities while those students are awaiting other placements.
As students return to classrooms after over a year of disrupted learning opportunities, and as additional disruptions loom large due to the ongoing pandemic, it is more important than ever to put an end to the discriminatory practice of providing students with less education when they are demonstrating that they actually need more services and supports.
If your child is currently on an abbreviated or shortened school day, you should consider requesting an IEP Team meeting to demand a return to a full school day with the specialized instruction, related services and other supports required to support equal access to educational opportunities. And if your self-advocacy attempts are unsuccessful, please consider calling DRM to request an intake appointment, or use our online intake form: https://drme.org/online-intake-form
[1] https://drme.org/news/2021/press-release-052821
[2] Though there may be students who have difficulty accessing a full school day due to a documented medical need, those circumstances are rare.
by Guest Author | Sep 21, 2021 | Voting
Disability rights activist Justin Dart once said, “vote as if your life depends on it because it does.” Americans have been fighting for their right to vote since the founding of this country. From the elimination of literacy tests and poll taxes, to the passage of the 19th Amendment giving women the right to vote, to the 26th Amendment lowering the voting age, the battle for equality at the voting booth continues and people with disabilities still to face barriers to the electoral process. To this end, Disability Rights Maine (DRM) advocates for equal and independent voting access to people with disabilities.
Justin Dart’s call to vote rings true for many people with disabilities as using your voice to vote is a way to push for legislation that affects you. It took the United States Congress until 1990 to pass the Americans with Disabilities Act (ADA), the most sweeping civil rights law in the country, which prohibits discrimination on the basis of disability for individuals in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications.[1] Title II of the ADA requires state and local governments to ensure that people with disabilities have a full and equal opportunity to vote.[2] But despite the ADA’s clear national mandate for the elimination of discrimination that has been the law for 31 years, we are still fighting for people with disabilities to have the ability to vote independently.
The Voting Rights Act of 1965 (VRA) was the first voting rights law to acknowledge that people with disabilities have the right to equal access to the electoral process. The VRA allowed for people with disabilities to receive assistance from a person of the voter’s choice. In addition, it prohibited literacy and education requirements to vote. [3] In 1984, the Voting Accessibility for the Elderly and Handicapped Act of 1984 was passed, requiring polling places to be accessible on Election Day, requiring them to have an alternate mode of voting for those who can’t physically access the polls. Although these laws improve voting access for people with disabilities, barriers remain to accessing voting independently, leading to low turnout among people with disabilities.
Prior to 2001, people under guardianship for reasons of mental illness in Maine were prohibited from registering to vote or voting under Article II, Section 1 of the Maine Constitution.[4] Under this provision, individuals automatically lost their right to vote once they were put under guardianship, without any notice. The Disability Rights Center, now Disability Rights Maine, filed suit in the United States District Court for the District of Maine on behalf of itself and three plaintiffs, in a case known as Doe v. Rowe,[5] to challenge this discriminatory provision and ensure that people under guardianship were no longer automatically disenfranchised. In a seminal decision, the Court found in the plaintiffs’ favor and struck down the disenfranchising provision, holding that it violated the Equal Protection and Due Process Clauses of the United States Constitution, the ADA and the Rehabilitation Act of 1973. Doe v. Rowe protects individuals in Maine, but many states still have similar barriers to voting for people under guardianship today.
Although the Help America Vote Act (HAVA) was signed in 2002, requiring polling locations to have one accessible voting system for individuals, and “must provide the same opportunity for access and participation, including privacy and independence, that other voters receive,”[6] private and independent voting was an issue for voters in Maine with print disabilities in the 2020 election. We were made aware that some accessible voting machines were not in an independent location that keep the individuals vote private. Accessible voting machines were in the open, where people can walk behind the machine and see what the individual is doing with their ballot, not allowing for an independent and private vote. In the midst of the pandemic, many individuals did not wish to go to the polls for fear of contracting the coronavirus. However, because Maine did not have an accessible absentee ballot option, people who are blind or have other print disabilities faced the untenable choice of risking their health and voting at the polls or giving up their right to vote independently and privately by absentee ballot. Disability Rights Maine filed an emergency lawsuit seeking immediate relief on behalf of four blind clients to require the State of Maine to create an accessible absentee ballot system. As a result of a settlement agreement negotiated by Disability Rights Maine, the State of Maine created an online accessible absentee ballot system to ensure that all people with print disabilities have the option to vote safely and independently in the 2020 election and beyond. [7]
There are many reasons for why people with disabilities do not vote. For some, the reasons are the same as for people without disabilities: does my vote count? Does my government care about me? What will politicians do for me? For others, the barrier(s) to voting are simply too much to overcome. However, we need only look to advancements in rights for people with disabilities over the past 60 years to see the progress we have made towards equity and inclusion at the polls. Although there is still work to be done, we must never forget – Your vote is your voice.
Don’t forget election day is on Tuesday November 2, 2021. If you do not think you will be able to make it to the polls, prepare ahead of time and request an absentee ballot through the Maine Secretary of State’s website . Or, you can call your Town Clerk and ask them to mail you an absentee ballot application right to your house. Learn more about the ballot measure for this year’s referendum here: https://www.maine.gov/sos/cec/elec/upcoming/index.html
[1] 42 U.S.C. §§ 12101-12213, online at https://www.law.cornell.edu/uscode/text/42/chapter-126
[2] See United States Department of Justice, Civil Rights Division, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities (September, 1994), online at https://www.ada.gov/ada_voting/ada_voting_ta.htm
[3] https://www.ada.gov/ada_voting/ada_voting_ta.htm
[4] Doe v. Rowe, 156 F.Supp.2d 35 (D. Me. 2001), online at https://eaccess.s3.amazonaws.com/media/attachments/resources_mainresource/346/Doe%20v%20Rowe.pdf
[5] Doe v. Rowe, 156 F.Supp.2d 35 (D. Me. 2001), online at https://eaccess.s3.amazonaws.com/media/attachments/resources_mainresource/346/Doe%20v%20Rowe.pdf
[6] https://www.ada.gov/ada_voting/ada_voting_ta.htm
[7] https://www.wmtw.com/article/maine-voters-who-cant-fill-out-paper-ballot-have-new-option/34276093#
![“I Don’t Wanna Be So D**n Protected”]()
by Guest Author | Jul 23, 2021 | Alternatives to Guardianship & Supported Decision-Making, Success Stories
Mikala Bolmer, DRM Intern, Student at University of Maine School of Law
Britney Spears’ high-profile, protracted, legal battle contesting her conservatorship (known as guardianship in Maine) sheds light on the role of conservatorship/guardianship as an excessive limit on people’s individual freedom.
I need to make mistakes just to learn who I am
And I don’t wanna be so damn protected
There must be another way
‘Cause I believe in taking chances
-“Overprotected,” Britney Spears (2001)
In theory, guardianship is meant to legally support and safeguard an individual. It is an extreme option that is designed to be a last resort when all other, less-restrictive options (such as Supported Decision-Making) are not possible. A guardian is a fiduciary, which means the guardian must have the individual’s best interests at heart and help them live a safe, yet fulfilling life. However, guardianship has been overused, and people who are capable of running some or all aspects their own lives have been placed under full guardianship simply because of a developmental disability or mental health diagnosis. As a result, guardianship strips otherwise capable individuals of legal authority, decision-making power over their lives, and the “dignity of risk.” Dignity of risk is the concept that there is dignity gained by people taking reasonable risks and learning from mistakes. Low-level risks are a natural, colorful part of a full life, and without them, people miss crucial character- and independence-building opportunities to navigate issues of consent or to learn decision-making skills. While some individuals may benefit from extra support, in most cases granting full guardianship is not the best option. Unfortunately, obtaining court-granted, full guardianship happens quickly and frequently.
Lately, people got me all tied up
There’s a countdown waiting for me to erupt
Time to blow out
I’ve been told just what to do with it
-“I Wanna Go,” Britney Spears (2011)
Sometimes guardianship is granted in a moment of crisis, as Ms. Spears’ conservators claim was her situation, when an otherwise capable adult needs some temporary support. Sometimes guardianship (or conservatorship) truly is temporary. In far too many cases, though, guardianship turns into a permanent legal arrangement that is nearly impossible to get out of because of financial, administrative, and legal barriers.
Everybody’s talking all this stuff about me
Why don’t they just let me live? . . .
I don’t need permission, make my own decisions
That’s my prerogative
-“My Prerogative,” Britney Spears, originally by Bobby Brown (2004)
Too often, individuals with developmental disabilities go under guardianship as the “logical” next step when they reach 18, the age of legal majority. Youths with developmental disabilities are regularly funneled by schools and other providers into guardianship as they become adults. Individuals are consistently not given full explanations of what guardianship is, and they are not presented with less restrictive alternatives. As a result, guardianship is usually “agreed upon by everyone” including the individual who will be under guardianship. When “everyone is in complete agreement,” petitions for guardianship are uncontested, meaning the people who will be under guardianship are likely unrepresented by legal counsel for the court proceeding, and the courts routinely grant guardianship. Typically, as Ms. Spear’s case illustrates, getting courts to order guardianship into existence is far easier than getting courts to terminate one.
I’ll tell ’em what I like, what I want, and what I don’t
But every time I do, I stand corrected
-“Overprotected,” Britney Spears (2001)
In Maine, there are significant barriers to termination. Often, the person under guardianship receives conflicting information or are drastically underinformed about their rights and legal options. Not to mention the power the guardians themselves have over the person and process: the guardians have all legal, medical, and financial authority over the person under guardianship. Guardians can control an individual’s access to medical records, which the person under guardianship must present to argue the case for termination. Ironically, individuals who have been denied the opportunity to make their own decisions bear the burden of proving in court that they are capable of making their own decisions in order to end guardianship. Although Ms. Spears’ case is extreme, unusual and out of state, it serves as a stark example of how backwards and unfair the system can be: because she is contesting her father’s “management” of her finances (among other things,) she pays for her own attorney as well as her father’s. Many guardianships involve some complex tangle of legal, medical, and financial interests that obstruct or stagnate attempts to terminate.
She’s gonna pack her bags
She’s gonna find her way
She’s gonna get right out of this
-“Brave New Girl,” Britney Spears (2003)
Therefore, once guardianship is granted, it’s common for individuals to find themselves in Ms. Spears’ situation of petitioning for termination for years without recognition, sometimes despite gross violations and abuses perpetrated by the guardians. Some individuals are able to work with legal organizations, such as Disability Rights Maine, who are willing to help. However, those legal organizations have limited resources and so are not able to help with as many termination cases as they would like.
I am better off without you
Stronger than ever and I
I’m telling you now
-“Don’t Go Knocking on My Door,” Britney Spears (2000)
In most cases, obtaining full guardianship is like using a sledgehammer on a thumbtack – excessive and not the best option. Meaning, full guardianship is not the only way to support people with decision-making challenges. There are several less-restrictive alternatives to full guardianship for individuals and their families to consider, such as a Supported Decision-Making (SDM), assistive technology, powers of attorney, or limited guardianships. SDM is a model to support people with decision-making challenges in making and communicating their own decisions about their lives. SDM and other alternatives to full guardianship give individuals more control, freedom, and life experience to make their own decisions.
She needs to really, really find what she wants
She lands on both feet, won’t take a back seat
There’s a brave new girl, and she’s coming out tonight
-“Brave New Girl,” Britney Spears (2003)
As Ms. Spears’ case highlights, using guardianship as the sole tool to support people in making decisions is too frequently “not that innocent.” For more information on Supported Decision-Making and other alternatives to guardianship, please see www.supportmydecision.org.
by Guest Author | Mar 20, 2021 | Children's & Education Rights, Success Stories, Transition to Adulthood
Utilizing the systemic complaint process, DRM alerted the Maine Department of Education (MDOE) to two major issues affecting students with disabilities. Decisions in both cases were issued earlier this year. First, a regional office of Child Development Services (CDS) was failing to serve all of their students ages 3-5, with statewide implications. And second, the MDOE’s position that students with IEPs aged-out of eligibility at the end of the school year in which they turned 20 was not in line with federal law.
Addressing Systemic Issues within CDS
After hearing from multiple families regarding a lack of services in CDS York, DRM decided to file a systemic complaint to ask MDOE to investigate and remedy the apparent systemic failures to ensure that eligible students were receiving access to necessary early intervention services under the Individuals with Disabilities Education Act (IDEA).
In the Report and Corrective Action Plan that MDOE issued after the investigation into CDS York, MDOE found that “approximately 20% of students served by CDS-York (about 99 children) are not currently receiving their full special education services, as required by their individual IEPs,” 88 of which were sitting on some form of waitlist. In determining that CDS York committed systemic violations in failing to provide a free appropriate public education (FAPE) to all their students, MDOE directed CDS York to remedy the issues with a detailed Corrective Action Plan. Among requirements for staffing and training, the Plan includes:
- “CDS-York must immediately create new program placements, either independently, or in partnership with local public school districts.”
- “CDS-York is required to conduct an audit of all special education files for students with disabilities where instruction and/or related services have not been fully provided since March 30, 2020 and provide a report of the audit to the Maine DOE.”
- “CDS-York is required to schedule an IEP meeting for every student whose child did not receive full IEP services, as soon as possible after completion of the audit in step one of this corrective action plan,” including, to “[d]iscuss whether compensatory services are now warranted, based on the student’s present levels, for the failure to fully implement the student’s IEP and/or provide FAPE.”
According to recent statements by CDS, they are rapidly expanding capacity with 80 new program spots to be open by April 15th in Saco and Arundel. DRM believes that MDOE’s action in addressing CDS York is a great start, and we are hopeful that MDOE will use this model to address similar issues statewide.
If your student is affected by waitlists or otherwise unable to access the services in their CDS education plan, you can contact your local CDS office to schedule an IEP meeting. At the IEP meeting, you can discuss your student’s program and potential need for compensatory services.
Addressing Maine’s Improper Practice of Terminating Eligibility for Special Education Prematurely
At the other end of the age spectrum, DRM’s systemic complaint with MDOE regarding transition-age students resulted in swift action by MDOE to put Maine in line with the law.
Within weeks of receiving DRM’s complaint, MDOE issued Administrative Letter 1 on January 21, 2021, entitled “Change in the Ending Age for Special Education Eligibility – Effective Immediately.” The letter states:
After consulting with counsel, the Department has concluded that terminating eligibility to a free, appropriate public education at the end of the school year in which a student turns 20 pursuant to 20-A M.R.S. § 5201(1) years is inconsistent with the IDEA as interpreted by the First Circuit in K.L. v. Rhode Island Board of Education, 907 F.3d 639 (2018).
Effective immediately, Maine will implement the “federal standard” and provide FAPE to eligible students until their 22nd birthday.
Prior to the issuance of the Administrative Letter, Maine’s practice had been to exit eligible students from special education at the end of the year in which they turned 20. What has not changed is that students’ eligibility for special education ends when they meet the criteria to graduate with a regular high school diploma consistent with state standards.
DRM is heartened to hear anecdotes from the State and stakeholders that folks are not interested in ‘two years of the same’ and are instead committed to focusing on a robust transition from secondary school. For students in grade 9 and above, their IEPs are already required to include a Transition Plan. And, IDEA regulations make clear from the start that the purpose of the law is “[t]o ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” [1]
Too often, students’ Transition Plans are written broadly without concrete steps for the student to make progress towards post-secondary education, meaningful employment, and independent living. The transition years for eligible students should be embraced by IEP teams as an opportunity to set clear goals and follow through on a strong transition.
Families with students who may have been told they were on the verge of “aging out” should contact the school district to schedule an IEP meeting to discuss the student’s transition plan as part of “a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”[2]
[1] 34 C.F.R. § 300.1 (emphasis added).
[2] 34 C.F.R. § 300.43.
