Martin v. Voinovich, No. C-2-89-362.

• Citation: 840 F. Supp. 1175
• Decision Date: 14 December 1993
• Docket Number: No. C-2-89-362.
• Parties: Nancy MARTIN, et al., Plaintiffs, v. George VOINOVICH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

840 F. Supp. 1175

Nancy MARTIN, et al., Plaintiffs, v. George VOINOVICH, et al., Defendants.

No. C-2-89-362.

United States District Court, S.D. Ohio, E.D.

December 14, 1993.

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Robert Scott Mills, Columbus, OH, for plaintiffs.

Beverly Pfeiffer and Lisa Sotos, Asst. Atty. Generals, Columbus, OH, for defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Presently before the Court is defendants' consolidated motion to dismiss the second amended class complaint (Complaint) under Fed.R.Civ.P. 12(b). (Doc. 150). Plaintiffs represent a class consisting of persons in Ohio with mental retardation or developmental disabilities. Plaintiffs contend, inter alia, that defendants have denied them community housing and other services in violation of plaintiffs' rights under the U.S. Constitution and other federal laws. Plaintiffs assert claims under: § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12150; Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid); the Developmental Disabilities Act, 42 U.S.C. §§ 6000-6003; and the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.¹

I.

Plaintiffs, Nancy Martin, Kathy R., Claude Martin, and Allen T.,² represent a class consisting of all persons in Ohio with mental retardation³ or developmental disabilities⁴ who are or will be in need of community housing and services which are normalized, home-like and integrated. Complaint, ¶ 142. A subclass consists of all persons who, in addition to being members of the class, are or will be recipients of Medicaid. Complaint, ¶ 143. Plaintiffs seek injunctive and declaratory relief under federal and state laws and the U.S. Constitution to compel defendants to develop community placements and housing options in sufficient numbers to meet the needs of the class.

Defendants are the Governor of Ohio (George Voinovich), the State of Ohio, the Ohio Department of Mental Retardation and Developmental Disabilities (ODMR/DD), Jerome C. Manuel in his capacity as director of ODMR/DD, the Ohio Department of Human Services (ODHS), and Arnold Tompkins in his capacity as director of ODHS.

Plaintiffs contend that they cannot find places to live in the community because defendants have failed to create housing options in sufficient numbers to meet the needs of the class. Plaintiffs further argue that plaintiffs are now living in institutions or other large facilities, when they should be living in the community, or they are now living with their families at home, but are not receiving the services they require to remain in the community and avoid being sent to an institution.

II.

The following facts are derived from the Complaint. The Court accepts them as correct only for purposes of ruling on defendants' motion to dismiss. Plaintiffs, Nancy Martin, Kathy R., Claude Martin, and Allen T., represent more than 9,000 people in Ohio who have mental retardation or other developmental disabilities. The backgrounds of the four named plaintiffs are summarized below.

A. Nancy Martin

Plaintiff Nancy Martin is forty-four years old⁵ and currently resides at Echoing Ridge Residential Center, an institution in Canal Fulton, Ohio (Stark County).

In May 1993, Ms. Martin had surgery to insert a Peg Tube. The peg tube is used to administer liquids and medications into her stomach. A Peg Tube became necessary due to increased problems with swallowing, caused by Ms. Martin's physical disabilities. Because of her Peg Tube, Ms. Martin needed twenty four hour nursing staff availability. As a result, she was relocated from Echoing Lake in Lorain County to Echoing Ridge in Stark County.

Echoing Ridge is a more restrictive facility and farther from her family. Because of the relocation, Ms. Martin had to quit her job in a sheltered workshop operated by Lorain County Board of Mental Retardation and Developmental Disabilities (BMR/DD). Ms. Martin is unable to work in a similar setting due to a long waiting list for workshop services provided by the Stark County BMR/ DD.

Ms. Martin resided at Mount Vernon Developmental Center from March 30, 1966 through October 9, 1991.⁶ Ms. Martin expressed to Mount Vernon staff her desire to move to a community group home. Moreover, staff of ODMR/DD acknowledged for many years the inappropriateness of Ms. Martin's placement at Mount Vernon. ODMR/DD recommended for many years that Ms. Martin be moved to a community group home. Nevertheless, the habilitation plans⁷ for Ms. Martin did not include goals to increase her independence and integration into the community.

A noninstitutional placement in the community has not been and is not available to Ms. Martin, and there are virtually no small noninstitutional community homes for people like Ms. Martin with mental retardation and significant physical handicaps.

B. Kathy R.

Plaintiff Kathy R. is forty-one years old⁸ and currently resides in Gallipolis Developmental Center (GDC) operated by defendants Manuel and ODMR/DD. Throughout her institutionalization, she has been medicated with psychotropic medications. Recently, her medication has been increased. One of the side effects of the medication is akathesia. Akathesia is a subjective feeling that the individual must keep moving.

Kathy R. lived in community residential settings from April 1974 through October 1984. She was reinstitutionalized involuntarily due to her behavioral handicap and mental illness. Kathy R. states that she does not wish to live in GDC and wishes to live in a community group home.

ODMR/DD has determined that an appropriate placement for Kathy R. is in a small licensed group home/foster home which offers 24-hour supervision, behavior management programming, medical services, psychological and/or psychiatric services, social services, community recreational activities, workshop participation, or community based employment. Nevertheless, the habilitation plan for Kathy R. does not include goals for her integration into the community. There are virtually no small community homes for people like Kathy R. with mental retardation and mental illness.

C. Claude Martin

Plaintiff Claude Martin is forty-five years old⁹ and currently resides at Echoing Valley Residential Home in Dayton, Ohio.¹⁰

Mr. Martin has tried without success to find a place to live that provides semi-independent living with some attendant care services. He wrote to then defendants Celeste and Brown and to the Dayton Daily News. The Dayton Daily News published his letter which expressed his desire to live in a semi-independent living arrangement in the community and explained how he had been denied placements because of his mobility impairment.

A non-institutional placement in the community has not been and is not available to Mr. Martin. Mr. Martin's case manager at the Montgomery County BMR/DD tried without success to find a residential placement for Mr. Martin. Mr. Martin is on a residential waiting list in Montgomery County.

Mr. Martin was denied placement at LADD¹¹ group homes in Cincinnati because of his alleged behavioral handicaps and physical handicaps. Moreover, in August 1990, Choices in Community Living, a residential service provider in Montgomery County, determined that it could not provide services to him in semi-independent placement in part because Mr. Martin is not independent in transferring.

The habilitation plan for Mr. Martin does not include goals for his integration into the community. The plan shows that while Mr. Martin has clearly expressed his preference to live alone in an apartment-like setting, Echoing Valley has been working with him on becoming more receptive to other options, such as group homes or rooming with at least one other person "due to the hindrance of the transferring inability."

Mr. Martin filed a discrimination complaint with the Office of Civil Rights of the Health Care Financing Administration (HCFA). The complaint alleged that he had been discriminated against on the basis of his mobility impairment by LADD and ODMR/DD. HCFA combined Mr. Martin's complaint with complaints by two other individuals with mental retardation and mobility impairments. HCFA sought a voluntary remedial agreement with ODMR/DD to correct the alleged discrimination. ODMR/DD refused to sign the proposed agreement.

Currently, Mr. Martin is on a waiting list to receive Home and Community Based Waiver services through the Individual Options waiver. All slots that have been approved by the federal government for the Individual Options waiver have been assigned. The waiting list contains 4,000 people. There are approximately 850 people ahead of Mr. Martin on the list.

D. Allen T.

Plaintiff Allen T. is thirty-three years old¹² and currently resides at Overlook Castle Nursing Home¹³ in Millersburg, Ohio. Allen T. was admitted to Overlook twenty-five years ago when he was 8 years old.

As a result of his Annual Resident Review (ARR), speech therapy was recommended. Defendant Manuel's staff required that the speech therapy be provided by Overlook. According to plaintiffs, this requirement deprived Allen T. of specialized speech services which would maximize his independence. Speech therapy funded through a nursing home is typically short term and provided under a lesser standard than specialized services.

Allen T.'s ARR for the past two years determined that he is not appropriately placed in a nursing facility and that he requires specialized services. Allen T. has never been given this information in any manner that could be meaningful to him. In the first year, his case manager signed the consent form that documents that these alternatives were offered; the case manager's decision was that Allen T. wished to remain in the nursing facility. According to plaint...