FREE OUR PEOPLE!

ADAPT is a national organization committed to advancing civil rights, self image and life opportunities for persons with disabilities by direct action and peaceful, non-violent civil disobedience.

Do it with a pro se

This is not legal advice. A prime element of a pro se case is that a lawyer is not involved. So rather than telling you "how to win with the pro se," this is the account of Dawn Russell v. Greyhound Bus Lines. Your encounter with Greyhound may be different, however, the important thing is that we keep the pressure on them until every bus rider is treated equally.

• August 27, 1997 - Memphis ADAPT members Dawn Russell, Syndy Sharp, and I called 48 hours in advance to notify Greyhound that "disabled people" will ride their bus.

• August 29, 1997 - We all rode Greyhound from Memphis to Jackson Tennessee and back. I used a video camera to record the boarding and disembarking from the bus.

• Jan. 15, 1998 - We filed the pro se case against Greyhound in Federal Court and went to protest at the Greyhound Terminal. The Memphis Terminal manager met with us and demonstrated the Scalamobil. Despite his assurance that the Scalamobil gizmo would solve all the problems for people with disabilities, the contraption failed and was removed from the Memphis Terminal.

• Feb. 18, 1998 - Having heard nothing from Greyhound we filed a "MOTION FOR DEFAULT JUDGEMENT" because the defendant did not follow "the rules" and respond to us within 20 days. (The Federal Rules of Civil Procedure, FRCP, you will get to be very familiar with these).

• Feb. 27, 1998 - Greyhound sent their "Answer." The document stated who Greyhound's local attorneys were and simply denies every paragraph of the original complaint.

• Feb. - July 1998 - Dawn rode the dog again. They broke her scooter. She begins the paperwork to recover the $260.32.

• March 11, 1998 - The Court rejected our "MOTION FOR DEFAULT JUDGEMENT," because it may have been improperly served.

• April 3, 1998 - The Court set a "Scheduling Conference" for May 20. This was a meeting with the defendants in front of the Federal Judge, and it sets in motion a timetable of communication with the defendants.

• April 8, 1998 - Dawn wrote the Judge and Greyhound Counsel asking for a jury of peers to hear the case. She also told the Court that she did not need any "discovery," and that she was ready to go when possible.

• May 5, 1998 - Dawn and I had our first telephone conference with the Greyhound attorneys. We asked for "lifts on all buses," they were not able to agree to that. The lead attorney pushed the dates for everything well into 1999. We were not concerned with how long the litigation would take, Memphis ADAPT will probably be blocking buses 10 years from now.

  Dawn however felt that it was insulting that we could accommodate their exhaustive schedule, but they could not indulge our desire to proceed. We agreed, that we could not agree on a court date. The Judge would have to settle the impasse.

• May 20, 1998 - Dawn appears before Judge Julia Gibbons Chief Judge of the United States District Court for the Western District of Tennessee. She sits at the same table with the Greyhound legal team.

  The Judge got right to the point, and asked the Defendant why they could not agree to going sooner. The Greyhound lead attorney said that other court dates and cases interfered.

  The Judge agreed with Dawn on this point, and rejected the dates that the Defendant had given. This victory may seem small, but it was the first time that Dawn and her pro se complaint got "official" respect. To have the judge direct the Greyhound attorneys to speed up the schedule validated taking action without a lawyer. In the five months of dealing with Greyhound and their attorneys, Dawn and I had always felt outgunned by the lawyers and "their" system. Dawn showed the court that she could take on the transportation giant armed with her pro se complaint and the knowledge of what is right.

• May 21, 1998 - The victory in court did not last long. Greyhound not only gave us the required "Initial Disclosures," but also filed a "MOTION TO STRIKE JURY DEMAND," along with a "MEMORANDUM IN SUPPORT OF MOTION TO STRIKE JURY DEMAND."

• June 3, 1998 - Greyhound served Dawn with the "First set of Interrogatories," and a "Request for Production of Documents." These documents inquired everyone's name that knows about the case, similar complaints that Dawn had made, and even what related books Dawn may have read. On top of all this busy work, Greyhound still would not pay the $260.32 for repairs to Dawn's scooter.

  Dawn and I studied the mound of paperwork. We were simply overwhelmed by the amount of legal work we must do to continue. Concerning the MOTION TO STRIKE JURY DEMAND, we plainly did not have the legal knowledge to beat the argument.

  Without the prospect of Dawn telling her story to a jury, we nearly decide to give up. We elected to stop contesting the elaborate process, and merely do what is required to get the case in front of the Judge.

• July 7, 1998 - The Memphis Center for Independent Living is subpoenaed to produce the video I made of the original bus trip.

• July 10, 1998 - Greyhound sent Dawn a letter saying the most they could pay for destroying her scooter is $250. They took six months to weasel out of $10.32, which is all they can pay for damaged "luggage."

• July 15, 1998 - Dawn visited the posh offices of Wyatt, Tarrent and Combs. Three lawyers and a court reporter sat around the table with Dawn. Before they take Dawn's deposition the Greyhound attorneys excuse the court reporter and make a settlement offer of $5000, half of what the original pro se had asked for.

  Dawn was concerned that ADAPT activists would be angry with her for settling. Part of the settlement however, was a conference with Greyhound officials to let them know that Dawn and Memphis ADAPT will be back on the streets demanding equality.

• July 27, 1998 - Dawn signs the settlement agreement and deposits $5,000 in ADAPT's account.

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Tennessee needs flexibility in long-term care.

The latest census data shows that 54 million Americans, or about one in five, has a disability covered by the Americans with Disabilities Act (ADA). Most are integrated into our community, however people with disabilities continue to be plagued by poverty, disenfranchised and segregated into nursing homes. People are often placed in a nursing home or isolated from community life because they do not receive adequate care to allow them to live in their home.

Three interrelated forces in our state that combine to keep federal Medicaid money flowing into the nursing home industry are: an institutional bias; the nursing home lobby itself; and the ingrained "medical model" of service delivery.

Every state that receives Medicaid funding is required to offer nursing home care. Home- and community-based programs that would provide the same care are optional. This obvious bias in the 30 year-old Medicaid program results in Medicaid money funding institutions rather than individuals.

In Tennessee, over 94% of long-term care funding is doled out to institutions. Administrators and their governing boards are the financial care-takers of the nursing home "beds." They determine what services are necessary, and how services are to be delivered to their charges.

The huge amount of Medicaid funding coming into this state, as in most states, has created a giant monolith opposing any change to the current system. Obviously, the nursing home industry, represented by the Tennessee Health Care Association lobby, has a huge vested interest in continuing to dominate the public funding for long-term care.

U.S. News and World Report lists the American Health Care Association Political Action Committee (AHCA-PAC), the national nursing home lobby, as one of the 50 most exorbitant spenders for political favors. Although 63% of nursing home funds nationwide come from Medicaid, the Federal Election Commission reports AHCA as one of the 50 PACs with the largest increase in funds from 1994 to 1996.

Society's inclination to view people with disabilities as sick, further establishes a medical model of service delivery and constrains individuals' control over their own care. The term "medical model" is used in a derogatory way by the disability community. This may be confusing since Medicaid, also known as Medical Assistance, is the main funding source. People with disabilities are not denying health related needs, but are questioning the locus of control of the long term care system. Today health professionals, doctors, nurses, physical therapists, occupational therapists, nursing home and home health providers are the focus of the long term care system. The desires of the individuals using these services are disregarded.

The independent living and social model, on the other hand, focuses on choice, consumer-control and the needs of the individual. Services are based on what will make people able to participate in community activities, to go to school or work, or to participate in religious and other community activities. Contrast this with the current medically oriented system that focuses on a medical diagnosis to determine what people can't do.

Although nursing home residents are commonly called "patients," administrators confine them to beds, and the nursing homes themselves are called "hospitals," nursing homes are not "medical" facilities. Nursing homes are not providing a cure. Former residents are living productively in the community not because of some "treatment," but simply because they have gotten out of the nursing home.

To the maximum extent possible recipients of the service should be in control. There are many tasks that people with disabilities need assistance with that are health maintenance activities. Unfortunately, many health professionals describe these tasks as medical, but they are everyday living tasks that are often routine in the lives of people with disabilities.

The institutional experience is not a medical necessity. It is a financial connivance. Tennessee isolates and segregates poor citizens into institutions, cycling the federal Medicaid dollars through the billion dollar for-profit nursing home industry.

WHY LONG-TERM CARE IN TENNESSEE NEEDS TO OFFER CHOICE

Attendant care is nothing complex. It is help doing the necessary tasks of daily life that are limited because of a disability. When someone is in a nursing home it is the job of the nursing home staff. It is a combination of the duties that one needs to accomplish to live independently. Consider these five advantages of attendant services.

First, is that you don't have to be locked in an nursing home to receive attendant services. This means the individual can live alone in their own home, or live with family or a loved one without relying on them for assistance with daily care and activities. There is no advantage to gathering people in one place, facility or institution to provide services.

Secondly, attendant services can give the individual a greater level of participation in their own care. More control not only streamlines the requirements for services by eliminating unneeded or unwanted aid, but can lead to empowerment and dignity.

Rather than being viewed as a commodity, people in charge of their own attendant services can become empowered to direct their care. Without this control over their care, people with disabilities are objectified and reduced to the role of "charity case." They are given no voice in appealing for appropriate care. "What difference does it make to put your shoes on the right feet," the health care worker or nursing home employee may say to you, "your feet don't work anyway."

Attendant services, thirdly, can create more social mobility for people with disabilities. Many people with disabilities that have avoided nursing home placement, are still not supported to the extent that they can work and fully participate in community life. Many rely on spouses, family, and loved ones to provide the needed services. This is not only a tremendous drain of our community resources, but it makes people with disabilities dependent on others and therefore constantly "at risk."

The fourth advantage is that in almost every instance, attendant services are less expensive than nursing home placement. Even for citizens who require care 24 hours a day, attendant services are more cost effective than institutional care. Most people in nursing homes in Shelby County receive less than 4 hours of attention a day.

The cost savings alone would be a compelling argument for choice, since it is mostly our taxes that provide the services currently. It is the human element, however, that makes attendant services an imperative. This country cannot continue to allow a select subsidized industry to profit at the expense of the taxpayer and the dignity of elderly and disabled citizens.

Finally, a competitive system allowing reasonable choice is the best way to improve nursing home care. Nursing homes being the only game in town has resulted in a stagnation in care and a decline in standards. Federal inspectors, ombudsmen, individualized plans and yearly expanding funds have not remedied the negligence inherent in the nursing home industry. Time reported in October of 1997 that a study of death certificates in California nursing homes found that over 7% died "in part to utter neglect -- lack of food or water, untreated bedsores, or other greatly preventable ailments." (p. 35) No one wants to live in a nursing home.

It is not necessary to argue the advantages of a market system to Americans. Creative and preferred methods of service will only grow out of a flexible system that can reward quality. This is very evident in Tennessee where the Federal Court has had to close large institutions like the Arlington Developmental Center, near Memphis, because of poor and negligent care.

HOW TO SOLVE THIS PROBLEM IN TENNESSEE

The first simple solution is to waive the institutional middleman and provide the funding to the individual, or agencies that serve them. This is called a Medicaid Waiver and surprisingly, this system is already in place. The requirements to get a waiver are so restrictive, however, that only about half of the 550 possible slots statewide are actually used. Other restrictions make it impossible for someone using the waiver to be employed.

Tennessee needs our Governor to eliminate the restrictions on the waiver, which was designed to move people out of nursing homes in the first place. The waiver should also be made available statewide rather than in just the four largest counties.

MiCASA, HR 2020, is a proposed national legislation that will begin a system of attendant services. Introduced last summer by Newt Gingrich and co-sponsored by Richard Gephardt, the bipartisan legislation is gaining support. Tennessee need not wait for the federal government to take the lead. Alternatives and options like MiCASA need to be adopted now to begin to confront the changing demographic of this country.

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ADAPT!
We will ride that Dirty Dog.

Over-the-road buses are an affordable transportation link between cities throughout the U.S. However, Greyhound Bus Lines continues to resist putting lifts on their buses. Lifts would make over-the-road buses a reasonable form of transportation for many Americans with disabilities living in rural areas.

Dawn Russell served the Terminal Manager here in Memphis with a SummonO foc a Fedesal Distsict Court Complaint alleging that Greyhound violated civil rights under the ADA. The manager then proudly introduced a Scalamobil. He was sure that this gizmo would solve all the problems for people with disabilities. It was a handcart or dolly with a vinyl seat and a powered set of stair climbing wheels.

Dawn transferred on board the Scalamobil and rode the thing, with the manager pulling, to the top of the steps. It is supposed to work much like an isle-chair used by the airlines. Four amazed Greyhound drivers (although according to Greyhound they are fully trained) looking on. One of the fully trained drivers commented: "Do you think it will work?"

At the top of the bus steps everyone learned that the answer to that question is NO. The Scalamobil will not fit down the isle of the bus. The Scalamobil could only make the driver's seat accessible to Dawn (and we know the enormous threat to public health and safety that would be).

The Scalamobil is a failure! It is obviously a poorly thought of scheme to further delay adding necessary lifts to Greyhound buses. The Office of Technical Assessment found that lifts would only add 1% to the operating cost of a bus. Syndy Sharp noticed that Greyhound is working harder to keep lifts off the buses than it would be to put the lifts on.

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Background: HUD guarantees loans to nursing homes but does not give similar assistance to help people live and work in the community. This example of institutional bias helps the "good ol' boys" make megabucks off people with disabilities while limiting the free market and denying choice for Americans. HUD does not even enforce the 504 regulations that would mean 5% of projects that receive federal money would be accessible.

• To stop funding 232 "no-recourse" loans (these are loans to nursing homes that they can default on without penalty).

• To stop funding "removable equipment" for nursing homes. (Your tax money buys the stuff, then the nursing home sell back to you).

• To stop counting nursing home beds as "housing."

• That local HUD offices enforce section 504

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