Trial ends in Texas disabled patient suit

Decision may take ‘a while’ in non-jury class-action case

A month-long trial alleging the state illegally warehoused more than 3,600 intellectually or developmentally disabled Texans in nursing homes wrapped up Thursday, but a ruling is not expected until the first part of next year.

Chief U.S. District Judge Orlando Garcia of San Antonio said it may be “a while” before he decides the matter because he has to pore over the testimony of a multitude of witnesses and evidence presented during the non-jury trial. Following closing arguments Thursday, the judge also ordered additional legal briefings over at least the next month.

“I know the issue is incredibly important,” the judge said. “I will review everything carefully, the briefs . ... We will take the necessary time to decide the matter.”

The plaintiffs, disabled persons represented by organizations that include The Arc Texas and the Coalition of Texans With Disabilities, first sued state officials in 2010 alleging the state’s actions violated federal law and kept disabled persons from a better quality of life.

The case was later certified as a class action, and the Justice Department joined the suit as an intervenor in 2012, siding with the disabled plaintiffs.

In 2013, the state and the plaintiffs reached an interim settlement agreement that in part called for Texas to expand community services and create a service team for each disabled person. In return, the suit was put aside for two years, according to testimony. But the agreement was ended in 2015.

“We were on different planets. I think the planets were always far apart,” Elizabeth Brown Fore, deputy chief of the general litigation division for the Texas Attorney General’s Office, told the judge in response to a question during her closing arguments. “There was an effort so that an agreement could be made, but...some of the stickier issues were left to the end. The stickier issues should have been handled at the beginning.”

But, she added: “We don’t believe federal law requires what they believe federal law requires, and that’s what it boils down to.”

She further argued that the state is abiding by federal laws and goes beyond what requirements say, but that the actions failed to appease advocates.

“Everyone who has asked to leave a nursing home, or be diverted instead, and who has met the criteria and is safe, according to treatment officials, to be moved into the community and has requested it, has been moved into the community,” Brown Fore said. “It feels like every time we make a step, they say, ‘Ok, but it’s still not quite enough.’ ”

Trial testimony included expert witnesses dueling it out about what current or best practices are for dealing with the disabled, the varied care in nursing facilities and what federal law or regulations, including amendments over the years, say or mean.

Some of the disabled plaintiffs or their relatives also testified about how the disabled persons suffered setbacks — wearing diapers because they were unable to use the bathroom, gaining weight and developing diabetes from inactivity, for example — when they were placed in nursing homes.

A community setting, like being placed in a group home, gave them access to better quality of life, such as being able to get a job, take in a movie, visit with friends and family and attend church services.

Lawyers for the plaintiffs and the Justice Department said in closing arguments that the state violated the Americans With Disabilities Act, Medicaid rules and other federal laws through a series of shortcomings that included: An inadequate screening process to ensure that people who did not need to go to nursing homes instead got diverted into a community setting, or that if they were placed in a nursing facility, they did not get specialized services and that they were not even given adequate information that they had the option of seeking a community setting.

The plaintiffs want the judge to find that the state violated federal law and issue an order instructing officials to comply.

“The crux of our case is what is happening to 3,600 developmentally disabled people who are in nursing homes throughout Texas,” attorney Steven Schwartz with the Center for Public Representation, said in closing arguments.

“They should be receiving specialized services while there in the nursing home facility, active treatment and the opportunity to move out into the community.”

Schwartz and attorney Alexandra Schandell with the Justice Department, gave examples of disabled persons who languished in nursing facilities only to flourish when they were moved to a community setting.

Among them was Richard Krause, a disabled 38-year-old man who Schwartz said had no support, rehabilitative treatment or specialized services that were required while he was in a nursing facility from 2001 until 2014.

He went from sitting or lying in his nursing home bed, not being able to use the bathroom on his own and wearing diapers to working, getting around in a wheelchair, and going to the bathroom on his own when he was finally placed in a community-based setting with necessary support.

“It was only because of the advocacy of Disability Rights Texas, (pressure from his father) ... and because he was a named plaintiff that his life changed,” Schwartz said.

“For the other 3,600 people still in nursing homes, little has changed.”

“The crux of our case is what is happening to 3,600 developmentally disabled people who are in nursing homes throughout Texas. They should be receiving specialized services while there in the nursing home facility, active treatment and the opportunity to move out into the community.”

attorney Steven Schwartz with the Center for Public Representation