Fighting the Good Fight

How Disability Advocates, Inc. Racks Up Wins for Mental Health Consumers and Families

Disability Advocates, Inc. is a public interest law firm in Albany, one of six in the state set up by Congress in 1991under the Protection and Advocacy for Individuals with Mental Illness law.
It's a kind of secret weapon for mental health consumers and their families, while keeping a low profile.
There are half a dozen lawyers manning the Albany office (at least three are women), sitting a floor above a famous eatery, McGeary's, just across from the Palace Theater, downtown. They serve a 16 county area, a regional legal resource for seriously mentally ill people. They will offer assistance to individuals and represent them in court, and on a broad scale they press litigation statewide in cases involving the civil rights of these folks.
In one of these cases, the office made news recently by winning a challenge to go to trial against NY State in a lawsuit involving residents of adult homes in New York City. Cliff Zucker, executive director of the agency, says he thinks the case is strong, alleging that the state violates the Americans with Disabilities Act by unlawfully segregating these residents from better housing they might have in the city.
The suit aims to force the state to end discrimination against the residents in these often decrepit buildings, impacted with mentally ill residents illegally sent there from state psychiatric hospitals. The charge is that the state is not finding other homes and apartments for them where they might receive more financial and other assistance. Zucker said he is preparing for trial May 11.
The nearly six-year-old lawsuit follows years of reports about horrific conditions for older and weaker residents in the homes. In 2002 an investigation by the NY Times of 26 adult homes revealed numerous deficiencies over patient safety, medical and money management and other shortcomings.
The federal judge noted in his decision that the state had failed to implement the recommendations of an adult home work group convened by former governor George Pataki to develop a timetable to move 6,000 adult home residents to alternative housing.
How did so many mentally ill residents wind up in these flea bags? we wondered back then. It turns out the state Office of Mental Health put one over on the advocates by keeping secret the mass move-out of state hospital patients to nursing homes in Brooklyn, New Jersey and Massachusetts in the 1990s.
We didn't know this was happening while we applauded the annual rundown in patient census at the big state hospitals on Long Island. The Office of Mental Health was shipping out patients who were costing the state more than twice the amount they would in these nursing homes. Medicaid paid the bill in nursing homes and adult homes but not in the OMH hospitals. The tragedy was the homes took the people in without always having staff and facilities to care for them, and the people were really sick.
This decision was the latest in a string of successes in court by Disability Advocates. Last year Zucker's firm won a lawsuit against the state for failing to honor a ruling in the Gowanda case back in the 1990s that forbade state hospital directors from taking the monthly social security checks of patients. They were using the money to pay their hospital charges instead of saving the money aside according to the patients' wishes. And now Governor David Paterson tried to restore the same practice by the hospital directors in a bill of his own but the legislature didn't buy it and refused to allow it.
Before that the PAIMI office and other law firms settled a five-year-old suit in trial in federal court against the state Department of Correctional Services and Office of Mental Health that led to the “SHU law”. It called for reforming the practice of putting mentally ill prisoners in solitary confinement 23 hours a day and instead putting them in treatment housing, training officers and changing hours of confinement. This ruling coincided with passage of the prisons' special housing law last year but it has not yet been implemented.
Disability Advocates won another suit in 2003 to have the OMH change its regulations so that residents in licensed community residences wouldn't be summarily forced to move out of them. These evictions, which Zucker's office claimed were violations of due process and equal protection of law, gave residents the right to challenge them and appeal an adverse decision. Housing sponsors still have the right to force someone out, however.
In the 1990s there were more court victories--over the state's termination of special education services for home-schooled children, over halting the state's practice of forcibly administering psychiatric medicine to non-dangerous patients; and another to stop the state from placing individuals judged incompetent in court in psychiatric hospitals, without regard to their dangerousness.
Zucker's office is sometimes confused with the state's Mental Hygiene Legal Services, which works out of the Appellate Courts and assists patients in the Capital District Psychiatric Center. Disabilities Advocates, on the other hand, represents seriously mentally ill people wherever they live—opposing, for example, the operators of nursing homes, adult homes and mental health community residences as well as private landlords and employers.
For these reasons the agency isn't always popular. It has a record of opposing parents and other close relatives of someone mentally ill who challenges them in court, too. There was a time when the PAIMI lawyers seemed too willing to take on cases against families when we tried to intervene in privacy matters over hospital or medical records involving our adult children. NAMI NYS board members didn't like them on the other side of t he fence.
But this doesn't happen much anymore, Zucker said. He thinks the families and his office are often in agreement with one another in cases about better housing and job rights and protections for disabled people. He sees our two groups working together harmoniously from here on out. Times have changed!
(Roy Neville)