Interim Agreement is Victory for Texans with Disabilities Unlawfully Confined to Nursing Homes

Posted on

August 19, 2013

Garth Corbett, Disability Rights Texas, 512-407-2719
Colby Walton, Cooksey Communications, 972-580-0662 x23
Edie Surtees, Disability Rights Texas, 512-407-2739

AUSTIN—The state of Texas and plaintiffs in a lawsuit against the state today filed an interim agreement with the U.S. District Court for the Western District of Texas that would improve living conditions for thousands of people with intellectual and developmental disabilities who have been confined to Texas nursing facilities providing ineffective levels of care. The interim agreement was negotiated as the result of a class action lawsuit filed against the state of Texas in December 2010.

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. In 2012, the U.S. Department of Justice joined the lawsuit against the state as a plaintiff-intervener, and also played an integral part in the negotiations of the interim agreement.

The lawsuit charges that 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.

“We are pleased that Texas is now taking steps to allow individuals with intellectual and developmental disabilities to live in the community, where they can fully participate in community life,” said Yvette Ostolaza, a Litigation partner in the Dallas office of Weil, Gotshal & Manges LLP, which represents the plaintiffs on a pro bono basis alongside Disability Rights Texas and the Center for Public Representation. “Weil strongly believes in the importance 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. We are proud to have partnered with like-minded organizations and the U.S. Department of Justice to help improve living conditions for these plaintiffs and others who are similarly situated across Texas.”

The interim agreement contains a number of commitments by the state that will positively affect numerous individuals with intellectual or developmental disabilities living in nursing facilities across Texas, including:

  • Expanding community living options for individuals with intellectual disabilities and related conditions, 21 years of age or older, living in Texas nursing facilities
  • Ensuring that medical, nursing and nutritional management services and supports are available in the community, so affected individuals can receive such services in the most integrated settings appropriate to their needs
  • Providing opportunities for affected individuals to engage in community activities to the fullest extent practicable
  • Serving affected individuals in the most integrated setting possible, including facilitating options for living independently in the community
  • Attempting to avoid admitting persons with intellectual or developmental disabilities to a nursing facility if those persons can appropriately live in the community
  • Providing educational and informational activities that address community living options for affected individuals in nursing facilities and their families

The interim agreement is designed to resolve as many issues as possible related to the lawsuit for a limited time period, while still allowing the parties to seek a permanent resolution of the lawsuit pursuant to a comprehensive agreement.

Garth Corbett, senior attorney at Disability Rights Texas in Austin, Texas, and co-counsel on the case, noted that thousands of individuals with intellectual and developmental disabilities in Texas have wound up in nursing facilities that are not designed to provide them with the treatment and services persons with intellectual and developmental disabilities require. “Besides not being able to address their habilitation needs, institutionalizing persons with developmental disabilities in nursing homes isolates them from their families, friends, and the larger community,” said Corbett. “While there is still more to accomplish, we are pleased with the progress we have made and the fact that the parties are working collaboratively to ensure that individuals with disabilities receive the level of care needed to live independently.”

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 most integrated setting appropriate to their needs. The filing of the interim agreement with the court represents a positive step to meeting these requirements. It represents progress towards achieving a final, comprehensive agreement that puts Texas on the right path towards properly serving thousands of institutionalized individuals in their own communities.”

“Many have been denied the opportunity to live where they choose, and have essentially been imprisoned simply for having a disability,” noted Amy Mizcles, executive director of The Arc of Texas. “We are heartened to see this practice beginning to come to an end.”

Dennis Borel, executive director of the Coalition of Texans with Disabilities, said, “The Coalition of Texans with Disabilities appreciates the work of all parties involved in this positive interim agreement. Individuals with intellectual disabilities warehoused in nursing facilities will no longer be forgotten; rather, they will be assured of access to needed services including, where appropriate, relocation to the most integrated setting in the community.”

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Disability Rights Texas (formerly named Advocacy Inc.) is a nonprofit organization that protects and advances the legal, human and service rights of Texans with a broad range of disabilities. The organization is federally funded and designated as the protection and advocacy agency (P&A) for the state of Texas.

The Arc of Texas is a nonprofit organization that creates opportunities for all people with intellectual and developmental disabilities to actively participate in their communities and make the choices that affect their lives in a positive manner. The Arc of Texas believes that all people with intellectual and developmental disabilities have strengths, abilities and inherent value; are equal before the law; and must be treated with dignity and respect.

Weil, Gotshal & Manges LLP is an international law firm offering Business Finance & Restructuring, Corporate, Litigation, Tax and Pro Bono legal services in key industry sectors. Recognized for consistently delivering sound judgment to clients, Weil operates according to a one-firm principle that allows its approximately 1,200 lawyers in offices in the United States, Europe, Asia and the Middle East to seamlessly manage even the most complex matters.  Visit the Weil website for more information, including awards and rankings.

The Center for Public Representation is dedicated to promoting change in the quality of lives of individuals with disabilities in Massachusetts and to pursuing systemic reform and enforcement of legal rights on a statewide and national basis. The Center’s primary purpose is to serve people with disabilities, and particularly those who are institutionalized, discriminated against, or otherwise denied fundamental human rights. The Center is committed to fostering equality, diversity, and social justice in all of its activities.

Founded in 1978, the Coalition of Texans with Disabilities (CTD) is the oldest and largest member-driven disability advocacy organization in the state. Its multi-front approach makes Texas a leader in disability-related public policy and culture. CTD’s work revolves around legislative advocacy, public awareness events and activities, and professional services. It envisions a future where all Texans with disabilities can work, live, learn, play, and participate fully in the community of their choice.