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

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.

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 here.
Read the Complaint in Intervention here.
Read the January 30, 2006 Memorandum and Order here.

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.
To read the court's opinion in Sanchez, click here.
To read the court's memorandum in Clayworth, click here.
To read the story from the Sacramento Bee, click here.
To read the comments of Professor Samuel Bagenstos, click here: