September 8, 2016, Trial News | The American Association For Justice

September 8, 2016, Trial News

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Class action alleges Minnesota engaged in disability-based segregation

Diane M. Zhang

photo of person in wheelchair

A group of disabled people have filed a class action seeking injunctive relief against Minnesota’s Department of Human Services, alleging that the department maintained a discriminatory residential system that funneled them into segregated housing. The plaintiffs allege that they are isolated from their families—who may be hundreds of miles away—and have little to no control over their daily lives.
 

A group of disabled people have filed a class action seeking injunctive relief against Minnesota’s Department of Human Services (DHS), alleging that the department maintained a discriminatory residential system that funneled them into segregated housing. (Gordon v. Minnesota Dep’t of Human Servs., No. 0:16-cv-02623 (D. Minn. filed Aug. 3, 2016).) The plaintiffs allege that they are isolated from their families—who may be hundreds of miles away—and have little to no control over their daily lives. According to the complaint, rather than helping people with disabilities integrate into their communities, the DHS has siphoned them into segregated housing—where they often lack individual care, support, and attention.  

Minneapolis attorneys Justin Perl and Sean Burke, who represent the plaintiffs, note that several decades ago, Minnesota was one of the first states to “deinstitutionalize,” dismantling state hospitals that housed people with disabilities and were often rife with abuse and neglect. Instead, the state implemented what was then an experimental solution: group homes.

“Minnesota took an extra step by settling on a four-person, single-family home residential model which—in the early 1980s—was unique and fairly progressive,” Burke explained. “To help pay for it, the state used a brand new tool that the federal government made available—‘waivers.’” This community-based waiver program allows the state to use Medicaid funding to provide a variety of services that may not meet certain statutory requirements—including group homes. The program’s purpose is to make it easier for people with disabilities to live and work within their communities.

In the 1990s, two important disability rights developments occurred. One was the passage of the Americans With Disabilities Act (ADA), which contained a key anti-segregation provision: Title II of the ADA prohibits public entities from discriminating against people on the basis of disability and requires them to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Then, in 1999, the U.S. Supreme Court handed down Olmstead v. L.C., which cemented the ADA’s anti-segregation provision. “The Olmstead case stated that if you’re getting services from the state, whether it’s in an institution or through one of the waivers, you have the right to receive those services in the most integrated setting—meaning you must have the ability to interact with people who don’t have disabilities,” Burke said.  

Minnesota, by that point, had been using the group home model for years, and it continued to do so. As Burke and Perl explained, the state’s group homes—created in the first wave of efforts to dismantle state mental health institutions—now do not meet the standards set forth by the ADA and Olmstead. They are not the most integrated setting appropriate to its residents.

The plaintiffs are all individuals with disabilities who have the capability and desire to live independently. One wants her own small apartment so she can have a place to be alone, clean and organize her own things, and choose who she lives with. Another, who has degenerative brain cancer, must sit in a wheelchair because there is not enough staff available to assist him when he wants to walk. As a result, he spends hours sitting alone on the porch or at the dining room table. Yet another resident, who has cerebral palsy, wants her own apartment so she can live with her best friend and set up an art studio; at her group home, she must go to bed as early as 7 or 8 p.m. because there is not enough staff to care for her past those hours.

“To run these homes, the staff ratio is often one member for four residents,” Burke explained. “It greatly limits residents’ ability to get out in the community, especially if they need staff to help them access public transportation or provide general supervision. There can become a herd mentality in the group homes—everyone has to do everything together, and there are rules developed and designed to keep an eye on everybody. It’s not really interacting with the community.”

Perl pointed out that group homes have failed the plaintiffs because they prevent them from doing things they would be able to do in their own homes. “One of our clients has a hobby of archery, and he can’t really do that anymore,” he said. “Others might want to get to their church or religious organization, and they can’t. Then, there are the internal issues for some people: You have to go to bed at 7 p.m.; you can’t watch your favorite T.V. show because it conflicts with when staff serves dinner. These are things that wouldn’t happen if they were living in individualized operations with the appropriate services. They would be able to do those things—just like you or I would.”

Minnesota adopted an “Olmstead plan” in 2015 to expand living options for people with disabilities, becoming one of the last states to do so. The state is committed to moving more than 5,000 people with disabilities into more integrated housing over the next few years—as well as to provide alternatives to group homes for Minnesota residents with disabilities. But Burke believes the plan is insufficient.

“The Olmstead plan is just that—a plan,” he pointed out. “There’s some significant problems if it doesn’t directly address the 14,000 people [currently] living in corporate group home facilities—where do they really want to live? If they don’t want to stay, how are they going to get out? And what alternative options can they choose that the state isn’t making available on a widespread level?” 

The plaintiffs allege that the current Olmstead plan is purposefully broad and provides only generalized suggestions—not enforceable requirements. It also lacks a strategy for DHS to reduce its overreliance on current facilities. “Actions speak louder than words,” Perl said. “And all they have is a bunch words on a piece of paper.”

The complaint requests injunctive—not monetary—relief, asking DHS to take specific actions to reduce needless segregation. It demands that DHS implement policies that allow residents to transition to more independent, integrated living if they wish. This includes providing access to person-centered planners that can create individualized service plans and help people develop self-advocacy skills; providing customized, written, and enforceable housing transition plans; and informing residents of these options.  

Burke and Perl stressed that people with disabilities have the right to receive care that is tailored to their lifestyle and wishes, rather than standard across-the-board care. “This is a case about individual choice,” Perl said. “People with disabilities should have choices—as do people without disabilities.”

“Part of your service should not be a one-size-fits-all service,” Burke added. “They need to figure out who you are and what you want—where you want to live, where you want to work, what you want your day to look like—and match the service to fit that.”

These group homes may have been considered progressive decades ago, Burke noted, but standards have changed—which is progress itself. Today, the questions the state needs to ask in order to meet the standards under the ADA and Olmstead have changed. “How many friends do you have in the community?” Burke said. “Can you really interact with people who do not have disabilities and are not paid to care for you? Where do you work? How do you choose to spend your time? Did you choose your current residence, and can you actually live there like it’s your home?”