Washington state negotiating settlement with Arc for disabled services in 1999 class action suit

The Arc (formerly the Association for Retarded Citizens) of Washington State in Olympia has concluded successful negotiations with Washington state officials over ways to spend $14 million for additional services for the disabled in 2003 and now is working with state officials to develop the next biennial budget request.

The negotiations arise out of the settlement of a 1999 class action suit filed by the Arc claiming that some 7,000 qualified people with developmental disabilities are entitled to Medicaid services funded by the state and federal governments. The lawsuit said the state was not providing its share of the funding. Settlement was announced over the summer.

"The Phase I negotiations to allocate the $14 million went very well," Sue Elliott, Arc executive director, tells State Health Watch.

She says a supplemental budget request must go to the state legislature by Dec. 1 and is hopeful that work on the biennial budget request can be finished early so that legislators will have plenty of time to consider and react to it before being asked to approve it next year.

The agreement will change the definition of covered class to all Division of Developmental Disabil-ities clients who are eligible for waiver services and are not receiving all the services they need with reasonable promptness, as well as those persons who may become similarly situated in the future prior to Dec. 31, 2006.

In Phase I of the settlement, the state Department of Social and Health recommended to the governor that an additional $14 million in state and federal dollars be added to the 2002 supplemental budget for FY 2003. The state is to maintain the increased services funded by the $14 million, which will be carried forward to the 2003-2005 biennium with an estimated $24 million per year.

The Arc says the emphasis in the new spending will be on implementing a choice-driven and self-directed system. Some of the funds will go to increasing the available out-of-parental-home residential options.

Although so far the Arc and the state administration have been in agreement on the terms of the settlement and uses for the funds, the legislature still will have to decide whether to fund the requests. If at any time the governor, state agency, or legislature don’t support the request, the Arc can ask the court to lift a stay that has been imposed and order a prompt trial.

As part of the settlement, the state of Washington will be paying the Arc attorneys’ fees of $275,440.25 and costs of $28,000.79, for a total of $303,441.04. The state also will pay additional reasonable attorney fees incurred by the Arc while the settlement agreement is pending, up to $50,000. That limit will not apply if the case has to go to trial.

Two advocacy groups have filed motions to intervene in the case, expressing concern that the class that is being certified is too large, Ms. Elliott says. "Our goal has always been to get as much money as possible for as many people as possible."

The Arc lawsuit was filed on behalf of four women who had waited several years for services. One of the four was born with significant developmental disabilities and now, according to court filings, is age 21, weighs 200 pounds, and becomes assaultive when stressed. She reportedly spends most of each day in her pajamas. For three years, the woman’s parents asked the Department of Social and Health Services to place their daughter in a group home. When the suit was filed in 1999, they were still waiting for a placement.

Washington state media have reported that the settlement followed damning revelations in a state audit of how the Division of Developmental Disabilities spent $200 million annually serving disabled people who choose to live in the community rather than in a state-run institution.

The audit found that the state’s oversight of services for the disabled was "so limited as to pose high risk for the individuals being served" and that the disabled were getting only 45% of the mandated services they needed.

Auditors said they found a 49-year-old mentally disabled woman living in a room in a private residential facility with rats and human feces. She had been given just two baths in four months, and although she had vomited and soiled herself, facility staff were not doing anything to help her. Agency officials said they were not surprised by the audit’s findings because the department has been so underfunded that case managers have had to handle as many as 141 clients each.

The Arc’s attorneys said the audit gave them additional ammunition backing their claim that people living in adult family homes need much more intensive service than they have been able to get.

The suit also promised relief to aging parents concerned that they could no longer care for their disabled adult children and unsure what will become of them. Elliott has said that increasing numbers of parents who are reaching their 60s and 70s find they no longer have the stamina to bathe, dress, feed, and entertain their adult disabled children. But the state budget has been so limited that they have been offered little relief. That can now change as a result of the settlement.

Linda Rolfe, the acting director of the Division of Developmental Disabilities, says there is a good chance the legislature will support the settlement because of the potential risks if the case went to trial. "We agree there are people out there who need support. The advantage of the settlement is that it allows us to plan for and develop these services over time," she adds.

The Arc has estimated that 9,000 of the 89,000 developmentally disabled people in the state are awaiting service and that 1,800 would initially have access to new or expanded services.

[Contact Ms. Elliott at (360) 357-5596.]

Correction

In the article on plan exits in the September 2001 issue of State Health Watch, we inadvertently misidentified the research organization that had looked into the issue. The report mentioned in the article is available from the Center for Health Care Strategies in Lawrenceville, NJ. Telephone (609) 895-8101.