Disability Rights Ohio - Statement of Disability Rights Ohio Before the Constitution and Civil Justice Subcommittee

Statement of Disability Rights Ohio Before the Constitution and Civil Justice Subcommittee

March 6, 2018 / Ball v. Kasich

Examining Class Action Lawsuits Against Intermediate Care Facilities (ICFs) for Individuals with Intellectual Disabilities

March 6, 2018

INTRODUCTION – DISABILITY RIGHTS OHIO

Disability Rights Ohio (DRO) is a nonprofit law office in Columbus, Ohio. DRO is designated by Ohio’s governor under federal law as the system to protect and advocate for the rights of people with disabilities in Ohio, including those with intellectual and developmental disabilities (I/DD) under the Developmental Disabilities Act, 42 U.S.C. §§ 15001, 15042. DRO’s mission is “to advocate for the human, civil and legal rights of people with disabilities in Ohio.” We envision a society in which people with disabilities:

are full and equal members;
enjoy the rights and opportunities of all people;
are self-directed;
make decisions about where how and with whom they will live;
learn, work and play;
have access to needed services and supports; and
are free from abuse, neglect, exploitation and discrimination.

DRO is submitting this statement in order to clarify and expand on information that the Committee has received about its activities and, specifically, litigation that it has filed on behalf of individual plaintiffs and seeks to have certified as a class action, Ball v. Kasich.ⁱ As detailed below, the goal of the Ball case is to enable Ohioans to have more choices for where and how they want to receive care and services. It’s that simple. We do not seek, and have never sought to close ICFs or remove anyone from an ICF unwillingly. Indeed, those who choose to stay in an ICF are by definition not members of the class.

SUMMARY OF THE CASE

Filed in March of 2016, the Ball case has been permitted by the Court to proceed to class certification briefing after the state defendants’ motions to dismiss were denied on March 23, 2017. Prior to filing the case, DRO staff engaged in a thorough analysis of the I/DD system in Ohio, We learned that thousands of individuals who would choose to safely receive long term services and supports in their own homes were denied those services because of the structure of Ohio’s system for delivery of long term services and supports (LTSS). This was evidenced by, among other factors, a wait list for services with tens of thousands listed, many of whom currently reside in ICF/IDDs. Also, for those who apply for state-funded care, the State of Ohio offers immediate placement into institutions. However, individuals who want to receive services in integrated settings typically endure long waits, some as long as 13 years.

DRO conducted public forums to accept comment from people with disabilities and family members prior to filing. As in other states, we learned that when individuals in Ohio have the opportunity to live, work, and participate in their communities with adequate supports, they and their families overwhelmingly report being satisfied, even those who initially expressed concerns about leaving institutional care. Some currently choose to remain in an ICF because of service limitations in the Home and Community Based Service (HCBS) system. Others have not been asked.

Prior to filing, DRO engaged in substantive and lengthy negotiations with state officials. This was well publicized.ⁱⁱ Similarly, the filing of the suit was publicly announced,ⁱⁱⁱ and received substantial press coverage.^iv

CLASS CERTIFICATION

Class certification is currently pending before the Court and has been thoroughly briefed and litigated by the parties, including the ICF parent intervenors. Choice by the person with I/DD or family has been a central issue. The proposed class definition expressly addresses that issue by including only individuals who are interested in home and community-based services:

All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services, but (a) are institutionalized in an Intermediate Care Facility with eight or more beds, and, after receiving options counseling, express that they are interested in, or may be interested in, integrated community-based services; or (b) are at serious risk of institutionalization in an Intermediate Care Facility with eight or more beds and have, by placing themselves on a waiting list for community-based services, expressed an interest in receiving integrated services while continuing to live in the community.

Those who choose ICF admission, or to remain at an ICF, are neither included in the class, nor bound by its outcome. They need not take any affirmative steps to avoid or ‘opt-out’ of class membership.

As with other key stages in the case, DRO widely publicized the filing of the class certification motion. The Ball case has received support from groups of family members and “self-advocates,” people with I/DD.^v The Arc of Ohio and the Arc of the United States, the nation’s preeminent group of families and people with I/DD in Ohio and the nation, respectively, submitted a friend of the court brief in support of class certification.^vi

REMEDY

The relief sought by the litigation focuses on structural problems with the state’s I/DD system. For example, the state’s portion of payment (match) for HCBS waivers are, for the most part, funded using local (county) dollars. This results in broad discrepancies in service availability depending on where the person lives, and results in people with I/DD in poorer counties with ICF/IDD institutional placement as their only option when they need long term services and supports. Similarly, until recently, the state did not offer nursing services for those on waivers, again limiting those needing that service with an institution as their only option. These are examples of barriers in the Ohio system for those who seek home based long term services and supports.

Finally, the litigation reserves clinical and placement decisions for those who are best able to make them: individuals, their families, and their teams. Class membership is determined based on an affirmative expression of interest or possible interest in integrated community-based services. Decisions regarding eligibility, suitability, and clinical needs are not even spoken to in the case, and would remain reserved for local officials and treating professionals, as they should be. The plaintiffs also recognize the fluid nature of people’s lives, and the proposed class definition allows for the possibility that individuals may in the future express an interest in and qualify for community alternatives, as their needs and preferences change.

CONCLUSION

The Ohio P&A has a long history of advocacy on behalf of people with I/DD. This work is accomplished through a number of means.

For example, DRO places the highest priority on monitoring and investigation of facilities in order to remedy abuse and neglect. A recent example of this key work is found in our report^vii on Rose Mary Center near Cleveland, a 42 bed ICF for youth aged 9-26. DRO’s investigation found that the facility’s physical environment was inadequate and poorly maintained; there was a lack of care and necessary supervision, which creates serious risks to the health and safety of the residents; and incident reports reflected physical injuries and allegations against staff that were not appropriately addressed by the facility or outside investigators. As a result of the report, youth were transferred, some to HCBS waivers but 24 moving to other ICFs.

Any assertion that DRO seeks to harm Ohioans with disabilities or a subset of these cannot stand careful scrutiny. DRO acts in order to support the individual with a disability, and to protect their rights to adequate service, supports, and freedom from harm, regardless of the setting in which the person lives. Class action litigation is rarely necessary, but is a critical tool to enforce federal law when state wide policies affect the lives of hundreds or even thousands of Ohioans.

FOOTNOTES

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