Settlement in New Jersey Olmstead Suit

Somehow I missed this a couple of weeks ago, but New Jersey has agreed to settle Disability Rights New Jersey's longstanding Olmstead litigation challenging unnecessary institutionalization of individuals with intellectual disabilities in the state's Developmental Centers.  The agreement provides that the state will, over the next five years, place 600 individuals currently residing in Developmental Centers into the community.  The agreement also provides for diversion and pre-admission review so that individuals are not unnecessarily placed in Developmental Centers in the first instance.  And it provides that the state's executive branch will seek sufficient funding from the legislature for community-based services and will expand community-based supports through the state's Medicaid waiver.  (I should note that while I was at DOJ, I argued the summary judgment motion in this case representing the United States, which filed as an amicus in support of the plaintiffs.  The US was not a party to this agreement.)

Bazelon Center Analysis of Psychiatric Hospital Bed Availability and Gun Homicides

See this press release, with attached report:

Over the past several years, homicides involving the use of firearms — notably, mass murders that generate significant media attention — have raised questions about the adequacy of mental health services in this country. Some have argued that the disability rights movement, deinstitutionalization, and the closure of state hospital beds have significantly contributed to many of the tragic gun-related murders across the country. Such arguments tend to overlook the impact of the nation’s failure to fund the comprehensive community mental health systems that were intended to replace outmoded state institutions. Nevertheless, arguments to expand the availability of psychiatric hospital beds have ready appeal, particularly in the wake of tragic mass homicides; increasing the number of psychiatric hospital beds appears to be a straightforward response. 

A new analysis conducted by the Bazelon Center for Mental Health Law examines the relationships between states’ rates of murder by firearms, incarceration, and the availability of psychiatric hospital beds. If expanding the number of psychiatric beds is a meaningful remedy to firearm related murders in this country, one would expect a clear association between these factors, showing that states with fewer psychiatric hospital beds have higher rates of firearm-related homicides or incarceration. 

The Bazelon Center’s analysis found, however, that correlations among these factors are strikingly low. The analysis suggests that, to the extent that unaddressed needs of people with serious mental illness contribute to the nation’s homicide rate, the public policy answers lie not in increasing the number of psychiatric hospital beds, but elsewhere.

Third Circuit: Objecting Guardians Had a Right to Intervene in Remedial Stage of Olmstead Deinstitutionalization Case

Last week, the United States Court of Appeals for the Third Circuit issued an opinion in Benjamin ex rel. Yock v. Department of Public Welfare.  The case was brought by five plaintiffs with intellectual disabilities who reside in institutions operated by the Commonwealth of Pennsylvania.  They alleged that the institutions were not the most integrated setting appropriate to their needs, and that the Commonwealth was therefore violating the ADA as interpreted in the Olmstead case.  The district court certified a plaintiff class consisting of:

All persons who: (1) currently or in the future will reside in on[e] of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.

A group of guardians and next friends who opposed community placement for their wards who resided in state institutions sought to intervene following certification of the class.  The district court denied that motion, and the Third Circuit, in an unpublished opinion filed last year, affirmed.  In last year's opinion, the Third Circuit explained that:

The current parties have deliberately defined the class and the relief sought so that Intervenors' right to choose institutional treatment would not be affected. 

The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement. It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.

Shortly after the Third Circuit affirmed the denial of intervention, the plaintiffs and the Commonwealth reached agreement on a proposed settlement of the litigation.  In its opinion last week, the Third Circuit described the settlement as follows:

This fifteen-page document contains several significant components, including the establishment of: (1) an annual assessment process to create, maintain and update a “Planning List” consisting of “all state ICF/MR residents who have been identified as not opposed to discharge to community placement” (JA470); (2) educational, training, and outreach programs about community placement; (3) a viable “Integration Plan” providing community placements to a minimum number of ICF/MR residents on the Planning List in each fiscal year until each and every resident on the Planning List has been discharged; and (4) a number of budgetary steps designed to facilitate compliance with this Integration Plan.

The objecting guardians filed objections to this settlement, and they also filed a new motion to intervene to participate in the remedial stage of the case.  The district court denied the motion to intervene, but it said that it would consider the guardians' objections in deciding whether to approve the settlement.  After a fairness hearing, at which the guardians participated and presented their objections, the district court approved the settlement.

In its opinion last week, the Third Circuit reversed the district court's denial of the guardians' motion to intervene in the remedial stage of the case.  The appellate court concluded that "there are several components of the Settlement Agreement reached by the parties (and ultimately approved by the District Court after it denied Appellants' motions to intervene) that may affect or impair the protectable interests of Appellants themselves as well as other ICF/MR residents, guardians, and involved family members."  The court also said that "Appellants' interests in this stage of this complex yet important case—and the possible effects of the disposition of this stage on their interests—extend to the District Court's underlying class definition."  Accordingly, the Third Circuit held that the district court abused its discretion by denying intervention to the objecting guardians at the remedial stage.  But the appellate court was careful to emphasize the limited nature of its holding:

We merely determine that, given the possible effects of the Settlement Agreement, Appellants possess “a sufficient interest” in the remedy stage of the litigation and that their “interest may be affected or impaired as a practical matter” by the disposition of this distinct stage of this complex yet important case. We express no opinion whatsoever as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved—or whether the class itself should or should not be decertified. All such matters must be decided in the first instance by the District Court on remand—with the full and appropriate participation of Appellants as Rule 24(a)(2) intervenors.

Guest Prawfs Post on the Insanity Defense and Disability Rights

I'm guesting again at Prawfsblawg this month, though I'll continue to post here as well.  This is my first post of the month, on disability rights and the insanity defense.  Enjoy!

Prejudice in the Heart of Florida

See this op-ed by that title in the Miami Herald.  It begins:

The mistreatment inflicted on children with disabilities is an unresolved issue in our society. From ancient times to the present, a heavy burden of discrimination, marginalization and exclusion has fallen, in most cultures, on those least able to bear it. 

Frequently, these minors are undervalued because of the physical, psychological and sensorial nature of their development. They are forever trapped under the label of “disabled” and therefore arouse pity, commiseration and mercy. In the worst cases, they end up abandoned and isolated in institutions. In some cultures, the bloody practice of infanticide remains. 

In Florida, hundreds of parents willing to offer all possible love to their children with disabilities are forced by the state to look after them without sufficient home nursing care. Otherwise, they have no other option but to separate themselves from their children and send them to nursing homes designed to care for frail elders.

OSI Petitions European Parliament Not to Fund Institutionalization

See this press release:

EU Structural Funds should not be used to support the institutionalization of people with disabilities, said the Open Society Foundations in a petition to the European Parliament today. An estimated 1.2 million people with disabilities are confined in long-stay institutions, primarily in Central and Eastern Europe. 

Institutionalization violates the Charter of Fundamental Rights and the European Convention on Human Rights, to which the EU is bound. People living in institutions are isolated and often abused, denied basic rights like education and employment, and deprived of their dignity. 

Signed by a coalition of leading international disability rights organizations, self-advocacy groups, and community organizations, the petition also calls for transparency in the Structural Funds process itself, including easy access to data by outside groups. Deliberations lasting through 2013 have begun on the 2014–2020 round of Structural Funds. 

EU Member States’ obligations and the misuse of Structural Funds are further detailed in Open Society Foundations’ comprehensive report, The European Union and the Right to Community Living.

Final Version of My Deinstitutionalization Article

You can access the final, published version of my piece, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo L. Rev. 1 (2012), here.

Nice NYT Piece on the Results of the DOJ-Georgia Olmstead Settlement

Read the article here.

Senate HELP Committee Holds Hearing on Olmstead Enforcement

You might think the Olmstead decision was having an anniversary or something!  (It's a Bat Mitzvah, actually.)  This morning, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on Olmstead enforcement.  My old boss Tom Perez testified, as did the incredibly dynamic Henry Claypool from HHS; Rita Landgraf, the Health and Social Services Secretary for the State of Delaware (whose leadership on these issues is reflected in the DOJ Olmstead settlement with her state); Zelia Baugh, the Mental Health Commissioner for the State of Alabama; and Ricardo Thornton, an individual with a disability from Washington, DC, who formerly lived in an institution.  You can find their prepared statements, and video of the hearing, at the link above.

DOJ Launches "Faces of Olmstead" Website

The website collects "[t]he personal stories of a few of the thousands of people whose lives have been improved by the Olmstead decision and the Department’sOlmstead enforcement work."  You can find it here.

Chicago Tribune Op-Ed Gives Institutional Family Perspective on Deinstitutionalization Litigation

See William Choslovsky's op-ed, Who Speaks for the Disabled?  These three grafs give a sense of the argument:

Although the advocates are wrong, even if they were right, shouldn't my family's choice be honored? After all, if this is about respect and honoring choice — in all its forms — why is Rita's choice wrong? I respect and applaud any disabled person's choice to live in the "community," so why won't the advocates in turn respect our choice? 

The advocates also prey on labels like "community" versus "institutions." But community is an artificial term, too often used as a limiting condition that divides more than it describes. 

My "institutionalized" college dormitory was more of a community than many of the (supposed) "integrated" places I lived subsequently. One man's institution is another man's home. The labels mean little and are simply code to support pre-existing positions.

My New Paper on Deinstitutionalization Litigation

New on SSRN: My new paper, The Past and Future of Deinstitutionalization Litigation.  The abstract:

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified institutionalization can violate the Americans with Disabilities Act, was followed by a wave of new lawsuits challenging institutionalization of people with psychiatric, developmental, and/or physical disabilities. And the Obama Administration’s Community Living Initiative has led the United States Department of Justice to move aggressively into this field as well. The question naturally arises whether this new round of deinstitutionalization litigation will end in the same place as the litigation of the 1970s and 1980s. 

This article contends that things will be different this time — though not necessarily better. The outcomes of the first wave of deinstitutionalization litigation resulted from the interaction between the political dynamics into which advocates inserted themselves and the legal claims they employed. But, as this article shows, both the political dynamics and the legal claims have changed significantly. Precisely because the first wave of deinstitutionalization litigation was so successful in moving residents out of large state institutions for people with psychiatric and developmental disabilities, the efforts of deinstitutionalization advocates have turned to ensuring the availability of adequate services in the community. This has shifted the fiscal politics of the field in ways that destabilize old political alliances but create the potential for new ones. At the same time, deinstitutionalization advocates have moved from the due process theories on which they relied in the 1970s and 1980s to an antidiscrimination theory relying on the ADA and Olmstead. That theory focuses directly on state resource-allocation decisions and affords states a powerful incentive to create and fund adequate community services. All of which leaves the future of deinstitutionalization uncertain. Deinstitutionalization advocates are focused to a greater extent than ever on the goal of building up a robust community-based treatment system. And they are employing the most powerful legal tool they have ever possessed to achieve that goal. But the political partners who helped them achieve their great success in the first wave of deinstitutionalization will likely be the biggest obstacle to success in the next wave.

One Institution Director's Perspective on DOJ's Mississippi Olmstead Investigation

See this piece from the Laurel (MS) Leader-Call, which reports an interview with the director of a large state institution for people with developmental disabilities.  It begins:

Ellisville State School has provided comprehensive services to individuals with intellectual and developmental disabilities for more than 90 years, but an investigation by the U. S. Department of Justice may place the state school and other mental health facilities in jeopardy. 

The state’s mental health system has come under scrutiny by the Justice Department for violating the Americans with Disabilities Act. A Justice Department investigation concluded that thousands of Mississippians with disabilities or mental illness are unnecessarily institutionalize at facilities across the state.

Gleckman and Cohn on the CLASS Act News

The big disability law news of the weekend was HHS's widely anticipated decision, late on Friday, not to move forward with implementing the CLASS Act.  This is a shame, because there is a compelling need for a long-term care insurance program that (a) does not force families to impoverish themselves and go on Medicaid to receive services and (b) focuses on the provision of services in people's homes, not nursing homes.  The CLASS Act, for its undoubted flaws and limitations, met those two criteria.  Over at Kaiser Health News, Howard Gleckman, who has done a lot of great work on this subject, has a good post discussing possible policy alternatives that would rely on private insurance.  At the New Republic, Jon Cohn has a good article making the case that the CLASS Act's problems make the case for the individual mandate in the Affordable Care Act, because mandated participation would have clearly solved the actuarial problems that led HHS to cancel the law.

Conflict Over Deinstitutionalization Litigation in Massachusetts

See this article from yesterday's Boston Globe. It begins:

Options are running out for parents of 31 profoundly mentally retarded residents of a skilled nursing home in Groton trying to reverse the state's plans to move them to small group homes.

After failing to make headway at a recent meeting with top state officials, the parents are now trying to enlist state lawmakers and the courts to make the case that their children might suffer life-threatening medical setbacks in the new environment.

"I think it's a gross human rights violation," said Louis Putterman, of Concord, a professor at Brown University whose 33-year-old daughter - who is blind, unable to talk or walk, and fed through a tube - currently resides at the Seven Hills Pediatric Center in Groton, which serves residents with a mental age of less than one year.

State officials have said they are bound by a June settlement agreement in a lawsuit filed in 1998 in US District Court in Springfield on behalf of Loretta Rolland and others statewide with mental retardation or other developmental disabilities. The settlement requires the state to transfer a quota of 640 of the nursing home residents to group homes by 2012. The transfers also figure in a $20 million initiative by Governor Deval Patrick, called Community First, to provide community homes to more than 30,000 disabled and elderly.

"The case focused on hundreds of people . . . who had no choice but to live in nursing facilities," said Jennifer Kritz, spokeswoman for the state Executive Office of Human Services. "The case required the state to develop community living options, and many people have already successfully moved into the community."

Kritz said the settlement has been widely applauded, including by ARC, the Association of Developmental Disabilities Providers, and parents of other individuals named in the case. To comply with the settlement quota, state officials drew up a list of the 640 individuals to be moved.

3000 People with Disabilities Living in Outdated Institutions

See this article by that title in the Irish Times. It begins:

UP TO 3,000 people with disabilities are living in outdated institutions and need be transferred to more suitable community settings, it has emerged.

Records obtained by The Irish Times show that health authorities believe that the numbers living in "congregated settings" are significantly greater than previously estimated and they should be in receipt of care in the community.

Officials say the process of de-institutionalising people in older facilities will take years and will require substantial resources.

In some instances the sale of large institutions may be used to fund some or all of the
capital costs involved.

However, records show that authorities are concerned that staffing costs in a greater number of community residences are likely to be much greater.

Part of the reason health authorities are moving to take action on the issue of those living in institutional care is the State's decision to sign up to a UN Convention on the Rights of Persons with Disabilities. The Government has not yet ratified the convention, however.

Gov. Purdue Announces Olmstead Agreement Signed

See this article by that title. It begins:

Gov. Sonny Perdue announced Tuesday that state officials signed a voluntary compliance agreement with the U.S. Department of Health and Human Services Office of Civil Rights that formalizes an effort to transition mentally ill and developmentally disabled Georgians out of state hospitals.

"Every Georgian who faces mental illness or developmental disabilities has the right to be treated in a way that not only ensures the best outcome, but allows for the highest quality of life," said Gov. Perdue. "We've worked hard to make this agreement work, and the state of Georgia is committed to completing this effort."

Under the Olmstead Strategic Plan, Georgia has worked for years to make quality community services more available to those with mental and developmental disabilities. The Olmstead Plan was created after a 1999 U.S. Supreme Court
ruling (L.C. & E.W. vs. Olmstead) that interpreted the Americans with Disabilities Act to mean that states must provide appropriate services for the disabled in the most integrated setting (i.e., where individuals can interact with non-disabled people to the fullest extent possible).

Brief in Brown v. Tennessee Dept. of Finance and Administration

Today, along with my cocounsel from the Disability Law and Advocacy Center of Tennessee, the National Health Law Program, and the Nashville law firm of Brewer, Krause, Brooks, Chastain & Burrow, I filed this brief for the plaintiffs-appellees in Brown v. Tennessee Department of Finance and Administration. The case is a class action brought on behalf of Tennessee residents with developmental disabilities who were eligible for but denied enrollment in home-and-community-based waiver programs. The state entered into a consent decree a couple of years back, but now it wants out of the deal. Our brief argues that there's no basis for vacating the decree.

Nice Opinion on Zoning Accommodations for Group Homes

New on Westlaw: Developmental Services v. City of Lincoln, 2007 WL 1290082 (D. Neb., May 2, 2007). The court's introduction sums it up:

Evidence showing heaps of red tape, garnished with bureaucratic indifference and inconsistent and irrelevant posturing by city officials, elected and otherwise, does not make the City of Lincoln guilty of consciously intending to discriminate against people with developmental disabilities. But that evidence, and more, does prove that Lincoln denied a group home provider and its developmentally disabled clients reasonable accommodations to land-use requirements. As a result, taxpayers will have to pay the provider a lot of money for the City's violation of federal law. Sadly, by merely acting reasonably, Lincoln could have easily avoided that expensive outcome.

Student Note on Commitment of People with Mental Retardation

New on Westlaw: Laura W. Harper, Comment, Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Procedural Due Process, 58 Mercer L. Rev. 711 (2007). The introduction:

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.

This Comment focuses on the procedures used in Georgia to continue the habilitation of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections. However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically. This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.