Daily Law Bulletin highlights Olmstead legal coalition work

Steve Libowsky, pictured here, of SNR Denton served as lead counsel in the Olmstead Class Action case - Colbert v. Quinn
In late August, a coalition that includes Access Living, Equip for Equality, the ACLU of Illinois, SNR Denton, and the Law Offices of Steve Gold, announced a class-action settlement that will end the forced, long-standing and unnecessary segregation of people with physical disabilities or mental illness in nursing homes. The case, Colbert v. Quinn , was filed on behalf of people with disabilities who live in Cook County nursing homes and who receive Medicaid. The announcement marked a great victory for the disability community in Illinois. The Colbert settlement, along with the Ligas and Williams settlements (more about them below), will offer thousands of people with disabilities in institutions and nursing homes in Illinois the choice to live and participate in their own communities instead of institutions.

These milestone victories were years in the making. Because of the enormous number of resources and amount of time required in each of these cases, success would not have been possible if the organizations involved had not worked together. The organizations approached all three of the class-action cases as a coalition, and in each case, a private law firm provided pro-bono assistance. In the Colbert case, Access Living and Steve Libowsky of SNR Denton, served as lead counsel. The probono assistance of SNR Denton in the Colbert case was vital to move the case forward and ensure a successful outcome.

Recognizing the importance of non-profits working together and of probono support, the Chicago Daily Law Bulletin recently published an article highlighting the coalition that worked on the Ligas, Williams and Colbert cases.

The story is below and attached.

ARTICLE from the September 29, 2011

Partnerships lead to freedom for disabled citizens
By Kendra Reinshagen

What are your favorite guilty pleasures? Sleeping late? Staying up until the wee hours to watch an old movie when you have to be at work the next day? Snuggling down in bed early with a good mystery or your favorite DVD? Maybe it's shopping for shoes you don't need or hitting the second-hand stores. How about some forbidden chocolate or a sharp cheddar cheese, a good burger or the new seasonal beer at your local brew pub? Or maybe just spending the day alone and enjoying some precious time by yourself.

Most of us take for granted the ability to chose what to eat, when to eat, when to get up and when to call it a day. How would it feel to have no control over any of those decisions? To live according to someone else's schedule with little to no privacy and limited access to the world of friends and family? Thousands of developmentally disabled adults in Illinois are in the unenviable position of being able to answer that question from personal experience. Illinois institutionalizes more disabled adults in nursing homes and large group homes than any other state in the country. That is about to change thanks to the dedicated work of three legal service programs and the two law firms who partnered with them to challenge Illinois' dismal record. Partnerships between law firms and legal service providers aren't rare, but the approach they used was. It has resulted in a promise of systemic change that will dramatically improve the quality of life for thousands of our citizens.

In 1999 the U.S. Supreme Court held that unwarranted institutionalization is discrimination under the Americans With Disabilities Act. Olmstead v. L.C. 52 U.S. 581. It found that society historically isolated and segregated people with disabilities, a practice that the Americans With Disabilities Act was designed to eliminate. The court noted that unjustified institutional isolation is a form of discrimination for two reasons: It perpetuates an assumption that such persons are incapable or unworthy of participating in community life and also because such confinement diminishes the everyday activities of these individuals, including family relations, social contacts, work options, educational advancement and cultural enrichment. The court ruled that those who live in, are "at risk" of living in or are eligible for placement in institutions, have the right to live in the community if they and their treatment teams agree that they can live successfully in the community; they want to do so; and there are resources to help them live in the community.

After Olmstead, those states around the country that weren't already in compliance began working to ensure that their disabled citizens could begin transitioning from institutions into their communities. Illinois, which had one of the worst records in the country, set up committees and task forces to study the situation and propose solutions. Equip for Equality and Access Living were among those invited to serve on the committees. They eagerly set to work to create a blueprint for change. Unfortunately, things never seemed to get beyond the blueprint stage. Other states put services in place to support independent living and limit the size of their group homes to six people. In Illinois nothing changed. We continued our practice of placing those with physical and/or mental disabilities in nursing homes or in state-funded facilities with anywhere from nine to 250 other residents.

In 2005, advocacy groups for the disabled sent a letter to Gov. Rod R. Blagojevich expressing their concern that little or no progress had been made in the years since the Olmstead decision. They were willing to work with the government, but only if that work was going to make a difference. The governor didn't respond. According to Barry Taylor of Equip for Equality, "It became clear to us that the only way we would have meaningful change was through litigation." A class action on behalf of specific individuals and "all those similarly situated" was the obvious solution.

In Illinois, the type of disability you have or where you live determines the type of facility where you will be housed. One case could not adequately address all of Illinois' different approaches to institutionalizing disabled adults. To meet this challenge, three legal service programs filed three separate class actions with similar allegations and the same goal. They would pool their expertise, work together on similar issues but each take the lead on one type of case. Colbert v. Quinn was filed by Access Living on behalf of a man in his 30s, Lenil Colbert, who could read, write and balance his checkbook, but had spent 13 years in a nursing home with close to 100 elderly and infirm seniors in a community located far away from his family. The Colbert case also sought relief for the 20,000 other physically and/or mentally disabled adults confined to nursing homes. Williams v. Quinn was filed by the American Civil Liberties Union on behalf of the 4,500 mentally ill adults institutionalized in large state-funded private facilities. Equip for Equality filed Ligas v. Hamos for the approximately 6,000 adults with developmental disabilities in similar homes. The state chose to litigate all three.

Anyone familiar with class-action work knows what an enormous undertaking they are. While the legal service providers had plenty of expertise and commitment they lacked resources. Two law firms stepped in to help.

An incoming, first-year associate at Kirkland & Ellis LLP had interned over the summer with the ACLU and worked on the Williams case. She wanted to stay involved and approached partner Donna M. Welch about Kirkland co-counseling pro bono on the case. Welch eventually headed up the team for Kirkland, supervising three to four attorneys at her firm and working with two to three ACLU attorneys on Williams. SNR Denton agreed to co-counsel on the other two cases with Stephen D. Libowsky leading on Colbert and John I. Grossbart on Ligas. The legal service programs had experience and expertise in litigating specific issues related to disabled adults, the ADA and Title II issues. The law firms had the infrastructure to manage these massive cases with attorneys experienced in handling them. Internal data bases and Internet sites to host documents and track progress and deadlines were established by the firms. They provided administrative support to manage documents and discovery. Kirkland, with its expertise in class actions, took the lead on class certification. An unexpected benefit for those handling the cases was the significant prestige that the firms carried into the courtroom with them.

It took four years of litigation but the victory came this year. The ACLU reached an agreement and entered a consent decree with the state on Williams in March 2010; the agreement was approved in January. The agreement in Ligas was approved in June 2011 and the courts approved the settlement in the Colbert case this July. It is expected that the state will actually save money with the new approach outlined in the consent decrees.

Under the agreement, a case worker will meet with the individuals who have been identified to participate in the initial phase and determine the services they need to help them achieve independence. Some only need help in finding housing, some need rental assistance, some need medication support. Others may need assistance with transportation to their doctors or the grocery store. Each of the three agreements has an implementation plan to make sure that progress is made and the agreed-upon goals are being met. An advantage of using the litigation route means that there will be an independent monitor to oversee the state's compliance and the court will have continuing jurisdiction to enforce the consent decrees.

Equip for Equality cited the tremendous experience of working with the ACLU, Access Living and the law firms with all their resources as a major benefit of the partnership. Kirkland cited the collaborative experience of working with senior attorneys in the agencies. "Their insight and depth of knowledge was impressive. Even more impressive was the lack of turf wars between the agencies or firms. Everyone had their eye on the ball and on the larger goal of helping the clients," Welch said.

For Colbert, who had the courage to participate in a lawsuit against the facility where he was living and stick with it for four long years, the main benefit is obvious: a chance to become a full member of the community. A placement near his family has been identified and he will be moving there in the next few weeks to sleep late, make his own meals with food he likes, invite friends to visit and stay up as late as he wants.

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