Class Action Suit Challenges Widespread Segregation of Persons With Disabilities

Posted on

December 20, 2010

Garth Corbett, Advocacy Inc.

Colby Walton, Cooksey Communications
972-580-0662 x23

AUSTIN – A class action lawsuit against the state of Texas was filed in U.S. District Court in San Antonio today on behalf of more than 4,500 people with intellectual and developmental disabilities who have been confined to nursing facilities providing ineffective levels of care.

The lawsuit charges that Gov. Rick Perry and other state officials have violated the Americans with Disabilities Act (ADA) and other federal laws both by segregating these individuals in nursing homes and by failing to provide them with the treatment and services they needed while there.

“Like all of us, individuals with intellectual and developmental disabilities want and deserve to live in the community where they can fully participate in community life,” said Yvette Ostolaza, partner in the Dallas office of Weil, Gotshal & Manges, which represents the plaintiffs on a pro bono basis alongside Advocacy Inc. and the Center for Public Representation. “Weil has a rich tradition of pro bono advocacy on behalf of people with disabilities, as well as others who cannot defend themselves, in order to ensure their rights are protected.”

The case was brought by six individuals with intellectual and developmental disabilities, the Arc of Texas and the Coalition of Texans with Disabilities. The six individual plaintiffs are Eric Steward, Andrea Padron and Linda Arizpe of San Antonio; Patricia Ferrer and Benny Holmes of Dallas; and Zackowitz Morgan of Houston.

The defendants named in the lawsuit include Gov. Rick Perry; Thomas Suehs, executive commissioner of the Health and Human Services Commission; and Chris Traylor, commissioner of the Department of Aging and Disability Services.

Eric Steward, 44, the lead plaintiff, lived with seven other individuals in a community-based facility in San Antonio until he had to be hospitalized for complications from epilepsy. While living in the community, Steward had a private bedroom; participated in vocational training; engaged in sports activities, including the Special Olympics; went to the movies and restaurants, and otherwise enjoyed the daily activities of life that we all take for granted. However, following his hospital stay, Steward was discharged to a nursing facility, where he has remained for the last eight years. He no longer receives any vocational training or has any meaningful interaction with the outside world. Since his placement in the nursing facility, Steward’s condition has deteriorated. He has become seriously depressed, and he desperately wants to move out of the nursing home and back into a community-based setting, where he can resume the activities that gave joy and meaning to his life.

“Eric was thriving when he lived in the community,” said Lillian Minor, Steward’s mother. “It breaks my heart to see him wasting away in the nursing home. He deserves better. We have to be able to do better.”

Andrea Padron’s family tells a similar story. Padron, 26, had lived at home until her mother, a member of the U.S. military, was forced to place her in a nursing home before being deployed to Iraq. When Padron 2 was living at home, she had been able to use a wheelchair and, on occasion, to stand with the help of assistive devices. She also had attended public school, participated in aqua-therapy, and attended arts and crafts classes in the community. However, by the time Padron’s mother returned from war in 2007, Padron’s condition had deteriorated so much that she could no longer even use her wheelchair. In addition to leaving Padron in bed for extended periods of time, the nursing home had not provided her with a proper physical therapy program.

“Andrea was making solid progress when she lived at home,” said Rosa Hudecek, Padron’s mother. “We desperately want to get Andrea out of the facility and into a community-based setting, where she can resume the therapy and activities that had helped her so much.”

Garth Corbett, senior attorney at Advocacy Inc. in Austin, Texas, and co-counsel on the case, noted that Steward’s and Padron’s situations are typical of thousands of other individuals with intellectual and developmental disabilities in Texas who are trapped in nursing facilities that are not designed to provide them with the treatment and services that they need. “It is not only immoral, but also illegal, to warehouse individuals in nursing homes, isolating them from their families, friends and the larger community,” Corbett noted.

Steven Schwartz of the Massachusetts-based Center for Public Representation and co-counsel, added, “Both the ADA and Texas law mandate that the state provide services to individuals with disabilities in the least restrictive setting appropriate to their needs. No one seriously suggests that a nursing home meets this requirement for these 4,500 individuals.”

“Many are denied the opportunity to live where they choose,” noted Mike Bright, executive director of the Arc of Texas. “In other words, they have been imprisoned simply for having a disability.” Denis Borel, executive director of the Coalition for Texans with Disabilities said, “Intellectual and developmental disabilities don’t limit people’s rights; states do.”

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Advocacy Inc. is a nonprofit disability rights organization that protects and advances the legal, human and service rights of Texans with a broad range of disabilities. Advocacy Inc. is federally funded and designated as the protection and advocacy agency for the state of Texas.

Weil, Gotshal & Manges, an international law firm of more than 1,200 lawyers and 300 partners and with more than 120 attorneys in Texas, is headquartered in New York, with offices in Beijing, Boston, Budapest, Dallas, Dubai, Frankfurt, Hong Kong, Houston, London, Miami, Munich, Paris, Prague, Providence, Shanghai, Silicon Valley, Warsaw, Washington, D.C., and Wilmington. The firm’s award-winning, worldwide pro bono program encompasses projects for transactional attorneys and litigators in a wide variety of areas, including civil, voting and human rights; political asylum; and community and economic development. The firm is a charter signatory to the Law Firm Pro Bono Challenge, and the firm has been recognized in Texas for its pro bono work by organizations such as the State Bar of Texas, Texas Appleseed, Dallas Volunteer Attorney Program and the Houston Volunteer Lawyers Program.