Areas of Service - Disability Rights
Since its beginning, SLC has advocated for people with disabilities in a variety of contexts.
Access to Home and Community-Based Services
Courts v. Agency for Health Care Admin., 2007 WL 2174850, 32 Fla. L. Weekly D1811 (Fla. 1st DCA, July 31, 2007).
This was an appeal of an administrative decision by the Office of Appeal Hearings for the Department of Children and Families concerning the termination and denial of services for an individual that we successfully assisted on getting into the Medicaid Waiver Program for persons with traumatic brain or spinal cord injuries. The issues in this appeal concern challenges to policies and unadopted rules that are being enforced by the Department of Health and Agency for Health Care Administration to unlawfully limit access to services for this individual and others enrolled in the program. The First DCA reversed the agency’s order denying companion care services and found that the agency had made a policy change with regard to an individual without rule-making or explication of the new policy.
Dubois, et al., v. Calamas (Sec’y, Fla. Agency for Health Care Admin.) & Francois (Sec’y, Fla. Dep’t of Health), Case No. 4:03-CV-107 (N.D. Fla., J. Mickle).
This class action, on behalf of individuals with traumatic brain or spinal cord injuries that are receiving, eligible for, or who have applied for Brain and Spinal Cord Injury Medicaid Waiver Program (BSCIWP) services, sought to remedy the systemic problems faced by individuals eligible for this program. There were over 300 people on the waiting list for services some of whom have been on the list for several years. A mediated settlement over changes to the program was reached in which, in consultation with Plaintiffs, Defendants developed a new Handbook and Operating Procedures on freedom of choice and due process rights. The Department of Health also agreed to make it a priority to seek additional funding to expand the BSCIWP by a minimum of 200 slots over 3 years.
Long, et al. v. Benson (Sec’y, Fla. Agency for Health Care Admin.), Beach (Sec’y, Fla. Dep’t of Elder Affairs), Case No. 4:08-cv-26-RH-WCS (N.D. Fla., J. Hinkle). Co-Counsel: Steve Gold, AARP Foundation Litigation, National Health Law Program.
This is a certified class action on behalf of persons with disabilities who receive Medicaid, reside in a nursing home, and would like to live in the community with appropriate services. There are about 8,500 people who live in nursing homes only because they cannot obtain needed services in their own homes or some other community living arrangement. This violates the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act which require states to provide services in the most integrated setting appropriate for the individual. While this primarily impacts the elderly, there are many younger people with disabilities who are forced to live in nursing homes to obtain needed services. We are seeking injunctive relief so that sufficient Medicaid-funded services are available in the community for long-term care. A preliminary injunction was granted on behalf of one named plaintiff who had the opportunity to move out of a nursing home and into accessible affordable housing, but the State offered no community services. Judge Hinkle ordered the State to pay for services to avoid Mr. Griffin’s re-institutionalization. After 5 different days of mediation over 8 months, a settlement was reached. We agreed to abate the proceedings for one year while the State implements a nursing home transition plan. Defendants will identify and assess nursing home residents who want to live in the community, and offer community services to those they deem eligible to live in the community. If the State denies services, individuals will have a due process right to challenge that decision. Defendants agreed to spend up to $27 million which the Legislature authorized them to use out of the nursing home surplus in 2009-10. Further, they agreed to request a similar proviso for 2010-11 as well as permanent appropriations because provisos are only valid for one year. We have been holding quarterly conferences with defendants to monitor the progress. In July 2010, plaintiffs will determine if sufficient progress has been made to warrant dismissing the case.
Parker v. King-Shaw, Jr. & Kearney, Case No. 4:99-CV246-RH (N.D. Fla., J. Hinkle).
We co-counseled with Florida Legal Services and Northwest Florida Legal Services in representing an individual who became a quadriplegic after a diving accident and medically needed a ventilator to breathe and a personal care attendant. The State’s Medicaid policy only provided the ventilator services and a personal care attendant in a nursing home or hospital, but not in a home. We challenged this policy through a preliminary injunction request alleging violations of the federal Medicaid Act and the Americans With Disabilities Act. After a status conference, the parties settled and the State agreed to provide all needed services in the home. The State subsequently provided the services as part of its Medicaid Home and Community Based Services waiver program for individuals with brain and spinal cord injuries.
S.H. v. Edwards, 886 F.2d 292 (11th Cir. 1989) (en banc).
Represented amicus curiae National Association of Protection & Advocacy Systems (P&As) and all former Fifth Circuit P&A's in case involving the issue of the right to habilitation of a class of individuals with developmental disabilities in the least restrictive environment.
Developmental Disabilities Medicaid Waiver Project
This Project is a statewide effort to protect and defend individuals with developmental disabilities’ (DD) statutory and constitutional rights to live safely in community settings. The project began in 2007 in response to significant statutory and regulatory changes to Florida’s home and community-based DD waiver program. The waivers currently serve approximately 30,000 individuals throughout the state. The Florida Legislature eliminated certain community-based services, limited personal care assistance, and mandated the creation of a four-tiered waiver system that includes annual expenditure limitations. The revisions, and the Agency for Persons with Disabilities’ (APD) implementation of these revisions through rules and agency policy, threaten the health and safety of thousands of DD waiver clients who face drastic reductions in community-based services. In an effort to minimize the adverse effects of these changes to Florida’s DD waivers, SLC seeks to:
(1) ensure that the statutory and regulatory changes to the DD waivers do not jeopardize the health, safety, or welfare of individuals with DD;
(2) ensure that APD respects individuals’ constitutional and statutory rights to due process throughout the implementation of the changes to the DD waivers; and
(3) increase the availability of free representation of DD individuals through training and technical assistance for legal services and pro bono attorneys.
SLC and dozens of partners, including Three Rivers Legal Services, Jacksonville Area Legal Aid, the Advocacy Center for Persons with Disabilities, other legal services programs and numerous pro bono lawyers, have employed diverse advocacy strategies, including: pursuing impact litigation (see cases below); providing direct legal services to individuals with DD who would be adversely affected by the changes to the DD waiver programs; participating in a statewide task force to share information and coordinate strategies for individual cases; recruiting and training hundreds of pro bono attorneys around the state to help with the high volume of individual cases; and participating in rule workshops and hearings to try to shape better policy for the DD waiver programs.
London, et al., v. Agwunobi (Sec’y, Fla. Agency for Health Care Admin.) & Johnson (Sec’y, Fla. Agency for Persons with Disabilities), Case No. 4:07cv329-RH/WCS (N.D. Fla., R. Hinkle) (Co-counsel: Florida Legal Services, Advocacy Center for Persons with Disabilities and National Health Law Program). As a result of this due process and Medicaid Act challenge, the Florida Legislature amended Section 393.0661, Florida Statutes, to eliminate an outright cap on personal care assistance in community settings. Personal care assistance for children transferred to the state Medicaid program to completely avoid the DD waiver service limitations and comply with Medicaid Act mandates for Early Periodic Screening Diagnosis and Treatment (EPSDT) for children.
Sosa, et al., v. Agency for Health Care Admin., Case No. 08-1290RP (Fla. Div. of Admin. Hrgs, C. Arrington) (Co-counsel: Advocacy Center for Persons with Disabilities). Sosa challenged a proposed agency rule that would have limited personal care assistance to 300 hours per month, regardless of medical need. We settled the case, and AHCA amended the proposed rule to eliminate the 300 hour limit.
Moreland et. al., v. Agency for Persons with Disabilities, Case No. 08-2199RP (Fla. Div. of Admin. Hrgs, E. Hunter) (Trial co-counsel: Advocacy Center for Persons with Disabilities, Inc.); Moreland et. al., v. Agency for Persons with Disabilities, Case No. 1D08-4353 (Fla. 1st DCA) (Appellate Counsel: Holland & Knight). In this rule challenge, the decision on appeal invalidated agency rules that forced arbitrary reduction and elimination of medically necessary home and community services for thousands of individuals with developmental disabilities.
V.S., et al. v. Agency for Persons with Disabilities, Case No. 09-2511RU (Div. Admin. Hrgs, B. McKibben) (co-counsel: Three Rivers Legal Services). This case seeks to stop APD from utilizing unpromulgated rules in making tier assignments and would impact all 30,000 individuals on the waivers. The case is in abeyance pending the promulgation of new rules, as required by Moreland. If this case is ultimately successful, it would ensure that APD uses transparent and fair rules to assign individuals to tiers.
Washington, et al. v. DeBeaugrine (Sec’y, Fla. Agency for Persons with Disabilities), 658 F.Supp.2d 1332 (N.D. Fla. 2009, R. Hinkle). Issuing a preliminary injunction, the federal district court prohibited APD from terminating or reducing a plaintiff’s benefits prior to affording the plaintiff an evidentiary hearing. As a result of the preliminary injunction, SLC negotiated a settlement with APD that resulted in a permanent injunction that applies to the putative class of more than 4,000 individuals with developmental disabilities.
Advocacy Center for Persons with Disabilities, et al. v. Agency for Persons with Disabilities, Case Nos. 1D09-6257 & 1D10-618 (Fla. 1st DCA) (Co-counsel: Three Rivers Legal Services and Advocacy Center for Persons with Disabilities). These cases sought to invalidate APD’s emergency tier rules, thereby stopping the agency from making new tier assignments without going through the rulemaking process as set out in the Administrative Procedures Act. APD agreed not to use the emergency tier rules for permanent tier assignments, and the cases settled.
Discrimination
Carr v. Upper Pinellas Association for Retarded Citizens (UPARC), Case No. 87-2134 (Fla. 2d DCA 1987), reported in 11 ABA Mental & Phys. Disability L. Rptr. 341 (1987).
Sole counsel defending UPARC against an attempt to block the establishment of a group home in a residential district. The trial court’s holding that group homes can be barred by a deed restriction limiting use of subdivision property to single families was unsuccessfully appealed. Subsequent legislation in the Florida 1989 session, known as the Community Residential Homes Act, created a new Chapter 419 and alleviated the problem of barriers to siting of group homes for disabled citizens. Certain group homes were granted the right to site in certain residential districts. For certain other residential districts, a procedure was enacted to minimize possible discriminatory animus toward residents of group homes.
Collier County v. Training & Educ. Center for the Handicapped (TECH), Case No. 78-824 (Fla. 20th Jud. Cir.), reported in 3 ABA Mental Disab. L. Rptr. 111 (1979).
First case in Florida to challenge application of zoning restrictions on group homes on the basis of federal law violations. Served as sole counsel on behalf of group home residents with disabilities. Suit was initiated by county for alleged public nuisance and local zoning code violations that restricted non-familial residential groups. Counterclaims filed on behalf of residents based on federal Rehabilitation Act, Civil Rights Act and federal constitutional claims were upheld by trial court. These rulings came at a time when there was no precedent as to the application of these federal statutory and constitutional provisions to local zoning codes as they affected citizens with disabilities, and no precedent in Florida on whether state courts had concurrent jurisdiction to entertain federal claims under these civil rights laws. County ultimately dismissed action and residents permitted to continue their occupancy.
State v. Kinner, 382 So. 2d 756 (Fla. 2d DCA 1980), rev’d, 398 So. 2d 1360 (Fla. 1981), reported in 4 ABA Mental Disab. L. Rptr. 324 (1980).
At the request of the Florida Second District Court of Appeal, represented a class of developmentally disabled persons as amicus curiae in a case which challenged the constitutionality of Florida's statutory provision allowing for involuntary commitment of developmentally disabled persons to residential facilities. After the DCA found the provision unconstitutional, the Legislature amended the statute in a manner consistent with the position argued in the brief.
Employment
Arline v. Nassau County School Bd., 480 U.S. 273 (1987).
Co-authored brief in case concerning the rights of employees with tuberculosis. In a landmark decision, the Supreme Court ruled that people with contagious diseases are covered by federal anti-discrimination laws, and that employment cannot be terminated without an objective showing of a probable risk of harm to others.
Counts v. United States Postal Service, Case No. GCA-77-0028 (N.D. Fla., J. Stafford), vacated & remanded, 631 F.2d 46 (5th Cir. 1980), settled on remand by consent decree, (1983, J. Paul), reported in 17 FEP 1161; 24 FEP 677; 3 ABA Mental Disab. L. Rptr. 23; 7 ABA Mental Disability L. Rptr. 393; 3 Epilepsy Foundation Rptr. 6 (1983); 33 EPD ¶34,011; 24 EPD ¶31,381; 18 EPD ¶8,788.
Federal Rehabilitation Act suit against federal agency for denial of employment due to plaintiff's history of epilepsy. The trial court initially granted summary judgment with opinion in favor of federal agency. SLC was not counsel at this stage, but became lead counsel on appeal and argued the case. Appellate court vacated trial court judgment and remanded for new trial. Settled on eve of trial by consent decree, giving plaintiff employment position and $50,000 back pay relief. This was one of the first cases in the United States to challenge federal agency discrimination based on disability, and one of the first to establish private cause of action under the Congressional amendments of 1978 and the implementing regulations. This Fifth Circuit precedent was followed in other circuits and later adopted by the U.S. Supreme Court.
Kelley v. Bechtel Power Corp., 633 F. Supp. 927 (S.D. Fla. 1986, J. Hoeveler), reported in 47 FEP 83; 39 EPD ¶36,012; 10 ABA Mental & Physical L. Rptr. 187 (1986).
Disability employment discrimination case brought under the Florida Human Rights Act to challenge termination of employee with a perceived history of epilepsy from a nuclear power plant because of his disability. Case was removed to federal court by nuclear power plant operator. Plaintiff prevailed and received back pay award. Court wrote comprehensive opinion setting out the procedures, burdens of proof, and substantive standards for handicap law claims. Kelley became the benchmark for handicap employment cases under Florida law and the basis for Florida Human Relations Commission administrative cases on disability discrimination.
Institutional Reform
Bridges v. Sandstrom, Case No. 74-994-CIV-AH (S.D. Fla., J. Hoeveler).
Co-counsel with the Advocacy Center for Persons With Disabilities as amicus curiae to challenge the treatment of persons with mental illness (often homeless persons) in the Dade County jail system. Our nationally recognized experts prepared a short term plan which was adopted by the Court and implemented by Defendant Dade County to improve conditions. $945,000 was allocated for implementation of the expert's short-term plan. An additional $350,000 was allocated for a total increase in staff which more than doubled existing staff. Additionally, defendants completed necessary renovations on the floor that housed many of our clients. Defendants approved the most significant recommendation of our expert on diversion, which will steer homeless persons with mental illness away from the jail to housing in the community and assist them to negotiate the criminal system.
Florida Association for Retarded Citizens v. Martinez, Case No. 79-418-Orl-Civ-18 (M.D. Fla., JJ. Young, Kovachevich & Sharp). Major decrees entered in Oct. 1982, June 1985, June 1986 & Nov. 1989; significant orders reported or summarized in 7 ABA Mental Disab. L. Rptr. 464-65 (1983); 7 ABA Mental Disab. L. Rptr. 57-62 (1983); 3 ABA Mental Disab. L. Rptr. 406-07 (1979). Florida Ass’n of Retarded Persons, Inc., v. Bush, 246 F.3d 1296 (11th Cir. 2001).
First case in the United States to result in the judicially directed final closure of an institution for citizens with mental retardation. Served as co-counsel in trial proceedings (retained by court appointed guardian ad litem to represent class) and as lead counsel on enforcement and compliance. In 1982, an injunction required phase down and ultimate closure of institution with concurrent development of a new system of residential settings for class members in their home communities. The new system of homes was required to be licensed under the federal "Intermediate Care Facility/Mentally Retarded." Prior to transfer to the new community facilities, class members were to be comprehensively assessed and provided physical therapy services, including new adaptive positioning devices to correct for progressive deformity due to historical absence of appropriate physical management. At the time of the 1982 injunction, only one of approximately 520 residents was prescribed an appropriate positioning device, and there was only one physical therapist to serve the entire institutional population. By the time the suit closed, all class members had positioning devices if needed, and each of the 40-plus community facilities had a physical therapist and physical therapy aides. Moreover, all community staff were trained and received competency demonstrated certification to provide physical management services. Licensing surveyors with the Office of Licensure and Certification of the Department of Health and Rehabilitative Services were similarly trained and certified, and conducted annual on-site assessments of community facility compliance with decree standards on physical management which were incorporated in agency rules by court order.
The injunction also required comprehensive assessment of class members being fed by tubes. The institution was obligated to restore normal eating whenever appropriate and to reduce dependence on artificial feeding. Subsequent court orders required outside independent evaluations by a court ordered nutritional management team. All community staff were trained and certified in nutritional management, the decree's nutritional management treatment standards were incorporated in agency rules, and OLC surveyors were trained and certified, and annually evaluate community facilities for compliance. Significant non-compliance led to enforcement orders and decree amendments. Court-appointed professional treatment teams implemented the physical and nutritional management requirements, and created a fabrication shop for the positioning devices.
The State also was required to keep SLC apprised of where the class members were residing. In 1999, SLC moved the court for an order to show cause as to why defendants should not be held in contempt for failing to provide us information about our class members. The case had been administratively closed and the court lost the case file. Judge Sharp entered a brief order denying our request to re-open and recommended filing a new law suit. On appeal, the Eleventh Circuit issued an opinion reversing on the basis that the decree was a prospective injunction to which plaintiffs were entitled to enforce until the decree expires, or is modified or terminated, and that the procedures for show cause orders were the same even after a case is closed.
Johnson v. Bradley, Case No. 87-369-CIV-T-24-A (M.D. Fla., J. Bucklew).
This was an on-going mental health reform case involving the state institution G. Pierce Wood and its catchment area when SLC entered its appearance. While supporting the plaintiffs’ efforts to improve the treatment and services provided to persons with mental illness, SLC represented the named plaintiff and other objectors to the settlement agreement, which resulted in stronger monitoring provisions. SLC later represented the Advocacy Center for Persons With Disabilities as amicus curiae in part of the monitoring phase when the State attempted to avoid its agreements to improve conditions and expand services. Judge Bucklew refused to allow defendants to get out of their obligations. SLC withdrew as amicus counsel when the Advocacy Center assigned in-house counsel.
LeClair v. Williams, Case No. 81-0008 (N.D. Fla., J. Paul).
This individual wrongful death action by lithium overdose involved a severely disabled woman who was residing in a Gainesville institution for persons with developmental disabilities. The case was settled for statewide relief in 1983 regarding the proper administration of psychotropic drugs in Florida institutions, and closed in 2004 after two decades of statewide monitoring of the implementation of the settlement agreement.
Sanbourne v. Bush, Case No. 89-6283-Civ-Nesbitt (S.D. Fla., J. Nesbitt), originally filed as Gonzalez v. Martinez; summary judgment denial reported at 756 F.Supp. 1533 (S.D. Fla. 1991).
Class action involving the care and treatment of persons with mental illness confined to South Florida State Hospital (SFSH) and living in the South Florida community. The complaint alleged that the residents did not receive minimally adequate care at SFSH, and that the conditions at SFSH were physically and emotionally debilitating, causing the deterioration rather than the rehabilitation of the patients placed there. Specifically, individuals had a complete lack both of privacy and of control over the most basic and routine aspects of life, including routine group nakedness, a failure to provide personal clothing for patients, instead of ill-fitting, soiled "communal" clothing, inadequate dental care, and abusive staff. The case originally settled in 1993, with the State agreeing to correct the deficiencies at SFSH and to seek funding to improve the mental health services available in the community. After several suspicious deaths at SFSH, motions for contempt were brought on medical and treatment issues. The final settlement approved in 1999 required defendants to hire an independent consultant/monitor for a period of six months, conduct independent reviews of deaths until February 28, 2000, and provide SLC with documents which permitted the monitoring of conditions at the institution.
Special Education