Wagons to Waivers Segment 11: The Lawsuit



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Wagons to Waivers - Segment 11: The Lawsuit
Reba McEntire: By the mid 1980's, the state was making progress in the development of community services. Even with the Medicaid waiver in place, and the state legislature and commission on board, community provider agencies were few and far between. State leaders recognized it would take time and a lot of money to build the state's community programs.
Jean Cooper: We got some statistics from some national researchers, and Oklahoma had done more to develop community services in that three or four year period than any state ever had done in that period of time, and we started from nothing.
Reba McEntire: By that time, problems had started brewing at the Hissom Memorial Center. A group of seven parents were unhappy about the quality of care their children were receiving, and reported their concerns to the department. At first they just wanted the problems fixed, but their demands soon turned into something more. They wanted their children to receive services in the community. Unfortunately, the service system was nowhere near ready to support the complicated physical and medical needs of many of the residents. The seven Hissom parents, along with other relatives and guardians, formed a nonprofit group and called themselves Homeward Bound, Inc.
Diana McCalment: From much of the media coverage, you heard about the seven parents who were very dissatisfied with services. And yet, there were huge numbers of parents that were not dissatisfied, or at least the dissatisfaction was minimal.
Reba McEntire: In 1984, conditions at Hissom fell below federal standards. Medicaid officials threatened to cut off 25 million dollars in funds to Oklahoma, unless improvements were made. On May 2, 1985, the Homeward Bound group filed a federal class action lawsuit against Hissom and various state officials.
Jean Cooper: The named plaintiffs were disappointed with the speed at which we were developing community services, and the array. And they did meet with us, and they just felt like our answer wasn't sufficient about what we were going to do. So, they did file a lawsuit, which I felt like was not the best way to achieve that end. I thought the state was working hard to do what needed to be done, and expanding services. I never questioned their impatience with us, but I didn't think that was the best way to get where we wanted to go.
George Miller: Getting a plan in place, and making it operational, are two different things, and it just wasn't to the point yet where we could take care of 450 clients coming out of that center in Sand Springs. And, the lawsuit extended to people who may not have been there at the time, but had been there at one time or another in their life. So that expanded the number of people that we had to serve tremendously, and we just didn't have the resources. We didn't have the group homes, we didn't have the trained staff, we didn't have all that stuff in place that we needed to when all this pressure was on us to get it done.
Diana McCalment: When the court case was filed and it became public

and we started reading about allegations in the newspaper, I think at one time murder was even one of the allegations. There was significant allegations about neglect and abuse, and most of the parents were dumbfounded at those allegations. But I don't think any of us believed those allegations. I would wager that 85 percent of the parents saw their children progress, rather than regress. Of course, as the court case went on, we realized some of those things apparently were true.


Reba McEntire: The department eventually enlisted the representation of the state Attorney General's office to handle the lawsuit.
Mark Jones: There were opportunities to settle that lawsuit before it ever was filed. The families that came to the department and had their grievances, many of their grievances had to do with the quality of services that were being provided at Hissom at the time. Others were that people wanted community services. They wanted to leave the facility, and they wanted the state to assist them in making that happen.
Diana McCalment: When the original court case was filed, and the seven parents filed it, I think that the majority of us absolutely believed that it would never involve our children; that that had to do with those seven parents and whatever individually had happened to their children, and wasn't going to have anything to do with us. And I guess now in retrospect, it's the classic case of denial. No, they would never involve all of our children, and no, they would certainly never close the institution. I mean, this was the state. And one of the reasons that many of us placed our children with the state was because we felt it was the one secure thing, that if something did happen to us, the state would be there. The state would take care of our family members.
Reba McEntire: On July 24th, 1987, after a long and rigorous trial in federal court, U.S. District Judge James O. Ellison ruled that Hissom be closed, and all of its 420 residents moved into community settings.
Diana McCalment: Primary emotion from the parents at the time when we finally got the verdict, the decree that Hissom would close, was absolute fear, because there were no systems in place. There was nothing that we could go and see. I likened it to the day David walked down the hall. I didn't know where he was going to be. So all of us as parents were eager to have community based services in our area developed. But we didn't want to be forced.
Reba McEntire: In 1988, the state appealed the court's order to close Hissom. During the appeals, the state started moving Hissom residents into their own homes, or the homes of relatives. On February 1, 1990, the state agreed to end the appeals and enter a mutual consent decree. The decree set an October 1994 deadline for moving the remaining residents. Judge Ellison then appointed three professionals to a review panel to oversee the closing of Hissom, and the state's compliance with the consent decree. By 1988, Jean Cooper saw that most of the community services was going to go to one group of people: the Hissom class members.
Jean Cooper: One of my biggest concerns, always, when I came was that we provide whatever improvements to everybody; that we couldn't leave any one group behind. And the way I described it to the court was, I didn't think we should create two classes of retarded citizens. I felt like everybody had to come along. So, in our last plan that we presented to the court, what we said was we'll take a look at the whole level of disabilities, and we will proportionately serve everybody. So if there were clients with more disabilities than others, whatever percentage of that group, we'd serve that group. And so, we tried to make it universally true, that every handicapping condition was served, every level of mental retardation was served, every part of the state was served. We ended up with a lawsuit and a consent decree that says we're going to abandon that plan, we're not going to listen to that plan anymore. We're going to deal with Hissom. Then I just said I couldn't continue under those circumstances.
George Miller: Another person that was extremely instrumental was Deborah Rothe. Deborah Rothe was an old time, long time, social worker with a master's degree and years and years of experience, who really was concerned about the well-being of children.
Reba McEntire: After Cooper left, Rothe was brought in to run the Developmental Disability Services Division.
George Miller: Phil Watson assigned her to go to Hissom and be the person that closed the thing down, and she did a great job in getting that thing wound down without a whole lot of hassle. She deserves a lot of credit.
Reba McEntire: After Rothe went to manage Hissom, the department brought in Eranell McIntosh-Wilson. Wilson was the director of an institution in Alabama, who had previous experience with a similar lawsuit in Michigan.
George Miller: Eranell was extremely professional and extremely knowledgeable. She stepped on a few toes along the way, but she got the job done.
Reba McEntire: During Wilson's tenure in Oklahoma, the state continued to develop and expand its community service systems statewide. As with all growth and change, there are growing pains, and building the community service system in Oklahoma proved to be painful and expensive.
Mark Jones: When the consent decree was approved by the court in 1990, there was not the significant investment in resources to community based services. The lawsuit provided the initiative to develop those services. The department, in each of its annual requests in the legislature and each of its annual appropriations, recognized that funding this lawsuit was going to be expensive, so there were unprecedented expenditures of public funds to make this happen.
Reba McEntire: By 1991, costs associated with the lawsuit grew so rapidly, for such a small number of people being served, that it caused the legislature and others to begin asking questions. Senate Joint Resolution 16 was passed to create a joint legislative committee to investigate Hissom lawsuit management and spending.
Howard Hendrick: I was one of the members of that. It was chaired by Senator Rosell from Tahlequah. I think the main thing that was a concern then was the cost per placement was so extreme. Several hundred thousand dollars per person. There were all these rampant costs, all these legal fees. And in hindsight, all change requires extra resources, but when you're in the middle of paying for all that change, you don't see very many people getting much benefit for it,

you say, "Man, why are we spending all this much money for one or two or three people, or a few people?"


Reba McEntire: On May 15, 1991, after just two years and nine months in Oklahoma, Eranell McIntosh-Wilson resigned and left the state.
George Miller: And then when she left, we were very fortunate to have Jim Nicholson available.
Reba McEntire: Nicholson was the right man at the right time.
Jim Nicholson: When I became division administrator, acting division administrator in May of 1991, my predecessor managed through fear and intimidation. People didn't talk to each other, no one in the state office had met anyone connected to the court, the review panel, or the plaintiff's attorneys. First monthly meeting that I had with them, we got a 15 passenger van from the motor pool and loaded up all of the program staff and took everybody to Tulsa to meet the review panel

so they could put names with faces, and we basically opened up all the communication. Because the review panel had a great deal of expertise in a lot of the areas they were causing us difficulty.


We were very fortunate in that we had Deborah Rothe at the Hissom Memorial Center as the superintendent, and Joanne Goin as the area manager in Tulsa. And they really pressed Case Managers and the facility staff to get people placed.
Reba McEntire: DHS continued to place the Hissom residents in communities all around the state. The last resident moved out on April 22, 1994, and on May 2nd, state officials declared the institution closed, five months ahead of the court's deadline.
Mark Jones: Well, from my perspective, the lawsuit did provide the impetus for developing community based services over a large geographical area. Although the Hissom Memorial Center was in Sand Springs, many of the class members chose to live in a variety of different communities. And so, in order to accommodate their wish, or the wish of their families, for the place where they would live, it required the development of a network of providers that pretty much covered the entire state, not just the greater Tulsa area. So what might've begun with just a handful of providers, by necessity became dozens and dozens of providers willing to serve people in a variety of communities, large and small, anyplace in the state.
Reba McEntire: Following the closure of Hissom, the Homeward Bound panel continued to have great influence, not only over the class, but also the state's community service system. In 1998, the state petitioned the court for an end to the consent decree and active court supervision. It would be another six years and three more hearings before the court finally ruled that the state was in substantial compliance.
Mark Jones: Eventually the court had ruled that the consent decree had been implemented, issued a permanent injunction that was approved by the court, and that in effect ended the litigation.
Reba McEntire: The order came on February 1, 2005, nearly twenty years after the suit was filed. Although the plaintiffs would file one last appeal, the long legal struggle was essentially over. The Homeward Bound lawsuit was undeniably the force behind the state of Oklahoma to develop and expand its community service system in just a few short years. But there was a price for that speed.

In addition to millions of state dollars invested in the service program, the state spent more than twelve million dollars in legal and court fees over the course of the twenty year litigation.


Mark Jones: Now looking back after nineteen years of vigorous litigation, that's something that I think everyone can learn from. We're in the people business, and we're here to use public funds in a responsible way to address needs of families and individuals. One can only speculate as to whether or not the lawsuit would've been necessary if in 1985 the state had been in a position to be a little bit more responsive to those requests for a new way of looking at caring for people with disabilities.
George Miller: As time goes on, they would've moved in that direction, there's no doubt about that. And we would've done it without so much trauma, and without so much expense.
Diana McCalment: People will choose what's best for their children. They will. And if they have a chance to see, instead of being forced, the level of terror - true terror - wouldn't have been there I think. Now, would we have had it accomplished in the amount of time that we did? No, certainly not.
Mark Jones: The main success of Homeward Bound is that there is truly an option; that people do not have to live in a congregated setting based upon their disability, but have the same opportunities as everyone else to live fulfilled lives amongst friends, amongst family. And that's what this lawsuit did. It said you don't have to live on the banks of the Arkansas River in Sand Springs. You can live where you want to, and where you're close to your family and your friends. I think that's the main result of the litigation.

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