Objections to settlement are heard in federal court

by Jane McClure  A decision is expected soon on a federal lawsuit centered on living choices and the promises of […]

Alexei Dickinson, signs at the ready, waited for the rally to start in front of building.

by Jane McClure 

A decision is expected soon on a federal lawsuit centered on living choices and the promises of Minnesota’s Olmstead Plan. A group of people with disabilities and their allies rallied May 12 outside of the St. Paul federal courthouse. They then heard argument centered on a proposed settlement in Murphy versus Harpstead.  
Spectators filled overflow courtrooms to watch the proceedings and also watched online. Judge Donovan Frank took written comments for a week after the hearing. He will rule in 30 days. 

A proposed settlement has been agreed to by the Minnesota Disability Law Center and the Minnesota Department of Human Services (DHS). Steve Schmidt, attorney for Disability Law Center, said the settlement was reached through “difficult, intense” negotiations and that it will bring real change. 

Assistant Attorney General Scott Ikeda spoke for DHS. In this case DHS is considered to be the client of the Attorney General’s office and doesn’t represent the state independently. 

The proposed settlement and documentation are almost 40 pages long. The class action lawsuit covers people ages 18 and older who are eligible for and who have received a disability waiver, live in a licensed community residential setting, and have not been given the opportunity and choice to live in the most integrated residential setting appropriate to their needs. 

The settlement was reached through mediation. It includes more than a dozen provisions that would have to be followed, to ensure that affected people know their rights to move out of their current homes and consider alternative settings. Providing this information and service would require specific steps to be followed in MnCHOICES assessments, specific tasks for case managers, and changes to the Community Based Services Manual. It would require more tracking of actions tied to housing choices and more information to be provided in a waiver recipient’s community support plan. 

Within three months of the settlement agreement DHS would generate a report for each county of financial responsibility, identify disability waiver recipients who live in licensed community residential settings, and see if those people meet specific criteria. Detailed steps would have to be followed. 

The agreement also calls for the plaintiff’s attorneys to be paid costs and fees of $1.138 million. 

Schmidt said the agreement isn’t the end of the work on integration, but that it is part of the solution. He said it would change the disability waiver system for the better,. 
Both Schmidt and Ikeda emphasized that the settlement is one of compromise, and both sides giving up things they wanted. Frank quizzed attorneys about details of the proposed settlement, and who would and would not be included. 

Attorney Misti Okerlund spoke for the objectors, some of whom she said came forward at great personal risk and fear of retaliation. “Many, many others are languishing in this broken system,” she said. 

Okerlund cited problems with various aspects of the settlement process, including notification and how it improperly places a burden on group home residents.

Sharing their stories 

Alexei Dickinson was one of the speakers at the rally. Dickinson spent most of his life integrated into his community. But living in two different group homes changed that.  
His homes were far from bus lines so he could not go places. Lack of staff meant residents couldn’t go anywhere unless it was as a group, with staff, to run staff errands. Dickinson wasn’t treated well. He finally was able to move in with family, find good staff and live how he chooses. 

“We need to come together to speak the truth,” Dickinson said. 

In the courtroom, Lauren Thompson, Lance Hegland and Kathy Ware spoke as objectors to the settlement. All are accomplished disability advocates.

 People who try to get out of group homes and into community-based settings fear retaliation, speakers said. Hegland said he is being evicted from his facility. 

Hegland lives with spinal muscular atrophy. He described not getting medications, and crying in pain with no staff to help him. He was told he was not entitled to privacy and that staff didn’t have to help him if they didn’t want to. Hegland believes the settlement won’t help him. 

Thompson has cerebral palsy. She was recently able to move out of a group home, but not before she dealt with staffing issues, miscommunications and misunderstanding. The home had more than 40 workers in her time there. 

“I only asked for the bare minimum (of services),” Thompson said. “I didn’t leave my room.” She had to remind herself that she is worthy of care. 

Kathryn Ware has an adult son with disabilities. She is an RN and certified MnCHOICES assessor, and a former case manager. She questioned whether the settlement is adequate, saying the crisis in staffing must be addressed. 

“People with disabilities deserve better,” said Ware. “They deserve to choose where to live . . . this agreement will solve none of that.” 

Began in 2016 

The lawsuit was filed in 2016 as a class action, with four lead plaintiffs. In the initial filing attorneys from Disability Law Center alleged that DHS is maintaining a “discriminatory” residential services system. 

At that time the state had about 3,500 group homes. The lawsuit claimed that people with disabilities were being directed into group homes. People were not being given housing options that would have allowed them to live more independently and have more life choices. 

Then-DHS Commissioner Emily Johnson Piper was the first lead defendant. She was replaced when Jodi Harpstead took the helm in 2019. 

The case provides a look into what has happened to housing options for disabled Minnesotans. Minnesota began closing its largest residential facilities for people with disabilities in the 1970s, and promoting four-person group homes as a better choice. The smaller facilities were touted as providing more personal service and the ability to live in one’s home area close to family and friends. 

Group homes are paid for through the state and federal health insurance program Medicaid, and what are called waiver services. 

Who are the plaintiffs? 

Three people are now lead plaintiffs: Tenner Murphy, Marrie Bottelson and Dionne Swanson. They and others in the class action described how their lives have been greatly limited by group home staff. They have been forced to go to bed as early as 7 p.m. or to eat supper at 4 p.m. due to staffing. 

Murphy lives with cognitive and physical disabilities due to brain cancer. He has completed high school, enjoys hobbies including archery, and has many friends. He also enjoys walking and was walking on a regular basis before he moved to a group home in 2010. But staff there made him use a wheelchair because there weren’t people to assist him.  

One issue raised is that Murphy has long been a very social person, but that other residents in his group home struggled to communicate. He has spent much time alone. 
Best friends Bottelson and Swanson long wanted to share an apartment, and have space to create art. Both have cerebral palsy and other disabilities. They use motorized wheelchairs and need assistance with some life skills. At the time the case was filed, both women were their own legal guardians. They could live independently if they had proper services and supports. 

A fourth plaintiff, a young woman who had lived in four group homes in six years, dropped out of the case. 

Olmstead’s role 

At the heart of the lawsuit is that Minnesota’s practices a violation of the 1999 U.S. Supreme Court ruling in the Olmstead versus L.C., et al case. That case, which has its roots in Alabama, was a landmark win for people with disabilities. 

Olmstead requires states to make sure that people with disabilities receive services in integrated settings. Community-based services are to be provided when such services are appropriate and when they can be reasonably accommodated. 

Minnesota was one of the last states to adopt an Olmstead plan. That happened as a result of a 2009 lawsuit centered on treatment of disabled people at the Minnesota Extended Treatment Options facility in Cambridge. Staff there was accused of using improper measures, such as seclusion and restraints, on residents. One resident had his arm broken after he touched a pizza box. 

Through Olmstead, Minnesota had planned to move 5,547 people into more integrated settings and to expand community alternatives by June 2019. One ongoing argument in the current court case is whether the state has met those goals. 

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