The Law Center's mission under this agenda is to end discrimination and abuse against persons with disabilities and secure their inclusion and full participation in all aspects of mainstream society.
There are four components to this project including: education, community services, the criminal justice system and advancing the rights of persons with disabilities internationally.
education
community services
criminal justice system
international project
Law Center Opposes Discriminatory Zoning Proposals Before
City Council
On Wednesday, September 14th, Law Center attorney
Michael Churchill testified before Philadelphia City Council in opposition
to proposed zoning changes that would ban group homes for people with
disabilities from residential areas and would ban methadone clinics from
areas in which other medical treatment facilities are allowed to operate.
Speaking on behalf of the Law Center, Churchill
testified that banning group homes from residential areas is directly
contrary to federal and state law. These homes allow persons with severe
disabilities to live in the community near family and friends, instead of
being confined in institutions. The U.S. Supreme Court has held that
municipalities violate the Constitution if they subject residences for
persons with disabilities to different zoning standards than residences for
other people. Also, attempts by Pennsylvania communities to exclude
methadone clinics from areas in which other medical treatment facilities are
allowed have been struck down by federal courts.
Churchill warned in his testimony that
Philadelphia faces certain suit and unnecessary expense if it approves the
proposed zoning provisions, which blatantly discriminate against some of
Philadelphia’s most vulnerable populations.
On December 12, 2008, Massachusetts Governor Deval Patrick’s administration announced that over the next four years it will close four of the state’s six institutions for the developmentally disabled, and transfer residents to group homes. Those closing include the Fernald Development Center, the country's oldest state-run institution. In 2007 the federal court ruled in Ricci v. Patrick that Fernald must be kept open and the decision was appealed by Patrick’s administration. The Law Center, along with other advocates, submitted an amicus curae brief on behalf of the National Association of State Directors of Developmental Disabilities Services in support of Governor Deval Patrick and other Massachusetts state officials who are responsible for services for persons with developmental disabilities, and the decision was successfully appealed.
Read more about Ricci v. Patrick below
Nov. 13, 2008 – The Law Center’s clients
have reached a groundbreaking agreement with
State of Illinois officials in Ligas v. Maram, a class action lawsuit
brought against the State for its ongoing violation of the civil rights of
people with developmental disabilities. The agreement, when approved
by the court, will bring justice to people with developmental disabilities,
giving each of the state’s 6000 individuals currently living in
institutions, or at risk of entering an institution, the choice to receive
long-term care services in integrated community settings, and will provide
detailed protocols for evaluation and monitoring by the defendants to
ensure that this is carried out within the set time-limit of six years.
Judith Gran, Director of
The Law Center’s Disabilities Rights
Project, served as Co-counsel to the plaintiffs along with
Equip for Equality,
Sonnenschein Nath & Rosenthal LLP, which is providing representation on a
pro bono basis, Access Living, and the American Civil Liberties
Union of Illinois.
Today,
Illinois ranks 51st among all states and the District of Columbia in serving
people with developmental disabilities in small integrated settings, and
most people with developmental disabilities seeking residential services are
only offered placements in institutions, in violation of their civil rights
and the law. Notwithstanding the Supreme Court’s ruling that
unnecessary institutionalization is discrimination under the ADA, Illinois
had retained antiquated policies, channeling people into a system of
approximately 250 large, privately-run congregate care facilities where
nearly 6000 of the state’s developmentally disabled residents are currently
housed.
Under the
terms of the proposed Consent Decree, the plaintiffs, a class of all
developmentally disabled individuals in
Illinois who are 18 years or older, and who, with appropriate supports and
services, could live in the community and are, or will in the future be,
institutionalized in private Intermediate Care Facilities for the
Developmentally Disabled (ICF-DD’s)
will be given the opportunity to live in community-based settings.
Individuals
with developmental disabilities living in private institutions will receive
independent evaluations to determine the supports and services they need to
live in a community setting. Following the evaluation, those who
choose or do not oppose community placement will receive an individualized
service plan and move into the community over a six-year period.
Individuals
can choose to remain in an institution. And those who do can later choose to
move into the community. Additionally, people with developmental
disabilities living in the family home who are at risk of
institutionalization will have expanded options under the Consent Decree.
All people who are determined to be in “Crisis,” as well as approximately
3,000 people who are determined to be in “Emerging Crisis,” will receive
services from the State to meet their individual needs.
“Where I live
now, I cannot choose my own roommate and I have no privacy,” said David
Cicarelli, a 35-year old named plaintiff in the case. “I want to live
with friends in the community and have my own room.” David’s father,
Jim Cicarelli agrees, “We are so happy that our son, and many others with
developmental disabilities, will be fully integrated into the community.
For over ten years, David has waited to fulfill his dream to live in the
community. We are thrilled that finally his dream will be realized.”
"Disabled Score a Victory" Chicago Sun-Times, November 14, 2008
LAW CENTER AMICUS BRIEF CONTRIBUTES TO VICTORY IN
RICCI V. PATRICK, A MASSACHUSETTS INSTITUTION CASE
On October 1, 2008, the Court of Appeals for the First Circuit reversed a district court order that had blocked state plans to close the Fernald Development Center, the oldest state institution in the country holding approximately 180 individuals with developmental disabilities. The Law Center, along with other advocates had submitted an amicus curiae brief on behalf of the National Association of State Directors of Developmental Disabilities Services in support of appellants, Governor Deval Patrick and other Massachusetts state officials who are responsible for services for persons with developmental disabilities.
The original lawsuits were filed in 1972 and sought to reform the conditions in Massachusetts’ large congregate institutions which warehoused the Commonwealth’s people with developmental disabilities. In 1993, after 20 years, the district court closed the cases with the entry of a consent decree which set out a procedure by which individuals would be moved from the institutions into small, community based residences. The process for moving individuals proceeded successfully, and by the turn of the millennium, the Commonwealth began seriously to consider closing all of the institutions. It considered national trends toward deinstitutionalization and it wished to comply with the Supreme Court’s decision in Olmstead which expressed a preference for placement in community settings. According to the Court’s opinion, the Commonwealth also was motivated by the extremely high cost of caring for individuals in institutions as compared to community residences (In FY 2007, the annual cost per person was $259,000 in Fernald as compared to an annual cost of $102,103 in the community.) The Commonwealth announced its decision to close Fernald in 2003.
The Commonwealth’s decision met strong resistance from the institutional parent groups which filed the most recent lawsuit. The court appointed a monitor to review compliance with the consent order. Although the monitor found that the state was complying with the procedures established in the consent decree for moving individuals into the community, he opined that it would be harmful to many of the remaining Fernald residents if they were forced to leave. The district court adopted that position and required the Commonwealth to continue to offer Fernald as a placement option.
In a unanimous decision, the Court of Appeals reversed and dismissed the claims of the parties who argued that the announced closure of Fernald violated the consent decree. The Court held that the plaintiffs failed to make the showing necessary to reopen the case under the consent decree.
The amicus brief was prepared by Law Center lawyer Judith Gran and lawyers from Foley Hoag LLP. The brief described the experiences in other states in which large congregate institutions had been closed and individuals successfully moved to community-based residences. The brief also documented the national trend toward deinstitutionalization as mandated by the Olmstead case.
Although the Court of Appeals reversed the district court on a jurisdictional ground, it arrived at that result by affirming the authority of the Commonwealth of Massachusetts to close a residential facility. Implicitly, the decision upholds the state's discretion to close institutions and determine the types of services it will offer to persons with developmental disabilities, provided that those programs otherwise comply with legal requirements.
Messier v. Southbury Training School: Court Rules Connecticut Institution Violates Rights of Individuals by Failing to Move Them into the Community
Nine years after the close of trial, a federal district
judge ruled in June that
Federal law and regulations express a preference for community-based placement over institutionalization. According to the Supreme Court, “unjustified isolation…is properly regarded as discrimination based on disability” because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” In addition, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment.”
In 1994, Hartford attorney David Shaw and the Law Center’s Frank Laski brought this case on behalf of a class of approximately 700 current and future residents of the institution and three advocacy organizations, The Arc of Connecticut, WeCAHR, and People First. The plaintiffs alleged that the institution’s directors had violated the residents’ constitutional and statutory rights by failing to move residents into homes in the community. Since 1999, when a 123-day trial case ended, only 48 people have moved. The plaintiffs also asked the court to force the defendants to fix the conditions inside the institution.
In its June opinion, the district court agreed with plaintiffs that the defendants, the institution, its director and the Commissioner of the Connecticut Department of Mental Retardation, failed to determine the wishes of the individuals living in the institution and failed to offer them options for living in the community. The court found that prior to October 1996, the institution recorded the desires of individuals and their families and that over 300 individuals had indicated that they were “very interested” or “willing to look” into the option of moving. Beginning in 1996, however, the Southbury administration stopped gathering this information about class members and instructed teams not to consider placement in the most integrated setting.
Law Center Intervenes to Prevent Guardians from Vetoing Community Based Services for Institutionalized Persons
The Law Center filed a Petition to Intervene, along with a proposed Complaint in Intervention, in federal district court in Pennsylvania to prevent guardians of institutionalized persons from having a veto over whether the residents of the Altoona Center and Ebensburg Center can be moved to small scale community based settings.
The Petition and Complaint comprehensively trace the long and strong legal prohibition on parents and guardians from vetoing the rights of institutionalized persons to be provided community based services when professional opinion determines they are able to handle and would benefit from such services.
The Petition, written by Thomas K. Gilhool, was filed on behalf of the Pennsylvania Protection and Advocacy, Inc., nine individual persons with developmental disabilities and seven disability organizations. The organizations are: American Association on Mental Retardation, Pennsylvania chapter; PA TASH, The Pennsylvania chapter of TASH; The ARC of Pennsylvania; Autism National Committee, Pennsylvania chapter; National Coalition on Self-Determination; Speaking for Ourselves; and Vision for Equality, Inc. The Pennsylvania Protection and Advocacy Agency is also represented by the Disabilities Law Center and Michael Healey is acting as local counsel for all of the intervenors.
The intervention arises out of a case ( Alexander v. Rendell, CA 05-419J) filed by parents objecting to the state's proposed closing of the Altoona Center and the state's agreement that they would transfer to another state institution (Ebensberg Center) any resident of Altoona whose guardian objected to community placement. On January 30, 2006 the District Court for Western Pennsylvania filed a Memorandum Opinion and Order denying Plantiffs' motion for a preliminary injunction prohibiting the closing of the Altoona Center, conditioned upon compliance with an order prohibiting transfer of any resident to a community-based facility without the written consent of a resident's legal guardian. The court also directed that legal guardians be appointed for all residents who did not have such guardians.
The Intervenors asked the district court to vacate its Preliminary Orders of January 30th, enter a permanent injunction prohibiting the State from according legal guardians, parents or family members veto-power over community placement for any unnecessarily institutionalized person, and prohibiting the State from allowing any guardian to admit to a state center, including by transfer, any person with developmental disability.
Read the Petition to Intervene
Read the Complaint in
Intervention
Read the January 30, 2006
Memorandum and Order
The Ninth Circuit Court of Appeals did not grant the petitions of the Law Center and of
the Plaintiffs in the consolidated case brought by the California Medical Association to have the
entire Court of Appeals review the panel decision in Sanchez v. Johnson. The petitions argued
that the panel decision conflicted with decisions of all of the other circuit courts which had
decided the issue and with controlling Supreme Court precedent.
Read the Petition for Re-Hearing
En Banc here.
Read the CMA petition here.
The federal Court of Appeals for the Ninth Circuit, sitting in California, has held that the provision of the Medicaid Act which requires states "assure payments . . . consistent with .. . quality of care" and sufficient to assure availability of services are not enforceable by medicaid recipients. The ruling came in the case of Sanchez v. Johnson, brought by the Law Center on behalf of persons with developmental disabilities and providers of those services.
No other court of appeals has ruled Section 30(a) can not be enforced by recipients and four courts of appeals had held the provision enforceable. The Ninth Circuit distinguished those earlier decisions as being prior to the Supreme Court's decision in Gonzaga which it claimed tightened the standards for determining in Congress intended to create enforceable rights.
The Court also affirmed the District Court grant of summary judgment to the state on the claims that the failure to increase rates for community services prevented the integration of persons with disabilities still held in institutions. Although the plaintiffs had identified 1100 persons unable to move from the institutions, the Court of Appeals held that the state had a program with acceptable pace to develop community placements. The Court did not acknowledge that it would take more than 11 years to develop placements at the current rate.
Analysis
This decision is a severe defeat for accountability in federal programs.
Over 180,000 persons with disabilities in California are dependent upon Medicaid to provide residential and day services. The lawsuit challenged the low wages of direct care workers for persons with developmental disabilities residing in the community, resulting in turnover in excess of 50 percent a year and severely jeopardizing the safety and quality of the care available. California has increased rates paid to community providers for wages insubstantially since 1989. As a result, workers in community facilities are paid 54 percent of what similar workers in California's institutions are paid. Only two states in the nation paid less per person than California for Medicaid Home and Community Based Services.
The decision also will make it impossible for millions of people using Medicaid to enforce provisions about quality or availability of medical services
Cases enforcing Children's health care under Medicaid brought by the Law Center and co-counsel and now on appeal in the Sixth and Tenth Circuit Courts of Appeals rely in part on the same statutory provision, Section 30(a).
California's Governor and legislature now face a very large problem because the failure to increase rates to providers and direct care workers has begun to destroy community services for people throughout California. Without relief it will drive persons into institutional care, which is enormously more expensive. Although the federal Court said it couldn't act, the state can and must deal with this crisis. Providers serving persons with disabilities in the community have seen insubstantial increases in payments since 1989. Although the state has collected
million in additional federal money for the disabled since this case started, none of it has been used to pay for increased services for the disabled, but was taken by the state for other programs. The community system can not continue hemorrhaging skilled workers and replacing them with untrained persons who could be earning more at fast food restaurants.
The plaintiffs included United Cerebral Palsy Association of Los Angeles, Easter Seals of California, California Rehabilitation Association, Tierra del Sol, and the Jay Nolan Community Services. The Disabilities Rights Education & Defense Fund (DREDF) was local counsel.
The Court of Appeals followed the same result in the case of Clayworth v. Bonta, reversing the grant of an injunction preventing the state of California from reducing physicians' fees based on Section 30(a). The plaintiffs in that case included the California Medical Association, the American Academy of Pediatrics-California district, the American College of Obstetricians and Gynecologists-District IX, California Dental Association, California Foundation of Independent Living Centers, California Pharmacists Association, Brain Injury Policy Institute, Long Term Care Management Council, and Osteopathic Physicians and Surgeons of California.
Amicus briefs were filed on behalf of the plaintiffs by the American Medical Association, the American Academy of Pediatrics, and the AARP.
Read the court's opinion in
Sanchez
Read the court's
memorandum in Clayworth
Read the story from the
Sacramento Bee
Read the comments of Professor Samuel Bagenstos
History of the Law Center's Community Services Work
Until the 1970s, persons with developmental disabilities were typically warehoused in bleak, state-run institutions where they were oftentimes subject to inhumane treatment and afforded little opportunity to social, educational and employment benefits. The Law Center's work in Halderman v. Pennhurst, argued before the U.S. Supreme Court three times, led to the closing of the Pennhurst, Embreeville and Western Center institutions in Pennsylvania and helped former residents find appropriate services and housing in community living arrangements. The Pennhurst litigation, and other cases being litigated throughout the country at that time, fueled a nationwide movement for the de-institutionalization of adults and children with developmental disabilities through the creation of strong community-based services. As a result, state institutional populations were reduced dramatically from 220,000 in 1967 to below 52,000 in 1998 and entire new service delivery systems created in many states.
One of the key outcomes of the Law Center's litigation efforts in Pennsylvania was that the new, carefully structured and monitored community arrangements for the persons formerly institutionalized confirmed the benefits of community versus institutional living--markedly greater growth and command of life skills by persons with developmental disabilities (with the greatest for those most severely disabled); greater participation by relatives in the lives of persons with disabilities; uniform reports of greater happiness (a significant number of parents who initially objected to a move ultimately welcomed it)--all at a cost considerably less than institutionalization (with regard to Pennhurst the annual cost to institutionalize an individual was ,000 versus ,000 to reside in the community).
Driven by its successes in Pennsylvania, the Law Center, over the years, initiated similar suits in several other states including Connecticut, Oklahoma, New Mexico, Tennessee, Illinois, Florida, Montana and Delaware in an effort to provide quality community services for persons in institutions, and in some states, to provide residential services to persons on waiting lists. In Connecticut, Oklahoma and New Mexico, institutions have completely closed and quality community systems have been established. In Illinois, the state ceased placing persons with developmental disabilities in nursing homes. In Florida, the state stopped transferring persons to large-scale institutions. Most recently, in Tennessee, the Law Center helped negotiate a settlement agreement compelling the state to provide services to persons on waiting lists, as well as undertake a public information campaign to find all those persons in the state who need services. An additional case is pending in Tennessee along with others in Connecticut, Montana and Delaware.
In California, the Law Center filed in 2000 an innovative lawsuit, Sanchez v. Johnson, on behalf of seven individuals with developmental disabilities and six organizations that seeks to enforce the provisions of three Acts of Congress--the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and Title XIX of the Social Security Act--each of which prohibits the unnecessary segregation of people with disabilities into large, congregate institutions. The state of California is responsible for the administration of Title XIX, which funds both segregated institutions and integrated community-based services. The state's current system of funding creates a staggering disparity in wages between employees who work for community-based service providers and employees who work at state institutions. Due to this disparity, community-based services experience high staff turnover rates and are unable to recruit, hire and retain the personnel required to expand and to create new community-based services. As a result, nearly two thousand persons remain in institutions in California and thousands in the community are threatened with poor quality care. The District Court dismissed the claims and the case is now on appeal in the Ninth Circuit Court of Appeals.
In recognition of the Law Center's pioneering work with regard to community services and persons with disabilities, the National Council on Disability (NCD) selected the Law Center to conduct a national study that reviewed each state's progress in implementing the Supreme Court's 1999 decision in Olmstead v. L.C. This decision held that unnecessary institutionalization is a form of discrimination under the Americans with Disabilities Act. The Law Center's Judith A. Gran authored the report that was published and widely distributed by the NCD in September 2003.
The report identifies housing as the most significant barrier to community living, and the lack of adequate jobs and support services as other key obstacles. Calling the extent of unnecessary institutionalization daunting, the report concludes, based on the research literature, that of the 106,000 persons with developmental disabilities living in public and private institutions, the more than 1.3 million elders and persons with disabilities who are in nursing homes, and even the 58,000 persons confined to psychiatric institutions, most could be living in the community. The report contains an extensive analysis of the efforts of advocates to convince state and federal officials to promote integration under Olmstead. It reviews federal implementation efforts to date and makes sixteen recommendations for improving federal enforcement activities.
