May 24, 2016: Steward v. Abbott
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.
May 18, 2016: Steward v. Abbott
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.
April 4, 2016
Center Files New ADA Community Integration Case in Ohio: More than 27,000 Ohioan’s with Developmental Disabilities Seek Integrated Home and Community-based Services Through Class Action Lawsuit
Six individuals with intellectual and developmental disabilities filed a class action lawsuit in federal court on March 31, 2016, Ball v. Kasich, charging the state of Ohio with violating their rights under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the Social Security Act by failing to provide the integrated residential, employment and day services required to avoid their unnecessary institutionalization or serious risk of institutionalization.
The named plaintiffs – aged 23 to 62 – represent a class of 6400 individuals with disabilities now institutionalized in the state’s vast network of intermediate care facilities (ICFs) and an additional 22,000 people with disabilities who are waitlisted for community services and at serious risk of institutionalization. The individual plaintiffs, and organizational plaintiff the Ability Center of Greater Toledo, are represented by the Center for Public Representation, Disability Rights Ohio, Sidley Austin, LLP, , and attorney Samuel Bagenstos.
Contrary to the national trend to de-institutionalize, Ohio continues to maintain and invest in outdated and restrictive ICFs. There are about 300 privately-operated ICFs licensed by the state and 10 state-run facilities known as developmental centers. By virtue of their institutionalization, class members’ lives are highly regimented and controlled. They are often isolated from their families and friends, and have little or no contact with non-disabled peers, other than staff. During the day, many class members are shuttled to sheltered workshops where they perform mundane jobs or light assemble work for pennies on the dollar. Others spend their days in congregate day programs with little access to the community.
State defendants include Gov. John Kasich, John Martin, director of the Department of Developmental Disabilities, John McCarthy, director of the Department of Medicaid, and Kevin Miller, director of Opportunities for Ohioans with Disabilities. Read the complaint and other related documents, here.
February 5, 2016
Demand Letter Sent to Alabama Officials Seeking Remedy to Deficiencies in Children's Mental Health System
The Center for Public Representation and the Alabama P&A (ADAP) are challenging Alabama’s failure to provide intensive home-based services to Medicaid-eligible children and youth with behavioral, emotional, and psychiatric conditions, including Serious Emotional Disturbance (SED) and Autism Spectrum Disorders (ASD). Both organizations have sent a pre-litigation demand letter to the Governor and various state officials, asking that Alabama’s Medicaid agency ensure that all children who need intensive home-based services to remain in their homes, schools, and communities receive these supports, through the State’s community mental health service system. The letter alleges that the failure to provide these medically-necessary services promptly violates the EPSDT provisions of the Medicaid Act. Intensive home-based services have been demonstrated to be more effective and less expensive in allowing youth with SED and ASD to receive needed care without having to leave their families and homes. See www.rosied.org
December 29, 2015
Court Approves Landmark Settlement Agreement in ADA Employment Case
On December 29, 2015, the District Court of Oregon approved a landmark settlement agreement in Lane v. Brown. The Court’s opinion and order determined that the Agreement was fair and reasonable, since it incorporated, but went far beyond, the State’s Olmstead plan to expand integrated employment opportunities for at least 7,000 individuals with intellectual and developmental disabilities and guaranteed that at least 2,000 class members will achieve Competitive Integrated Employment. The Court reviewed its prior decisions: (1) holding that the Title II of the ADA applies to employment and requires that the State to provide employment services in integrated settings rather than in segregated sheltered workshops; (2) certifying a class; and (3) denying intervention by a proposed class of parents who opposed integrated services. It noted that while the plaintiffs had a strong likelihood of prevailing on their ADA integration claims, the Agreement provides them most of the relief they sought, plus a guarantee that thousands of class members will be provided real jobs in real community businesses.
The case was litigated with CPR’s legal partners: the U.S. Department of Justice, Disability Rights Oregon, Miller Nash Graham & Dunn, and Perkins Coie LLP.
September 22, 2015
CPR and Nonotuck Resource Associates unveil website for joint Supported Decision-Making Pilot Project. View the new site at www.supporteddecisions.org.
September 8, 2015
Landmark ADA Settlement Reached to Reform Oregon’s Employment Service System
Yesterday, the United States honored working Americans and their fight for equality. Today, the day after Labor Day, the Center for Pubic Representation marks a milestone in the fight for the civil rights of individuals with developmental and intellectual disabilities (I/DD) to work in real jobs and earn fair wages in integrated employment settings. In the first case in the Nation to apply the ADA's Integration mandate to employment programs, the State of Oregon agreed to significantly reduce the number of individuals with I/DD in segregated sheltered workshops and to expand its supported services that will allow persons with I/DD to work in competitive integrated employment. The historic Settlement Agreement requires Oregon to dramatically reform its employment service system and paves the way for thousands of individuals with I/DD in Oregon to work side by side with others in the community.
The class action case was filed in January 2012 and was scheduled for trial in December 2015. After the class was certified and the United States Department of Justice intervened, Oregon developed numerous executive and legislative initiatives as part of its Olmstead plan defense, including preventing new admissions to sheltered workshops and increasing funding for supported employment services. The Governor’s Executive Orders 15-01 and 13-04, the Oregon Department of Human Services’ (DHS) Integrated Employment Plan (Revised July 2015), Quality Assurance and Quality Improvement Plan, Employment First Communication, Outreach, and Awareness Plan, Training and Capacity Plan, and Provider Transformation Grant Program together represent a commitment by the State to reform its employment service system for individuals with I/DD. The proposed Settlement Agreement builds upon these plans and commitments, and incorporates many of their provisions. In effect, the voluntary activities that Oregon incorporated in its Olmstead plan have become mandatory obligations in the Settlement Agreement.
The case was actively litigated by CPR, Disability Rights Oregon, Miller Nash Graham & Dunn and Perkins Coie and the United States Department of Justice. The federal court will conduct a fairness hearing in the next few months. DOJ has issued a Fact Sheet describing the case.
Judge Sanctions State of Oregon for Failing to Produce Electronic Discovery
After months of unsuccessful efforts to negotiate an agreement on the production of electronically-stored information (ESI), the Court ordered the defendants to implement a discovery protocol that searched the State’s servers and discrete mailboxes of approximately forty state official custodians for roughly seventy-five search terms. Over the two years, the State conducted five separate searches and produced five sets of ESI that allegedly incorporated all of the mandated terms and custodians. Only after fact discovery ended did the defendants reveal that they had omitted approximately 75% of the required terms, or an estimated 770,000 pages of ESI.
The plaintiffs and United States sought the appointment of a special master with expertise in ESI matters to investigate the causes of this glaring error, to determine if sanctions are appropriate, and to recommend remedial actions. The Court concluded that the appointment of a third party was unnecessary, but ordered extensive sanctions, including the production of all missing ESI within 45 days, significant additional discovery, the opportunity to supplement expert reports, and attorney’s fees for work related to addressing the missing ESI.
Parties Exchange Over Thirty Expert Reports
In the first litigated ADA Title II case involving unnecessary segregation in sheltered workshops, the plaintiffs and the United States recently submitted initial and rebuttal reports from twenty-four experts, while the State produced initial and rebuttal reports from eight retained experts and eight state officials. The plaintiffs’ reports covered a broad range of issues, including:David Mank: Systemic Overview of Supported Employment and DD Service Systems
Lynnae Ruttledge: Systemic Overview of Supported Employment and VR Service Systems
Paul Wehman: Professional Literature on Supported Employment
Laura Owens: National Standards on Supported Employment
Rob Cimera: Cost of Supported Employment and Sheltered Workshops
Mary Morningstar: Transition Services for Youth in Oregon’s School System
Lyn Rucker: Expanding Supported Employment Does Not Constitute a Fundamental Alteration
Andrew Houtenville: Supported Employment and the Oregon Economy
Richard Luecking: Supported Employment Providers in Oregon
Ruby Moore: Capacity of Supported Employment Providers in Oregon
Lyn Rucker: Systemic Findings of Individuals in Sheltered Workshops
Ruby Moore: Systemic Findings of Individuals Allegedly Receiving Supported Employment
Tara Asai: Oregon Is Not Implementing its Employment First Policy
Debra McLean: Oregon Historically Has Failed to Expand Supported Employment
Paula Johnson: Oregon Has Failed to Provide Employment Opportunities for Youth in Transition
Ann Coffey: Oregon’s Recent Efforts to Expand Supported Employment Are Not Working
Jo-Ann Sowers: Oregon Does Not Have an Effectively Working Olmstead Plan
Over the course of 90 minutes on March 26th, five individuals with developmental disabilities entered into Representation Agreements creating their supported decision-making networks. Supported by their families -- parents, siblings, shared living providers -- they each stood before a notary public and acknowledged their understanding of the agreement, including the people they designated to be their supporters. One by one, they signed the bottom line. It was a remarkable day. These five join another pilot participant who executed her Representation Agreement last month; yet another participant is scheduled to sign hers in the near future. See captured photos on Facebook at https://www.facebook.
Jackson Compliance Administrator Makes Binding Recommendations on Disengagement Criteria
After the Court found the defendants in noncompliance with numerous provisions of existing court orders concerning health, safety, and supported employment, the Jackson Compliance Administrator (JCA) made her first binding recommendations concerning a remedy for these systemic deficiencies. In September, the Court adopted some, but not all, of the JCA’s proposed remedy. It allowed the defendants a further opportunity to propose disengagement criteria – compliance standards for assessing when the Court’s remedial goals and objectives were met, and when the Court would disengage from those issues. The defendants submitted their criteria in November. The JCA has rejected most of these state’s criteria, and issued her own recommended compliance standards. Pursuant to her order of appointment, the JCA’s recommendations are binding unless appealed to, and modified by, the Court. The state has until January 15, 2015 to appeal these recommendations.
June 2014: Court Denies Intervention in Oregon Sheltered Workgroup Case
On June 20, 2014, the District Court of Oregon issued a landmark decision denying intervention to seven families who wanted to join the Center's sheltered workshop case in Oregon, Lane v. Kitzhaber. The families claimed that the case would force persons with intellectual and developmental disabilities who are currently in sheltered workshops to work in integrated settings. The families wanted to end the ADA class action challenge to Oregon's segregated employment system. The judge refused. The court's decision finds that the families have no protected legal interest in remaining in sheltered workshops, that the lawsuit would not force them to accept integrated employment, and that their interests (if any) in this case are adequately represented by the plaintiffs and the United States, as well as the State of Oregon. The decision will allow the lawsuit to proceed to trial, as planned. It also will be helpful in other ADA cases where proponents of segregated services seek to undermine the enforcement of the ADA's integration mandate.
May 2014: CMS Approves Amendments to ABI and MFP Waivers
Several substantive changes will affect how waiver services are delivered and monitored in the community. First, individual case management and service coordination for waiver participants will now be provided by the Massachusetts Rehabilitation Commission (MRC) (for those in non-residential waiver programs) and the Department of Developmental Services (DDS) (for those receiving residential waiver services). This change in responsible state agencies is expected to improve and enhance the delivery of case management services under the waivers. Waiver participants will receive needs assessments and individualized service planning consistent with person-centered planning principles, as well as assistance planning for their transitions from institutional care. For persons residing in the community, case managers will continue to coordinate and monitor the provision of waiver services while updating individuals’ plan of care as needed.
April 2014: Spring Enrollments Scheduled for ABI and MFP Residential Waivers
As part of the Commonwealth's implementation of the Amended Settlement Agreement in Hutchinson v. Patrick, MassHealth, in collaboration with the Massachusetts Rehabilitation Commission (MRC) and the Department of Developmental Disability Services (DDS) operates four home and community-based services waivers. These waivers can help Medicaid-eligible persons with Acquired Brain Injury (ABI) transition from nursing and long term rehabilitation facilities to integrated community settings with a variety of services and supports.
Starting April 1, 2014, MassHealth will begin accepting applications for the Money Follows the Person Residential Supports waiver (MFP-RS), with enrollment for the Acquired Brain Injury Residential Habilitation waiver (ABI-RH) scheduled to begin on May 1, 2014. MassHealth will continue to review applications for both waiver programs until all available slots for the 2015 waiver year are filled. Read more about the waivers here.
February 27, 2014: Landmark Settlement Agreement Approved in Longstanding Class Action Case
After a fairness hearing on February 27, 2014, Judge Edward Bassett approved a landmark settlement agreement in Arnold v. Sarn, a longstanding class action on behalf of more than 23,000 persons with serious mental illness in Maricopa County, Arizona. The settlement requires the State to create up to 1500 additional supported housing units, 1250 supported employment placements, 13 ACT teams, and 1500 peer support services.
Agencies providing these services must comply with SAMSHA fidelity standards for each program model. Using trained and qualified reviewers, the State must conduct annual evaluations of all agencies providing these services, and take corrective actions to ensure compliance with these standards. In addition, the State must conduct annual independent reviews of a sample of class members to determine if their support needs are being met, as well as separate independent reviews of the capacity of the service system to meet the overall needs of persons with serious mental illness in the County.
If the State complies with its initial obligations, the case will be dismissed in September 2014, pursuant to an order which allows the Court to continue its jurisdiction and enforcement authority over the settlement on an indefinite basis.
The Governor of Arizona, as well as many senior state officials, attended the entire fairness hearing. In addition to presentations by attorneys for all parties, Governor Brewer addressed the Court, urging it to approve the settlement agreement. She said the settlement was one of the most significant achievements of her administration, and "would bind future governors and executive officials, requiring all of them to continue to ensure that the needs of persons with serious mental illness are fully met."
Read the final settlement agreement and the notice to class. The case is litigated by the Center for Public Representation, the Arizona Center for Law in the Public Interest, and the Arizona Disability Law Center.
February 12, 2014: Comprehensive Settlement Agreement Approved in New Hampshire Olmstead Case
Following several months of intensive negotiations, the parties in Amanda D. v. Hassan submitted a Joint Motion for Final Approval of their proposed Comprehensive Settlement Agreement. On February 12, 2014, that Agreement was approved as fair and reasonable and entered as an order of the District Court, ushering in a period of significant investment in, and expansion of, the community mental health system in New Hampshire.
As described in the plaintiffs’ Memorandum in Support of Final Approval, the Agreement has received wide-spread support from class members, family and public guardian organizations, and clinical and policy experts familiar with the New Hampshire system.
Under the terms of the Agreement, the State will expand its community service capacity over the next five years, providing four evidence-based, community mental health services – mobile crisis teams and crisis apartments, Assertive Community Treatment, Supported Housing and Supported Employment. These services are designed to promote community integration and to help class members avoid unnecessary hospitalization and institutionalization. The Agreement also ensures New Hampshire will maintain and increase its funding for peer and family supports.
A new person-centered transition planning process will facilitate class members’ access to these services, offering in-reach to those currently institutionalized in New Hampshire Hospital and the Glencliff Home, identifying individuals’ needs and preferences, developing discharge plans, and coordinating the provision of care and treatment in the community. Annual community service reviews will be used to measure the quality of service delivery and to ensure class members have opportunities for increased independence and community integration. An Expert Reviewer, jointly selected by the parties, will monitor these implementation efforts, and assess the State’s compliance with the terms of the Agreement.
Finally, the Agreement enables the District Court to maintain jurisdiction over the underlying litigation and to use its equitable authority to enforce the terms of the Agreement in the event of any future noncompliance.
January 8, 2014: Landmark Settlement Agreement to Expand Community Mental Health Services and Resolve the Historic Arnold v. Sarn Litigation
The Arizona Center for Law in the Public Interest, the Center for Public Representation, and the Arizona Center for Disability Law filed a landmark settlement agreement that will dramatically expand mental health services to allow individuals with serious mental illness to live independent and productive lives in the community. The settlement resolves the long-standing case of Arnold v. Sarn, which was the first class action suit to enforce a state statute requiring the State to provide community mental health services to all persons with serious mental illness.
The settlement will expand ACT, supported housing, supported employment, and peer and family services for up to 20,000 persons with serious mental illness in Maricopa County, Arizona . The Governor of Arizona, a signatory to the agreement, called it “a landmark day for our state, particularly for the thousands of Arizonians living with Serious Mental Illness who finally have better access to the quality community-based resources and the care and services they deserve.”
December 20, 2013: Proposed Settlement Reached in New Hampshire Olmstead Case
Following several months of negotiations between the plaintiffs, the Department of Justice and State defendants, the parties in Amanda D. v. Hassan executed a comprehensive Settlement Agreement on December 19, 2014. This Agreement will significantly expand community-based services for a class of adults with serious mental illness institutionalized at New Hampshire Hospital or Glencliff nursing home, or at serious risk of institutionalization at these facilities.
A Joint Motion for Preliminary Approval , filed with the Court on December 19, 2013, describes the substance of the Agreement, as well as provisions for its enforcement and monitoring. A hearing to determine if the proposed Agreement is fair and reasonable is requested for mid-March, 2014.
The proposed Agreement enhances and expands community-based services for individuals with serious mental illness by increasing the availability of Assertive Community Treatment, supported housing and supported employment. The Agreement also calls for the development of mobile crisis services and crisis apartments in three regions of the State, as well as implementation of a transition planning process designed to inform individuals of opportunities for community living while addressing and overcoming barriers to discharge.
Additionally, the State will develop and implement a quality assurance and performance improvement system to ensure community services provide reasonable opportunities to help individuals achieve increased independence, be more integrated into their communities, and avoid unnecessary institutionalization.
An independent Expert Reviewer will be selected to oversee the five year implementation process, and to measure compliance with the terms of the Agreement. Among the Expert Reviewer’s responsibilities are convening meetings of the parties, producing public reports on the status of implementation, and mediating potential disputes. The Court will retain jurisdiction over the case and the court-ordered Settlement Agreement until compliance has been fully achieved.
October 29, 2013: CPR, Nonotuck launch supported decision-making pilot as guardianship alternative
CPR and Nonotuck Resources, Inc., an established social service provider, held a day-long planning meeting with experts and stakeholders to discuss supported decision-making and other alternatives to guardianship for individuals with disabilities. Redirect to the Supported Decision-Making page for a complete summary of the meeting.
September 17, 2013: Court finds class certification appropriate in New Hampshire Olmstead case
In late January 2013, the Center and its co-counsel submitted their renewed motion for class certification in Lynn E. v. Lynch (now captioned Amanda D. v. Hassan), seeking to represent a class of individuals with serious mental illness institutionalized at New Hampshire Hospital or Glencliff nursing home, or at serious risk of institutionalization at these facilities. Extensive legal briefings and the results of six months of class-based discovery were presented to the Court in oral arguments this spring, along with potential revisions to the proposed class definition.
In a lengthy decision issued on September 17, 2013, the Court concluded that class treatment was appropriate and the evidence presented sufficient to conclude that plaintiffs had satisfied the legal criteria for certification. Specifically, plaintiffs’ successfully alleged that systemic deficiencies in the State's community-based mental health services system affected the class as a whole, resulted from a pattern or practice of agency action or inaction, and that the resulting common contention was capable of being remedied by a single injunction.
Consistent with recent Supreme Court rulings, the Court found that the majority of defendants’ objections related not to the requirements of Rule 23, but to their fundamental alteration defense and, therefore, were properly addressed in the trial on the merits. The Court also relied upon, and cited favorably to, Department of Justice Olmstead guidance, concluding that persons at serious risk of institutionalization were appropriately included in a class harmed by unnecessary institutionalization.
Most notably, the Court’s decision upholds decades of class action, civil rights litigation under Olmstead and on behalf of people with disabilities, concluding that persons with psychiatric disabilities can maintain an injunctive class action despite individual differences in diagnosis, treatment needs or current preferences for community living.
The certified class is defined as:
“All persons with serious mental illness who are unnecessarily institutionalized in New Hampshire Hospital or Glencliff or who are at serious risk of unnecessary institutionalization in these facilities.
At risk of institutionalization means persons who, within a two year period: (1) had multiple hospitalizations; (2) used crisis or emergency room services for psychiatric reasons; (3) had criminal justice involvement as a result of their mental illness; or (4) were unable to access needed community services.”
August 19, 2013: State of Texas, lawsuit plaintiffs reach interim agreement expanding community services and opportunities for persons with intellectual and developmental disabilities in nursing facilities
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.
June 19, 2013: Court grants preliminary approval of amended settlement agreement in Hutchinson v. Patrick
Nearly 1200 institutionalized people with brain injuries will have the opportunity to move out of nursing facilities and into community residences over the next six years under an Amended Agreement jointly proposed by state officials and attorneys for the plaintiffs. The Joint Motion, filed on June 20, 2013, summarizes the key terms of the Amended Agreement, including the delivery of community-based services under the Commonwealth’s Money Follows the Person Demonstration and an enhanced education and outreach program to ensure class members are aware of opportunities to leave institutional settings and reside in the community. The Court has approved a Notice to the Class concerning the Amended Agreement, with responses due on July 8, 2013. The parties issued a joint press release on June 21, 2013 to aid in the notice process. A fairness hearing is scheduled for July 11, 2013.
May 8, 2013: Long-standing disability case settled and dismissed
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.”
May 1, 2013: Center's Legal Director calls the $240 million verdict stunning
In a decision that legal experts are calling "stunning," an Iowa jury this morning awarded $240 million to the 32 mentally disabled men who faced decades of discrimination and abuse while working for Henry's Turkey Service in Atalissa.
When jurors announced the judgment, after less than eight hours of deliberation, Sherri Brown, the sister of one of the 32 men, broke down in tears inside the Davenport courtroom.
"I totally lost it," she said later. "I wanted the jury to make a statement so that my brother Keith and all of those men would know that someone had heard them. And if this isn't a statement, I don't know what is.
"The $240 million judgment reflects $2 million in punitive damages for each of the 32 men, plus $5.5 million in compensatory damages for each of the men.
Steven Schwartz, a disability rights attorney and former Harvard professor, said today's judgment will be heard across the nation.
"It's stunning," he said. "It's amazing. I'm almost incredulous. I think this verdict sends an incredibly powerful message to jurors all over the country. And of course it sends an equally powerful message to the people who cause this sort of harm. This is also an extraordinary testament to the EEOC and its attorneys, Robert Canino in particular, that they are willing to stand up for people with mental disabilities. They represent the best our government can be."
Schwartz, who is trying to obtain community-support services in Texas for five former bunkhouse residents, said one of the biggest challenge in discrimination cases is convincing a jury that people with disabilities have just as much value as everyone else.
Dr. Sue Gant, an expert witness who testified for the EEOC on the hardships suffered by the disabled workers, said the judgment represents "a groundbreaking advancement in that it demonstrates that the men have value that is equal to people without disabilities."
"I'm very pleased the jury made such a powerful statement," said Ruby Moore, a national disability rights advocate based in Georgia. "People around the country are absolutely aware of this case. It has unveiled some of the horrendous practices faced by people with disabilities."
Through the U.S. Equal Employment Opportunity Commission, the 32 former employees of Henry’s had sued the company in federal court, alleging unlawful harassment and discriminatory employment conditions at the company’s labor camp in Atalissa.
Over a period of 40 years, Henry’s sent hundreds of disabled men from Texas to Iowa where they worked in a West Liberty meat-processing plant for 41 cents an hour. The men were housed in a 100-year-old Atalissa school building the company converted to a bunkhouse. The operation was shut down in February 2009, after The Des Moines Register asked state officials about conditions inside the bunkhouse and the company's lack of a license to care for disabled adults.
Although the Atalissa labor camp operated for decades, federal law restricted the EEOC's claim to only the final two years of operation, limiting both the nature of the claims that can be made as well as the number of workers who could seek compensation.
"The amount of this jury award is phenomenal in assigning responsibility for all of the wrongdoing that took place, and it also sends a message that this sort of conduct deserves more than a slap on the hand," Gant said. "But how do you put a value on decades of lost opportunity? You can't recapture those years... These men were hidden away for decades, and for others' personal gain. These were humans who were treated like cattle -- like company property, like just another source of income for the company."
The verdict came one day after jurors in the EEOC case heard closing arguments from both the government and from Henry's attorney, David Scieszinski of Wilton.
Canino, the EEOC attorney who represented the 32 men in court, had asked jurors to compensate those "valiant men" for what he called their "broken hearts, broken spirits, shattered dreams and, ultimately, their broken lives." He characterized their mistreatment as pervasive and unrelenting.
"The evidence is these men were treated like property," Canino told the jury. "These men are people. They are individuals."
He said Henry's had deliberately chosen not to provide the men with disability services, health insurance or access to Iowa Medicaid - a move that resulted in some of the men not being seen by doctors or dentists for years. Canino said that was by design.
"If the eyes of Iowa saw what was happening, if the eyes of Iowa got inside that bunkhouse ... If anybody ever caught on to that, the party was going to be over," he told jurors.
Scieszinski told jurors to be mindful of the fact that the EEOC didn't call any of the 32 men as witnesses and had opted instead to present as evidence "the feelings of a group of social workers."
He blamed the city of Atalissa -- which owned the bunkhouse and leased it to Henry's -- for conditions inside the building, which included a lack of central heat, fire-safety violations and cockroaches so numerous that one social worker said she could hear them in the walls.
"The city of Atalissa was responsible for maintaining that bunkhouse in habitable condition," he told jurors. "If there was any failure here, it was on their part."
He told jurors that Henry's provided "love and care" for the men, and said it was necessary for the men to live in the bunkhouse under the control of the company "for their own safety." He reminded them of an incident in which one of the men wandered away from the bunkhouse during a winter storm, froze to death and was found by a farmer the following spring.
"Think of that boy they found out laying in the fence row and how they didn't find him for six or seven months," Scieszinski told jurors.
Company president Kenneth Henry, 72, of Proctor, Texas, testified Monday that he was unaware of any abuse or neglect of the men, other than two incidents that were reportedly witnessed by plant officials at West Liberty Foods, where the men worked.
He testified that over 45 years, Henry's sent 1,500 mentally disabled men to labor camps in seven states, including Iowa camps in Spirit Lake, Ellsworth and Atalissa. Despite the size of the operation, Henry said he never had a company policy manual and no one at the company ever owned a computer -- or had access to a computer -- to research support services available to the mentally disabled.
Evidence produced during the trial indicates bunkhouse supervisor Randy Neubauer had one of the bunkhouse residents handcuffed to his bed at night -- an allegation Neubauer denied when testifying. Also, an Iowa Department of Human Services social worker testified that evidence showed some of the men were punished for violating company rules by being taken to garage next to the bunkhouse where they were forced to walk around a pole while they were hit, kicked and screamed at by their caretakers.
After the bunkhouse was shut down, the Labor Department won a $1.76 million judgment against the company for federal labor law violations. In a separate action, Iowa Workforce Development imposed a $1.2 million civil fine against Henry's for state labor law violations. Then, last year, the EEOC won the $1.3 million judgment for ADA wage violations, setting the stage for the current trial on issues of harassment and discrimination.
The Center provided ongoing assistance and support to the EEOC's attorney and expert in this case. The Center is representing five of the men who were moved from the Turkey Farm to a nursing facility in Texas. See Steward v. Perry.
Oregon Executive Order: Empty Promises for People in Sheltered Workshops
On April 10, 2013, the Governor of Oregon issued an Executive Order on employment services for persons with intellectual and developmental disabilities. The Order comes just two weeks after the United States moved to intervene in a federal lawsuit, Lane v. Kitzhaber, that seeks to end the unnecessary segregation of persons with disabilities in sheltered workshops. While the Order is a tacit acknowledgement of the state’s failed promises over the past two decades and an effort to require coordinated activities between several state agencies, it does little to ensure that individuals with disabilities will ever be able to secure real jobs in the community or earn at least a minimum wage in an integrated employment setting.
Under the Executive Order, only 1/3 of all persons who are segregated in sheltered workshops will be provided employment services. This means that at least 1,600 individuals will have to remain in the workshops. And even for those who do receive employment services, there is no assurance that these services will be designed to enable them to ever leave the workshops, let alone to access real jobs in competitive employment settings. In fact, given Oregon’s past practice of counting individuals in sheltered workshop who receive even 1 hour a month of job counseling as getting “supported employment services”, it is quite possible that nine years from now, the order could result in no one leaving sheltered workshops.
The Executive Order includes no commitments about the quality, quantity, or outcomes of the employment services. Consequently, the Order is unlikely to lead to people with disabilities actually being able to access typical employment settings, integrated services, or real wages. The Order also fails to address the service needs of the overwhelming majority of individuals served by the State’s system. The Order provides for the administration of employment services to only approximately 1% of the total number of people with intellectual or developmental disabilities served by the State’s dayservice system.
Although the Order provides for “a significant reduction over time of state support of sheltered work,” it does so without any adequate or effective commitment to benchmarks, system outcomes, or re-allocating or re-distributing resources to provide individuals with disabilities access to employment services in integrated settings. In fact, the plan all but assures that the goals for delivering services to individuals in the community are advisory goals and not commitments.
The Order also considers group enclaves and mobile work crews to be “integrated employment settings,” even though people in such settings frequently do not interact with non-disabled individuals and often earn sub-minimum wages.
The goal of the Lane v. Kitzhaber class action suit, and the United States’ Complaint-in-Intervention, is to ensure that individuals that can and want to work in integrated employment settings have a meaningful opportunity to do so. The Executive Order does very little, if anything, to actually advance such integration. Very few, if any, individuals will experience a meaningful choice to work in an integrated setting as a result of the Order. Instead, it appears that a fraction of people in the employment service system will receive a modicum of employment services with no expectation that they will transition into real jobs in the community.
United States intervenes in Oregon ADA case
The United States began investigating the State of Oregon’s employment service system for persons with developmental disabilities in October 2011. It issued a letter on June 29, 2012, concluding that the State was violating the Americans with Disabilities Act (ADA) and Rehabilitation Act. After months of negotiations to reach a settlement and avoid litigation, the United States determined that voluntary compliance was not possible and that resort to court was necessary.
The complaint gives many examples of mistreatment of persons with developmental disabilities, such as a sheltered workshop in Oregon where 150 citizens with disabilities hand sort trash and clean garbage bins, with some earning only 44 cents an hour. This complaint makes clear that these deficiencies have persisted for decades, despite repeated reports and plans calling for action to reform the State’s employment service system.
The United States found that the State of Oregon plans, structures, and administers its employment service system for developmental disabilities in a manner that perpetuates the segregation of individuals with developmental disabilities. The State’s system unduly relies on sheltered workshops rather than providing employment services in integrated settings, causing the unnecessary segregation of individuals who are capable of, and not opposed to, working in the community. The United States recommended that the State implement certain remedial measures, including the development of sufficient supported employment services to enable those individuals who are unnecessarily segregated, or at risk of unnecessary segregation, in sheltered workshops to receive services in individualized, integrated employment settings in the community.
Judge Appoints Compliance Administrator in New Mexico
After waiting years for the State of New Mexico to comply with longstanding court orders, the Center and its local partners filed a comprehensive noncompliance motion in Jackson v. Los Lunas. The motion focused on pervasive and persistent deficiencies in health, safety, and supported employment services. After a year of discovery, a week long trial, hundreds of pages of factual findings, and several supplemental memorandum, the Court issued a landmark ruling in October 2012, concluding that the defendants violated numerous provisions of its earlier orders. The Court’s ruling affirmed virtually every allegation of noncompliance in the Center’s motion.
The motion sought the appointment of a Compliance Administrator who is an agent of the Court with the authority to assess compliance, provide technical assistance to facilitate compliance, make binding recommendations to promote compliance, mediate disputes, and hire consultants. In late December, the Court entered an order approving the plaintiffs’ proposed remedial order, with minor modifications. The Court appointed Dr. Sue Gant, who was the former Rule 706 Expert, and who was nominated by the plaintiffs.
Over the past three months, the Jackson Compliance Administrator has created workgroups for health, safety, and supported employment; engaged consumers, providers, and other stakeholders as well as representatives of the parties on each group; and established outcomes and begun to draft action plans for each group. The Court actively oversees each aspect of the remedial process.
After extensive class-based discovery, plaintiffs in New Hampshire Olmstead case submit their renewed motion for class certification.
In late January 2013, the Center and its co-counsel submitted their renewed motion for class certification in Lynn E. v. Lynch (now captioned Amanda D. v. Hassan), seeking to represent a class of individuals with serious mental illness institutionalized at New Hampshire Hospital or Glencliff nursing home, or at serious risk of institutionalization at these facilities. The renewed motion was accompanied by a detailed Memorandum and expert affidavits describing the outcome of preliminary client and system reviews. The memo argued that the defendants’ administration, planning and funding of its community mental health system failed to prevent unnecessary institutionalization, resulting in a common contention susceptible to, and able to be resolved by, a single injunction.
The defendants responded with an 80 page opposition, over 70 pages of affidavits, and hundreds of pages of class member medical records, arguing that differences among class members’ service needs and preferences made class certification inappropriate. They also challenged the class definition because it contained an “at risk” group.
The Reply focused on the recent Supreme Court decision in Amgen v.Connecticut Retirement Board, 568 U.S. __, 2013 WL 691001 *4 (February 27, 2013) and its admonishment that class certification decisions not become a “mini trial” on the merits.
Oral argument before the federal court is anticipated later this spring.