Follow us on...

facebook twitter NDRN on youtube
Text Size
Home Public Policy Community Integration

Disability Docket

DOCKET OF CASES RELATED TO

ACCESS TO COMMUNITY BASED SERVICES FOR PEOPLE WITH DISABILITIES

 

Prepared by Elizabeth Priaulx, J.D.,

National Association of Protection and Advocacy Systems

September 2004

 

Updates Since The Last Olmstead Coordinators Docket Are Shaded For Easy Reference

 

TABLE OF CONTENTS

 

I.          Background on Federal Laws Referred to In the Docket

 

a.         The Americans with Disabilities Act of 1990

b.         The Social Security Act

c.         The Rehabilitation Act of 1973

d.         The Fourteenth Amendment of The U.S. Constitution

 

II.        Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with A Diagnosis or History of Mental Illness

 

III.       Discrimination Against Individuals with Mental Health Needs That Relate To Access To The Community But Don=t Specifically Include an ADA Integration Mandate Claim

a.         Discrimination in Jails and Prisons

 

b.         Discrimination in Housing

 

c          Other Forms of Discrimination

 

d          Failure to Enforce Advance Directives

 

IV.       Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with Developmental Disabilities


 


I.          Background on The Federal Laws Referred To In this Docket

 

The United States Supreme Court=s decision in Olmstead v L.C. makes it clear that unnecessary institutionalization of persons with disabilities is discrimination and is prohibited by the Americans with Disabilities Act (ADA).  Following this ruling, people with disabilities and civil rights advocates have undertaken a number of activities to ensure the decision is realized in all our nations communities.

 

(1)        The Americans with Disabilities Act - Title II provides that:

 

"[N]o qualified individual with disabilities shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity."  42 U.S.C. ' 12132.

The Congress mandated the U.S. Department of Justice to adopt regulations that implement this broad non-discrimination provision.  The Department of Justice issued the following regulation, commonly referred to as Athe integration mandate@:

AA public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.@ 28 C.F.R. ' 35.130(d).

It is this regulation that was the subject of the Olmstead decision and it is this provision and regulation that the U.S. Supreme Court refers to when it states that the ADA prohibits unnecessary institutionalization of people with disabilities.  It is also important to note that in issuing the integration mandate regulation, the Department of Justice, extends to state and local governments the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973, at 29 U.S.C. ' 794.

(2)                    Title XIX of the Social Security Act,

-  42 U.S.C. ' 1396 et seq.   Authorizes states to:

 

Establish medical assistance  programs for low income individuals who meet certain eligibility requirements.  These medical assistance programs (Medicaid) are jointly funded by the federal and state governments.

The federal Medicaid statute includes a list of services that a state could offer under its Medicaid program.  As a condition of participating in the federal Medicaid program, states must submit to the U.S. Department of Heath and Human Services a state Medicaid plan clearly stating which of those possible services the state will cover in its Medicaid program.  Some Medicaid services are federally mandated and must be included in a state plan, while other services are optional. 42 U.S.C. '' 1396a(a) and d(a).  However, once a state agrees to provide a service in its plan, whether mandatory or optional, it is required to deliver those services in a manner that meets certain federal requirements.

The failure of states to meet these requirements often results in lack of access to community services and supports and becomes the subject of litigation. Below are summaries of the most common federal Medicaid requirements that are at issue in many of the claims in this docket:

- Aa state must provide that all individuals wishing to make application for medical assistance under the plan shall have an opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.@ [ 42 U.S.C. '1396a(a)(8)]

 

The Department of Health and Human Services has published regulations to explain the meaning of this statutory requirement, including:

1) The state agency "must establish time standards for determining eligibility and inform the applicant of what they are.  These standards may not exceed ... [n]inety days for applicants who apply for Medicaid on the basis of disability."  42 C.F.R. ' 435.911

2)  "The agency must B 

(a) Furnish Medicaid promptly to recipients without any delay caused by the agency=s administrative procedures; [and] (b) Continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible."  42 C.F.R. ' 435.930.

(b) The AFreedom of Choice@ requirement - Aan individual eligible for home and community based services shall be able to freely choose such services provided in her home as an alternative to institutional services.  42 U.S.C. ' 1396n(c)(2)(C) and (d)(2)(C).

(c) The Aamount, duration and scope@ requirements -

was designed to prevent inappropriate placement of people with mental disabilities in Medicaid-certified nursing facilities pursuant to Title 19 of the Omnibus Budget Reconciliation Act of 1987, also known as the Nursing Home Reform Act (ANHRA@  42 U.S.C. ' 1396r

The PASARR provision requires states, using independent contractors, to conduct preadmission screening and annual resident reviews of all nursing home applicants and residents suspected of having serious mental illness (excluding dementia), mental retardation or a related disorder.  PASARR is a mandatory part of the Medicaid program and states must comply with all PASARR requirements.   Moreover, the PASARR requirement attaches to the Afacility@not individuals, therefore, PASARR requirements apply to all nursing facility applicants, not just those that are Medicaid eligible.

The purpose of the PASARR Ascreen@ is to prevent unnecessary institutionalization of a person with mental retardation or mental illness in a nursing facility, if that individual can obtain appropriate Medicaid services in the community.  Specifically, PASARR states that a Medicaid can not fund a nursing facility placement for admission of  any new resident who is mentally ill or mentally retarded unless the state has determined, before admission, that the prospective resident requires the level of services provided by the facility and needs to live in a nursing facility rather than in the community.   If the PASARR review determines that a resident does not require nursing facility services, but instead requires services in a non-institutional setting, the state has a mandatory duty to provide or arrange for the provision of these specialized services.

 

(3)        Section 504 of the Rehabilitation Act of 1973 - .  29 U.S.C. ' 794(a) 45 C.F.R. '84.4(a), (b)(2)

Prohibits discrimination Against persons with disabilities and requires that disability programs that receive federal assistance must provide services in the most integrated setting appropriate to the person's needs.

 

On July 25, 2000, the U.S. Department of Health and Human Services issued the following guidance states about the relationship between Olmstead v. L.C. and Section 504 of the Rehabilitation Act of 1973 (Section 504):

 

Section 504, which was enacted some seventeen years before the ADA, prohibits discrimination on the basis of disability by entities which receive Federal funding.  Section 504 and the ADA use the same definition of disability.  Title II of the ADA extends Section 504's prohibition of discrimination in Federally assisted programs to all activities of State governments, including those that do not receive Federal financial assistance.  Although the Olmstead decision interpreted the ADA, unjustified segregation by a Federally funded program would also constitute disability discrimination under Section 504.  A State program receiving Federal funds must comply with both Section 504 and title II of the ADA.

 

(4)        The 14th Amendment of The United States Constitution B 42 U.S.C. Section 1983 -

The Due Process Clause requires that: .  .  .

[N]or shall any state deprive any person of life, liberty, or property, without due process of law.  . For the purposes of this docket, the 14th Amendment claim is that individuals with disabilities, by being confined in state psychiatric hospitals against their wills, are being denied the less restrictive community-based residential placements that are appropriate for their proper care or treatment in conditions that damage their mental health, and are thus denied a liberty interest.

II.        Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with A Diagnosis or History of Mental Illness


 

1.  (AL) Case Name: Wyatt v. Sawyer (originally filed as Wyatt v. Stickney) (D. Ala. 2000).

Summary: In June 2000, the court approved a three year settlement agreement in this historic case seeking to protect the rights of people in Alabama=s mental health and mental retardation institutions.  The settlement required that Alabama Department of Mental Health and Mental Retardation (DMH/MR): develop additional community-based services for people leaving state institutions; expand protection of rights for people in state hospitals; enhance agency oversight to ensure that clients in DMH/MR facilities and contracted community programs are safe and secure; and develop a community education plan to educate the public about mental illness and mental retardation, including the needs and rights of those served by DMH/MR. In December 2003, the court officially ended all oversight of the settlement ruling that the state had met the obligations of the settlement.

***

2.  (CA) Case Name: Emily Q. v. Bonta (C.D. Cal. 1998).

Summary: District Court ruled that states must provide therapeutic behavioral health services to children receiving EPSDT services under Medicaid, such as one-on-one aides in the home, case management and other intensive community-based services found to be medically necessary.  As a result of the ruling, the state developed a better system for providing information to families about the availability of these services, part of this new notice system requires the state to provide notice to all families being considered for institutional placement that therapeutic behavioral services are  available under EPSDT.  The state also started a training program for county workers on what the services are and the procedures families must follow to access these services.  Additionally, the court ordered that state to conduct a special assessment of 135 young people in two state hospitals to see who could be discharged if they had access to therapeutic behavioral services.

***

3. (CA) Case Name:  Black v. Department of Mental Health (Cal. Ct of Appeals 2000)

Summary:  Administrator of estate of an individual with chronic mental illness sued the California department of mental health for violation of the integration mandate.  The state had transferred the individual from a state hospital to a more integrated community setting.  The individual died in the community setting.  The administrator argued that the state inappropriately transferred the individual to the community in violation of the integration mandate.  The judge ruled that: (1) State did not violate ADA's integration mandate when it transferred patient to a community care setting, since a doctor had determined that the individual could receive services in the community, and because there were no other placement alternatives available, and (2) since the Olmstead decision does not place a standard of care upon states, alleged inadequate provision of services to an individual, following his transfer to the community, did not violate integration mandate.

***

4. (CA) Case Name: Katie A v. California (D. Cal 2003).

Summary: Class action alleging that the California child welfare agency failed to assess mental health needs among the 50,000 foster children in its care and that, once children with emotional and behavioral impairments were identified, they received few services. Instead, they bounced between foster placements and group homes until their worsening disabilities made them Aunplaceable@ and they were consigned to institutions, in violation of the ADA Integration Mandate, the Medicaid Act, and various state laws.

The county of Los Angeles agreed to a settlement requiring the county to immediately close the MacLaren Children=s Center, a 150-bed children=s shelter that has been rocked with scandal. It has agreed to offer intensive, family-based Awraparound@ care to children with

mental, behavioral or emotional disorders, using flexible funding to pay for a wide range of services that are individually designed to meet the needs of each child and family.  The settlement commits the county to meet a set of objectives for children who are in or at risk of entering foster care, including:

$ identifying children's mental health needs and promptly providing individualized services to them as necessary, either in their own home, in a family setting or in the most homelike setting appropriate to their needs;

$ providing care and services to prevent children=s removal from their families or, when removal is necessary, to meet children=s needs for safety, permanence and stability in their placement and facilitate reunification with their family; and

$ ensuring that the care and services foster children receive are consistent with good child welfare and mental health practice and requirements of federal and state law.

***

5.  (DE) Case Name: Doe v. Sylvester (D. Del. 2000).

Summary: Action for injunctive relief arguing that the state=s failure to assure that appropriate modifications are provided in the state hospital (interpreter services) and the community (light smoke detection, flashing doorbell, TDD) violates the ADA integration mandate and Section 504. The plaintiff=s treating team had recommended community placement for over a year and the apartment has been identified, however, the state has not provided the appropriate modifications to allow for community placement.  The state has also failed to provide sufficient interpreter services in the hospital to enable plaintiff to benefit from treatment options. The Judge ruled that an ADA violation could exist and be litigated.  However, before the ADA claim could be tested the case was dismissed as moot when the Plaintiff=s situation changed

***

6. (DE) OCR Olmstead Complaint:  OCR complaint filed on behalf of 9 patients at the Delaware Psychiatric Center

Summary:  The Department of Health and Human Services Office of Civil Rights is investigating a complaint filed on behalf of 9 residents at the Delaware Psychiatric Center.  The complaint alleges that these residents have been found ready for discharge but have not been provided assistance to receive appropriate community services.    As a result of the OCR investigation, the DPC provided a list of 66 residents who were ready for discharge into the community with supports.  So far, one year later, six of the nine named plaintiffs have been released with appropriate supports, and 45 of the 66 residents on the list have been released into appropriate community settings.

***

7. (GA)  Case Name:  Olmstead v L.C. and E.W. (U.S. Supreme Court 1999)

Summary:  Lois Curtis and Elaine Wilson, women with both mental retardation and mental illness, were receiving services in a state hospital even though they had requested community services and their doctors agreed that both woman could be receiving services in the community.  The woman sued the state for violating the ADA integration mandate.  After loosing in the lower courts, the state appealed the case to the U.S. Supreme Court that held that, under Title II of the ADA, States are required to place persons with disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities.

***

8.  (Guam) Case Name: J.C. v. Gutierrez (DC. Guam 2001)

Summary: Action against the Governor and Directors of Department of DD and Mental Health for failure to provide necessary therapeutic services to facilitate community placement for individuals with mental illnesses and developmental disabilities in violation of the ADA, 14th Amendment and Section 504.

Plaintiffs survived a motion to dismiss and were granted a preliminary injunction.  A trial was held in March 2004.  In June 2004, the court issued permanent injunctive relief.  To ensure the defendants comply with the court order, the court will appoint a Special Master to monitor the development of an appropriate plan by the defendants for the placement in community-based facilities of individuals inappropriately placed in the Adult Inpatient Unit, the rate at which individuals are placed as a result of that plan, and the treatment of the plaintiffs pending placement.

***

9.  (IN) Case Name: Collins v Hamilton (D.IN 2001)

Summary:  This class action did not include an ADA claim, but I include because it is relevant to community integration of children with mental health needs. Families of Medicaid-eligible children with mental health needs filed suit alleging that Indiana officials violated federal Medicaid law by failing to provide medically necessary residential psychiatric treatment for children, and violated their Constitutional due process rights by requiring them to agree to give up custody of their children to the state in order to obtain funds necessary for residential psychiatric treatment.  The Judge held that: (1) State violated federal Medicaid law by failing to provide for long-term residential psychiatric treatment to children under the age of 21 whose Early and Periodic Screening, Diagnosis and Treatment (EPSDT) screening revealed that such placement was medically necessary, but (2) State did not violate parents' Constitutional rights by requiring that children be declared a Child in Need of Services in order to receive funding for room and board for residential mental health treatment.

***

10.  (KY)  Case Name:  Jeremy and Darvin J., et al. v. Morse, et al. (D.Ky. 1996).

Summary:  Class action alleging the state violated the Medicaid Act by failing to inform about and provide an array of EPSDT services. The case does not include an ADA claim but is relevant to community integration.  In May 1996, at the initiation of the lawsuit, Kentucky was second to last in the country in the number of screens that were being done under EPSDT. The parties settled, and the state agreed to an 80 percent participant rate goal and shall continue Medicaid payments for medically necessary mental and behavioral health related services, including: individual and group community-based behavioral health services; therapeutic child and family support, after school support, and summer program or support; partial hospitalization program; intensive outpatient program; day treatment program; therapeutic group residential treatment; residential crisis stabilization; case management; evaluation, collateral services necessary for furtherance of the provision of any of the above medically necessary services; and such other behavioral health and rehabilitative services as may be medically necessary.  The settlement requires that only medical need, not cost be a factor in the provision of these services.

***

11.  (MA) Case Name: Rosie D. v. Swift (D.Mass. October 2001).

Summary: Class action alleging that the state has violated the Medicaid AEPSDT,@ Areasonable promptness, Amethod of administration@ and Amanaged care@ provisions by failing to ensure that class members received necessary, intensive home based services and mental health assessments, resulting in a waiting list for case management services.  The class includes children with mental illness who have been hospitalized or are at risk of hospitalization because of lack of home-based mental health services.  No ADA integration mandate claim is made. The state has lost a series of motions to dismiss that took the case al1 the way to the Circuit Court and back.  A decision on the issues is likely sometime in 2004.

***

12. (ME) Case Name: Risinger et al. V. Concannon et al. (D. ME 2000).

Summary: Action alleging that Maine violated federal Medicaid law by limiting mental health services from children under 21 years of age only to children who are enrolled in a small Medicaid waiver program, instead of to all the children who are entitled to these services under Medicaid=s EPSDT program. The suit also alleged a violation of Medicaid responsibility to ensure that there are enough providers to provide for medical needs with reasonable promptness.  At the time the case was filed Maine had a waiting list of 600 children needing mental health services, who could not get them because of a lack of providers.  In May 2002, the parties reached a settlement providing that children who need services will be evaluated more quickly and no child will wait more than six months to receive approved treatment and services.

***

13. (MD) Case Name:  Williams v. Wasserman, 937 F. Supp. 524 (D. Md. 1996).

Summary:  Action against the state on behalf of eleven state hospital residents with traumatic brain injury (TBI) or other mental health and neurological impairments, alleging that the state=s failure to implement the individuals= treatment teams= discharge recommendations violates the ADA integration mandate, and the 14th Amendment due process rights to adequate medical care, safety and freedom from bodily restraint.  On September 27, 2001, the District Court issued its ruling that the state had not violated the 14th Amendment or the ADA integration mandate.

Regarding the integration mandate claim, this decision is noteworthy because it is one of only a small number of cases discussing fundamental alteration in this context.  In short, the court finds that requiring the state to provide appropriate community placements to the Plaintiffs any faster than it is already shifting funds to the community would require the state to shift resources to such an extent that it would result in fundamental alteration.  The court held that measured against the 2-5 year time frame it could take for the state to realize savings from institutional closure (based on the findings of a state=s expert) and considering the need to find community placements for other persons in need of community placement, Maryland=s Adramatic@ progress in placing individuals into the community was acceptable.  The Court ignored the fact that individuals with TBI had been left behind while such progress was being made for others.  Additionally, the decision does not analyze what the costs of placing the Plaintiffs in the community will be over time or how that cost compares to the states= mental health budget as a whole.

***

14.  (MI) Case Name:  Olesky v. Michigan, (W.D. Mich. 1999).

Summary:  Class action alleging that the state is violating federal Medicaid law by failing to discharge residents of state nursing homes, who have been screened under PASRR and found to not require nursing home level care, into appropriate community settings.  The suit also raises two state law claims, and an ADA integration mandate claim. The parties settled with the state agreeing to provide appropriate and timely placement of all individuals now residing in Michigan who have been or will be determined through the PASRR process to not require nursing home care.  The entity charged with development and acquisition of new resources for individuals covered by the agreement is the state community mental health services programs and they must use a person-centered planning process in the agreement.

***

15.  (MI) Baul v. Haverman: (30th Cir.2002).

Summary: Class action in state court against the Michigan Department of Community Health and the Detroit County Community Mental Health Office alleging violations of closure procedures, health and safety requirements, and discharge planning at the state hospital in violation of the state mental health code. The case was stayed, without any official judicial ruling after the state agreed to comply with discharge procedures agreed upon by the state and the protection and advocacy agency.

***

 

16.  (MS)  Blackmon v. Mississippi Department of Mental Health (N.D. Miss. 1997).

Summary: Another pre-Olmstead case that raised an integration mandate claim.  This action contended that Mississippi State Hospital=s failure to provide atypical anti-psychotic medications on the same basis as older generation anti-psychotics violates the 14th Amendment=s requirement of professionally accepted medical care as well as the ADA integration mandate because if clients were properly treated they could live in the community.  The problem stems from the hospital policy which used a voucher system by which each physician/psychiatrist has six vouchers. Each voucher can be used to prescribe certain medications, including atypical anti-psychotic medications; however, no vouchers are needed to prescribe older generation anti-psychotics.  Statistics show that 30-70% of patients with schizophrenia who do not respond to older generation anti-psychotic will show improvement with atypical anti-psychotics. The case was voluntarily dismissed after the court found that the policy was not written and was not followed by the doctors.  The court did not discuss the merits of the due process or ADA claims.

***

 

17.  (NV) Case Name:  In Re LVMC (not yet filed)

 Summary:  This action has not yet been filed in court pending the outcome of negotiations.  Three residents of the Los Vegas Medical Center (LVMC) are challenging the LVMC=s practice of discharging patients into settings in Los Vegas only, as opposed to assisting patients to receive services in counties closer to home.  Negotiations have been successful and LVMC has begun following a new process that establishes Atreatment teams@ that work together to develop an individualized plan for receiving services in the most integrated settings.  LVMC has also identified systemic barriers that, if addressed, would make community placement easier.

***

 18.  (NH) Case Name:  Gagnon v. Shumway (D. 2000)

Summary:  Case alleging that the state violated the integration mandate when it revoked the conditional discharge of several individuals from a state hospital and instead involuntarily committed these individuals without a hearing on whether they met the state criteria for involuntary commitment.  The state settled the case before any judicial ruling.  The state agreed to revise its practices for involuntarily committing individuals to the state hospital, including automatically appointing an attorney and setting up a hearing for any individual facing involuntary discharge.

***

 

19.  (NY) Case Name: Disability Advocates v. Pataki (D. 2003).

Summary: Action challenging that state officials responsible providing supports for people with mental illness violate the integration mandate by steering individuals upon discharge into institutional-like Aadult care homes@ even though more integrated settings with more appropriate rehabilitation services currently exist.  The plaintiff is the P&A who is representing residents of adult care homes with more than 120 beds and those at risk of placement in those settings.  Plaintiffs also charge discrimination against people with mental illness by administering its adult care homes in such a manner that people with mental illness do not receive rehabilitation treatment and discharge planning services that would allow them to move to more integrated settings. There have been no judicial rulings yet.

***

20. Case Name:  William G v Pataki (D. 2003)

Summary:  Class action alleging that parole violators with mental illness are incarcerated longer than violators without mental illness.  This is because individuals with mental illness are required to wait until a spot opens in one of very few programs for individuals with mental illness. Plaintiffs argue that this practice violates the integration mandate because incarceration can exacerbate mental illness, making recovery and a successful transition back to the community even more difficult for parolees with serious mental illnesses.  Plaintiffs claim that that instead of funding the community placements that parole violators with mental illness need, New York pays to Arent@ beds in jails, in violation of the integration mandate. No have been no judicial decisions yet.

***

21.  (OR) Case Name: Miranda B. v. Kitzhaber (D.Or. 2001).

Summary: Class action on behalf of persons with mental illness who are institutionalized in state psychiatric hospitals, challenging state officials failure to provide them with appropriate services in the community in violation of the integration mandate.  The parties settled with the state agreeing to provide 75 new community placements, and to seek $1.5 million to help place those with "exceptional barriers to placement.@ Additionally, the settlement sets up a special review process, with P&A representation, for anyone who has been waiting more than 180 days for discharge, to review barriers to placement and determine what additional actions, resources or supports are needed for discharge.

***

22.      (PA) Case Name:  Kathleen S. v. DPW of Pennsylvania,  No. 97-CV-6610 (E.D. Pa 1998).

Summary:  This class action was filed pre-Olmstead and is one of the decisions upholding a right of individuals with mental illness to receive services in the most integrated setting.  The class was comprised of individuals living in state hospitals dispite the fact that doctors had found community integration to be appropriate.  After the Olmstaed decision, the Court reviewed the case on appeal and again found that the state violated the integration mandate by failing to transfer funds from the institution to the community to assure prompt placement, including declining to fund PA=s community hospital integration project programs in several counties.  Following the ruling the parties settled.

***

23  (PA) Case Name: Pennsylvania Protection and Advocacy, Inc. v. Department of Public Welfare, No. 1:CV-00-1582 (M.D. Pa.2000)

Summary: Action on behalf of residents of South Mountain Restoration Center (ASMRC@), a state-operated nursing facility that houses primarily persons with severe and persistent mental illness.  The lawsuit alleged violation of the integration mandate for failure to provide services to residents in more integrated settings. The court ruled in favor of the state on all claims on the grounds that it would be a fundamental alteration to require the state to speed up community placement of residents.

The court took a restrictive view regarding the fundamental alteration defense and how much a state must do to provide a remedy for unnecessary institutionalization.  After engaging in a detailed explanation of the parties competing financial arguments, the court accepted defendants= position that complete relief would cost between $3.5 million and $4.3 million annually and held that such an amount would constitute a fundamental alteration. ASince [the Office of Mental Health] has only a finite amount of money to devote to those with mental disabilities, the requested relief would fundamentally alter the program by forcing Defendant to shift funding from other eligible people to SMRC residents.@   Thus, as in Frederick L. v Pennsylvania, where the requested relief was estimated to require approximately $1 million, the court in Pennsylvania Protection & Advocacy found that a fundamental alteration existed even when the costs involved were comparatively small (the current mental health budget in Pennsylvania, excluding Medical Assistance funds, is nearly $1 billion).  The Court rejected plaintiff=s argument that Aresources available to the state@ should include at least the larger departmental budget rather than just the smaller budget for mental health services. This holding is identical to the one in Frederick L., (resources  available Arefers to the state=s mental health budget and mental health budget alone.@).  See also Sanchez v. Johnson, (finding that Olmstead suggests that Aonly the State=s already-existing budget for the developmentally disabled should be considered.)

***

 

24.  (PA) Case Name: Frederick L. v. Department of Public Welfare, No. 00-CV-4510 (E.D. Pa. 2001); (3rd Cir. 2004).

Summary:   Class action on behalf of residents of a state hospital challenging the state=s failure to provide them with proper evaluation of their service needs, discharge planning and community supports in violation of the ADA.  On September 5, 2002, this case became one of only a handful of decisions to review fundamental alteration in the context of the Olmstead decision.  The Court ruled that the state did not violate the integration mandate because to do so would require a fundamental alteration of how it runs its Medicaid mental health program.  According to the court:

AIt has not been demonstrated that discharging individuals at a faster pace from NSH would result in cost savings. As long as a hospital remains open, fixed costs must still be paid. Whatever savings are realized when hospital patients are discharged are comparatively less now that hospitals are smaller than they were a number of years ago. In addition, the costs of developing new community-based program begin to accrue, and begin to be paid, during a lengthy development phase, while the individuals who eventually will move to community residences continue to receive hospital treatment. Consequently, for a significant period of time, DPW, through the counties, may be forced to simultaneously pay both hospital costs and new program costs for the same individual.

The court then went on to hold that "Even if cost savings may eventually be achieved through deinstitutionalization, the immediate extra cost, and the concomitant lack of immediate aggregate cost saving, is sufficient to establish that a 'fundamental alteration' would be required if the relief sought by plaintiffs -- accelerated community placements -- were granted in this case."

The decision was appealed to the Third Circuit which agreed with the plaintiffs (and case law) that the short-term costs of community placement are not, without more, sufficient to establish a fundamental alteration defense.  However, the Court found the district court was not solely relying on the short-term costs but had considered other factors and so upheld that part of the decision.  Secondly, the 3rd Circuit agreed with the district court that the mental health budget is the appropriate budget to consider when determining whether other funds available to the state could be used for community services for individuals with mental illness.  The Court held the entire budget of the agency was not the proper budget to consider. Thirdly, the 3rd Circuit gave deference to the state agency=s decisions concerning their internal budgetary decisions.  Lastly, the Circuit Court decided that in order to establish a Afundamental alteration defense, a state had to demonstrate that it had a comprehensive working plan in effect to assure that going forward, individuals would be served in the most integrated setting.

 

While the 3rd Circuit agreed with many of the findings of the lower court=s decision, it vacated the judgment and remanded the case back to the district court for further proceedings.  The 3rd Circuit directed the district court to request Pennsylvania to make Aa submission that the district court can evaluate to determine whether it complies with this opinion.

***

25. (PA)  Case Name:  Charles Q v Houston (D.1996)

Summary:  This pre-Olmstead decision followed Helen L. v. DiDario, to become the second decision to require enforcement of the ADA integration mandate. The case was filed on behalf of 3 residents of a state psychiatric hospital.  Two of the three residents, had been determined by their doctors to be appropriate for community services.  The Court ordered the state to serve these two residents in the community.

***

26. (PA) Case Name:  Greist v Norristown State Hospital (D.PA 1997)

Summary:  Another pre-Olmstead case that helped define the scope of the ADA integration mandate.  The case was filed by an individual with mental illness who was committed to the state hospital after a court find him not guilty of a felony by reason of insanity. The Court ruled that the commitment was not to exceed one year.  After one year, the director of the hospital petitioned to have him re-committed and was granted this petition each year for 6 years.  In 1996, plaintiff filed this action challenging his re-commitment on several grounds including that his continued commitment violates the ADA integration mandate.  The plaintiff alleged that some psychiatrists have said he is no longer a threat to himself or others and could be treated successfully as an outpatient.  The Court rejected his ADA claim, saying that to allow outpatient commitment of the plaintiff would constitute a fundamental alteration, since other state doctors have found that he is still a danger to himself and others.

***

27.  (PA)  Case Name: Kirk T. v. Houstoun (D.Pa. 2000).

Summary: Class action lawsuit alleging that Pennsylvania violated the Medicaid act by failing to provide medically necessary behavioral health services to youngsters with serious emotional disorders. The case did not include an ADA claim.  The district court rejected the state=s motion to dismiss, holding that these youngsters have a right to receive behavioral health services with reasonable promptness.

Shortly after receiving the Judge=s ruling on reasonable promptness, the parties settled.  The state agreed to establish time lines for providing medically necessary services and also to send notice to all parents about the new time lines.  The state also agreed to reduce the qualification requirement of home health providers.  In the past the state required providers to have degrees and offered no additional training.  Under the settlement, the state would rely less on degrees and instead increase the training offered.

A year after the settlement, the state had just distributed the notice of time lines for receipt of medically necessary services.  Almost two years after the settlement the state has failed to collect data on who is using these services, as required by the settlement, on at least one-third of the children served. Plaintiff=s attorneys are going through the data that was collected and they believe the settlement has resulted in little change for children needing mental health services. In fact the state recently drafted a proposal to limit eligibility for MH services by changing the definition of medical necessity.

***

28.  (PA) Case Name: Mental Health Association of Southeastern Pennsylvania v. Borough of Darby, (D.Pa. 2000)

Summary: Complaint filed on behalf of a non-profit organization that operates a consumer drop-in center for individuals with mental illness and an individual with mental illness to challenge the Defendant=s requirement that the drop-in center maintain a security guard on the premises during all hours of operation. The Borough stated that the security guard was necessary because the clients of the center constitute a Anuisance,@ even though the police complaints concerning the center and its clients filed by neighbors are rarely, if ever, found to be justified.  Plaintiffs allege that Darby=s action violates Title II of the ADA as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case settled, the use of a security guard was changed.

***

29. (TX) Case Name:  Doe & Doe v. Hall (D.Tex. 1998).

Summary: Action alleging that the failure of Texas to provide minimally adequate crisis intervention services has resulted in the state incarcerating individuals in need of mental health services (not charged with any wrongful action) in the county jail while they await transportation to available mental health programs.  Plaintiffs charge the state is in violation of the 14th Amendment, the ADA, Section 504 and applicable state law.  Plaintiffs also seek compensation for personal injury arising from abuse and neglect while in the county jail. A jury trial was held in October 1999, and the jury found that Texas  had violated plaintiffs= state created liberty interest as well as the state statutory requirement of treatment in the least restrictive setting, but awarded no damages.

***

30.  (VA) Case Name:  Virginia Office of Protection and Advocacy v Brice=s Enterprises (State Circuit Court 2004).

Summary: Action seeking an order that an assisted living facility stop abusing its residents with mental health needs in violation of state law. This case does not include an ADA integration mandate claim.  Examples of abuse include:  physical abuse by other residents and staff, failure to provide needed psychiatric medications, failure to stop the theft and 3rd party distribution of residents psychiatric medications and failure to provide discharge planning to assist individuals to live in community settings.  The plaintiffs claim that one resident died as a result of these abuses.  Parties are awaiting trial.

***

31.  (WA) Case Name: Marr, et al. v. Eastern State Hospital, et al. (D. Wash. 2001).

Summary: Class action alleging that the services provided to individuals with developmental disabilities and mental illness who are living at Eastern State Hospital (ESH), or might in the future, violate the U.S. Constitution and state law and also that the community supports and services are inadequate for residents with developmental disabilities and mental health needs in violation of The ADA integration mandate.  Parties entered into a settlement agreement, in November 2002,  providing that for residents with DD and mental health needs, ESH will: (1) open a special ward just for this population; (2) provide specialized care; (3) provide at least six hours per day of active treatment; (4) increase the availability of vocational, recreational, and social activities; (5) train staff of the unique needs of this population; (6) adopt a policy that will minimize the use of seclusion, restraint, Atimeout,@ and Atherapeutic holds,@(7) develop positive behavior support plans for all class members; (8) improve the way it reports possible incidents of abuse and neglect of residents; (9) improve the discharge process; (10) identify all Marr class members living in the community who have mental health needs and refer them to their local community mental health center for screening and assessment; and (11) use their best efforts to secure funding for the creation of additional staff positions to provide services to Marr class members

***

 

32.  (WA) Case Name:  Allen et al. v. WHS (W.D. WA. 1999).

Summary:  Class action seeking declarative and injunctive relief for individuals with DD and mental illness who have been abused and neglected, denied opportunities for discharge, and restricted from community services while patients at Western State hospital.  The action also seeks relief on behalf of individuals with DD and mental illness who were at risk of commitment to the state hospital due to the lack of appropriate community supports in violation of the ADA integration mandate.  In December1999, a federal district judge signed an order to stay the proceedings in the case, contingent on the state=s adherence to a plan requiring the discharge of hospital residents to the most integrated settings to meet their needs and the development of a multi-disciplinary community-based service system.   The order provides that the services will be monitored on an individual and systemic level.

***

 

33. (WA) Case Name: Rust v. Washington State Hospital (D.Wash. 2000).

Summary: Class action seeking declaratory and injunctive relief, on behalf of individuals who have been repeatedly abused and neglected while patients at the Center for Forensic Services at the Western State Hospital (WSH), in violation of the 14th Amendments.  The action also seeks to end unnecessary institutionalization in violation of the ADA integration mandate and the Rehabilitation Act.  In 2001 the district court judge issued a preliminary order finding that Western State Hospital was providing deplorable conditions of care to patients in violation of the 14th Amendment and that WSH was not providing treatment in the most integrated setting in violation of the ADA. In August 2001 the judge issued a final order to ensure that WSH provides the class with: 1) adequate protection from harm; 2) adequate and timely medical and dental care; 3) freedom from unnecessary restraint; 4) adequate discharge planning; and 5) services in the most integrated setting.

***

 

III:  Discrimination Against Individuals with Mental Health Needs That Relate To Access To The Community But Don=t Specifically Include an ADA Integration Mandate Claim

A. ADA Discrimination in Jails and Prisons

 1.  (MA) Case Name:  Louraine v. Chair, Massachusetts Parole Board, Suffolk Superior Court No. 95-6896.

Summary:  Plaintiff is serving a second degree life sentence at Bridgewater State Hospital where he has been committed since 1982 for treatment of chronic mental illness.  Although he would otherwise be eligible for parole, a Massachusetts statute bars him from parole consideration solely because of his hospitalization at Bridgewater.  He alleges that the statute violates the ADA Title II and the Rehabilitation Act.  He also alleges violation of the state equal rights amendment in that female prisoners hospitalized for mental illness remain eligible for parole.   Court ruled that the Massachusetts statute that prohibits inmates at Bridgewater State Hospital from being eligible for parole violates Title II of the ADA.

***

2.  (NY)  Case Name: Disability Advocates, Inc v. New York State Office of Mental Health, (S.D.N.Y. 2002).

Summary: Disability Advocates, Inc. (DAI) alleges that although roughly 16,000 of New York=s 67,000 prisoners suffer from significant mental illness, the state=s prisons are ill-equipped to deal with such prisoners. There are not enough inpatient beds or staff members available to treat the growing number of prisoners with mental illnesses. In addition, according to the suit, inmates with psychiatric illnesses are often isolated from human contact, which exacerbates their condition and can create a cycle of dangerous behavior.  One particularly disturbing example is the prison practice of placing psychiatrically ill inmates in 23-hour lockdown in a special unit called AThe Box.@  According to the lawsuit, the majority of suicides in New York prisons are committed by prisoners in AThe Box.@  Over half the inmates in isolated confinement in the maximum security prisons may be mentally ill. The continual isolated confinement of these prisoners, then, amounts to Acruel and unusual punishment@ under the Eighth Amendment.    Plaintiff alleges violations of the Civil Rights Act, the Eighth and Fourteenth Amendments, The Rehabilitation Act, and the Americans with Disabilities Act.  Plaintiff hopes to bring about systemic change in services available to and methods used in confining mental ill prisoners. There has been no decision yet.

***

 

3.  (NY) Case Name:  Brad H. v. The City of New York, (Supreme Ct., N.Y. Cnty., Stipulation of Settlement January 8, 2003).

Summary:  In this class action, settlement was reached requiring all New York City jails to provide inmates with mental illness, after their release, access to mental health services and the necessary cash benefits to pay for the services. The settlement is a model for pre-discharge planning and post-discharge services for inmates with mental illness.  The City's jail system is the largest mental health facility in the state. Each year, many thousands of persons with mental illness are arrested and offered treatment in the New York City jails. However, when the lawsuit started, most were provided no help at all in continuing their care after release. In fact, they faced many barriers. Many were dropped off in the middle of the night with $1.50 in cash and a 2-fare MetroCard. They had no referrals or appointments for continuing care, no medications, no means to pay for treatment, and very often nowhere to live.

 

Under the settlement, the City will release mentally ill inmates during daylight hours. It will provide medications or prescriptions and a means to pay for medication and other basic needs. The City or its contractors will provide referrals and appointments for treatment, and help in securing housing or shelters with mental health services for those who are homeless.

 

4.  (PA) Case Name:  Greist v Norristown State Hospital (D.PA 1997)

Summary:  Another pre-Olmstead case filed by an individual with mental illness who was committed to the state hospital after a court found him not guilty of a felony by reason of nsanity. The Court ruled that the commitment was not to exceed one year.  After one year, the director of the hospital petitioned to have him re-committed and was granted this petition each year for 6 years.  In 1996, plaintiff filed this action challenging his re-commitment on several grounds including that his continued commitment violates the ADA integration mandate.  The plaintiff alleged that some psychiatrists have said he is no longer a threat to himself or others and could be treated successfully as an outpatient.  The Court rejected his ADA claim, saying that to allow outpatient commitment of the plaintiff would constitute a fundamental alteration, since other state doctors have found that he is still a danger to himself and others.

***

 

5.  (TX) Case Name: Zuniga et al. v. Rene Guerra, Henry Escalon County Jail (D. Tx. 1999)

Summary: Class action challenging the lack of mental health treatment for prisoners in the jail and excessive delays in competency hearings. A settlement agreement was approved requiring the provision of services to individuals with mental illness who are detained in jail. The agreement also addresses the lengthy delays that were occurring with the processing of cases for those imprisoned individuals who are incompetent to stand trial, ensuring that these cases will be expedited.

***

 

6. (VT) Case Name:  Pequignot and Vermont P&A, Inc. v. Gold, et al., November 2003).

 

Summary:  Action challenging the continued segregation and inadequate mental health treatment the Vermont Departments of Corrections and Mental Health. The claims were based on the 8th and 14th Amendments to the Constitution and the ADA.  At the time of filing of the Complaint the plaintiff had been held in segregation at the Chittenden County Correctional Facility in Burlington Vermont for over 60 days.  Plaintiffs asserted that during that time, she had not received adequate mental services and that the continuation of the situation was causing irreparable harm to her.

 

A settlement was reached with the State of Vermont Department of Corrections and Department of Developmental Disabilities and Mental Health Services.  The settlement included a small monetary payment from the State to the plaintiff a signed apology letter from the Commissioners of both Departments to the plaintiff for the suffering she endured while in their custody, and a written acknowledgement on the part of the Department of Corrections of the need for a safe, therapeutic mental health unit for Vermont's female inmates, and an agreement to provide Vermont Protection and Advocacy, Inc. the opportunity to meet with the Department bi-monthly to assess the progress the Department is making towards the establishment of such a unit for female inmates with mental illness.

***

 

B. Discrimination in Housing

 

1. (CA) Case Name: Mental Health Consumer Concerns (MHCC) and Henry Doe v. City of Pittsburgh, et al., Civil Action No. C99-02594 (Contra Costa County Superior Court, July 6, 1999)

Summary:  In December of 1998, Mental Health Consumer Concerns (MHCC), a self-help organization, attempted to open a self-help center in downtown Pittsburgh, California.  The Pittsburgh Planning Commission approved the application for the required permit, but the city council reversed the decision, determining that the self-help center did not fit within the permitted uses of the Downtown Specific Plan and denied the permit.  An action was filed alleging that the city discriminated against MHCC by overturning the permit in violation of the ADA Title II and other federal and state laws.

During a court ordered Case Management Conference in late September 2000, the parties met with a mediator and negotiated a settlement, providing for: (1) an alternative site for the center with free rent for two years, and (2) a low interest loan of $28,000 for improvements to the alternative location.

***

 

2.  (MA) Case Name:            Galangal v. The Village at Marshfield (Administrative Complaint).

Summary:  A tenant with schizophrenia has lived in his apartment since 1995.   For approximately six months, his neighbors have complained about him making loud noise at night and behaving inappropriately towards a female neighbor and her children.  The landlord has notified the tenant that it will not renew his lease when it expires on April 30, 2003. The case settled after the state agency issued a favorable preliminary ruling.  The landlord agreed to renew the client's lease at the same rent, allow him to terminate his lease early if he found other housing, and agreed on a dispute resolution procedure to handle future inter-tenant disputes.

***

 

3. (TX) Case Name: Lantana Square Apartments v. Ramiro Espinosa (Justice of the Peace Court, 2002)

Summary:  The landlord of a HUD subsidized property filed for eviction of the plaintiff for non-payment of rent.  The plaintiff is diagnosed with bipolar disorder, and his mother had been helping him manage his money.  When she was hospitalized with a serious illness, the plaintiff did not pay the rent on time and the landlord filed for eviction.  Before the trial the plaintiff offered a reasonable accommodation plan, which included payment of all back rent and fees, but the landlord refused.  At the trail the judge strongly urged the landlord to accept the plaintiff=s settlement offer of back rent and an accommodation plan.  The landlord accepted the settlement.

***

 

C. Inappropriate Discharge from University

1. (IL) Case NameMichael M. v. Millikin University (C.D. Ill.)

Summary: Michael M., a freshman on a music scholarship at Millikin University in Decatur, Illinois, was Aadministratively withdrawn@ by the school after he sought help from an Associate Dean following a Apanic attack@ that arose from his disability of obsessive compulsive disorder. The involuntary dismissal occurred with just seven weeks remaining in the semester.  After the University refused to reinstate Michael, he filed suit under the ADA seeking a temporary restraining order to permit him to return to school.  Millikin University agreed to settle the case and reinstate Michael to school.  In addition, Millikin agreed to expunge all references of the incident from Michael=s school records.

***

D.        Discrimination in Voting

 

1. (ME) Case Name:  Jane Doe, et al., vs. G. Steven Rowe, et al.,  (D. ME 2003)

Summary: Action challenging a state law that prohibited people with mental illness who had guardians from voting.  Plaintiffs claimed that this violates the ADA, Section 504 and Constitutional law.  The law was overturned.

***

2. ( NJ) Case Name: In the Matter of Five Absentee Ballots Cast By Residents of Trenton Psychiatric Hospital, (State court 2000)

Summary:   Appeal of decision by judge not to count five absentee ballots cast by residents of Trenton Psychiatric Hospital. The decision to exclude the ballots stemmed from a formal challenge by one of the political parties to reject votes cast by the residents.  The challengers argued that Athere was an organized effort to register voters that had been committed by a judge to Trenton Psychiatric Hospital@ and that the resident=s votes should be rejected because the individuals were deemed Aidiots@ or Ainsane@ within the meaning of the New Jersey Constitution and state election laws.  Voters with mental illness appealed and the court agreed that the votes must be counted.

***

E.         Other Forms of Discrimination

1. (MA) Case Name: Discriminatory Eligibility Criteria for [MBTA] Transportation Access Pass Reduced Fare Program.

Summary: Challenge to public transportation authority=s restrictive and discriminatory policy and eligibility criteria for reduced fare program for individuals with psychiatric disabilities.  The parties settled with the MBTA agreeing to: broaden eligibility criteria for people with psychiatric disabilities, and improve application procedures.

***

2. (NV) Case NameJane Roe v. Nevada State Board of Nursing, et al. (Administrative hearing 2003)

Summary: Action under Title II of the ADA and the 14th Amendment challenging policies and practices of the nursing licensing board with respect to nurses with disabilities and, in particular, mental disabilities.  The parties settled with the licensing board changing many discriminatory practices.

***

3. (NY) Case NamePallozzi v. Allstate Life Ins. Co. (2nd Cir.)

Summary: Action on behalf of two individuals who were denied life insurance because of their history of mental illness. The Second Circuit ruled that the ADA prohibits an insurance company Afrom refusing to offer its policies to disabled persons by reason of their disability.

***

4. (PA) Case NameMental Health Association of Southeastern Pennsylvania v. Borough of Darby, (E.D. Pa. 2000)

Summary: Complaint filed on behalf of a non-profit organization that operates a consumer drop-in center for individuals with mental illness and an individual with mental illness to challenge the defendant=s requirement that the drop-in center maintain a security guard on the premises during all hours of operation.  The Borough stated that the security guard was necessary because the clients of the center constitute a Anuisance,@ even though the police complaints concerning the center and its clients filed by neighbors are rarely, if ever, found to be justified.  Plaintiffs allege that the Borough of Darby=s actions violate Title II of the ADA as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Case settled and the security guard requirement was eliminated.

***

5. (SC) Case NameAlexander v. North Hills Medical Center

Summary: North Hills is a large private medical center with many doctors and several facilities.  Our client is deaf and has a mental illness.  She is a patient of North Hills and she requested a sign language interpreter so that she could effectively communicate with her doctor.  An action was filed alleging violations of Title III of the ADA and/or Section 504.  Before trial the parties resolved the issue through mediation when North Hills adopted an appropriate effective communication policy and agreed to do the following within 45 days:

a.         Designate a deaf services coordinator and an alternate coordinator;

b.         Educate all staff on the new policy;

c.         Have knowledgeable professionals educate key staff on important issues in providing effective communication to the deaf;

d.         Provide additional training to the Deaf Services Coordinator and alternate in consultation with the SC Association for the Deaf; and

e.         Post notices referencing the right to effective communication in prominent locations in each of their facilities.

***

F. Failure to Enforce Advance Directives

 

1. (VT)   Case Name: Richter v. Vermont State Hospital (Vt. Sup. Ct. 1997).

Summary: Action alleging that defendants (Vermont state hospital and the state of Vermont) failed to recognize and comply with plaintiff=s advance directive in violation of  state law.  Plaintiff sought a preliminary injunction to enjoin the state to act pursuant to the terms of plaintiff=s Durable Power of Attorney for Health Care.  Settled  after the state agreed to  enforce plaintiff=s durable power of attorney for health care.

***

2.  (VT) Case Name:  Hargrave v. Vermont (D. Vt. 2000).

:  Action alleging that Vermont=s new law, regarding involuntary medication of people with mental illness, violates the ADA and discriminates against people with mental illness.  Since 1985, the AJ.L.@ consent judgment has governed the use of involuntary medication in Vermont.  In 1988, the state legislature passed Act 114 designed to replace the consent judgment and become the ruling state law on involuntary medication.  The next month, the state filed a motion for relief from the J.L. consent judgment so that Act 114 could be enforced.  The Vermont P&A intervened on its own behalf and on behalf of J.L. class members to oppose the motion for relief of the consent decree.

Two primary concerns of interveners are that Act 114: (1) replaces the Substituted judgment, standard used under the consent judgment with the Best medical interest@ standard, and specifically limits the enforcement of an advance directive for mental health care to 45 days from the time of enactment (Vermont does not limit enforcement of advance directives for any other population.); (2) applies to a broader group of persons than those covered by the J.L. consent judgment, individuals confined to Vermont state hospital, but also to persons who live in communities and receive involuntary mental health treatment under orders of non-hospitalization.  A hearing was held in August 1999.

On December 30, 1999, the judge denied the state=s motion for relief from the consent judgment.  The decision effectively renders Act 114 unenforceable.  The state has indicated it may appeal this decision to the Vermont Supreme Court.  Plaintiff=s Motion for Class Certification was approved  as: individuals within the state of Vermont who have been or will be in the future diagnosed as having a mental illness or who either have or will execute a DPA for health care or have or in the future will be deterred from executing such an advance directive for health care as a result of Act 114.

The Plaintiffs moved for summary judgment.  The Defendants filed an opposition to the Plaintiffs= motion and have moved for summary judgment. The Defendants= arguments included that 1) the ADA and Section 504 do not cover civil commitment authority and medical decisions (put another way, that advance directives for people in hospitals are not a state service or activity); 2) that the Plaintiff is not a qualified person with a disability because she presents a serious risk of harm to others as demonstrated by her commitment; 3) the changes the Plaintiffs seek would be a fundamental alteration of the ADA program (assuming it is a program); and, 4) the law actually grants additional rights.

In his ruling, the court agreed with the Plaintiffs that sections of Act 114 which permitted the state to medicate mental health patients against their will even if they had a durable power of attorney for health care (DPOA) violates the ADA and Section 504 of the Rehabilitation Act.  Under Vermont law, a person can execute a DPOA to ensure that his or her medical treatment decisions are followed if they lose their capacity to make those decisions themselves.  Act 114 permitted the state to override the DPOA of a person deemed to be mentally ill and involuntarily medicate them.  In no other medical circumstances can the state overrule a DPOA.  The state appealed the decision to the Second Circuit.

The Circuit Judge affirmed the decision of the lower court and held that: (1) plaintiff class suffered injury-in-fact sufficient to establish standing; (2) Act excluded qualified individuals from state's DPOA program; (3) Act discriminated on basis of disability; and (4) injunction against enforcement of Act did not constitute a fundamental alteration to Vermont's DPOA program.

 

IV Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with  Disabilities Other Than Mental Illness

 

1. (AL) Case Name Susan J v. Riley (D.Al. 2000)

Action in on behalf of individuals waiting for services under the ICF/MR waiver services, challenging that the state is in violation of the Medicaid Act requirement to provide services with reasonable promptness and in a comparable manner to other eligible Medicaid recipients. The individuals also claim a violation of the 14thAmendment to the U.S Constitution. The state has filed a motion to dismiss the case arguing that the Medicaid Act allows waivers to be limited and that the state has immunity under the 11th Amendment from suits by individual beneficiaries seeking to enforce their rights under the Medicaid Act.  Though the case has been lingering in the court system for several years, there has recently been some activity in the case.  First, the case was transferred from Judge Thompson to Judge Fuller.  Then, Judge Fuller denied the defendant=s initial motions for summary judgment which had been pending for around four years.

***

2.  (AK) Case Name: Hagen v. Alaska (D. Alaska 1999).

Summary: Action seeking to require the state to provide Medicaid reimbursed personal care attendant services to an individual with quadriplegia in a reliable, reasonable, unarbitrary manner in order to prevent unnecessary institutionalization in a nursing facility.  The claim is violation of the Medicaid Act reasonable promptness and sufficiency requirements.  An ADA claim is not raised.

This case was filed after receiving several favorable unpublished administrative decisions holding that Alaska=s wait-listing practices were a violation of the reasonable promptness mandate, and that the state's claimed reasons for the wait listing practices (lack of provider capacity, lack of appropriations, lack of agency staff to process the applications) were "meritless."

At the hearing in March 2002 the state volunteered to increase provider reimbursement rates.  Before the Court could finalize this into a ruling, the plaintiff moved to another city and the case was dismissed.  However, the P&A has pursued this provider reimbursement issue at the policy level.  The P&A did an analysis showing that the amount of money budgeted for the waiver and the amount actually spent leaves a surplus, and is seeking legislation requiring the surplus to be spent on community services.

***

3.  (AZ) Case Name: Ball v. Beidess (D. Ariz. 2000).

Class action on behalf of recipients of Medicaid Home and Community Based Services who did not receive the home care services they needed. Plaintiffs claimed violations of Medicaid law, the ADA integration mandate and state law for failing to make personal attendant care services available in a scope and amount necessary to allow persons with disabilities to live in the community and failing to provide written denial notices to when services were not provided. The Court certified a class of all persons entitled to HCBS Services who are not receiving prescribed attendant care.

On August 12th, U.S. District Court of Arizona, Judge Carroll stated in the Ball v Biedess class action, that "plaintiffs have a property right in the health care benefits for which they qualify" and that the defendants, the Director of the state Health Care Cost Containment System violated federal Medicaid law by failing to provide enough attendant care workers to meet the need, largely due to low wages.  He also stated that “individuals should not have to choose between inadequate health care and institutionalization.” Although the ADA integration mandate claim was fully briefed, and plaintiff’s attorneys expected a ruling, the Judge did not mention the ADA claim, basing his decision solely on violations of federal Medicaid law.

Specifically, the Judge found violations of the "equal access", "quality of care" and "freedom of choice" requirements and ordered the Medicaid program to provide "services for which each individual qualifies without gaps in services." The Judge orders the state to do the following:

1) develop adequate or alternative contingency plans when a service is unable to be provided;

2) provide a rate of pay to health care workers so as to deliver adequate services to qualified individuals; and so as "to attract enough health care workers to deliver all the services for which an individual qualifies." The judge clarifies that “[the program] need not offer a particular rate of pay (i.e. a minimum) just a rate of pay which guarantees that each individual will receive the services for which he or she qualifies."

4) monitor the program so that gaps in services are detected "in enough time to implement the alternative or contingency plan and eliminate the gap in service in less than four (4) hours"; and

5) implement a grievance process allowing an individual to call and speak to a live person to report a gap in service; is given a standardized form to mail to report a gap; receives a response via telephone or mail acknowledging the gap and providing a detailed explanation of the reason; and offers the "alternative plan being created to rectify the particular gap in service and any possible future gaps in service."

***

(AZ)  Case Name:  J.K. v. Eden, (formally Dillenberg) (D. Ariz.2001).

Summary:  Class action consisting of all persons age twenty one and younger, who are eligible for Title XIX mental health services in the state of Arizona and who have been or will be identified as needing mental health services.  The class seeks an order requiring the Arizona Health Care Cost Containment System (AHCCCS) to provide adequate scope, amount and duration of federally mandated Medicaid mental health services, including EPSDT services. The class also seeks a declaratory judgment and injunction requiring the AHCCCS Regional Behavioral Health Authorities (RBHA) to provide class members with advance notice, fair hearings and continued receipt of services pending the outcome of hearings whenever the RBHAs reduce, suspend or terminate services based on individualized assessments of medical needs. This is the first case examining a state=s implementation of EPSDT within a mental health managed care system.

Defendants contend that federal regulations dealing with Medicaid fair hearings apply only to state agency actions.  Defendants argue that RBHA makes medical decisions as an independent contractor, whose actions cannot be attributable to the state.

The court held that RBHAs are state actors.  Additionally, the court held that the state has a responsibility to oversee its Medicaid program and cannot disclaim federal procedural requirements by contracting away its obligations to a private entity.  The court further held that AHCCCS=s policy did contracting away its obligations to a private entity.  The court further held that AHCCCS=s policy did not comply with appropriate federal regulations and that AHCCCS is required to comply with federal rules whenever terminating, suspending or reducing Title XIX services based on medical need assessments by RBHA.

In March 2001, the parties reached a settlement requiring Arizona to overhaul its mental health managed care system and comply with 11 principles, related to service quality, delivery, and implementation.

The settlement commits the state to a series of concrete steps, including a massive training program for frontline staff and supervisors, special projects to pilot the new approach to services, and specific improvement in the structure of the managed care arrangement.  It anticipates implementation over six years, and obliges the state to move Aas quickly as is practicable@ to make needed changes.  The class is certified on behalf of all Arizona children seeking Medicaid mental health services.  As of April 3, 2001, the agreement must still be ratified by the court, following a hearing.

***

3.  (AK) Case Name:     Pediatric Speciality Care, Inc. et al. v. Arkansas DHS (D. Ark. 2001)

Summary: Action seeking to stop the state from cutting back on early intervention Medicaid offerings for children with developmental disabilities ages 0-6. Plaintiffs argued that the Medicaid EPSDT requires states to provide early intervention services whenever a doctor has found that the services are “medically necessary.”  State defendants argued that they had the Alegal right to decide whether to include the services@ in the state=s Medicaid program. In 2001 the District Court stopped the state from making the cuts to the program.  In 2001, the state appealed the injunction to the 8

***

(AR) Case Name: Tessa G. v. Arkansas Department of Human Services et al. (D.Ark. 2002).

Summary: Lawsuit challenging the state=s practices of wait listing individuals for its HCBS waiver program for people with disabilities before they are even allowed to apply for the program.  In most other states individuals have an opportunity to apply first for Medicaid services and then be placed on a waiting list.  Plaintiffs claim that Arkansas=s practice violated the Medicaid Act, which requires states to give individuals an Aopportunity to apply.@ This suit does not include an ADA integration mandate claim.   The difference is important because once an individual has applied for Medicaid services they are entitled to notice and hearing rights if services they request are denied, or are not provided promptly.  After a hearing, the state agreed to allow individuals to apply for services and have their applications acted upon promptly.  The state also agreed to offer waiver services to individuals on the existing waiting list up to the amount of the waiver ACAP@.  This meant the state would serve 1,000 people who were waiting on it=s waiting list, as a result of additional funding approved by the Arkansas legislature during 2003.  The case was closed in August 2003.

***

(CA) Case Name: Capital People First v. California Department of Developmental Services et al.(D. D.C. 2002).

Summary: Class action alleging that the Department of Developmental Services, other state agencies, and 21 local regional centers are violating the ADA and other state and federal, and constitutional laws by not offering appropriate community based supports. The class includes: AAll Californians with DD who are or will be institutionalized and those who are or will be at risk of institutionalization in either public or private facilities, including but not limited to, DD centers, nursing facilities, ICFs, large congregate care facilities, state hospitals and children=s shelters.@  Plaintiffs seek an order requiring defendants to: provide easily understood information on community living options, conduct adequate needs assessments, and develop quality community living options.

The federal District Court dismissed the Medicaid Act claims as not enforceable against the state by individual beneficiaries; the court did allow the ADA and Rehabilitation Act claims to go forward.  Before the parties could move forward on these claims the  state court of appeals for San Francisco stopped all action on the ADA and Rehabilitation Act claims, until the state court decides whether other state claims can go forward.  A hearing on the state claims is scheduled for September 2004.

***

2.  (CA) Case Name: Coffelt v. DDS, (California Superior Court 1994).

Summary: In 1994 a five year settlement was signed in this case, with California agreeing to: 1) net reduction of 2,000 persons in state institutional populations over the next five years, 2) additional case management and resource development personnel, 3) an increase in new living options, 4) training for consumers, families, providers and case management agencies in new ways of planning and new living options, 5) actions to increase affordable housing, 6) crisis intervention services available to maintain people in their community homes, and 7) a new outcome based quality assurance process developed by consumers and families to evaluate life quality and satisfaction of all people in community living options.

Status: On May 18, 1999, the Judge signed an order officially ending Coffelt.  Over the five years implementing the settlement, the California P&A has prepared eleven updates intended to let the public know the progress that has been made under the settlement and related legislative and policy initiatives to improve the system of community living for individuals with developmental disabilities.  These updates, available from NAPAS/TASC provide a wealth of data for community integration advocates, including: 1) quality of life surveys; 2) information about serving consumers who are dually diagnosed; 3) training materials on how to implement person-centered planning; 4) best practices for independent living service providers; and 5) information on financing affordable community housing.

***

3.  (CA) Case Name:  Richard S. et al. (D.Pa. 1997).

Summary:  PAI intervened as defendants on behalf of residents of the Fairview Developmental Center.  The plaintiffs in this class action are also residents of the Fairview Developmental Center.  Plaintiffs are represented by a doctor at Fairview who serves as these residents= guardian ad litem.  Plaintiffs were granted a preliminary injunction stopping six state developmental disability centers (DD centers) from discharging any more residents of DD centers into community placements.

The DD Center doctor, representing the Plaintiffs, claims that the DD center is the most integrated setting appropriate for Plaintiffs and that the state is violating the ADA integration mandate by moving people into the community and out of Aappropriate@ DD center settings.  The doctor also claims that Plaintiffs Alack the mental capacity to object to their own transfer to community placement@ and that residents without conservators to oppose their transfer from the DD center are being moved into the community in greater numbers than residents who do have conservators.  The P&A interveners opposed the injunction, arguing that if the judge granted Plaintiffs= preliminary injunction it would violate the ADA integration mandate.

On March 24, 2000, the judge issued an order stating that the ADA prohibits unnecessary institutionalization.  He agreed with the P&A that this does not mean that the ADA also prohibits community placement even if the treatment professionals believe institutionalization is appropriate.  In addition, the judge did not agree with plaintiffs that the failure of DD centers to provide conservators for DD residents is discrimination under the ADA.  The judge also ruled that the policy giving family members or conservators the right to prevent community placements even when the rest of the treating professionals agreed that the person could live successfully in the community is not valid.

Shortly after this ruling, the parties agreed to a settlement ending the suit.  Under the settlement agreement, any treating professional can express an objection to a community placement recommendation.  Once a placement is found, the person objecting to the placement can ask the court that placed the person in the DD center to hold a hearing.

***

6.  (CA) Case Name:         Sanchez v. Johnson (D.Cal. 2000)

Summary:  Class action on behalf of individuals in nursing facilities alleging that the state of California has Aestablished and maintained highly differential payment and wage and benefit structures between the institutional and community-based components of California=s developmental disability services program, which has the effect of subjecting people with developmental disabilities to unnecessary institutionalization and segregation. The plaintiffs -- persons with disabilities, provider and advocacy organizations -- claim the state, in creating such a payment differential is violating Title II of the ADA, both with respect to the integration mandate and reasonable accommodation regulations and the Medicaid Act.   Specifically, the ADA regulations prohibit public entities from Autilizing criteria or methods of administration ... that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.  Plaintiffs allege that California has discriminated against the plaintiffs by Autilizing criteria and methods of administration that discriminate against people with disabilities by [offering] low wages for direct care and professional staff.

The Medicaid claim is that services must be provided in A sufficient amount, duration and scope to achieve their purpose@ and be A consistent with efficiency, economy and quality of care. Specifically, plaintiffs seek an order requiring the state to raise wages for direct care workers and other staff in the community that would result in needed supports and services for people in the state developmental center who wish to live in community settings.

In August 2002, the District Court ruled in favor of the State on the ADA allegations and dismissed the ADA claims from the case. The Judge held that Plaintiffs have failed to show that an increase in wages and benefits for direct care workers in the community would remedy the alleged violations. She wrote: "Increased wages may permit providers to hire and retain more employees, but if, as appears to be the case, many consumers need specialized services that are currently unavailable, it is not clear that increased wages would produce these new services. In fact, the opposite may very well occur, for DDS [Department of Developmental Services] may find the need to cut back certain programs, or refuse to create or fund new programs, in order to fund the wage increase. Further, the Judge ruled that even if Plaintiffs were able to raise a question suggesting that the requested relief from the State would reduce unjustified institutional isolation because the state could claim that the requested relief would be a fundamental alteration.  A second reason the court fund that California has a fundamental alteration defense is because Ait has a plan in place that is operating at a reasonable pace to place individuals capable of benefiting from a less restrictive environment into the community.

Since this ruling in 2002, the case has remained open while the courts battled whether the Medicaid Act claims where individually enforceable against individuals.  The issue became more important because the state was threatening to cut Medicaid payments for providers, and the plaintiffs Medicaid claims would have required the state to stop proposed cuts.  First the federal District Court said, yes, the Medicaid claims could go forward; than the District Court reconsidered and said no.  In late 2003, the issue of whether the Medicaid Act claims were enforceable against the state by individuals was appealed to the 9th Circuit.  In 2004, the 9th Circuit granted a preliminary injunction, which had the effect of stopping Medicaid cuts until the case goes to court.

***

1.  (CA) Case Name: Davis v. California (D. Ca. 2000).

Summary: Class action seeking access to community-based long-term care services in order for people with disabilities to avoid unnecessary institutionalization in nursing facilities.  The lawsuit alleges that the City and County of San Francisco, as well as several state agencies, are discriminating against people with disabilities by failing to utilize existing Medicaid funding and other funding sources for home and community-based services, and instead committing the vast majority of available funding to institutional care.  Plaintiffs reside at Laguna Honda Hospital in San Francisco, or are at risk of institutionalization there, and represent a class of people in the same situation.  Laguna Honda is a 1200-bed nursing institution, the largest of its kind in the United States.  Plaintiffs have been given no option but to remain institutionalized in violation of the Medicaid Act and the ADA integration mandate.

Complaint filed in July, 2000.  The Independent Living Resource Center joined the lawsuit as an organizational plaintiff.  Plaintiffs are represented by the California P&A (PAI) and a coalition of disability rights organizations.  San Francisco filed a motion to dismiss the Rehab Act claim on the grounds that the City contracts with private providers and individual providers can not be sued.

The San Francisco motion to dismiss the lawsuit was denied on August 21, 2001.  The Court ordered San Francisco to modify existing programs or services, it did not, however, require the city to create new programs and services.  The city and state filed more motions to dismiss, but on December 18, 2001, Judge Armstrong ruled that while the plaintiffs must strike some of their allegations, the litigation can proceed.

Status: In July 2004, the District Court approved a final settlement ending the suit between San Francisco and the plaintiffs.  The DOJ investigation of Lagunda Honda continues. (see below).

***

(CA) DOJ Laguna Honda Nursing Home Investigation looking into a complaint of ADA violations (filed in 1998)

Summary: In May 1998 and April 2003, the Department of Justice notified the City of San Francisco that it was violating Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131, and its implementing regulations, including 28 C.F.R. § 35.130(d) (the “integration regulation”), by failing to provide services in the most integrated setting. On April 23, 2003, the DOJ also notified the State that they were broadening their investigation of the ADA violations at Laguna Honda to determine whether the State itself contributes to the unnecessary institutionalization of Laguna Honda residents.

On August 3, 2004, the DOJ completed its investigation, and notified the Governor that the State has impeded qualified Laguna Honda residents from being served in the most integrated setting appropriate to meet their needs, as required by Title II of the ADA. The DOJ stated that

“The State’s contribution to the unnecessary isolation of facility residents is evidenced by its: (i) failure to ensure that residents are adequately and timely assessed for placement in non-institutional settings upon admission and regularly thereafter; (ii) failure to adequately inform residents of home- and community-based options and alternatives; and (iii) failure to provide sufficient meaningful community options to reasonably accommodate qualified residents who need appropriate placements in non-institutional settings along with the supports and services they need to live in those settings.

The letter sets out the minimum actions the state must take to correct the deficiencies, including:  developing a new assessment process; complying with PASRR requirements; develop procedures to inform residents of community options and alternatives to the nursing facility; and enhance community waiver options and provider capacity in the community.

***

2. (CA)  Case Name: Hale "Buttercup" v. Belshe (9th Cir. 1997).

Summary: Class action challenging the state's failure to comply with the pre-admission screening and annual resident review (PASARR) provisions of the Nursing Home Reform Act (NHRA) and for improperly imposing caps on rehabilitative mental health services in violation of the Medicaid Act.  The action further alleged that the state was violating the ADA integration mandate by failing to promote services in the least restrictive environment.

Shortly after filing the complaint for declarative and injunctive relief in federal court, plaintiffs moved for class certification.  The class is defined as all persons who presently reside in skilled nursing facilities and persons who reside in communities who are at risk of being placed in these facilities because of lack of access to needed rehabilitative mental health services.

The judge granted a stay pending a decision on defendants= motion to dismiss.  One argument raised in the motion is that both the ADA and the Medicaid Act are unenforceable against state defendants as a result of 11th amendment immunity.  The P&A filed a motion for summary judgment.

The Ninth Circuit ruled in favor of plaintiffs on the 11th amendment issue. The case was remanded back to the district court.  By the time the case was sent back to the district court, appropriate placements had been identified for all class members.   As a result, the parties agreed to voluntarily dismiss the case.

***

8.  (CA) Case Name:  Rodde v. Bonta (D. Cal 2003).

Summary: Class action in federal district court against HHS in Los Angeles challenging the failure of California to ensure that Medicaid recipients with severe disabilities who are or would be treated at Rancho Los Amigos National Rehabilitation Center will receive necessary and appropriate rehabilitation services when this facility closes in June 2003.  Plaintiffs also challenge the unlawful discrimination by both Los Angeles County, which operates Rancho, and the state Director of HHS, against Medicaid recipients with severe disabilities that will result from Rancho=s closure.  Specifically, plaintiffs claim violation of:

* Several state laws;

*   The ADA and Rehabilitation Act because when Rancho=s Medicaid services are terminated, recipients who would normally receive a course of inpatient rehabilitation treatment will, instead, remain for extended periods at acute care hospitals without rehabilitative care and will likely be discharged to nursing facilities instead of to home; and

*    The Medicaid Act because by failing to ensure that the Medicaid recipients who are dependent on mandatory inpatient and outpatient hospital services from Rancho will continue to have access to services from other providers when Rancho=s services are reduced and/or terminated in violation of the requirement to provide medically necessary services, with reasonable promptness, equal to the care available to the general population in the area.

The Judge granted a preliminary injunction conditional for the state if they can actually find appropriate providers.  A motion for class certification is pending. The state appealed the preliminary injunction to the 9th Circuit on the grounds that appellees cannot prevail as a matter of law on the ADA and Section 504 claims alone.

In February 2004, the 9th Circuit upheld the preliminary injunction, on the grounds that they were likely to win the ADA claim.  The Circuit also noted that the district court decision did not mean that the county could not ultimately close the facility but instead, if it were to close the facility, it had to ensure that comparable services would be available to the plaintiffs.

***

(CO) Case Name:  Mandy R. et al. v. Owens et al. (D. Co 2000)

Summary: Plaintiffs seek ICF/MR small group home services while they endure the years long wait for Medicaid HCBS waiver services.  Unfortunately, the state has a moratorium on placements in ICF’s.  Plaintiffs claim the failure to provide them ICF services, while on the waiting list violates various provisions of the Medicaid Act including the reasonable promptness requirement and the requirement that payments are inadequate to provide quality.  The plaintiffs also alleged violations of the ADA integration mandate and the Rehabilitation Act. The state argued in part that it had no affirmative responsibility to establish ICF/MR facilities but instead that its role was akin to an insurer and is limited to paying for services once delivered.

The District Court allowed the Medicaid claims to go forward, but dismissed the ADA and Rehabilitation Act Claims, stating that: “Olmstead does not stand for the preposition that the state must create, expand, or maintain programs for the purposes of preventing disabled individuals from becoming institutionalized.”  A trial on the Medicaid Act claims was held in June 2004, but there has been no decision.

***

(CT) Case Name: Connecticut: Arc/Connecticut et al. v. O=Meara and Wilson-Coker (D.Ct, 2001).

Summary:  Class action alleging that defendants (Commissioner of Mental Retardation for the State of Connecticut and the Commissioner of Social Services for the State of Connecticut) failed to provide adequate and reasonably prompt services under the DD waiver, in violation of the Medicaid Act “reasonable promptness” notice and freedom of choice provisions, as well as, the ADA integration mandate. Class members include all 1,700 individuals on the state’s DD waiting list. Currently this case is in the discovery phase and the trial is supposed to begin in November 2004.

***

9.  (CT) Case Name:  Carroll v. Wilson-Coker (D.Conn. 2001).

Summary:  Action on behalf of an elderly individual in Connecticut who for years received home-based health and personal assistance services under the state elderly and disabled Medicaid waiver.  Without any change in plaintiff=s health and service needs, the home-health agency repeatedly failed to provide the required amount of home-based care services offering as its rationale Arecurring staffing shortages.@  Because of the reduction in home-based services, plaintiff experienced a series of falls and some injuries to aides.  The injuries were never documented or verified.  The agency sent notice to the plaintiff discontinuing the home-based care on the grounds that they were unable to provide safe care.  Without these services, plaintiff is at risk on placement in a nursing home in violation of the ADA and the Medicaid Act.  Plaintiff seeks a finding that when appropriate staffing is provided the agency could continue to provide safe home based care that he qualifies for under the Medicaid care plan.

***

(DC) Case Name: Evans and U.S. v. Williams (D. D.C. 1999).

Summary:  Motion for contempt in a class action suit asking the court to implement the Medicaid Home and Community Based Waiver program to put class members in less restrictive settings and to hold the District in contempt for failing to provide timely payment to group home service providers.  This motion was tried in February 1999.

Parties settled.  The Settlement Plan sets out steps the District must take in order to provide enhanced protections, services and supports to class members and other individuals in the District=s service delivery system.  While the Plan is in existence, the underlying Court Orders in the Evans case remain fully enforceable.  The Plan includes comprehensive measurable outcomes that the District must achieve for the people it serves.

Secondly, the Plan requires the creation of a private, non-profit corporation with its own funds to ensure that after the lawsuit is over, the District maintains the greater protections for all people with mental retardation and other developmental disabilities in the District of Columbia.  It will monitor the District=s service and support programs, provide lay advocacy and arrange legal services to benefit all persons in the District=s service delivery system for people with developmental disabilities.

The District will pay $11 million dollars to endow the non-profit corporation in exchange for Plaintiffs= waiver of all class claims for past violations of the Court Orders, including contempt sanctions already levied against the District.  The interest generated from the $11 million dollar investment will not be relied upon to run the operations of the organization for at least the first five years so that the investment can grow.  During the initial five year period (until October 1, 2005), the District will provide annual operating funds for the corporation.

***

5.  (DE) Case Name: Arc of Delaware v. Meconi (D.Del. 2002).

Summary: Action alleging the Delaware Department of HHS failed to provide community based services with reasonable promptness to individuals on a waiting list for Medicaid waiver services and at risk of institutionalization in violation of the Medicaid Act and the ADA integration mandate, the 14th Amendment and Section 504.  Plaintiffs claim that despite the availability of DD waiver slots the state discouraged eligible individuals from applying and in practice offers its waiver slots almost exclusively to clients in its licensed contract facilities.

Plaintiffs moved for class certification, a TRO, and preliminary injunction.  The state moved for dismissal on 11th Amendment grounds, arguing that the integration mandate is too vague to be enforced.  Before the Court ruled on the claims, the parties signed a Memorandum of Understanding with the state agreeing to:  establish new community placements; apply for a new 1915b HCBS waiver; and improve its management of the current Medicaid HCBS waiting list.

***

4.  (FL) Case Name: Brown v. Bush (11th Cir. 1999).

Summary: Class action against state officials in their official capacity seeking a declaratory judgment and permanent injunction to prevent the state from unnecessarily institutionalizing individuals with DD, in violation of the ADA integration mandate, the Rehab Act, the Medicaid Act, and the Constitution.  In March 1999, the District Court adopted wholesale Plaintiffs= proposed class and certified the class as: Aall persons who on or after January 1, 1998, have resided, are residing, or will reside at the DSIs [state institutions] including all persons who have been transferred from DSIs to other settings, such as ICF, group homes, or SNF=s but remain defendant=s responsibility; and all persons at risk of being sent to DSIs.

Defendants appealed the class certification and after review and oral argument, the 11th Circuit rejected the class as overboard and imprecise.  The 11th Circuit remanded the case to the District Court to certify the class as follows: Aall individuals with DD who are residing in Florida DSI as of March 25, 1998, and/or are currently residing in a Florida DSI, who are Medicaid eligible and presently receiving Medicaid benefits, who have properly and formally requested a community-based treatment, and who have been recommended by a state-qualified treatment professional or habilitation team for a less restrictive placement that would be medically and otherwise appropriate, given each individual=s particular needs and circumstances.@  Plaintiff filed a motion for re-hearing en banc which was denied.

***

6.  (FL) Case Name: Jane Doe v. Chiles (11th Cir. 1998).

Summary:  Action seeking an injunction to compel the state to place individuals with MR/DD, living in facilities and nursing homes, in appropriate community placements with Medicaid Home and Community waiver funds - - within 90 days of determination of need.  Plaintiff had been on waiting lists for waiver services for years and claimed this was a violation of the reasonable promptness clause in the Medicaid Act.

Three judge panel upheld the district court, ordering that the state make ICF/MR services available to qualified Medicaid recipients within 90 days of determination of need.  The court held that the reasonable promptness clause (Section 1396 (a)(8)) is enforceable under section 1986 of the Civil Rights Act.

***

7.  (FL) Case Name: Prado-Steiman v. Chiles, 98-6496-Civ-Ferguson (1998).

Summary:  Class action seeking to require the state of Florida to adequately fund Home and Community Based waiver services and to provide procedural due process.  The lawsuit raised claims under the ADA integration mandate, Section 504, the Medicaid Act, and the Due Process Clause of the 14th Amendment.

The parties settled.  The agreement commits Florida to take a number of far-reaching steps aimed at improving services to the target population for the state=s DD waiver program.  Under the terms of the settlement agreement, the court will maintain jurisdiction over the case through December 31, 2001. The parties agreed to stay all pending appeals in this case that are before the 11th Circuit, until December 31, 2001.

The agreement covers 18 distinct elements related to the operation of Florida=s HCB waiver program for people with developmental disabilities including several elements specifically aimed at staff training and improving the quality of HCB waiver services.  It also provides that, effective July 1, 2001, substantial compliance with several very detailed time frames will constitute reasonable promptness.  (In essence, the agreement sets out an Aoperation definition@ of reasonable promptness.)

Of these time frames, the first and most important is that: AWithin the limits of federal law, if a waiver slot and funding are available, then an eligible individual should be provided with those waiver services for which a determination of medical necessity can be made within 90 days of the date of receipt of the completed waiver services application.

***

8. (FL) Case Name: Dubois et al. v. Rhonda Medows et al. (D. 2003).

Summary: Plaintiffs are three individuals with traumatic brain or spinal cord injuries who allege that the state has violated Medicaid law, the Rehabilitation Act, the U.S. Constitution and the ADA by waiting listing them and failing to provide them with services under its existing HCBS waiver program. Specifically, the plaintiffs complain that the state has argued it can not provide waiver services because of lack of funds, even though the state has only filed half of the slots they agreed to provide under the program.

In May 2003, the state moved to dismiss all claims, contending that, in its federally-approved HCBS waiver application, it included 300 Aslots@ but had the latitude to not use all the available slots if appropriations would not support that number of participants. In addition, the state argued on various grounds that, even if slots were available, it was not necessarily the case that the plaintiffs would be next in line to receive services.

***

3.  (GA) Case Name:  Birdsong et al. v. Perdue et al. (D.Ga. 2003).

Summary: Class action alleging that Georgia=s failure to administer its Medicaid waiver program so that individuals receive services with reasonable promptness results in unneccesary segregation of individuals with physical disabilities in nursing facilities, in violation of the ADA integration mandate, '504 of the Rehabilitation Act, as well as the notice and freedom of choice provisions of the Medicaid Act. In their complaint, the plaintiffs point out that Georgia spends about five times as much on institutional as home and community services.  In July 2004, before trial began, the parties entered settlement negotiations and suspended all action on the case.

***

9.  (HI) Case Name:  Makin v. Hawaii (D. Haw.  1999).

Summary:  Class action, brought on behalf of  individuals with mental retardation living at home without appropriate services, alleging that the manner in which Hawaii operates its Home and Community-Based (HCB) Waiver program violates the ADA integration mandate by denying class members community-based services available under the waiver.

Hawaii filed a motion to dismiss and in it tried to distinguish this case from Olmstead by arguing that Olmstead only applies to residents of institutions and not to persons, like the plaintiffs, living in the community and on a waiting list to receive waiver services.

The court explicitly rejected that argument stating: AIn Olmstead, the plaintiffs were patients in institutions who challenged their confinement in a segregated environment.  Defendants claim that this fact distinguishes the case from the instant case since plaintiffs are living at home and not in institutions.  However, this argument is misplaced since the only alternative for plaintiffs presently is institutionalization if they seek treatment under the statute. The parties settled in April 2000.  The state agreed to increase participation in the waiver program by 70% over a 3 year period.  The legislature approved funds for the expenses in 2000 and 2001.

In October 2003, a new class action was filed alleging Medicaid Act and Olmstead violations for failing to comply with the earlier settlement, which results in individuals languishing on Medicaid waiver waiting lists.  A trial is scheduled for later July 2005.  In the interim parties are in settlement agreements, trying to agree on a plan for moving individuals off the waiting list.

***

(IL) Case Name:  Bruggeman et al. v. Blagojevich (et. al.) This lawsuit (00-cv-5392) (formerly Boudreau v. Ryan) (D. 2000)

Summary: Action alleging that Illinois does not furnish Medicaid DD waiver services to eligible individuals with reasonable promptness and does not afford individuals freedom of choice in selecting between ICF/MR and HCB waiver services, in violation of the Medicaid Act, the ADA, the Rehabilitation Act, and the Constitution.  The case has a long history and has gone all the way to the federal Circuit Court on the issue of whether the ADA is unenforceable against the state because of 11th Amendment sovereign immunity.    The state lost all motions to dismiss, including the motion to dismiss on 11th Amendment grounds.  In 2003, the case was remanded back to the District Court to determine whether the state could rely on a fundamental alteration defense as established by the Supreme Court in Olmstead v L.C.

In January 2004, the Illinois District Court issued a ruling regarding a plaintiffs motion to compel documents in order to pursue an ADA integration mandate claim. The decision is important for the restrictive view the Court allows of what funding opportunities the state must consider when defining its “available resources” for the purposes of arguing a fundamental alteration defense to an integration mandate violation. The court found that "available resources" under the Olmstead v L.C. decision is limited 1) to the State's mental health budget; and 2) the state's failure, if any, to seek available federal resources in the form of matching funds or Medicaid funding for community based resources is irrelevant to the determination of currently "available resources." In July 2004, the parties announced they were close to reaching a settlement.

***

4.  (IN) Inch et. al. v. Humphrey and Griffin (D.In. 2000).

Summary: Class action on behalf of individuals with disabilities who reside in nursing homes and/or who are at risk of nursing home placement but want to live in integrated settings with services from Indiana=s HCB waiver program for individuals who are elderly or disabled.  The Indiana Family and Social Services Administration is the named defendant.  The lawsuit alleges that 2,000 individuals with disabilities are either on waiting lists for community services or suffering Aunjustified institutional isolation@ and, hence, experiencing discrimination prohibited by the ADA.  The complaint further states that Indiana spends less than 90% of its elderly and disabled services budget to support individuals in integrated homes and community settings.  It further alleged that new enrollments in the state=s elderly and disabled programs have been closed for two years and new applications are not being taken.

The suit argues that people in nursing home facilities or at risk of nursing home placement must be given the choice of HCB waivers services rather than de facto being limited to receiving institutional services.  The plaintiffs seek preliminary and permanent injunctions to enjoin the state from continuing to violate the ADA and direct that Medicaid eligible individuals be offered Medicaid long-term services in their homes and communities.

In December 2000, a second class action complaint was filed in St. Joseph County Superior Court (South Bend) on behalf of individuals with developmental disabilities placed in nursing facilities due to the lack of availability of HCB waiver services.

The parties settled in June 2003.  The proposed settlement applies to all nursing facility residents eligible for the state elderly and disabled home and community based waiver.  It also applies to those at imminent risk of nursing facility placement who are eligible for that waiver, regardless of whether they have actually applied for waiver services.  Imminent risk is defined.  The settlement provides that the state will serve an additional 3,000 persons under the waiver, by maximizing existing resources.  It also requires the state to distribute information (written and through a statewide hotline) about the waiver services to elderly persons in the nursing facility and others likely to refer people to nursing facilities.  The settlement sets out specific criteria for assessing community support needs of class members and requires the state to develop a quality assurance plan for completing these assessments and discharges.

***

(KY) Case Name: Doe v. Kentucky CHS (D.Ky. 1994).

Summary: Class action suit against the Cabinet for Health Services (CHS), alleging multiple inadequacies in the way in which the state administered the PASRR program.  Parties agreed to a settlement but in 1998 the P&A re-filed in district court claiming the state was violating the settlement.

In 1998 P&A negotiated a new agreement in lieu of litigation which required the state to retain an outside consultant, acceptable to the P&A, to evaluate the full extent of Kentucky=s PASRR process and make recommendations.  These recommendations and time lines are binding upon the state in the nature of a binding arbitration agreement.  The cost of implementing the recommendations is not a defense for the state.  The Agreement calls for the work to be done in three phases and includes the eventual outcome of the re-evaluation of every person with mental retardation and out-placement with services where indicated.  By September 30, 2000, Phase I was completed.  It demonstrated that anywhere from 33-65 percent of persons with mental retardation were inappropriately placed in nursing homes.  Phase II is currently underway.  At the end of Phase III, all residents with MR/DD in nursing facilities will have been reevaluated and hopefully given meaningful choice as to alternative treatment placements.

***

11. (KY) Michelle P. et al. v. Morgan et al.   (E.D.Ky.2002).

Summary: Class action alleging that Kentucky has improperly wait listed individuals for Medicaid services.  The plaintiffs are seeking class action certification on behalf of another estimated 1,800 wait-listed persons. Plaintiffs argue that, despite being eligible for AICF/MR level@ services, they have been wait-listed and have indefinite prospects for receiving services.  They also note that even individuals in Aemergency status@ are not able to receive services promptly despite their priority status.  The complaint claims that Kentucky is in violation of the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act. The class is comprised of  Aall present and future Kentuckians with mental retardation and/or related conditions who live with caretakers who are eligible for, and have requested, but are not receiving Medical Assistance community residential and/or support services. The state appealed the class certification to the 6th Circuit, as overbroad, but the 6th Circuit denied the petition to appeal.

***

(KY) Case Name:  Kerr et al. v. Holsinger et al. (D.Ky. 2003)

Summary:  Class action alleging that the state is violated the Medicaid Act and integration mandate by cutting existing HCBS waiver services and attempting to narrow eligibility for Medicaid long-term services in order to reduce state spending to address budget deficits. The restrictions on eligibility that the state proposed would disproportionately result in loss of services to individuals on the HCBS waiver program rather than residents in nursing facilities.  The new regulations resulted in loss of services to individuals with DD and the elderly and threatened loss of community placement; and would result in loss of services that could promote community integration.  The state attempted to dismiss the claims on many grounds, but they were  rejected by the Court.  In June the parties signed a preliminary settlement with the state agreeing to change the eligibility rules and re-assess individuals who had loss services as a result of the limited eligibility.

***

12. (LA) Case Name: Chisholm et al v. Hood (formerly Jindal) (E.D. La. 1997).

Summary:  Class action alleging that the Louisiana Department of Health and Hospitals (DHH) is violating the federal Medicaid Act for failing to provide Medicaid-eligible children placed on the state MR/DD waiver waiting list with EPSDT services.

Class has been certified.  Parties agreed to a partial settlement in February, 2000, under which DHH will inform class members about services available and will provide them with case management.  Partial summary judgment entered in August, 2000, requiring DHH to provide occupational, speech, and physical therapy through providers other than school districts and early intervention centers, and to provide occupational and speech therapy as part of home health. Trial court deferred ruling on issues related to failure to establish an effective system for arranging referrals and treatment, to give case management a chance to work.  Trial on the issue of services to children with autism held in October, 2000, and the Judge issued a favorable ruling requiring Medicaid coverage for mental health services for children with autism.  As a result of this order the State will request a 1915 B Waiver which will enable the State to contract with teams of psychologists, social workers and behavioral therapists for children with autism.  The order spells out qualification requirements of the teams, eligibility requirements and monitoring that must occur.  A Second partial settlement, on inter-periodic screens, availability of personal care workers and home health workers, and certain prior authorization denials was approved in December, 2000.

***

13. (LA) Malen v. Hood (E.D.La., 2000).

Summary: Class action on behalf of children on the state=s Mental Retardation and Developmental Disabilities waiver waiting list who were notified in November, 2000, that they were eligible for a new waiver program under which services are capped at $7,500 per year.  In order to obtain services under the new waiver program, which was set to begin January 15, 2001, recipients had to agree to be taken off of the waiting list for a more comprehensive waiver program, which provides services with no annual cap.  The named Plaintiff has been on the waiting list for over 6 years and would benefit from the new waiver, but needs services of the more comprehensive MR/DD waiver and does not wish to be removed from the list.  This lawsuit sought to enjoin DHH from requiring that recipients give up their application for the MR/DD waiver as a condition of receiving services under the new capped waiver program.  The suit was dropped after CMS would not approve the new waiver, and the state removed the provision, and began implementing the waiver without the offending requirement.

***

(LA) Case Name: Barthelemy v. DHH (E.D.La., 2000).

Summary: Class action on behalf of persons in nursing homes or in imminent risk of being placed in nursing homes for Medicaid-funded services, who have applied for Medicaid-funded home and community based services and have not received them.  Suit filed April 11, 2000, a class certification motion was filed August 30, 2000.  Informal and formal discovery were begun.  A mediation session, brokered by OCR took place September 6, 2000, and DHH agreed to develop a settlement proposal.

In November 2001, the parties signed a settlement with the state agreeing to greatly expand the number of persons who will be served by waiver programs.  By the end of 2005, qualifying applicants will wait no more than 90 days for services in their homes and communities.  Assessment procedures will be developed with input from a committee selected by plaintiffs counsel.  The settlement also provides for a new Apersonal care@ service for Medicaid-eligible adults who would otherwise go into nursing homes.  This services provides up to 56 hours of assistance in the home per week.  In addition to the new services, the state will launch a campaign to inform people who might be eligible for the at-home programs, and will introduce a simplified application process, including a toll-free number for information about community services.

***

14.  (ME) Case Name: Rancourt et al. v. Maine Department of Human Services et al. (D. 2001)

Summary:  Class action alleging that the state is not furnishing services to people with developmental disabilities in a Areasonably prompt@ manner and instead wait listing individuals who are qualified for services under the HCBS Medicaid waiver. In July 2003, the court approved a settlement on behalf of Aall developmentally disabled individuals who: (1) are current or future recipients of Medicaid in the State of Maine; (2) are no longer entitled to receive benefits and services through the Maine public school system; and (3) are eligible to receive intermediate care facilities and/or other services for the mentally retarded, or care under the Home and Community-Based Waiver Services for Persons with Mental Retardation.

The settlement provides that the state will furnish Medicaid state plan day habilitation and case management services within 90-days to all individuals who sought them in the past. Under the agreement, the state must notify all Medicaid beneficiaries of the settlement. In the case of new individuals who apply and qualify for services, the agreement provides for their receiving case management and day habilitation services within no more 225 days. In the case of individuals who also qualify for the HCBS waiver program and who require Aresidential training services,@ the agreement defines Areasonable promptness@ in starting services as no more than 18-months. This 18-month timeframe reflects the state=s experience in the amount of time it takes to develop a licensed residential setting that matches the needs and preferences of individuals, although state officials indicate that often development requires less time. With respect to the HCBS waiver program, the agreement does not require the state to expand services over and above the number of slots it already has provided for its program and approved by CMS.

***

15.  (MA) Case Name:  Boulet et al. v. Cellucci et al. (D. MA. 1999)

Summary: Class action alleging that Massachusetts violated federal Medicaid law and the ADA by failing to provide residential services with reasonable promptness to otherwise eligible individuals and instead wait-listing them indefinitely. In July 2000, the District Court issued a summary judgment in the plaintiffs= favor, ruling that the state was required to furnish Medicaid residential services with reasonable promptness to individuals participating in the HCBS waiver program who were wait listed for Aresidential habilitation@ services or wait listed persons not served in the waiver program who could be accommodated under its participant cap.

In January 2001, the court approved a settlement agreement on behalf of a class of all individuals wait listed as of July 2000, regardless of whether the person was receiving or would be eligible to receive HCB waiver services. The modified class had 2,437 members, including 1,961 waiting for out-of-home residential services only, 266 waiting for both residential and non-residential services (e.g., day services), and 210 waiting for non-residential services only.

Under the agreement, the state committed to provide residential services to an additional 300 individuals during 2000-2001 using already appropriated funds. Over the next five years (FY 2002 B 2006), the state agreed to seek funding sufficient to extend residential services to an additional 1,975 individuals at a pace of 375 B 400 persons per year. Individuals who do not receive residential services right away would receive Ainterim services@ (in-home, family support and other services) until residential services became available. The parties also agreed to procedures for preparing residential and interim service plans. The agreement commits the state to increase annual funding for services from pre-existing levels by $114 million in 2006 when the agreement is expected fully implemented.

***

(MA) Case Name:  Rolland v. Cellucci (D. Mass. 1999).

Summary:  Class action alleging violations of the ADA integration mandate, and the PASRR, provisions of the Medicaid Act by failing to provide community service options to residents of a private nursing facility. State defendants asked the court to dismiss the ADA claim on the grounds that plaintiffs are residing in a privately run nursing home and, therefore, the state is not administering services and has no obligation to administer them in compliance with the ADA. The District Court denied the motion to dismiss and ruled it Aimmaterial that plaintiffs are residing in a private rather than public facility.

On October 20, 1999 the parties settled with the state agreeing to provide specialized services and community residential supports in a timely manner to all adults with developmental disabilities in Massachusetts who reside in nursing homes on or after October 29, 1998. Massachusetts also agreed to change the manner in which it administers its Medicaid program, so as to prevent persons with developmental disabilities from being inappropriately admitted into nursing homes.

The case was reopened in December 2000 when plaintiffs asked the Court to find the state in violation of the settlement agreement because class members were not receiving the specialized services identified as needed in the PASRR review.  On March 27, 2001 the Court agreed with plaintiffs and order the state to provide specialized services for persons with mental retardation and other developmental disabilities in nursing homes, at a level similar to theAactive treatment@ standard that applies to individuals receiving services ICF/MRs.  In other words, Defendants must ensure that all nursing facility residents, determined to need specialized services under their PASRR screens, actually receive active treatment.

The Court further clarified that services provided by the nursing facilities could count toward specialized services/active treatment.  On the other hand, the state can not be excused from meeting their active treatment obligation if the nursing facility failed to deliver services.  This is the first decision by a federal court, certainly in a class action, where the specialized services standard has been articulated to be the same as Aactive treatment.

In response the state appealed the decision as unenforceable because the state is immune from suit under the 11th Amendment.  The state lost in district court and appealed to the First Circuit Court of Appeals.  The Circuit Court agreeing with plaintiffs and the lower court and ruled  that the rights of individuals with mental retardation and developmental disabilities to specialized services, as required under PASRR, is enforceable against the state by Medicaid beneficiaries

***

12.  (MA)  Case Name:  Garcia v. Warring, No. 01-907B (Mass. Super. Aug. 1, 2002).

Summary: Action in Massachusetts Superior Court on behalf of a 74 year old woman who is diagnosed with psychosis and dementia and speaks only Portuguese.  Ms Garcia was approved by Medicaid for 56 hours of PAS services per week. Unfortunately the 5 or 6 agencies qualified to provide these services all claimed that they were unable to do so.  The P&A argued that the state Medicaid agencies= failure to grant a waiver to the Ano family@ regulation constituted a refusal to provide Ms. Garcia with a reasonable accommodation under the ADAand Section 504 and further could result in unnecessary placement in a nursing facility in violation of the ADA integration mandate.

The P&A supported these claims with testimony from numerous providers who had refused Ms. Garcia PAS.  For example, testimony from one provider agency stated that AGarcia did not respond to anyone except her daughter.  She is not appropriate for group care and will be very difficult to place in a nursing home.@ Another agency testified that AGarcia=s condition would worsen and she would require nursing home placement if her daughter were not allowed to continue as her personal care attendant.

The DMA asserted that Garcia is not meeting an essential eligibility requirement and is simply attempting to Aelevate her personal preference for having her daughter as a PCA as her legal entitlement@ and that doing so would fundamentally alter the program.

Status: The Court held that Ms. Garcia has already met the qualifications for the PCA program; the only way she can receive these services is to waive the regulation prohibiting payment to family members; that doing so would not be a fundamental alteration; and failure to waivethe regulation denies a reasonable accommodation in violation of the ADA.

***

13.  (MA) Case Name: Sabbag v. Swift (D. Mass. 2003).

Summary: The Massachusetts P&A, Greater Boston Legal Services and the Massachusetts Law Reform Institute, filed a class action on behalf of approximately 500 children and young adults.  Plaintiffs allege that Massachusetts is failing to assure that class members can receive the private duty nursing services that are medically necessary and that allow them to remain in their family homes.  Specifically, the state has not taken sufficient steps to ensure that it is paying a sufficient rate and otherwise administering the program in a manner that ensures there will be nurses available to meet the needs of the children being served.  Claims include: violation of several Medicaid Act provisions, including: freedom of choice, reasonable promptness, amount, duration and scope and EPSDT; the ADA integration mandate and the Rehabilitation Act because with white private duty nursing, the children remain at home with their families; and without such services, they would likely need to reside in hospitals or pediatric nursing homes.

Class certification was granted on behalf of: Aall current and future members of MassHealth under age twenty-one who have been, or will be, determined by MassHealth to require private duty nursing services but who have been unable, or will be unable in the future, to secure nurses to fill all of the hours of private duty nursing services determined to be medically necessary by MassHealth and their physicians.

***

(MA) Case Name: Hermonson v. Massachusetts (D.Mass. 2001).

Summary: Class action on behalf of adults under 65 years old with physical disabilities other than DD.  The action challenges that the state=s use of more restrictive Medicaid income requirements for individuals 65 and older than the state uses for individuals under 65 places individuals over 65 at risk of institutionalization in violation of the ADA integration mandate, discriminatory impact, and reasonable accommodation provisions; Section 504; and the 14th Amendment.  Named plaintiffs include individuals who received Medicaid PCA coverage in the community prior to age 65 and once they turned 65 no longer met income eligibility for community PCA supports, thus leaving them in nursing homes or at risk of institutionalization.

The parties settled after the state agreed to serve at least 25 individuals victim to the spend down rules with appropriate community services.  Furthermore, the state has agreed to raise Medicaid income eligibility requirements post 65 from 100% of poverty to 133%.

***

16.  (MI) Case Name: Eager v. Engler (D.Ct. 2002).

Summary: In September of 2001, MDCH made a decision to essentially freeze its waiver slots at the number of recipients being served at the close of the fiscal year.  This meant that approximately 5,000 waiver slots would go unused and the program stopped accepting enrollments. Seven individuals residing in nursing homes or at risk of institutionalization, as well as, five organizational plaintiffs filed suit claiming: violation of the Medicaid Act freedom of choice and reasonable promptness provisions and for failure to maintain a proper waiting list for the Waiver Program.  Plaintiffs also claimed a violation of the ADA integration mandate because the freeze on enrollments, below the waiver cap, results in unnecessary institutionalization.  Parties settled the case with the state agreeing to add 349 waiver slots a month from April 2003 - September 2003.

The state has implemented the settlement agreement in a timely fashion.  Many aspects of the settlement have been implemented by the state, such as correcting the discrepancy between eligibility for admission to the MiChoice program and nursing homes, drafting a freedom of choice process which allowed for public comment and review, developing public educational materials, appointing a task force to examine the state’s LTC system and to make recommendations, directing its waiver agents to maintain contact logs, and adding transition services as a waiver benefit.  The major snag in the process has been the conversion of a general fund benefit to a Medicaid funded service.  However, overall, the state has put forth a significant effort to implement the settlement agreement.

***

14.  (MN) Case Name:  Ferrick v. O=Keefe (D. Minn 2001)

Summary: Class action on behalf of all individuals eligible for Medicaid in-home nursing services contending that the state has failed to ensure that eligible individuals have access to home-based nursing equal to that of similarly situated persons receiving such nursing services through non-Medicaid sources. Class member=s health and safety are at risk as a result of failure to provide sufficient in home nursing, in violation of the Medicaid Act.  This case does not have an ADA claim.

***

(MS) Billy A. and Mississippi Coalition for Citizens with Disabilities v. Lewis-Payton (S.D.MS. 2002).

Class action on behalf of individuals with disabilities alleged to have been unnecessarily segregated in nursing facilities across the state of Mississippi, instead of being placed in more integrated community settings.  Plaintiffs allege in their complaint that Defendants 1) discriminate against people with disabilities by failing to provide Medicaid funded medical and support services in the most integrated setting in violation of the ADA and Section 504 of the Rehabilitation Act; 2) violate the Medicaid Act by failing to inform people with disabilities who qualify for nursing facility services of the feasible alternatives to institutionalization and to allow them the freedom to choose home and community based services as an alternative; 3)fail to provide Medicaid funded services with reasonable promptness in violation of the Medicaid Act; and 4) fail to implement procedures assuring that payments for Medicaid services areAconsistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers,@ in violation of 42 U.S.C. Section 1396(a)(30)(A).

***

17.  (MT) Case Name:  Travis D. Et al. v. Eastman Human Services Center (D. Mont.1996).

Summary: Class action alleging that all individuals who are or who will be residents of two state DD facilities are unnecessarily confined, as a result of the State substantially under-spending its waiver slots in violation of the Medicaid Act, The ADA, The Rehabilitation Act and the U.S. Constitution.  Initially, the Court stayed all proceedings in the case for several years while the Olmstead decision wound through the courts.  After  the Olmstead decision, this case was again delayed while a motion to dismiss the ADA, Section 504 and the Medicaid Act claims on the grounds of sovereign immunity.

In 2004, the parties finally settled the case.  Some highlights include:

Closing the state’s last DD Center by December 31, 2007 after a carefully planned individualized transition of all residents.  The State will provide education and outreach to residents of the DD Center and their families to help them to effectively participate in the design and delivery of community services and supports when they move.  To accomplish these efforts the State will commit $200,000 annually of state monies, to be matched to the extent possible with federal monies, for crises prevention and intervention services to help maintain people in their community settings and to reduce the number of crisis admissions to the DD Center.

The settlement also addresses conditions at the DD Center.  For example,

The State and the P&A will jointly select a consultant to provide training and consultation to the Center on medical treatment and nursing care issues. The State will:

1) develop clinical guidelines for services at the Center and will provide treatment that falls within those clinical guidelines and meets professionally accepted standards;

2) make appropriate and feasible changes to improve the abuse neglect investigation procedures at the Center;

3) implement measures to reduce the likelihood that when staff at MDC are disciplined or terminated based upon abuse or neglect of residents, the disciplinary action will be overturned by a labor arbitrator;

4) provide training regarding treatment for consumers with challenging behaviors to a number of the state staff at MDC and in the community services program and to a number of community provider staff; and

5) develop a proposal for the 2007 Legislature seeking funds and statutory changes that would be needed to implement an appropriate service approach for consumers with sexually abusive behaviors;

6) not in the future fund the development of eight-person group homes, instead funding smaller units;

7)  provide community services to class members who have moved out of MDC already but who are not receiving community services;

8)  modify its quality assurance activities for community services to provide for such measures as consumer surveys, evaluation of provider performance based in part upon how effective the provider is in meeting the goals in consumers' plans, and making quality assurance information available to the public;

9) make some changes in the delivery of community services, such as improving access to regular and accessible transportation for class members in community settings, making sure class members have purposeful activities or work during the day and regularly participate in their communities, and providing professionally acceptable health, mental health, specialty supports and dental care to class members, with certain limitations; and

10) take measures to maximize federal money that may be available for developmental disabilities community services.

***

22.  (NV) Case Name:  Parry v. Crowford, #96-778 (D.Nev. 1998).

Summary:  Action challenging a denial of HCBS DD waiver services for an individual with autism.  The state had denial waiver eligibility on the grounds that the individual did not qualify for placement in an ICF/MR. Unfortunately, the state was applying different ICF eligibility rules than the Medicaid Act requires, and had ruled that autism was not a DD.  Plaintiffs also allege that the state failed to provide notice of the denial of eligibility for services in violation of the Medicaid Act.

The Court ruled for the plaintiff and said that the state must comply with the federal definition of ICF/MR, which includes conditions related to MR including autism. epilepsy and cerebral palsy.  Additionally, the court held notice must be given will eligibility is denied and that there must be an opportunity for a hearing for denial of an application for new services even if the applicant does not show changed services.

***

15. (NV) Case Name: Allen et. Al. Vs. Crawford, et. al. (United States District Court Case CV-S-01590-KJD).

Summary: Class action lawsuit filed in the United States District Court of the District of Nevada.  The lawsuit alleged the State of Nevada failed to provide adequate notice and fair hearings to medicaid recipients and failed to process claims in a timely manner.

Status: After lengthy negotiations, plaintiffs and the state defendants settled the class action suit by entering into a Stipulated Final Judgment and Order for Permanent Injunction which was formally approved by the court on August 15, 2002.  The judgement requires the state defendants of Nevada to:

 

?   provide written notice to every Nevada Medicaid recipient of his/her right to a hearing, the method by which he/she may obtain a hearing, and that he/she may represent himself or herself or use legal counsel, a relative, a friend, or other spokesperson and the notice shall be provided at the time the individual applies for Medicaid and at the time of any action adversely affecting his/her claim;

?   provide written notice to every Nevada Medicaid recipient of the reason for any action taken affecting his/her claim;

?   process claims for service with reasonable promptness and provide a written decision to every Nevada Medicaid recipient on a claim for service within 21 business days after Nevada Medicaid receives the claim;

?   provide the opportunity for a fair hearing to every Nevada Medicaid recipient who requests a hearing regarding any action taken by Nevada Medicaid affecting his/her claim for service within 21 business days after Nevada Medicaid receives the claim for service;

?   provide written notice of the right to request a fair hearing if Nevada Medicaid fails to act with reasonable promptness on a claim for service.

***

16.  (NH) Case Name: J.P. v. Community Council of Nashua, Inc., (D. N.H. 2000).

Summary:  Administrative appeal at the Department of Health and Human Services by a client against a community mental health center concerning numerous client rights violations, including denial of access to treatment and quality treatment, denial of access to records, and denial of access to rights protection procedures in violation of the ADA and constitutional and state law.

The hearing officer found that ACCN clearly violated [J.P.=s] rights, including but not limited to: her right to access to treatment; right to access to quality treatment and treatment in accordance with generally accepted clinical and professional standards; right to be informed of the risks and side effects of medications prescribed to her; right to be treated with dignity and respect; right to impartial complaint investigation; and right to access to records. The decision calls into question the Executive Director=s commitment to ensuring the rights of clients due to his deliberate disregard of a client right rule.

The relief includes the following: J.P. is eligible for comprehensive mental health services from another mental health center, and CCN shall pay to the extent that Medicaid does not cover the costs, so long as J.P. resides in Region VI; CCN shall bear the costs of transportation; CCN shall develop a corrective action plan to address each issue in the decision, with quarterly reports to the Division and to J.P.; the Division will monitor complaint investigation functions for the next year; the Division will provide a series of  trainings for clients

***

(NH) Case Name:  Bryson v Shumway (D. NH 1999)

Summary:  Action alleging that the state is violating the Medicaid Act, the Rehabilitation Act  and The ADA by wait listing individuals with TBI on the TBI waiver waiting list.  Plaintiffs claim that the State can easily provide community-based services to individuals on the list without suffering a significant fiscal or administrative impact, by enlarging the TBI waiver with federal subsidies, or by using available State resources.  In 2001, the case went to the First Circuit, which overturned the lower court's ruling that the State was required to provide Medicaid waiver services for up to 200 under a model waiver. The First Circuit instead found that the State simply had to fill those slots available under the State's cap (a considerably smaller number of slots).  The matter was then sent back to the district court, at which time the state filed a motion to dismiss the ADA integration mandate claim on the grounds that it would be a fundamental alteration for the state to expand its waiver slots.

In March 2004, the District Court ruled that  states should not be able to claim a fundamental alteration defense to an integration mandate claim on behalf of  individuals on waiver waiting lists (in this case for TBI waiver slots) simply by asserting that it has filled all its existing waiver slots.  The Court said that this approach views the fundamental alteration defense too Asimply.@ Citing Bruggeman v Blagojevich and Martin v Taft, the court provided a long list of complex legal questions that must be answered to prove this defense, including:

[does it make] a difference that the State directly limits the number of slots available in the program by applying for only that number it chooses to fund, notwithstanding the apparent availability of additional slots from the federal government simply for the asking? If the State chooses not to take advantage of federal funding participation available through the waiver program, must it nevertheless provide a reasonable accommodation under the ADA at its own expense? If some [individuals] move off the list into the community quickly but others never move off the list, does the list Amove at a reasonable pace? . . . . What budget should the court look to when making that determination?

The case went back to Federal District Court and the parties were given a second opportunity to file summary judgment motions.  Summary judgment was denied for both sides and the trial is expected to begin around January 2005.

***

(NH) Case Name:  Cumming v. Shakeen (D.N.H. 2001).

Summary: Class action in county superior court challenging the state=s failure to provide community Medicaid services to (1) individuals with DD on a waiver wait list, as well as (2) those receiving waiver services but who are still not able to get adequate care because the waiver does not cover all the services needed to remain in the community.  Plaintiffs claim states violations of Medicaid reasonable promptness, the ADA integration mandate, the 5th and 14th Amendments, and state law.  In April 2002, the Court denied Plaintiff=s Motion for Declaratory and Injunctive Relief finding that Plaintiffs were not able to prove: 1) immediate threat of harm, 2) the availability of adequate remedies, 3) likelihood of success, and 4) that the public interest would be harmed without an injunction.  The Judge also denied the request for class certification on the grounds that they exceed the claims of the named Plaintiffs.

In a subsequent hearing, class certification was granted.  Only to be denied again in a hearing on March 25, 2003, in which the court ruled that Athe proposed class was overly broad and likely included individuals whose service needs were different and therefore might have different interests.@ At this point, the parties agreed to a voluntary nonsuit without prejudice.  This means a judgement was issued against the plaintiffs for failure to demonstrate enough evidence to make a case.  It is not a judgment on the merits of the issues in the complaint. Therefore, the plaintiff is free to re-file at a later date.

***

(NE) Case Name: Bill M. et al. V. Department of Health and Human Services et al. (D.Neb.2003)

Summary:  Action filed on behalf of 800 individuals waiting for DD waiver services in Nebraska who claim that the state has a flawed process for determining how many service hours that individuals are eligible for under the HCBS DD waiver, in violation of the Medicaid Act.  As a result individuals do not receive enough hours and are at risk of unnecessary institutionalization in violation of the integration act and Section 504.  Plaintiffs also allege that the long waiting list for waiver services violates the Medicaid Act reasonable promptness requirement. The state has filed motions to dismiss the ADA and Rehabilitation Act claims.  There is no ruling yet.

***

21.  (NM) Case Name: Lewis v. New Mexico Dept. of Health.  (10th Cir. 2001).

Summary: Action to compel the Department of Health to provide community based services under the Medicaid waiver program to the 3,000 individuals currently on waiting lists to receive these services.  The action claims that the Medicaid Act requires the State to provide covered services with reasonable promptness and, in order to comply with this mandate, that the state must expand the amount of services currently available under its waiver program. Currently, the only Medicaid services available, without a waiting list, are in nursing homes. On August 6, 2003, the District Court ruled that the reasonable promptness provisions of the Medicaid Act apply to those persons deemed eligible for waiver services and for whom there is an Aavailable unduplicated recipient slot@ and that because the state both failed to fill such slots in a reasonably prompt manner and failed to use all the money appropriated for waiver programs.  In October 2003, the state challenged the proposed order.  In February 2004, the Court upheld its decision and ordered the state to: 1) determine an individual’s eligibility for waiver services within 90-days; 2) provide waiver services within 90-days of finding that a person is eligible for waiver services; and spend all funds appropriated for waiver services within the year appropriated.

***

5. (NJ) Case Name:  New Jersey P&A, Inc.. v. Waldman et al, (3rd Cir. 1998).

Summary:  Action claiming the state moved nine people with developmental disabilities and a history of violence from group homes where they were living to locked state facilities without any notice or hearings in violation of the14th Amendment and the ADA integration mandate.  Plaintiffs had originally been placed in group homes after the state conducted complete psychological evaluations and made a medical determination that the group homes were the least restrictive environment appropriate to meet plaintiffs= needs. The Mayor ordered the plaintiffs to be placed in a locked facility after he came under pressure from the community to close the group homes. The plaintiffs sought to keep the group homes open.  The closing was temporarily stopped and in the parties settled moving individuals to appropriate community placements.

***

6. (NM) Jackson v. Fort Stanton State Hospital and Training School, 757 F. Supp. 1231 (D.N.M. 1990), 964 F. 2d 980 (10th Cir. 1992).

Summary: This class action was filed by the P&A over 10 years ago claiming violations of the 14th Amendment and the Medicaid Act, resulting in unsafe conditions and a failure to implement discharge plans for residents of 2 state DD facilities.  In 1990, the District Court ordered institutional improvements and development of community service system for persons with retardation to facilitate community placement of residents of both state schools.  The Court also required ongoing oversight in implementation of court order.  In 1992, the Court of Appeals upheld the District Court=s order to develop plan for remedying constitutional violations in institutions and with respect to the failure to implement treatment teams= recommendations for community placement. The Circuit Court reversed the portion of the District Court injunction requiring teams to plan without regard to resources available. In 1992, the parties signed a Consent Decree requiring closure of all state institutions and placement of all class members in appropriate community living arrangements with habilitation and specialized supports.  Since that time, the P&A has monitored services provided to Jackson clients, such as supported employment, physical, behavioral and speech and language therapy, assistive technology, and integration into the community.  A 1998 audit of services found continued problems complying with requirements of the Consent Decree.  In 2003, the state filed a motion for a Joint Stipulation on Disengagement, which was accepted.  The P&A continues to monitor placements and services received by class members.

***

10.  (NY) Case Name: Bernard v. Novello (D. NY 2000).

Summary: Action alleging that the state’s failure to provide personal care, case management, and home health aide services throughout Suffolk County violates the Medicaid Act the Consititution, the ADA and state law.  Plaintiffs also challenge the states expectation that  Avolunteers@ family members and friends will make up for the gaps in services.  Plaintiffs seek reimbursement for services obtained privately by recipients when Suffolk fails. The parties settled.  The state agreed to provide fair hearings when the number of hours of home health aides is inadequate and contrary to physician=s orders.

***

23.  (OH) Case Name:  Martin v. Taft, (D. Ohio 1993).

Summary:  Class action on behalf of 6000 adults with developmental disabilities who are on a waiting list for community services, alleging violation of the ADA integration mandate and the Medicaid Act. The state argued that plaintiffs were trying to force them to expand waiver services and that this would constitute Anew@ services, which is not required under the ADA integration mandate. (see,

In June 2004, the parties settled the case.  Some of the more significant points upon which the parties agreed to include: the governor will propose to eliminate intermediate care facilities for persons with mental retardation (ICF-MR) as an optional service under Ohio’s Medicaid program, the state will seek a waiver to fund current ICF-MR facilities, the parties will develop a definition of choice/self-determination that provides that a class member and his or her most closest allies decide where the class member wants to live and who shall provide services, the state will allocate waivers first to persons currently living in nursing facilities and ICFs-MR who choose to live in the community, and the state will conduct surveys of residents living in development centers and private ICFs-MR to determine where they want to live and use this information for the purpose of asking the state for funding of community residential services.  The parties are now awaiting a fairness hearing, which has not been scheduled as of yet.

***

18.  (OK) Case Name:  Fisher v. Oklahoma Health Care Authority (10 Cir. 2003).

Summary: Class action filed by private attorneys in the federal District Court on October 3, 2002, alleging that states recent decision to limit prescription medications to five per month for adults enrolled in the Medicaid elderly and disabled waiver program violates the ADA, and the Rehabilitation Act because of it, individuals currently receiving more than 5 prescriptions under the waiver will be forced to go to inpatient hospitals and nursing homes to receive the prescription medications they need.  The plaintiffs also included a Medicaid Act claim that the CAP denies medically necessary services and it is invalid because the state amended the waiver without receiving CMS approval.

The District Court issued a troublesome decision, including holding that the ADA integration mandate does not protect individuals who are not currently institutionalized; it would be a fundamental alteration of the states program if it were required to continue providing unlimited prescription coverage under its waiver; does not rule on the Medicaid Act claims, but by granting summary judgment explicitly rejected them.  The case was appealed to the 10th Circuit.

The 10th Circuit rejected the district court's analysis of the scope of the ADA's integration mandate, and the Tenth Circuit confirmed that individuals who are not presently institutionalized are protected by that mandate.  The Tenth Circuit also reversed the district court ruling on fundamental alteration analysis.  The appellate court initially noted that the "optional" nature of the waiver program is irrelevant since a state may not amend even optional programs in a way that would violate the integration mandate. The Court said that the appropriate question is whether requiring such an optional program constitutes a fundamental alteration.  In responding to that inquiry, the court stated that the fact that a state's "actions were merely ‘reasonable' does not constitute a defense" and "the fact that Oklahoma has a fiscal problem does not lead to an automatic conclusion that preservation" of the unlimited prescription benefit constitutes a fundamental alteration.  In addition, the court explicitly recognized that compliance with the integration mandate may well require states to spend money:

The Tenth Circuit was skeptical of the state's assertion that it might eliminate the Advantage Waiver altogether, noting the "inescapable irony" that any cost-savings would be eliminated by the higher cost of institutional care. The court also noted that the evidence indicated that the state had other means to save funds without cutting services to Medical Assistance recipients.  Finally, the court emphasized that the case involved preservation of an existing service -- not creation of a new service.

Having found that there are material facts in dispute as to whether preservation of the unlimited prescription benefit would be a reasonable modification or a fundamental alteration, the Tenth Circuit remanded the case to the district court.

***

24.  (OR) Case Name: Staley v. Kitzhaber (D.Or. 2000).

Summary: Action alleging that the failure to find home and community-based waiver services has resulted in long waiting lists for individuals eligible for ICF/MR level services, in violation of the ADA Integration Mandate; the Rehab Act; the Medicaid Act, and the Constitution.  Plaintiffs seek declaratory and injunctive relief to provide them with services in the most integrated settings, and the establishment of prompt time frames within which the state must comply with federal law.

At the state=s request the parties settled.  The State of Oregon agreed to provide specific supports and services to all adults who qualify for services through the Office of Developmental Disability Services, phased-in throughout the life of the Agreement.  The Agreement begins upon signing and terminates on June 30, 2007 unless extended in writing, or unless terminated early for specific reasons outlined in the Agreement.  The Agreement will be binding for all members of the class.  Individually named plaintiffs receive services immediately, as determined through a Person Centered Planning process.  This Agreement is intended to eliminate or substantially reduce waiting lists and improve provision of services by: increasing the availability of comprehensive services on a non-crisis basis; providing AUniversal Access@ to in home support services for children and adults, the cost of which may not exceed $20,000 per year; and defining an appropriate planning process and implementation procedures for the services to be provided.

Unfortunately, the state did not meet the obligations of the settlement, citing budget cuts.  Not only that, the state legislature attempted to eliminate one of the HCBS waiver programs that the state had created to comply with the settlement.  The elimination of the waiver was stopped after the Plaintiffs threatened to go back to court to enforce the settlement.

In October 2003, the parties presented a modified settlement agreement to the court, which was approved tentatively in November 2003 and received the court’s final approval in January 2004.  The modified agreement recognized that Oregon’s severe budget crisis meant that the timeline for compliance with the agreement would be moved to 2011 to fully implement the original agreement.  The modified agreement provides for an additional 500 persons to receive support services each year through June 2007, when the numbers of persons served is expected to reach 5,122 individuals.  The agreement provides that all eligible persons will receive support services by June 2009.  Lastly, the modified agreement preserves the network of support brokerages that Oregon established to support individuals receiving support services.

***

(OR) Case Name: Watson v Weeks (D. Or. 2003).

Summary: Action challenging the states attempt to narrow eligibility for the HCBS waiver, violated the Medicaid Act and The ADA  because itfailed to constitute a reasonable standard for determining eligibility under federal law. Plaintiffs also argued that the state had not properly notified individuals that their eligibility would be terminated. The Court rejected the Plaintiffs claims, stating that  Oregon was free to reduce its HCBS waiver program because it is optional, and that Medicaid beneficiaries do not have an enforceable right to these services.  Plaintiffs ap pealed the decision to the 9th Circuit Court

***

25. (PA)   Case Name: Delong et al v. Houstoun (D.Pa. 2001).

Summary: Class action on behalf of individuals with developmental disabilities on a Medicaid waiver waiting list, claiming the state is violating the Medicaid Act.  There currently are more than 10,000 Pennsylvanians with mental retardation on the waiting list, who live in the community who are unable to access needed services and are at risk of institutionalization.  DPW=s low waiver funding resulted in services being provided to between 500 and 1,300 fewer persons that the 3,382 persons required to be served under the waiver.  Following DPW=s lead, Philadelphia determined that it would use its allocation from DPW to provide virtually no new services for persons on the waiver waiting list.  The parties settled in April 2002.  The state agreed to request finding from the state legislature to meet the needs of the 3,382 persons required to be served under the waiver.

***

26.  (PA) Case Name: Sabree v. Houstoun, (E.D. Pa 2002).

Summary: Class action of persons with mental retardation who are on waiting lists for residential services against the Director of PA HHS. The plaintiffs allege that Pennsylvania violates the Medicaid Act in two respects: (1) failing to provide appropriate ICF/MR services to which they are entitled, and (2) failing to provide appropriate ICF/MR services with reasonable promptness.  The defendant moved to dismiss the lawsuit, relying almost exclusively on Gonzaga, the defendant asserted that plaintiffs could not enforce the Medical Assistance provisions at issue.

The Judge ruled on January 21, 2003 that the Medicaid Act as a whole was not intended to confer rights on beneficiaries.  Looking at the general statutory authorization for Medical Assistance, 42, U.S.C. sec. 1396, the court noted that the statute focuses on the state, rather than individuals and, a bit strangely, states that A@the Aindividuals@ referenced are merely beneficiaries, not persons entitled to privately enforce the statute.@A The court also looked to 42 U.S.C. sec. 1396c (concerning termination of federal funding to a state that does not substantially comply with its Medical Assistance plan) and determined that this shows that the statute looks to A@Athe aggregate function of the State,@ rather than Awhether the needs of any particular person have been satisfied.

With respect to the particular ICF/MR provisions, the court did not address at all plaintiffs= citations to the general A@entitlement@A provisions of Title XIX (i.e., 42 U.S.C. sec.1396a(a)(10)), which provides that Medical Assistance must be made available to A@all individuals@A who meet eligibility criteria and that Medical Assistance is defined to include ICFs/MR.  The court also held, without citation, that plaintiffs had no right to ICF/MR services in small settings.  While plaintiffs did seek services in small settings, they argued that their A@right@A was to ICF/MR services and the question of size ent merely to what was appropriate to meet their needs - not to whether they could enforce the right itself.

As for the reasonable promptness claim, the court apparently disregarded the statutory language of 42 U.S.C.sec.1396a(a)(8), which refers toA@individuals. A Instead, the court stated that the provision was merely a condition on the receipt of federal funds.  The court also concluded that the lack of any specific time period (and the possibility that a reasonable time period would vary from person to person) precluded private enforcement of this provision.  Plaintiffs appealed the case to the 3rd Circuit.

In May 2004, the 3rd Circuit ruled that Congress unambiguously conferred on plaintiffs the right to enforce provisions of the Medicaid Act through 42 U.S.C. 1983.  The court reversed the district court’s decision which had held that certain provisions of the Medicaid Act did not have “rights-creating language” and were not individually enforceable.  The case will now proceed to trial.

***

7.  (PA) Case Name: Richard C. v. Houstoun, (3d Cir. 2000).

Summary: This action has been ongoing since 1989.  Pursuant to a settlement agreement in the case reached a few years ago, Pennsylvania decided to close a DD facility and move its remaining residents to community settings.  In late 1998, a handful of family members who had long opposed the settlement agreement and the closure sought to intervene in the case.  The family members asserted the Olmstead decision as a basis for their intervention.  They argued that Olmstead recognized the right of persons to receive services in an institution and that persons could not be forced to leave such institutions absent the consent of the resident or a family member/guardian.  They based this argument on the language in Olmstead that said that an ADA claim can be established if 1) professionals recommend community placement; 2) the individual involved does not object; and 3) creating the program is not an undue burden.  The families argued that point 2 of the test was not met.  In September 1999, the United States District Court for the Western District of Pennsylvania denied the family members= motion to intervene and specifically rejected their Olmstead claim.  Although Western Center closed in April, 2000, the family members continued their appeal to the Third Circuit.

In July, 2000, the Third Circuit emphatically rejected the family members= arguments.  Specifically, the Court wrote, AThe Olmstead Court did not, as Proposed Interveners contend, decide that efforts to place persons with disabilities who reside in state-run institutions into more integrated community-based settings where treatment professionals believe such placements are appropriate can be a form of discrimination under the ADA.

***

(TN) Case Name: Brown et al v. Tenn. Department of Mental Health and Developmental Disabilities (D. Tenn. 2000).

Summary: Class action on behalf of all individuals with mental retardation and DD who receive or may receive Medicaid services under the ICF/MR or waiver program.  The action charges that the state limits access to these programs by denying eligible individuals information about pre-admission evaluation process and the right to appeal a denial of services in violation of the Medicaid Act=s, amount, duration and scope, Areasonable promptness@, andAopportunity to apply@ provisions.

The case was consolidated with the People First v. Tennessee case also in district court.  People First has a similar, but larger case involving children and adults with DD.  People First includes all the same medicaid claims, as does Brown, but also claims that the state violates the ADA integration mandate, 14th Amendment Due Process, and the Individuals with Disabilities Education Act by denying medicaid payment for services to which school-aged children are entitled.

Plaintiffs filed an amended complaint in Brown to include an ADA integration mandate claim.   The trial date for Brown and People First was set for May 2003, however before the trial began, the presiding judge set in motion arranging for a mediator and halted further activity pending the outcome of mediation.

In June 2004, the District Court signed orders settling both Brown and People First.  The settlements are separate but complement each other.  Among other things, the state agrees to apply for a new Medicaid waiver and to undertake an aggressive outreach campaign to inform the public of available community supports and to enroll eligible individuals.  In addition, the Brown settlement sets forth a detailed five-year plan to substantially reduce or eliminate the waiting list.

***

27.  (TX) Case Name:  Charles M. v. Hale (previously Gilbert) (W.D. Tex 1998).

Summary:  Action challenges the Department of Human Services Aall or nothing@ Medicaid waiver policy, which denies all community based services to anyone whose needs exceed 95% of the cost of nursing home care, rather than simply providing them with the services in the amount of 95%.  The case raises claims under the Medicaid Act and the ADA integration mandate.  By settlement, plaintiffs obtained the waiver plus Medicaid home health services.

***

22.  (TX) Case Name: Alberto N. et al v. Don A. Gilbert (E.D. Tex 1999).

Summary:  Action alleging that Texas Medicaid systemically denies children medical services, prescribed by their treating physicians, that the children need to avoid institutionalization, in violation of the Medicaid Act EPSDT provisions and the integration mandate.  In early 2002, the parties signed a settlement with the state agreeing to: provide better notice and information about the services children are entitled to under EPSDT; begin providing EPSDT services; and eliminate policies that arbitrarily limit physical therapy, occupational therapy, and services for individuals with speech, hearing, and language disorders.

***

28.  (TX)  Case Name: McCarthy et al v. Hale (previously Gilbert )(D.Tex. July 2002).

Summary: Action challenging Defendants= failure to provide eleven individuals with mental retardation and developmental disabilities with HCBS waiver services in violation of the ADA integration mandate; Section 504; the Medicaid Act A reasonable promptness@ Aamount, duration, scope,@ Afreedom of choice@ and opportunity to apply@ provisions requirement, and 14th amendment due process and equal protection requirements.

On May 23, 2003, the District court granted the state=s motions to dismiss certain Medicaid Act claims, including: comparability, freedom of choice, and reasonable promptness.  The court held that because Texas had provided Medicaid waiver services up to the amount of the waiver cap, individuals on a waiver waiting list are not entitled to these Medicaid Act protections.  The court denied the state=s motion to dismiss the plaintiffs= due process claims under the Medicaid Act.  The court also denied the state=s motion to dismiss the ADA and Rehabilitation Act claims on 11th Amendment grounds, although the Court noted that the state might be able to claim a fundamental alteration defense.  In April, the 5th Circuit Court of Appeals heard the states appeal of the lower court ruling, that the ADA claims were not barred by the 11th Amendment. The parties are awaiting the Circuit Court’s ruling.

***

29.  (UT) Case Name D.C. et al. V. Betit et al. (D. Utah 2002).

Summary: Action on behalf of nine individuals and the Arc of Utah alleging that the DD waiver waiting list violates the Medicaid Act, the ADA integration mandate, and the Rehabilitation Act. The state filed a motion to dismiss arguing that because federal law allows states to limit the number of individuals served in its waiver program, people who are wait-listed for the program cannot have an enforceable right to waiver services.  The state also claimed that because individuals are “at risk” but not in fact institutionalized, than the Supreme Court=s Olmstead decision does not apply.

The Court dismissed all of the plaintiffs Medicaid claims on the grounds that the Medicaid Act does not grant individually-enforceable rights, because of the 11th Amendment.  However, the Judge did allow the ADA and 504 claims to go to trial, stating that several courts have already ruled that the Olmstead decision applied to individuals “at risk” of institutionalization.  The case has not gone to trial yet.  Parties are discussing settlement.

***

30.  (VA) Case Name;  Quibuyen v. Allen and Smith

Summary: (provided by the HSRI docket mentioned above)  Filed in December 2000 in the U.S. District Court for the District of Virginia by a coalition of attorneys, this complaint alleged that the state impermissibly wait-listed individuals already enrolled in the state=s HCBS waiver program rather than furnishing the additional services that they had been assessed to require, including residential services. The complaint alleged that Virginia had imposed restrictions on furnishing services to waiver participants that AY are foreign to the statutory and regulatory Medicaid scheme, and indeed are inimical to it in that they establish additional unapproved barriers for otherwise eligible persons to obtain assistance to which they are entitled under federal law.

Especially at issue was a June 1999 directive issued by the Department of Medical Services that restricted the circumstances when additional services (including residential services) would be authorized. The directive limited new or expanded services to instances when an individual no longer can remain in the family home due to caregiver incapacity or other critical situations. The complaint argued that this and other policies led to wait listing waiver participants for the receipt of services for which they were otherwise eligible. In September 2001, the state agreed to change its policies so that individuals would receive all the services that they have been determined to require. As a result, the plaintiffs agreed to dismiss the lawsuit.

***

31.  (WA) Case Name:  Townsend v. Qasim, 328 F.3d 511 (9th Cir. 2003)

Summary: Plaintiffs claimed that Washington violates the ADA's integration mandate by declining to extend its community-based waiver services to cover, not just Acategorically needy@ but also "medically needy" Medicaid recipients.  Since Washington currently provides the types of services available under the waiver to medically needy persons only if they enter nursing homes.

Status: The 9th Circuit Court held that Washington might violate the ADA's integration mandate by declining to extend its community-based waiver services to cover "medically needy" Medicaid recipients.  Since Washington would provide the types of services available under the waiver to medically needy persons if they entered nursing homes, the appellate court held that the integration mandate could require the state to provide those same services in the community.   The court rejected the argument that the plaintiffs were asking for "new" services since Washington already provided the services in nursing facilities.  Instead, the court characterized the argument as one about the location of services.  The court remanded the case back to the District Court to determine whether extending the waiver to medically needy recipients would result in a fundamental alteration because the increased funding needed to extend the waiver would be so great as to require the state to cut other Medicaid services. The District Court has agreed to review the case in September 2004.

***

32.  Case Name: The Arc of Washington State et al v. Quasim (D. Wash. 1999). 

Summary: Class action on behalf of individuals with developmental disabilities who are eligible for but not receive adequate services under the Medicaid HCBS waiver.  Some of the individuals are on long waiting lists others are receiving services but not as much as is medically necessary.  Currently, Washington State has met its ACAP@ or obligation to provide services.  Individuals on the waiting list argue that they are entitled to waiver services as long as they meet waiver eligibility requirements.

The Court ruled that the ADA cannot serve as the basis for ordering a state to increase the number of individuals who receive HCB waiver services because such an order would require the state to make a Afundamental alteration.@  In April 2001, the parties reached a settlement and submitted it to the court in August 2001. The legislature approved the first installment of funds to implement the settlement, before the second set of funds were appropriated, in December 2002, the court rejected the settlement agreement because it was in conflict with the demands of class members in two other similar lawsuits in the State. In June 2003, the court dismissed the lawsuit entirely because the state was in the process of changing its HCBS waiver program that was the subject of the suit. In July 2003, the Arc of Washington appealed the dismissal to the 9

***

(WA) Case Name:  Boyle v. Braddock (D. Wash. 2001)

Summary:  Action alleging that Washington has failed to furnish or make available the full range of services offered through the Community Alternatives Program (CAP) to program participants.    This complaint somewhat paralleled the Arc of Washington case (supra), but focused exclusively on the alleged problems that current waiver participants have in accessing the full range of CAP services.  The proposed class was “all current or future CAP participants”.   In April 2003, the court  denied class certification and dismissed the case.  Plaintiffs appealed the dismissal to the 9th Circuit.

***

33.  (WV) Case Name:  Benjamin H. v. Ohi (D. WV 1998).

Summary:  Action seeking a preliminary injunction to prohibit West Virginia from limiting its Medicaid waiver to only those who have an emergency need while also placing a moratorium on the creation of new ICF/MR beds.  With the waiver not funded and ICF beds full, people in need of ICF level care remain on waiting lists for years and receive minimal, if any, Medicaid services, in violation of the Medicaid Act and the ADA Integration Mandate.

The Court issued a preliminary injunction and found that the state=s practice violates the reasonable promptness, freedom of choice, EPSDT and due process provisions of the Medicaid Act.  The Court did show concern for the state=s budgetary constraint argument but found that absent enforcement of the law, AStates could easily renege on their part of the Medicaid bargain by simply failing to appropriate sufficient funds.@  The Court declined to rule on the ADA integration mandate claim but did say that in light of the Olmstead v. L.C. decision, the State must develop a compliance plan to eliminate waiting lists and establish reasonable time frames.

The Parties settled in 2001 and the state has established written policies regarding Notice of EPSDT services, screening requirements, reasonable promptness and fair hearing access.  Last year Plaintiffs filed a claim seeking to increase payment rates for HCBS waivers or find that the state is violating the ADA Integration Mandate and Medicaid Law.  The court ruled that Plaintiffs lacked sufficient evidence to support the claim but did include language in the order tying the adequacy of payment rates to a failure to meet the needs of Medicaid recipients.  As a result West Virginia committed to do a review of state payment rates.

***

34. (WV) Style:  E.H. v. Hartley (D. W. Va. 1989).

Summary: This action is a request for resolution in an on-going class action that first settled in 1989.  The original 1989 court order calls for the state to provide for a Acomprehensive array@ of services for individuals with developmental disabilities.  As a result of this order an elaborate services delivery plan is in place for individuals with mental retardation utilizing Medicaid waivers.  In 1999 the Court Monitor issued formal recommendations that the Court order the state to develop new community services and examine funding concerns.  The state submitted a plan of resolution.

In 2001 the Judge signed an order allowing the state Department of Health and Human Resources to impose fines and sanctions against providers for not implementing or following the court ordered interdisciplinary team process whenever there is a violation of an individual treatment plan.  In March 2002, the Judge dismissed the case and dissolved the authority of the Court Monitor.  Plaintiffs submitted a list of 8 unresolved issues.  In response the Court ordered the development of a Behavioral Health Ombudsman.

***