ACDL Hearing Update

"Zoe M. v. Blessing: Update - May 20 Stay Put Hearing Set" on Arizona Center for Disability Law

The U.S. District Court has set oral argument for ACDL's Stay Put Motion on Wednesday, May 20 at 11:15 am in Courtroom 6B, 405 West Congress Street in Tucson. ACDL filed a class action lawsuit against the Arizona Department of Economic Security to prevent the state from carrying out millions of dollars in budget cuts which violate federal and state law and greatly reduce or eliminate early intervention programs..."

http://acdlaw. ning.com/ forum/topic/ show?id=2968555% 3ATopic%3A1101

Sit tight...

and wait. That's the advice that is being given to families in service right now. The DES is aware of the court's decision, and is considering what it will do. Hopefully we'll hear something within the next week or so.
Until then, (and legally after that also) IFSP's are still in effect, and are still legally binding. That means that services should continue. Keep contacting legislators, DDD officials, and anyone else who doesn't realize these services are essential for helping kiddos reach their potential.
If a provider or support coordinator tells you that your services are being discontinued, first of all ask for it in writing. Second, call AzEIP 602-532-9960 or DDD 602-364-1379 or statewide 866-229-5553 and report it. I would also be interested in knowing if this is happening.
It has also been suggested that parents may want to call and restart the request for a due process hearing. The phone # is 602-532-9960. If you get voice mail, make sure to leave your name and phone # (# two times so they will be sure to get it correct and be able to contact you).
I have a PDF of the court's actual ruling, but I don't think I can post PDF's here, and I don't have an actual link. If you are interested in reading it, let me know and I can e-mail it to you.

Court Injunction Overturned

I don't know what this means, but I agree with everyone else that it sounds like BAD news. I don't know why it was decided in a state court when the laws being broken are federal ones. I'm back in high alert mode, and will be posting any information that I can get confirmed.

By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 05.01.2009
— Arizona is free to cut services to an estimated 30,000 residents with developmental disabilities, the state Court of Appeals ruled Thursday.
In a unanimous decision, the judges found that nothing in state law bars the Department of Economic Security from reducing services, overturning a trial-court ruling blocking cuts made in response to a legislative order to trim spending. The three-judge panel rejected arguments that those who have been getting help from the state are legally entitled to the services that have been specifically recommended for them. The judges also concluded there was nothing illegal about the state reducing what it pays to organizations that provide services to those with disabilities — funding cuts challengers said would affect those services.
Thursday's ruling comes less than two months after Judge Joseph Heilman of Maricopa County Superior Court blocked the DES from cutting services. Heilman said he had reached the "inescapable conclusion" that the haste with which DES acted in cutting its spending "has served to create nothing less than mass confusion, anxiety and uncertainty" among those who receive benefits from organizations paid to provide services. Heilman also said the DES acted to reduce services even though lawmakers did not relieve the agency of its legal responsibilities to provide care for those with mental-health problems.
Jennifer Nye, an attorney for the Arizona Center for Disability Law, said she was disappointed in the ruling. "We know that thousands of adults and children with disability are going to be harmed by these cuts in services and rates," she said. Nye also called it "very shortsighted on the part of the state to balance its budget on the backs of its most vulnerable population."
Lawmakers made $580 million in spending cuts in late January as part of a plan to deal with a $1.6 billion budget deficit. The DES share of that was close to $100 million. But the agency said its total cuts really amounted to more than $150 million, with cash taken from special accounts and the refusal of lawmakers to provide additional needed funds.
The DES, in turn, cut payments to service providers by 10 percent. It also eliminated services for people who are moderately developmentally disabled who, with support, can work in the private sector. And it dropped funding for early-intervention services for 2,000 children, from birth through age 3, who are at risk for developmental disability.
The appellate judges said lawmakers did nothing wrong in making a lump-sum cut to the DES budget and letting the agency decide what services to trim. They said legislators were faced with "a sobering assessment of plummeting revenues."

Class Action Lawsuit Filed

The AZ Center for Disability Law announced a few days ago that they filed a class action lawsuit on behalf of all AzEIP eligible or potentially eligible children ages 0-3.
Here is an article at the ACDL website about the filing. You may have to create an account to read it, I'm not sure. Some excerpts from the article:
"Early intervention provides immediate and long-term benefits for children with disabilities and developmental delays,” said J.J. Rico, managing attorney for the Arizona Center for Disability Law. “During a child’s first three years, it is important to focus on a child’s developmental needs and take advantage of his or her natural ability to learn. Early intervention provides children with disabilities with the opportunity to learn everyday routines, including walking, eating and avoiding injury.”
“To our knowledge, Arizona is the only state who has approached the problem of reducing the state deficit by cutting eligible children with disabilities from critical early intervention services.” (emphasis mine)

Here is a link to the PDF of the actual lawsuit that was filed. There are three individuals named specifically, but the lawsuit also covers "all others similarly situated"
"It has long been recognized that “(E)arly experiences determine whether a child’s developing brain architecture provides a strong or weak foundation for all future learning, behavior and health1.... The period between birth and three years is a time of rapid cognitive, linguistic, social, emotional and motor development.2 Children who are not ready to learn when they enter kindergarten are more likely to struggle in elementary school, and are more likely to become teen parents, engage in criminal activities, and suffer from depression.3 For these reasons, early intervention services are essential building blocks for the future success of infants and toddlers with disabilities."

The lawsuit goes on to say that due process rights were violated when services were cut without regard to the needs of families or children who were receiving therapy. The plantiffs are seeking pendancy "stay put," as well as compensatory services to make up for those lost.
I'm particularly interested in the Statement of Facts section (starts partway down pg. 9 in the PDF). No matter how many times I read it, the fact that the state made such sweeping cuts to services for such a vulnerable population leaves me almost speechless. Keep in mind, the ONLY reason that kiddos are still getting services is that the judge issued an injunction. The state has appealed it- twice that I know of. Fortunately they've lost both times.
This was new to me:
"The State of Arizona, through Defendants, has a current contract with the U.S. Department of Education for a grant of federal Part C funds. The contract expires on December 31, 2009. In that contract, Defendants assure the U.S. Department of Education that, throughout the period of the grant award, they will “operate consistent with all requirements” of Part C of the IDEA." (emphasis mine)
The defendants, of course, are the DES. What catches my attention is that the contract with the US Department of Ed. expires at the end of 2009. In light of the budget issues, could the state simply opt not to renew that contract, and thus "get out" of having to provide services to kids ages 0-3? I really don't know. Federal law is law. Early Intervention is covered under Part C, which is part of IDEA (Individuals with Disabilities Education Act). IDEA is the law that governs special education in public schools. Schools can't simply "opt out" of IDEA and not provide services because of budget issues.
Sigh. After doing some further checking, it appears that it is possible that the state COULD indeed "opt out" of Part C. At least that's how I read it- I really hope I'm wrong. The text of the actual law is here (Part C starts about halfway down), but it doesn't specify whether the program is optional or not. Here's what I found on the Wrightslaw website- a very good resource for advocacy info btw.
"The Program for Infants and Toddlers with Disabilities (Part C of IDEA) is a federal grant program that assists states in operating a comprehensive statewide program of early intervention services for infants and toddlers with disabilities, ages birth through age 2 years, and their families. In order for a state to participate in the program it must assure that early intervention will be available to every eligible child and its family. Also, the governor must designate a lead agency to receive the grant and administer the program, and appoint an Interagency Coordinating Council (ICC), including parents of young children with disabilities, to advise and assist the lead agency. Currently, all states and eligible territories are participating in the Part C program. Annual funding to each state is based upon census figures of the number of children, birth through 2, in the general population."
So currently all states have Early Intervention in some form, but the exact services vary from state to state. If it is a grant program, though, then it stands to reason that the state could choose not to have EI, and forego that grant money. Again, I don't know this for sure (maybe someone else can clarify?), and I'm not trying to start a panic here, but that's where my train of thought is headed at the moment.
Right now, I think the only thing that can be done is hopefully what is already happening- attend meetings when they happen, talk to legislators, call, write, e-mail, etc. People who don't have kids with special needs don't realize how crucial these services are, and how much it benefits kids when they start EARLY. So keep talking!