Text Only Letter to Stakeholders #1 (C.F. v. Lashway)

Letterhead of Disability Rights Washington, Washington's protection and advocacy system

August 2, 2016

Re: DRW files lawsuit to help people leave institutions and avoid them in the first place

Dear Advocates and Allies,

Today, Disability Rights Washington (DRW) filed an Olmstead lawsuit against the Department of Social and Health Service (DSHS) and the Health Care Authority (HCA). This lawsuit is trying to make sure all people in Washington who would like to live in the community have that choice.  Sadly, there are many people who live in institutions or are afraid they may have to live in an institution because they cannot get a supported living provider to meet their needs. By the end of 2015, DRW discovered there were 50 people in Residential Habilitation Centers (RHCs) who had said they wanted to live in the community but were waiting to find a supported living provider. By Spring 2016, DRW learned there were another 41 people already on a home and community-based waiver who were going without the supported living services they need to stay in the community and out of institutions.

Here are some examples of the problems DRW described in the Complaint filed in court today:

Plaintiff C.F.

C.F.is one of the fifty RHC resident identified in December 2015 as waiting for community-based residential habilitation services.  His experience is typical of the proposed class.  He has a developmental disability that qualifies him for HCBS waiver services, including residential habilitation.

Plaintiff C.F. was approved for residential habilitation services through the Core Waiver in 2013, when he began to receive services from a private supported living agency. Due to a series of incidents arising from his unmet complex behavioral support needs, Plaintiff C.F.’s provider was unable to retain sufficient staff to provide him with services.  After a physical altercation involving Plaintiff C.F. and the provider’s staff, both of whom made cross-allegations of assault against the other, Plaintiff C.F.’s provider gave DDA a notice of termination effective within hours.  Without the ability to live independently, Plaintiff C.F.’s only option was to be admitted to an RHC while DSHS searched for a
new provider.

DSHS sent referral packets to several private supported living agencies, but all agencies declined to accept his referral.  In addition, DSHS inquired about supporting him in its SOLA program, but there were no openings in that program.  Plaintiff C.F. received no notice of any opportunity to request a fair hearing.
 
Since he has been institutionalized, Plaintiff C.F. and his guardian have continued to desire Medicaid-funded services provided in a more integrated setting.  However, his guardian has significant concerns about him discharging to a supported living agency that could terminate services with little to no notice if the agency is unable to meet his needs or retain sufficient staff.  His guardian recently re-requested SOLA services, but was again told there were no openings in this program.  Because DSHS has been unable to identify a supported living provider who could guarantee services to appropriately support his behavior support needs arising from his dual diagnoses of schizophrenia and autism, he has been unable to access community-based residential habilitation services necessary to discharge from the RHC.
 
Plaintiff J.P.

J.P. is also one of the fifty RHC residents, identified in December 2015, to be waiting for community-based residential habilitation services.  Her experience is also typical of the proposed class.  She has a developmental disability that qualifies her for HCBS waiver services, including residential habilitation. 

Plaintiff J.P. was a class member of Allen, et al., v. Western State Hospital, et al., USDC C99-5018-RBL, another federal class action lawsuit brought in 1999 on behalf of patients with developmental disabilities at Western State Hospital. Under a series of settlement agreements that were in effect from 1999 to 2009, DSHS improved both inpatient and community-based services to meet the needs of people with developmental disabilities who need intensive behavioral supports to be discharged, successfully live in the community, and avoid re-institutionalization.

After being involuntarily committed at the state hospital, DSHS retained a supported living agency who initially agreed to provide Plaintiff J.P. with community-based services and initiated the implementation of a transition plan. However, the transition was not successful and she was discharged from WSH to an RHC in 2009. 

Three years later, in 2012, Plaintiff J.P. was discharged from the RHC with supported living services, only to return to the RHC a few weeks later when her supported living agency failed to implement the recommendations in her discharge plan for responding to her behavioral health needs. Since she was re-admitted to the RHC, she continued requesting Medicaid-funded community-based services from a new provider, but all supported living agencies in her home region declined to accept her referral. Plaintiff J.P. received no notice of any opportunity to request a fair hearing.

In January 2015, after DDA sent referral packets to providers in a broader geographic region, a supported living agency outside Plaintiff J.P.’s preferred region accepted a referral, with the caveat that it could take up to a year to find the necessary staff. Presently, a year and a half later, Plaintiff J.P. still has been unable to transition to the community due to the agency’s inability to recruit and retain a sufficient number of staff. Defendants have no alternative plan or timeline to ensure Plaintiff J.P. does not continue to be institutionalized indefinitely while the supported living agency continues to attempt to recruit and retain the staff needed to support her.

Plaintiff L.B.

L.B. is one of the forty-one HCBS waiver participants who is waiting for the community-based residential habilitation services she is qualified to receive. Her experience is also typical of the proposed class. She has a developmental disability that qualifies her for HCBS waiver services, including residential habilitation.

When Plaintiff L.B.’s supported living agency provided notice that it would be terminating her residential habilitation services, DDA sent referral packets to other agencies that support individuals in the county where her mother resides. All of the agencies declined the referral. Plaintiff L.B. received no notice of any opportunity to request a fair hearing.

DDA suggested admission to an RHC as an alternative, and threatened to report Plaintiff L.B.’s guardian to Adult Protective Services (APS) when she requested an additional extension of supported living services while Plaintiff L.B.’s fragile health stabilized.

Refusing to institutionalize her daughter, Plaintiff L.B.’s guardian agreed for Plaintiff L.B. to live temporarily with her and her husband while DDA searched for an alternative Medicaid-funded community-based supported living provider. As an elderly woman over the age of seventy, Plaintiff L.B.’s guardian does not believe she can indefinitely continue to support Plaintiff L.B. to live at home, which requires that she provide Plaintiff L.B. with significant personal care assistance when hired caregivers cancel, do not show up, or cannot cover a shift. As a result, Plaintiff L.B. is not receiving the combination of training, personal care, and supervision included in residential habilitation services, and she is at risk of institutionalization.

DRW wrote a legal demand letter to DSHS and HCA explaining that Plaintiffs C.F., J.P., L.B., and others would like to receive the residential habilitative services they need in an integrated community-based settings. We explained that DRW is interested in resolving this issue without a lawsuit. The letter asked for the state to sit down and work with DRW to negotiate a settlement that would deliver the services that people on these waitlists need.

Yesterday, DSHS and HCA sent a letter back to DRW saying they thought our legal conclusions were premature and they were only willing to “meet with [DRW] for discussion purposes, but not to engage in settlement discussions.” DRW has intensively investigated this issue for many months. DRW reviewed thousands of pages of DSHS documents. DRW interviewed dozens of people involved in this system. As a result of this investigation, DRW decided it needed to advocate for DSHS and HCA to stop violating people’s rights. The response from DSHS and HCA did not provide any information that changed DRW’s opinion that these agencies are violating the Americans with Disabilities and Medicaid Acts. DRW cannot in good conscience hold back on a lawsuit that could help fix this problem just because DSHS and HCA do not agree that they are violating the law.

Courts resolve disagreements between two sides about whether the law has been violated. That is why DRW filed a lawsuit today. We are asking the court to find the state is violating the rights of people who want to live in the community with adequate supported living services, and order the state to fix its system so people can access those services when and where they need them. Lawsuits take a lot of time. As I said above, it took many months of investigating to get to this point. Now a lawsuit has been filed, but we still have a lot of work to do to fix the system. I hope you find this a promising step towards improving our service delivery system, but I hope you also see there are many more steps before the system is fixed.

In the meantime, please let me know if you have questions about this case.

King 5 news will be running a story about the lawsuit tonight, August 2, 2016, at 6:30 if you want to see additional coverage of the issue.

Thank you,

Sarah Eaton
Attorney
Disability Rights Washington

315 - 5th Avenue South, Suite 850

Seattle, WA  98104

t:206.324.1521 or 800.562.2702

tty:206.957.0728 or 800.905.0209

f: 206.957.0729

email: [email protected]

www.disabilityrightswa.org

DRW is a member of the National Disability Rights Network. A substantial portion of the DRW budget is federally funded.