The precept of least restrictive, which provides for minimal intrusion and the removal of fewer rights have guided even more recently, courts and legislatures by recognizing a partial or limited form of guardianship.

This and other developments reflect the profound changes in American jurisprudence during the past 20-25 years with respect to the rights of all persons with disabilities. Such changes clearly represent the progress of disability-related legislation and programmatic development using Wolf Wolfensberger’s principle of normalization, where everyday life and living for persons with disabilities should be as close as possible to the regular circumstances and ways of life of their society.

A further legal development has been the recognition and application of due process rights, as guaranteed by the 5th and 14th Amendments to the U.S. Constitution, relative to persons allegedly requiring the services of a guardian. In Michigan, this means that a person with a developmental disability who may require a guardian shall have: the right to an attorney; the right to a trial by jury; the right to present evidence; the right to cross-examine witnesses; and the and the right to have the hearing closed to the public. Such recognition of constitutionally-established due process rights confirms that, in fact, the appointment of a legal guardian represents the “taking” of corresponding rights away from a person when a guardian is given authority over certain aspects of another’s life.

Once a child reaches the age of majority the parents’ status as guardian terminates automatically by law. This is true for any child including those with mental retardation or other developmental disability. Only through appointment as guardian by a probate court, where a judge declares someone legally incompetent, can this formal legal relationship continue. Michigan’s Mental Health Code, for example, allows for the appointment of a guardian of the person who is developmentally disabled only when it is necessary and if the person lacks the capacity to perform some of the tasks usually required for self-care and/or the maintenance of personal finances, or if that person is totally without the capacity to care or such matters.

Parents do, however, have a number of other alternatives available, and can play many significant roles without removing rights from their adult child. A parent can act as “next of kin” in medical situations, as a “representative payee” when handling governmental financial benefits, a “trustee” of a private trust, as a readily recognized advocate, or even as the holder of a “power of attorney.”

In summary, the vast majority of parents desire to obtain some level of security for their children, but security lies far beyond the appointment of a guardian. Security really lies with appropriate quality education, vocational rehabilitation and training, financial assistance programs and other governmental benefits, appropriate quality residential living arrangements, laws protecting the rights of persons with disabilities, suitable recreation and social opportunities, and advocacy agencies that reach out to monitor and secure the necessary services in order to provide for a good quality of life that all people deserve in our society.

This article is an excerpt from our 50-page booklet entitled: “Planning A More Secure Future, 4th Edition.” For a more detailed and expanded discussion of this article, order the booklet.

Alternatives to Guardianship PDF Download

Pennies are being pinched, big time!

Extreme fiscal constraints imposed by the Oakland County Community Mental Health Authority (CMHA) over the last two years on its “core provider” agencies (e.g., MORC, Inc., Easter Seals, Training Treatment Innovations, Common Ground Sanctuary, and Community Network Services) have resulted in severe service cutbacks to children and adults with developmental disabilities. Specifically, the ongoing “utilization reviews” by the MORC, Inc. have created a groundswell of intake calls to The Arc over the past nine months asking for help in appealing these oftentimes devastating cuts. Make no mistake about it; public pennies are being pinched, big time! Traditional community-based services are being scrutinized for not only individual use, but also personal need. Administrators without the benefit of a truly appropriate Person-Centered Planning meeting are making arbitrary, and oftentimes head-scratching decisions.

Appeal Time Limits

The general rule for any appeal is that one must be filed within 90 days of the notification of a negative action by an administrative agency. However, if you do so in writing within 10 days after receiving such a notice from a mental health agency, then the status quo will be maintained until there is a formal decision. This is the point at which most consumers or families must decide upon an appropriate avenue of appeal, and there are several from which to choose.

Most parents and consumers think first of filing a Recipient Rights Complaint. Although not really an “appeal” in the truest sense of the word, this legal right would be invoked if there were an actual violation of some provision of the Michigan Mental Health Code (e.g., there was no Person-Centered Plan). Generally speaking, cutbacks in the level of services alone are usually not enough to prevail with this option.

Ability-to-Pay for families of minor children

Many families, who because of a minor child with a disability in the home, are now being forced to pay for mental health services according to their level of income. In the past, this law was not routinely enforced by the CMHA when it operated direct services. The law (Chapter 8 of the Michigan Mental Health Code) has been pretty clear and straightforward about this issue for about thirty years. If you even have a few bucks in a §401(k) retirement fund, you will more than likely lose an “Ability-to-Pay” hearing. The best you can hope for is a reduction in the monthly liability amount.

Not Disabled Enough?

Other people are being denied admission to MORC, Inc. because they are simply “not disabled enough.” For example, if one has only a mild mental impairment, the application for admission will more than likely be denied, which will then necessitate a request for a “Second Opinion” appeal to the CMHA. Typically, the result will be a strict interpretation of the Michigan Mental Health Code that denies access to services since public policy directs assistance first to those with the most severe needs.

Local Grievance Appeals

A Local Grievance is probably the most common option for appeal and in most cases a quite useful procedure. The CMHA essentially takes another look at the negative action that has been taken by the core provider agency. Normally, this review will uphold the cuts, but sometimes you may get lucky and obtain some degree of service restoration, or on rare occasions perhaps even all of it.

Administrative Tribunal Hearing for deciding Medicaid-related issues

Another in the possible realm of appeal options includes requesting a Michigan Department of Community Health Administrative Tribunal Hearing. Don’t even think of going to such a hearing if you are not Medicaid eligible! The Administrative Law Judge’s (ALJ’s) will tell you that they have no jurisdiction since they can only decide Medicaid-related issues. Unless you have a Habilitation Waiver (a.k.a., “Hab Waiver”) don’t even think of appealing a reduction of what are known as “Community Living Supports (CLS)” hours. The ALJ’s will tell you that they do not have jurisdiction to decide this matter because Chapter III of the state’s Medicaid rules no longer allows for coverage of an “alternative service.” And, finally, don’t even think that you can talk about the chores involved with Adult Home Help Services at a CMHA hearing. You must appeal those issues separately through the local Family Independence Agency (FIA) office!

Alternative Dispute Resolutions

Consumers without Medicaid eligibility who are denied mental health services or who have been reduced in the amount and scope of services, may seek an appeal through what is known as Alternative Dispute Resolution (ADR).” There is both a local ADR and one at the state level.

Circuit or Probate Court, and the costs

Once you have exhausted your administrative remedies, there is always Circuit or Probate Court. This of course stops most folks dead in their tracks because of the enormous cost to retain an attorney to fight the case. Professional legal fees and costs can approach $20,000 or more for such an appeal — at just this initial stage!

The cutbacks in budgets and services will continue

Pardon my sarcasm, but, there, wasn’t that simple and consumer friendly? I believe that our system for the delivery of public mental health services is in the midst of tremendous change. Further, it is becoming increasingly more difficult to access the necessary assistance promised by the past two generations of parent-based legislative advocacy. The cutbacks in budgets and services will continue. Asking for an appeal may become an exercise in futility.

By Thomas F. Kendziorski, Esq

However, each professional listed below has more than a passing knowledge of mental health law and the associated programs and services available to persons with intellectual and developmental disabilities.

Estate Planning

Kathleen E. Winkler, The Arc of Oakland Co., 248-816-1900

Mary T. Schmitt Smith, Theresa Law Center, P.C., 248-282-7700
(Bloomfield Hills)

Patricia E. Kefalas Dudek and Associates, 248-254-3462 (Farmington Hills)

J. Douglas Otlewski, 248-651-6040 (Rochester)

Donald L. Rosenberg, 248-641-7070 (Troy)

Joshua R. Fink, 734-665-4441 (Ann Arbor)

Robert A. Gross, 248-263-3535 (Southfield)

James P. Lampertius, 248-538-5480 (Farmington Hills)

Sanford Mall, 248-538-1800 (Farmington Hills)

Thomas V. Trainer 248-740-5673 (Troy)

Marsha L. Tuck 248-335-0730 (Bloomfield Hills)

Asset Retitling and Financial Services

Jerry I. Rubin, 248-350-3400, ext. #103 (Southfield)

Minoti H. Rajput, CFP, 248-827-2580 (Southfield)

Special Education Law

Calvin Luker, 248-544-7223 (Royal Oak)

Laura Athens, 248-426-8800 (Farmington Hills)

Patricia A. Stamler, 248-355-5000 (Southfield)

Michigan Protection & Advocacy (800) 288-5923 (DD) (Lansing)

John Brower (810) 227-9797 (Brighton)

Marsha L. Tuck (248) 335-0730 (Bloomfield Hills)

Guardianship

Donald F. Badaczewski (Attorney & Psychologist) (248) 546-6164
(Hazel Park)

J. Douglas Otlewski (248) 651-6040 (Rochester)

George D. Davy (248) 685-1744 (Milford)

Criminal Defense

Lawrence J. Bunting, Jr. (248) 689-4200 (Troy)

J. Douglas Otlewski (248) 651-6040 (Rochester)

Immigration Law

Steven N. Garmo (248) 626-0050 (Farmington Hills)

Certified Public Accountants

Vincent Morgante (248) 355-5151 (Southfield)

John Gideon (586) 263-8200 (Clinton Twp.)

Matthew Partyka (586) 751-7100 (Warren)

Larry Larmee (586) 646-6044 (Bingham Farms)

General

Oakland County Bar Association
Lawyer Referral Service (248) 338-2100

Legal Aid & Defender Association – Oakland County: 248-253-1548

Speakers Bureau

The Arc sponsors a Speaker’s Bureau that promotes public awareness of The Arc services and activities together with an awareness of intellectual and developmental disabilities.

Financial Advocacy

Many people with intellectual and developmental disabilities qualify for disability benefits such as Supplemental Security Income, Social Security Disability Insurance, Medicaid, Family Support Subsidy, Adult Home Help Services, and much more. The Arc staff can help answer questions that parents or guardians have about these and other entitlements. The award winning yearly Tax Guide for families and individuals concerned about tax deductions and credits related to the care and support of a child or an adult with a developmental disability is available for a nominal fee through The Arc of Oakland County offices. Read about “The Challenges of Hearings and Grievances” by our Director, Thomas F. Kendziorski, Esq.

Legal Advocacy

Our legal staff assists member families with wills, trusts, estate planning, and probate matters. We offer member families legal representation at hearings for Medicaid, Oakland County Community Mental Health, and MORC. The Arc staff attorneys works cooperatively with Private Practice Attorneys on issues requiring legal intervention or assistance. See below for a list of Attorney’s and Accountants who are knowledgeable about these issues.

Attorney List

This is not a recommendation list, but merely a list for the convenience of The Arc of Oakland County consumers and their families. Each professional listed has more than a passing knowledge of mental health law and the associated programs and services available to persons with intellectual and developmental disabilities.
The Attorney List

Education Advocacy

Our staff is knowledgeable and provides experienced assistance and support to parents or guardians in preparing and understanding the Individual Education Plan (IEP), based on the 2004 re-authorized federal Individuals with Disabilities Education Improvement Act (“I.D.E.I.A.”) and Michigan’s Mandatory Special Education Act for children and young adults with intellectual and developmental disabilities.
Read more about the I.D.E.A. Law.

Special Education Informal Dispute Resolution Processes, An Oakland County Parent’s Guide

The Arc collaborated with ASA-OCC and other organizations to create a new parent-friendly helpful document entitled: Special Education Informal Dispute Resolution Processes, An Oakland County Parent’s Guide. In only three pages, the basics of communicating effectively with the school, requesting a service for your child, IEPT meetings, Facilitated IEPT Meetings, Local Resolution Processes and Mediation are explained. We hope you find the color coded flowchart and hot links easy to use and reference. Early Resolution is the Best Solution!
Open the guide here, in PDF format.

Guardianship Guidance

Our staff offers helpful information and guidance to families considering guardianship or the alternatives (e.g., Power of Attorney) for someone with an intellectual or a developmental disability. Read an excerpt from our 50 page booklet on “Planning a More Secure Future” about Guardianship.

Residential Services

The Arc of Oakland County maintains a contractual agreement with The Arc Michigan (underwritten by the Oakland County Community Mental Health Authority) for the Dignified Lifestyles/Community Connections Program which monitors 10 MORC group homes and one adult respite home. Ten volunteers have received training and visit one residential setting per month. During each visit, volunteers observe the following: true community participation, respect, choice-making, functional skills, learning, and real relationships. Information from 25 local chapters of The Arc is accumulated within a computer data base at The Arc Michigan and shared with various departments within the State, Oakland County and legislators.

Incorporating person-centered-planning and achieving real outcomes for individuals in mental health funded settings are driving the impending changes in the program. Building on the successes and strong points of the earlier versions, the new Dignified Lifestyles/Community Connections Program will:

put people first;
support the dreams and choices of individuals;
strive to raise the expectations that others (particularly the staff persons in the home environment) have of persons with disabilities; advocate for concrete changes in peoples’ lives; and,
propagate the philosophy of inclusion and person-centered decision-making.

After a long and oftentimes contentious legislative battle, Public Law 108-446, or the “Individuals with Disabilities Education Improvement Act of 2004” (IDEA 2004) was passed by Congress and then signed by President George W. Bush on December 3, 2004. The earlier version, IDEA 1997, remains substantially in place; however this particular re-authorization of the statute contains many new provisions that take effect July 1, 2005. The highlights are:

Highly Qualified Teachers – redefines the education levels and certifications necessary for special educators who teach core academic subjects.

Fixed Fiscal Authorization Levels – specifically sets spending authorizations for the next six fiscal years (e.g., $12.4 billion in FY2005, and increasing each year to $26.1 billion in FY2011), as opposed to annual line-item budget battles.

Performance Goals and Indicators – instead of performance goals and measures established by a State, the new law requires that these be the same as the State’s definition of adequate yearly progress (AYP) for all children under the No Child Left Behind Act (NCLB), which would include a State’s objectives for progress by children with disabilities. Short-term objectives are no longer mandatory, except for those students with significant cognitive impairments taking alternative assessments that measure achievement.

Participation in Assessments – IDEA 2004 makes mandatory that all children with disabilities be included in all State and district-wide assessments, including those under NCLB, with accommodations or alternative assessments if necessary and as included in the child’s individualized education plan (IEP).

Initial Evaluation and Reevaluations – local districts are required to conduct a full and individual initial evaluation of a child before providing special education and related services, and to conduct reevaluations as warranted. School districts must still obtain consent from the parent prior to an initial evaluation, and the evaluations must take place within 60 days. IDEA 2004 no longer requires a mandatory three-year reevaluation, and prohibits reevaluations more frequently than once a year unless the parent and the local district agree.

Transition Planning – the requirement that the IEP contain a statement of “transition service needs” (from school to employment or independent living) now must occur “not later that the first IEP to be in effect when the child is 16.”

The I.E.P. Team and Process

Members of the IEP team can now be excused from the IEP meeting if the parent and the local school district agree in writing. This would be done if the team member has nothing to do with the topic under discussion. If an absent member’s expertise is needed, the requirement is that it be provided to the parent and other members of the team.

After the IEP team meeting, parents and the school district may make changes to the IEP via a written document without holding a formal meeting.

Fifteen States will be allowed to pilot the concept of an optional “three-year IEP” that coincides with the child’s “natural transition points” (e.g., elementary to middle school, middle to high school, etc.).

Students transferring between school districts within a State must have their IEP’s continued with comparable services until the next IEP is developed and implemented – students transferring between States still must have their IEP’s honored by the receiving district until a new evaluation is completed (if necessary) and a new IEP is developed.

Procedural Safeguards

Complaints may only be presented for a violation going back two years from the date the parent or school district “knew or should have known” about the alleged action, unless the State has other explicit time limitations or the parent received specific misrepresentations from the school district.

Notice of the procedural safeguards are now required to be given to parents annually, except where there is an initial evaluation, upon the filing of a written complaint, or when the parent requests a copy.

Mediation has been around since IDEA 1997, but now those who chose not to participate have another alternative – meeting with a disinterested party who could explain and encourage the use of mediation. Also new is where mediation is used and resolution is obtained, then a legally binding document must be written, signed, and is enforceable in a court of law.

“Resolution Session” is totally new. This is a requirement prior to a due process hearing. The IEP team must get together within 15 days of a parent providing written notice asking for a due process hearing. The school district cannot have its attorney present unless the parents bring their attorney. This requirement may be waived if the school district and the parents agree to do so in writing, or they agree to use mediation. If the school district has not resolved the problem within 30 days, then the due process hearing can occur with the usual timelines in place. Should the “resolution session” result in agreement between the parties, then a written, legally enforceable document must be executed.

The qualifications of a hearing officer are now specified and included within the statute.

The party requesting the due process hearing is not allowed to raise new issues at the hearing that were not raised in the due process complaint notice.

There is now a 2-year statute of limitations for requesting a due process hearing. Again, two years from the date the parent or the school district “knew or should have known” about the alleged action.

The party desiring to appeal a local due process hearing to a court of law has 90 days to do so, unless the State has explicit time limits already in place.

IDEA 2004 will allow for attorney’s fees against a parent for a local/county/state school district where the school district is the prevailing party and the complaint is found to be “frivolous, unreasonable, or without foundation” or where parents’ attorney continues to litigate such a case, or to harass, cause unnecessary delay or increase the cost of litigation; there is also a new provision that prohibits attorney’s fees for the new “resolution session.”

The revised statute essentially maintains the “stay put” provision, that is, where a student with a disability remains in his or her current educational placement during the pendency of due process proceedings. However, the “stay put” rule may be eliminated when it comes to a student who violates the school code of conduct — unique circumstances on a case-by-case basis will be the test used by school personnel. An interim alternative placement with educational programming and ancillary-related services must be established by the school district, and that is where the student remains pending due process and any further appeals.

The manifestation determination rules will experience a major change, that is, the parent will now have the “burden of proof” (preponderance of the evidence) instead of the school district. Prior to this, the school district had to demonstrate that the student’s behavior had no direct and substantial relationship to the disability, and that the student had the ability to control or to understand the impact and consequences of the behavior in order to order a long-term suspension/expulsion.

A lot of technical stuff in this law to be sure. These are but the highlights. As always, know your rights PRIOR to going to an IEP team meeting.