As they phased down public institutions for persons with psychiatric and intellectual disabilities, many States have relied upon nursing facilities as the "next generation" institutions for persons with disabilities. The Center has challenged this trend and invoked the protections of the Medicaid Act and the ADA to require States to provide integrated community supports for nursing facility residents with disabilities.
Redirect to the Brain Injury page for information on the Center's litigation on behalf of persons with brain injuries in nursing facilities (Hutchinson v. Patrick).
Redirect to the Intellectual Disabilities page for information on the Center's litigation on behalf of persons with intellectual/developmental disabilities in Intermediate Care Facilities (Ball v. Kasich).
Documents and pleadings which may be helpful to attorneys litigating or considering the litigation of disability law related cases are available by following the links below.
Steward v. Abbott (formerly Perry) - Texas
May 24, 2016
Court Certifies Class in Nursing Facility Olmstead Case
For the second time in the past six days the U.S. District Court for the Western District of Texas has issued a landmark opinion in Steward v. Abbott—this time granting the plaintiffs’ class certification motion, and certifying a class of over 4,000 people with intellectual disabilities or developmental disabilities or related conditions “who currently or will in the future reside in nursing facilities, or who are being, will be, or should be screened for admission to nursing facilities pursuant to 42 U.S.C. §§ 1396r(e)(7) and 42 C.F.R. § 483.112 et seq.” In its Order certifying the class, the Court held that the plaintiffs presented sufficient evidence to show the existence of common contentions that were capable of class wide resolution. The Court also rejected Texas’ numerous arguments against class certification, including that: (1) differences in the abilities, needs, and preferences of class members undermined commonality and typicality; (2) that because of their intellectual disabilities, the named plaintiffs could not sufficiently understand the case to serve as adequate representative plaintiffs; and (3) class relief was not viable because any injunction would require the Court to make individualized determinations of each class member’s support and service needs. Instead, the Court held that the injunctive relief sought by the Plaintiffs -- requiring Texas to reform its Medicaid service system -- was not dependent upon the individual needs of the class, and, therefore, satisfied class certification requirements. Read the Court’s Order certifying the class in Steward, here.
This is the third Olmstead case brought by the Center in which a court has certified a class since the Supreme Court’s 2011 decision in Wal-Mart. The other two cases were Kenneth R. ex rel. Tri-County CAP, Inc./GS v. Hassan, 293 F.R.D. 254 (D.N.H. 2013), and Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012). This case is being litigated by the Center for Public Representation and its litigation partners, Disability Rights Texas, Sidley Austin, LLP, and the United States Department of Justice.
Judge Allows Lawsuit on Behalf of People with Intellectual and Developmental Disabilities Unnecessarily Segregated in Texas Nursing Facilities to Proceed
On May 18, 2016, the District Court issued an order denying the state of Texas’ motions to dismiss the claims of the private plaintiffs and the plaintiff intervenor, the United States of America, in Steward v. Abbott—a lawsuit seeking community-based residential and other services for people with intellectual and developmental disabilities unnecessarily segregated in Texas nursing facilities. Finding Texas’ arguments to be “without merit” the Court held that the private plaintiffs have demonstrated that they have suffered a legal injury and thus have standing to bring their claims for violations of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Action (Section 504), the Medicaid Act, and the Nursing Home Reform Amendment Acts (NHRA). The Court further held that the private plaintiffs have alleged facts sufficient to state claims of discrimination under the ADA and Section 504 and for violations of Medicaid and NHRA. The Court also refused to dismiss the United States’ ADA and Section 504 claims against Texas for discriminating against people with IDD by unnecessarily segregating them in nursing facilities and denying them services in community-based integrated settings. With this ruling, the Court has given the green light for the case to proceed.
The case is being litigated by the Center for Public Representation and its legal partners, Disability Rights Texas, Sidley Austin, LLP, and the United States Department of Justice.
State of Texas, lawsuit plaintiffs reach interim agreement expanding community services and opportunities for persons with intellectual and developmental disabilities in nursing facilities
Austin, TX - August 19, 2013: The private plaintiffs, the United States Department of Justice, and the state of Texas in the Steward v. Perry lawsuit filed an Interim Settlement Agreement with the U.S. District Court for the Western District of Texas that will expand community services for the thousands of people with intellectual and other developmental disabilities in Texas who are living in nursing facilities and would like to move to the community, as well as those who are at risk for admission to such facilities. Additionally, the interim settlement includes provisions to improve the living conditions for people with intellectual and developmental disabilities who have been confined to Texas nursing facilities providing ineffective levels of care. The two-year interim agreement was negotiated as the result of a class action lawsuit filed against the state of Texas in December 2010. The litigation in the case is on hold while parties negotiate a comprehensive settlement of all remaining issues in the case. For more information about the details of the Interim Settlement, please read the Steward v. Perry ADA Interim Settlement Fact Sheet produced by the United State Department of Justice and the Press Release.
Previous Steward News and Information on the Case
September 2011: Benny Holmes, one of the plaintiffs in the case, Steward v. Perry, which challenges the inappropriate and illegal isolation of individuals with intellectual disabilities in nursing facilities in Texas, was recently the subject of a television news story by the Dallas-Fort Worth CBS affiliate. Benny has cerebral palsy and an intellectual disability and, after successfully residing for years in a small group home in the community, was hospitalized after experiencing an epileptic seizure. The hospital discharged him to a nursing home where he remained for years. When his mother inquired about moving him back into a group home in the community, the nursing facility staff told her that he was too fragile to leave the nursing facility. However, while in the nursing facility, Benny’s condition continued to deteriorate. He lost weight and became very withdrawn.
After joining in the lawsuit and with assistance from attorneys from Disability Rights Texas, Benny was able to transfer out of the nursing facility and back into a small group home. After only a few months in the community-based group home, Benny’s condition improved significantly. He has gained 40 pounds and is much more responsive to his mother and other caregivers. He is able to get out into the community and experience the simple joys of everyday life. Benny is not unique. There are thousands of other individuals with intellectual disabilities who are languishing in nursing facilities in Texas and should be relocated to more integrated community-based settings where they can get the care and treatment they need. As Benny’s mother stated, “We got him out. And if we can get Benny out, we can get others out.” To read the story and view the television segment on Benny, click here.
June 2011: The United States of America, represented by the Attorney General of the United States, has moved to intervene in the case of Steward v. Perry on behalf of the plaintiffs. The Steward case challenges the inappropriate placement of individuals with developmental disabilities in nursing facilities, the inadequacy of the care provided to them in nursing facilities, and the lack of available community-based services and supports to enable these individuals to obtain the care they need in integrated community settings.December 2010: CPR, Disability Rights Texas and Weil Gotshal files a class action complaint on behalf of Texas citizens with developmental disabilities who are living unnecessarily in nursing facilities. The plaintiffs seek residential services and supports that will allow them to live in the community rather than in a nursing facility.
Rolland v. Patrick - Massachusetts
Springfield, MA - May 8, 2013 – US District Court Magistrate Judge Kenneth P. Neiman announced Wednesday he was prepared to dismiss the longstanding class action lawsuit, Rolland v. Patrick, that moved about 1800 people with intellectual and developmental disabilities out of nursing facilities into homes in the community.
At the final hearing before a packed courtroom in federal court, Judge Neiman thanked the court monitor, attorneys for the plaintiffs and the defendants, and officials and staff from multiple state agencies for their work to “make sure the lives of [class members] are eased, enhanced and improved.”
He acknowledged lead named plaintiff Loretta Rolland, sitting in her wheelchair in the front row, and lauded her courage for bringing this lawsuit against the state in 1998. Rolland and six other named plaintiffs, who represented over 1600 people with I/DD confined and segregated in 290 nursing facilities, charged they were denied the right to live in the community in violation of professional judgment and federal law, including the Americans with Disabilities Act (ADA), the Nursing Home Reform Amendments, and other provisions of the Medicaid Act.
Judge Neiman, who visited many class members in nursing facilities and community homes, said that some are not able to leave the facilities. But he expressed concern for those who remain “when it’s obvious they could live in community residences.” He suggested that they and their families or guardians “would do well to visit” one of the state-of-the-art community homes where both the social and clinical needs of people with I/DD are addressed.
DDS Commissioner Elin Howe concurred that community placement is appropriate and beneficial for the vast majority of class members. She said that in the last five years, 677 class members have moved out of facilities, many to homes with enhanced clinical capacity, including one that specializes in services for people on ventilators.
Between 2000 and 2007, more than 1100 class members moved from facilities into homes under what became known as the First Settlement Agreement. Under that agreement, DDS was required not only to place people in the community, but also to deter nursing home admissions, and provide individuals with I/DD in nursing facilities with active treatment – specialized services that promote independence and growth, and prevent regression and loss of abilities. The defendants met the community placement target, but fell short on diversions and on providing active treatment, leading to hearings on noncompliance, the appointment of a court monitor, and ultimately, the Second Settlement Agreement.
Approved by the Court in June 2008, the Second Settlement Agreement required the defendants to place 640 of the 735 class members who were still in nursing facilities, enhance the diversion program, and provide active treatment consistent with court orders and the federal standard to those not likely to leave nursing facilities, largely due to the complexity of their medical needs.
The attorneys for the plaintiffs acknowledged the defendants have met their obligations, and the original goals of the litigation have been met: people with I/DD are no longer segregated in facilities, and those who cannot or have not left the facilities – currently, about 135 – are receiving active treatment.
“By any measure, there is a new day for people with developmental disabilities who otherwise would have been left institutionalized,” said plaintiffs’ attorney Steven Schwartz of the Center for Public Representation (CPR). In particular, he cited the defendants’ accomplishments in establishing standards for nursing home screening and diverting admissions.
With the dismissal of the case, DDS and the Department of Public Health will share responsibility for monitoring active treatment in nursing facilities, and DDS will continue to oversee the community service infrastructure – and without judicial supervision. As Judge Neiman explained, “The defendants’ work is not done – but they will no longer be defendants.”
Cathy Costanzo, CPR executive director, told the court about several class members whose lives have blossomed since they moved to community homes. One young man, who was virtually bed-ridden in the nursing facility, is making plans to attend his first wedding in May and a country western concert in June.
Schwartz said that the legacy of the litigation is evident in the 85 Rolland citations in similar cases across the country, including all the briefs filed by the Department of Justice challenging the segregation of individuals with disabilities. He pointed out that the court’s holdings have been adopted or are under consideration by federal courts in other cases, and that the Centers for Medicare and Medicaid Services have adopted the nursing facility screening process that DDS developed as a result of the Rolland case.
The court monitor, Lyn Rucker, said she and her team conducted 353 active treatment reviews since 2007, and got to know facility staff, families and especially, class members, each of whom, she said, “regardless of personal circumstances, … has hopes and expectations for the future.”
In the course of her reviews, Rucker tracked facilities’ improvements in meeting the active treatment standard, as well as those facilities who consistently failed to institute reforms, landing them on a “no-admit” list. No class members are in any of those facilities.
She challenged the parties to go beyond the active treatment standard and ensure all people with I/DD have safe and meaningful lives. The Rolland litigation, she predicted, “will have made a lasting change, and Rolland will be seen as what works.”
To print the above press release and view additional content related to the settlement and the May 8th hearing, see below:
History of Rolland v. Patrick
This lawsuit was filed in 1999 on behalf of 1,600 persons with intellectual and developmental disabilities who were inappropriately confined in nursing facilities in
Mindful that meeting the active treatment standard in facilities would involve tremendous energy, time, resources and clinical capacity, the parties took an alternative approach that sought to expand community options for 640 class members over four years, provide enhanced services to class members awaiting placement, and provide active treatment to those not likely to leave nursing facilities. The parties negotiated the Second Settlement Agreement, which the Court approved on June 16, 2008. See Rolland v. Patrick, 562 F.Supp.2d 176 (D.Mass. 2008). The Agreement provided a comprehensive approach to achieving the original goals of this litigation: ending unnecessary segregation of persons with I/DD and providing active treatment to those who could not or would not leave nursing facilities.
Over the course of the next four-and-a-half years, the Court Monitor and the state’s Department of Developmental Services steered implementation of the Second Settlement Agreement. By January 2013, nearly 650 class members were placed in the community, hundreds were diverted from nursing facilities, and the Monitor was training teams of reviewers from DDS and the Department of Public Health to oversee the provision of active treatment to those still in facilities. In their final filing, the plaintiffs acknowledged that the fundamental goals of the case have been achieved, and as a result, thousands of class members are benefitting from new lives in the community and significantly improved care. SeePlaintiffs’ Report on the Status of Compliance, Doc. 578, January 31, 2013.
For a full list of reported decisions in this case, see:
Rolland v. Cellucci, 1999 WL 34815562, (D.Mass., Feb. 2, 1999) (class certification)
Rolland v. Cellucci, 52 F.Supp.2d 231 (D.Mass., June 4, 1999) (motion to dismiss)
Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass., Jan. 10, 2000) (settlement agreement)
Rolland v. Cellucci, 106 F.Supp.2d 128 (D. Mass., June 28, 2000) (fees)
Rolland v. Cellucci, 138 F.Supp.2d 110 (D.Mass. March 27, 2001) (specialized services)
Rolland v. Cellucci, 151 F.Supp.2d 145 (D. Mass., July 23, 2001) (fees)
Rolland v. Cellucci, 164 F.Supp.2d 182 (D.Mass., Sept. 12, 2001) (fees)
Rolland v. Cellucci, 198 F.Supp.2d 25 (D.Mass., May 3, 2002) (specialized services)
Rolland v. Romney, 318 F3d 42 (1st Cir. 2003) (affirmed specialized services and implementation of active treatment)
Rolland v. Romney, 273 F.Supp.2d 140 (D.Mass. 2003) (contempt)
Rolland v. Romney, 292 F.Supp.2d 268 (D.Mass. 2003) (fees-4)
Rolland v. Patrick, 2007 WL 184626 (D.Mass., Jan. 16, 2007) (diversion)
Rolland v. Patrick,483 F.Supp.2d 107 (D. Mass., April 10, 2007) (finding noncompliance with active treatment requirements, requiring adoption of federal active treatment standards and protocols, and appointing a monitor)
Rolland v. Patrick, 562 F.Supp.2d 176 (D. Mass. June 16, 2008) (approving new settlement agreement that requires the State to place an additional 640 nursing facility residents, to provide transition services to all class members who will move to the community, and to provide active treatment to those who will not)
Rolland v. Patrick, 2008 WL 4104488 (D. Mass. Aug. 19, 2008) (denying class certification)
Rolland v. Patrick, 2009 WL 3258401 (D. Mass. Oct 2, 2009) (fees – 5)
Voss v. Rolland, 592 F.3d 242 (1st Cir. 2010) (affirming settlement and rejecting challenge to class)
Rolland v. Patrick, 2010 WL 157475 (1st Cir. Jan. 19, 2010) - (affirming approval of settlementand rejecting challenges to class certification)
Rolland v. Patrick, 2011 WL 652482 (D. Mass. Feb. 10, 2011) (fees – 6)
The documents contained on this page and within this web site do not constitute legal advice. Anyone engaged in legal action should consult with an attorney. Attorneys should make their own independent judgments. Local laws vary and the law may have changed since these documents were written. Litigants should fully research any claims or defenses before making them.