Multi-Year Lawsuit Seeking More Community Disability Services Ends; Linked Case Continues
Six years after it commenced and with funding in place
for several hundred more waivers to help people with developmental disabilities
live in the community, a federal lawsuit alleging Ohio didn’t do enough to
enable people to leave institutional care has ended, though settlement
obligations stretch through this year. Related litigation brought by guardians
of people in intermediate care facilities (ICFs) is still to be resolved.
U.S. District Court Judge Edmund Sargus officially ended Ball
v. DeWine -- known as Ball v. Kasich when it was filed in the spring
of 2016 -- after approving a settlement agreement in 2020. Disability Rights
Ohio (DRO), the nonprofit designated under federal law to advocate for people
with disabilities, helped to lead the class action lawsuit on behalf of
individuals, families and the Ability Center of Greater Toledo. The litigation
alleged systemic violations of the state’s obligation under disability law and
the U.S. Supreme Court’s Olmstead decision to allow people with
disabilities to get services and care in the most integrated, least restrictive
The plaintiffs in Ball launched the litigation to
address a years-long waiting list for people looking to leave institutions.
Kevin Truitt, legal advocacy director for DRO, said one study pegged the median
wait time at 14 years. “People literally were stuck, and so our lawsuit changed
that, made structural changes to the system and actually started funding
programs, these waiver programs, for this population,” he said.
Since March 2016, when the litigation launched, more than
1,300 people who were in institutional care are now living in community
settings. “We think the vast majority of those 1,300 are due to our lawsuit.
The change in the system that we got through our litigation helped those people
transition into the community. There’s going to be a certain number … of people
who maybe got out of an institution independent of our lawsuit.”
As part of the lawsuit settlement, the state funded an
additional 700 waiver slots, and also committed to providing counseling to
people on the availability of alternatives to institutional care.
The waivers allow people to get services that enable them
to live in the community, including personal care aides, meals, employment
help, home-delivered meals or assistive technology.
“It’s cheaper. There’s also a lot of research … about the
benefit of being integrated in one’s community instead of being isolated in a
facility -- just the benefits to a person’s happiness and emotional wellbeing,
and strengthening family relationships, expanding their social networks, being
in their community,” Truitt said.
The settlement agreement for the litigation extends until
January 2023. “Is the state going to continue moving in the direction of
funding waivers for this population? It’s not clear what’s going to happen at
that point. We hope the progress continues, but we’ll have to wait and see,” he
DRO provides its own counseling to people on their
options in addition to what the state offers. Truitt said DRO decided to do
this after seeing the relatively high rate of people declining to have the
conversations. “That concerns us, we were worried that people were not getting
all the information that they needed,” he said, noting the state’s contractor
for this counseling was contacting legal guardians for clients in facilities.
“It may be the person in the facility doesn’t even know about the waivers,” he
DRO wants to maximize waiver participation before
enforcement of the settlement ends. Once a person starts taking a waiver, it
becomes an entitlement.
Still pending before Sargus are claims filed by guardians
who intervened in the lawsuit, who argued there’s been a systematic attempt to
deny access to ICFs, even though institutional care is an entitlement under
The Ohio Department of Developmental Disabilities (DODD)
noted this continuing litigation in a statement on the end of the lawsuit.
“In accordance with the settlement agreement between
Disability Rights Ohio and the state of Ohio, Judge Sargus has dismissed all
claims brought by Disability Rights Ohio in a 2016 lawsuit. A group of
guardians of people who reside in intermediate care facilities (ICFs)
intervened in the lawsuit in 2017 because of fears that DRO’s claims in the
lawsuit meant that ICFs would be targeted for closure. The guardians claims are
still pending and trial is scheduled on those claims later this year. Most of
the requirements under the settlement agreement finalized in 2020 have been
completed, although a few obligations continue through January 2023. The 2020
agreement maintained and expanded existing initiatives and provided waiver
funding without harming the ICF program, ICF funding, or a family’s right to
choose an ICF for their loved one. DODD has and will continue to implement the
settlement agreement and will continue to support the ICF program, which is not
adversely impacted by the settlement agreement,” said the department.
A major source of uncertainty about the future is not the
pending end of settlement enforcement next year, but the workforce crisis
affecting the developmental disabilities sector and other care fields, Truitt
“That workforce is not stable right now. It’s hasn’t been
for years. It’s a workforce that has very low wages, high turnover. It’s very
hard for people, even if they’re enrolled in a waiver program, to find the
providers that they need,” he said.
“That’s a major challenge going forward, and the pandemic
has made all of this so much worse,” he said.
Truitt said the increased pay for direct support
professionals the state provided in recent years was welcome but relatively modest.
“It’s very much appreciated. Any new funding for this
workforce is something that we appreciate, but nowhere close to what’s needed
to fix this crisis. That’s just the reality,” he said.
“So many people in this field make the remark that you
can go work in fast food and make more money,” he said. “That’s the reality
right now, and it’s been that way for years, and it’s getting worse during the
“There’s more to it, but it’s never going to be fixed
unless we increase wages for this workforce,” he said.