Court finds class certification appropriate in New Hampshire Olmstead case
NEW HAMPSHIRE - September 17, 2013: 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.”
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.
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.
Long-standing disability case settled and dismissed
SPRINGFIELD [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.”
Center's Legal Director calls the $240 million verdict stunning
May 1, 2013 - 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.