Texas Guardians Sue the Department of Aging and Disability Services

After months of protesting and petitions, guardians of disabled Austin State Supported Living Center residents – ordered to transfer their loved ones from the place they call home – have taken their fight to court.

In June, families received a letter from the Department of Aging and Disability Services, notifying them it would be closing seven cottages at the West 35th Street SSLC, due to staffing shortages. Seventy-one residents with intellectual and developmental disabilities would need to either find placement at a community home or move to an SSLC outside of Austin – most likely Bren­ham or San Antonio, placing the disabled up to 90 miles away from their support networks. (See the Chronicle's Sept. 19 cover story "Evicted and Helpless.") The Sunset Advisory Commission separately recommended closing the Austin SSLC altogether, largely for cost-saving reasons; the final decision will be made by the Legislature. Some caretakers of severely disabled residents are concerned that the vulnerable SSLC residents would not be able to survive in a community/group home setting.

Today, of the 71 residents asked to leave the SSLC, 34 are going to a residence in the community and 24 are transferring to other SSLCs. But according to DADS spokesperson Melissa Gale, 13 have chosen "other options" – including 11 who have requested an administrative hearing to contest the proposed transfer, and guardians Stephen Wallace and Forrest Novy, who have each filed lawsuits to challenge the decision made by state health officials.

Fighting to keep his severely autistic son, Justin, at the SSLC, attorney Wallace filed suit against Texas Health and Human Services Commissioner Kyle Janek, Deputy Commissioner Chris Traylor, and DADS Assistant Commissioner Scott Schalchlin in U.S. Western District Court in late August, alleging violations of equal protection and due process. State officials offered only two alternatives before "forced eviction": move to a community setting or to the SSLC in Brenham. Absent any compelling reason based on Justin's actual needs, Wallace charges, the option to remain at the Austin SSLC wasn't even on the table. "The state actors, without proper planning or preparation, seek to commence life-changing and possibly life threatening alterations to this severely handicapped individual's services," writes Wallace.

Other guardians contesting the eviction say they're also considering legal action. Jeanette Ball, the 90-year-old mother of a 43-year SSLC resident with brain damage and seizure disorders, said she doesn't feel her son would be able to receive equal care in a community setting and that she would not be able to make the 80-mile journey to San Antonio to visit him. "It's his home. These are the only people he knows, besides family members," said Ball. Autistic and blind Bradley Brisbane's mother, Emma, says her son has lived at the Austin SSLC for more than 40 years, and she fears for his safety if transferred. Carol Cook, a single mother of an SSLC resident with behavioral disorders and uncontrollable seizures, is also challenging the transfer. "Someone else is making these decisions and I don't have a choice," said Cook. "I think that's the worst thing."

The lawsuits, while delaying the transfers, may simply prolong the inevitable. "We know it's a David versus Goliath battle; we know we might be grasping at straws," said Justin's mother, Debra Wallace. "But what else are we supposed to do? Just give up?"

Guardians also wonder if these agency plans have been in the works well before the eviction notices. For years, the developer who owns land 75 feet from the cottages sought rezoning for multifamily housing, and in 2007, Texas Land Com­mis­sioner Jerry Patterson urged the Austin City Council to rezone the land, and the state to sell or lease the "underutilized" SSLC property to "maximize" the land value of the 95-acre tract of potentially prime Westside real estate. In May 2014, Council finally agreed to townhouse and condo zoning for the adjacent tract. A month later, state officials notified SSLC residents of the closure.

Full Article and Source:
Guardians Sue DADS

Advocates Push for Reform of Adult Guardianship System in Texas

It all started when Denise Tighe passed out at a restaurant in her North Texas hometown. The 85-year-old was taken to the hospital, deemed incapable of properly caring for herself and became a ward of the state against her will.

After she was assigned a guardian in 2011, she was taken to a nursing home 20 miles from her hometown near Fort Worth, which she adamantly protested, and her home and a lifetime of jewelry and antiques were put up for sale. She died in January with friends and family questioning whether the state did her more harm than good.

Now one of Tighe’s friends, Virginia Pritchett, is pointing to what happened to Tighe as an example of a broken adult guardianship system in Texas.

Pritchett is one of about two dozen advocates who gave testimony to the state Sunset Advisory Commission on Wednesday hoping to spur change. They say the guardianship process is stripping the rights from competent people and dragging them through a court system that requires them to spend thousands to protect their independence.

The push has gained momentum since the last legislative session when only a handful of critics lobbied with little success. Since then, a coalition of disability and elderly groups from across the state has banded together to develop and refine a set of proposals for the next session — calling for guardianships to be the last option and for more independence for wards of the state.

These elderly people are being warehoused in nursing homes, and these court-appointed attorneys are going through all their money in court hearings that the elderly people don’t even know is occurring,” said Debby Valdez with the San-Antonio based Guardianship Reform Advocates For The Disabled &  Elderly.

Adult guardianship cases are lawsuits designed to ensure vulnerable seniors and people with disabilities are not abused, neglected or exploited. A probate court must determine whether people are competent enough to keep themselves safe and healthy. If the answer is no, the judge can appoint a guardian to make medical, financial and other decisions for them.

Lawyers and judges have said that the system is protecting people and that proposed changes would leave people more vulnerable and throw unnecessary roadblocks into the process.

Texas has about 46,000 people in guardianship, according to the state. Between September 2011 and August 2012, more than 4,500 adult guardianship petitions were filed in probate courts across the state. Of those, 206 were filed in Travis County.

Advocates say that guardianship should be the last option for proposed wards and supported decision-making should be the alternative. This means allowing people with limited disabilities to hire supporters whose jobs are strictly to give information so they can make decisions for themselves.

“Even though it seems counterintuitive, not all people under guardianship are totally unable to make decisions,” said Bob Kafka with the Austin-based group Guardianship Reform and Supported Decision Making.

Supported decision-making has also garnered the support of former Texas Health and Human Services Commissioner Tom Suehs.

A few years ago, the Travis County probate court appointed Suehs’ mother-in-law a guardian ad litem, whom she paid about $300 an hour. She also hired her own attorney to fight the process.
After $30,000 in court fees, Suehs’ mother-in-law settled the dispute in mediation and she got her independence back.

“Some people have started using guardianship as an easy way out, to try to attack and resolve family disputes when they don’t need to,” Suehs said. “My own personal belief is that over the last five or six years, lawyers are creating an industry here."

Suehs worked with lawmakers in the last legislative session for guardianship reform, but some laws passed that did more harm than good, according to advocates. The law that has garnered the most criticism gives guardians the authority to decide where a ward can live and peace officers must enforce it.

“It gives the guardian the authority to call the police and say, ‘I’ve got a court order and I can remove the little old lady from her house,’” Valdez said.

Advocates want people under guardianship to have the ability to decide where to live. And guardians should be forced to visit with their wards monthly and submit reports that are reviewed by the court, advocates say.

“Every alternative must be explored before even thinking about taking away someone’s civil rights,” Kafka said.

Source:
Advocates Push for Reform of Adult Guardianship System in Texas

LISTEN and WATCH the archive of the Sunset Advisory Commission.  Note:  fast forward to 9:27.00

From the Advocates at GRADE: Texas Sunset Advisory Commission

The Texas Sunset Advisory Commission (the "Sunset Commission") is putting DFPS, APS, CPS and DADS under a microscope, this could result with huge policy and regulatory changes. We urge the general public with issues regarding these agencies (Department of Family Protective Service (DFPS), Department of Aging Disability (DADS), Adult Protective Service (APS), Child Protective Service (CPS)) to contact the Sunset Advisory at (512) 463-1300\

WHY SHOULD YOU CARE ABOUT SUNSET?
The Commission seeks public input on every agency under Sunset review and recommends actions on each agency to the full Legislature. The Sunset review of most agencies occur every 12 years, and any negative outcome could have significant long-term impact. Please voice your concerns with the Sunset for these agencies Department of Family Protective Service (DFPS), Department of Aging Disability (DADS), Adult Protective Service (APS) and Child Protective Service (CPS).

It is imperative to contact the commission by May 15 as well as participating in the public hearings June 24 to June 25, 2014 (Tentative)

Sunset Commission Project Manager Contacts
Project Manager for DFPS - Amy Tripp
Project Manager for APS - Amy Tripp
Project Manager for CPS - Amy Tripp
Project Manager for DADS - Amy Trost

Next Public Meeting (Testimony): June 24 to June 25, 2014 (Tentative)

For more information please go to: https://www.sunset.texas.gov/reviews-and-reports
Public Input Form for Agencies Under Review https://www.sunset.texas.gov/input-form

Texas Judges: Out of Order - Part 2

Complaints about Texas judges are usually handled in secret and rarely lead to punishment. That’s what state lawmakers heard when they met to review the Texas Commission on Judicial Conduct, the agency that disciplines judges.

Today Shelley Kofler continues our series, Texas Judges- Out of Order. She takes a look at why the agency is under attack and changes the legislature may consider.

Every 12 years or so state lawmakers appointed to the Texas Sunset Commission look at the operations of a state agency and recommend changing or eliminating the agency.

But this year when the Sunset staff asked to observe disciplinary hearings for judges and look at the handling of citizen complaints, the Texas Commission on Judicial Conduct said no, that the Texas Constitution requires information about judicial proceedings be confidential.

The judicial commission’s resistance to open its meetings and records even to state officials lead to a heated confrontation in April between State Senator John Whitmire of Houston and the judicial conduct commission’s board chairman Thomas Cunningham.

“Do you have a recommendation for how we resolve this,” Whitmire asked Cunningham. “Because I promise we’ll be doing the same thing two years from now if we have to,” he added his voice growing louder with frustration.

“There are alleged conflicts of interest and biases and misconduct, and the public has nowhere to go but to turn to y’all,” Whitmire said.

“We are not here to be stonewalling. All we are doing is complying with the law as we see it,” Cunninham responded.

Citizens testified that the agency’s secrecy makes it impossible to know whether Texas’s 3,910 judges are being held accountable. Austin attorney Bennie Ray told lawmakers that even when judges are punished it’s a slap on the wrist in a closed meeting.

“There’s no way for the public or a voter to easily track a judges complain history. Judges could have a number of informal complaints and nobody would know about them,” Ray testified.

The Sunset report says the judicial commission received more than 1,100 complaints last year. Most were dismissed. A little over two dozen were sanctioned in private. Only six judges were publicly scolded and identified but they all kept their jobs.

Full Article and Source:
Texas Judges: Out of Order - Part 2

See Also:
Sunset Commission Report on Judicial Conduct

Texas Judges: Out Of Order