Advocating and advancing the human, civil and legal rights of persons with disabilities
formerly known as New Jersey Protection and Advocacy, Inc.
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Advocating and advancing the human, civil and legal rights of persons with disabilitiesformerly known as New Jersey Protection and Advocacy, Inc. | ||
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• DRNJ Sues State Over Division of Developmental Disabilities Residential Waiting List Disability Rights New Jersey and Lowenstien Sandler, a prominent New Jersey law firm, filed a complaint in the U.S. District Court against the Department of Human Services, saying 8,000 people with developmental disabilities have had their rights violated because they have been waiting too long -- some for a decade -- to move into Division-sponsored community housing. The lawsuit alleges the state is failing to meet its legal responsibility to provide housing for people who want or need to live outside of their family homes. The Department has established a waiting list, but few ever leave it unless a parent or other caretaker becomes ill or dies, the lawsuit said. "These individuals have been for years diverted to a so-called 'wait-list' for such services, with no guarantee, and little hope, of accessing the services they need," said R. Scott Thompson of Lowenstein Sandler. "The failure of the state to provide community services for thousands of individuals has had a devastating effect," said Emmett Dwyer, DRNJ's Director of Litigation. "Thousands of people are stuck at home going nowhere, and many of them have been unnecessarily placed in institutions when their elder parents could no longer care for them." Waiting List Case Developments... On June 29, 2009 the U.S. Department of Justice (“DOJ”) filed a brief in DRNJ’s waiting list case against the State of New Jersey. The DOJ’s brief rebutted the State’s claim that the Americans with Disabilities Act and the Rehab Act were not constitutionally valid, and that DRNJ was attempting to apply the rights established under Olmstead in an impermissible manner. Olmstead established the right of institutionalized persons to obtain a community placement, but it says nothing about people already residing in the community with their parents having a right to a community placement. Despite that omission DRNJ alleges that Olmstead does apply to people living in the community. The Department of Justice agreed with DRNJ and stated the following: “The primary point of Olmstead is the importance of integration, and the language of the [Olmstead ] opinion is broad enough to have put the state on notice that qualified individuals should not be institutionalized unnecessarily, regardless of their current situation. *** These principles are equally applicable whether the person already resides in an institution or, as here, is integrated into the community but is seeking community-based services so as to avoid institutionalization.” Click here to access a copy of the DOJ brief. On July 20, 2009, the Court denied the State's motion to dismiss. Click
here to access a copy of the Court's decision. • DRNJ Sues New Jersey Department of Education on Behalf of Children with Disabilities Disability Rights New Jersey, along with Lowenstein Sandler PC, the Education Law Center, and the Hackensack law firm Loughlin & Latimer filed a lawsuit on June 27, 2007, in the United States District Court for the District of New Jersey against the New Jersey Department of Education to enforce laws governing the education of children with disabilities. Plaintiffs in the case are DRNJ, the Education Law Center, the Statewide Parent Advocacy Network of New Jersey and The Arc of New Jersey on behalf of children with disabilities across the state. "Countless children with disabilities in New Jersey have been unnecessarily segregated and denied their right to an inclusive education, to the maximum extent appropriate, with children who do not have disabilities," said lead attorney David L. Harris, who chairs Lowenstein Sandler’s Litigation Department. "The State’s Performance Plan holds little promise for redressing this situation within the educational lifetime of today’s students." Sarah W. Mitchell, Former Executive Director of DRNJ added that New Jersey has been cited repeatedly by the U.S. Department of Education for its failure to implement the Individuals with Disabilities Education Act. "This litigation is prompted by the State's failure to step up to the plate and take this issue on with the resolve and attention that it deserves," she said. "With few exceptions these deficiencies are the norm throughout New Jersey's 640 plus school districts due to lack of enforcement of the special education mandate to provide students with disabilities a 'free and appropriate public education' in the 'least restrictive environment' ," said special education attorney Michaelene Loughlin of the law firm of Loughlin & Latimer. In November, plaintiffs filed a brief in opposition to the defendent's motion to dismiss. Disability Rights New Jersey continues to litigate the case of Disability Rights New Jersey v. New Jersey Department of Education which seeks to ensure that students with disabilities in New Jersey are educated in the "least restrictive environment." Pursuant to a Court Order in the case, DRNJ is posting a "Notice of Disclosure of Student Records" in English and Spanish to allow DRNJ and its co-plaintiffs -- Education Law Center, The ARC of New Jersey and the Statewide Parent Advocacy Network -- to obtain relevant documents. To access the notices and disclosure forms, please click here for English or click here for Spanish. • Lawsuit Charges State with Illegal and Unnecessary Segregation of Residents in Psychiatric Institutions On April 5, 2005, Disability Rights New jersey filed a lawsuit in federal district court against James Davy, Commissioner of the Department of Human Services for the State of New Jersey. The lawsuit seeks the release of hundreds of New Jersey residents from unnecessary confinement in state psychiatric institutions. Nearly half of all individuals in state psychiatric hospitals remain confined needlessly because the State of New Jersey has failed to develop suitable community residences and programs to support their return to the community. The Conditional Extension Pending Placement (CEPP) status was created by the State Supreme Court in the 1983 S.L. case [In re S.L., 94 N.J. 128 (1983)] to give the State time to develop community placements before discharging individuals. Now, however, CEPP status is used by the State to retain those individuals long past their need for hospitalization. According to Emmett Dwyer, Director of Litigation for DRNJ, “The State has for far too long failed to live up to its obligations under the Americans with Disabilities Act (ADA) as interpreted by the United States Supreme Court. The State continues to retain large numbers of individuals in locked and dangerous facilities while simultaneously failing to plan for their discharge and transfer into the community with appropriate supports. The time these individuals have lost and continue to lose in institutions can never be regained. Their continued confinement long after a court has determined that they are no longer a danger to themselves or others constitutes an egregious violation of their rights.” Carol C., a 60 year old woman who was committed to a state psychiatric hospital in 1993, is but one of hundreds who was illegally confined. Less than one month after her commitment, the court determined that Carol could be discharged. Twelve years later she remained hospitalized despite her desire to return to the community. For years she remained hospitalized on a restrictive and volatile ward where she endured assaults from other patients. Such assaults frequently required emergency medical treatment. Likewise, Brian B., a 38 year old man has been hospitalized since 2003 on CEPP status despite the judgment of both the court and his doctor that he is ready for discharge. Both Brian and his mother wish for his return to the community where he can enjoy his interests in music and cooking. But because the State has failed to find a community placement, Brian remains hospitalized on an extremely violent ward where his safety and security are in jeopardy. Sarah Mitchell, DRNJ’s Former Executive Director/President, states that, “We applaud Acting Governor Codey for his long time commitment to addressing the needs and concerns of people with mental illness. The work of the Mental Health Task Force is certainly further evidence of this. But we read nothing in the Task Force’s recently released report to suggest that the rights and needs of the individuals we represent in this lawsuit will be addressed anytime soon. New Jersey has long been on notice about its unnecessary confinement of large numbers of individuals on CEPP status, without developing the placements and supports necessary for their transfer to less restrictive community placements. The State is in violation of both the letter and the spirit of the law we know as the Americans with Disabilities Act. The U.S. Supreme Court in the Olmstead v. L.C. case, 527 U.S. 581 (1999), discusses such unnecessary segregation as illegal discrimination based on disability. The individuals on CEPP status that the State has kept waiting in institutions long past their need for such restrictive settings deserve more than recognition that the CEPP situation is a problem. They deserve an immediate plan that details, within a reasonable time frame, when they can expect to return to the community." In their lawsuit, DRNJ charges that the State not only ignores the mandates of Olmstead and the ADA, but also violates other state and federal laws that protect the rights of individuals with mental disabilities, including Section 504 of the Rehabilitation Act, the New Jersey Patients’ Bill of Rights, and fundamental state and federal constitutional laws. DRNJ seeks a court order requiring the
State to provide individuals on CEPP status with services in the most
integrated settings appropriate to their needs, to limit CEPP status to
60 days, and to provide monthly reports to DRNJ detailing the progress
of individuals on CEPP status towards return to the community. The response from the State of New Jersey to the law suit was to file a Motion to Dismiss claiming that DRNJ was not a proper party to bring the law suit. DRNJ and co-counsel filed an Objection. The court ruled in favor of DRNJ finding that DRNJ was a proper plaintiff. The State of New Jersey then attempted to prevent attorneys from the Bazelon Center from assisting DRNJ in the case. DRNJ and Pepper Hamilton responded to the State's objection. Once again the court ruled in favor of DRNJ finding that there was no basis to exclude the attorneys from assisting DRNJ in the case. The State has answered the complaint denying most of the allegations and raising some defenses. Click here to access a copy of the settlement agreement. For additional information, contact: • Hagedorn Psychiatric Hospital Settlement On March 24, 2004, DRNJ signed a settlement agreement in a case filed in the U.S. District Court concerning a mass strip search that was conducted in a state psychiatric hospital. New Jersey Protection and Advocacy, Inc. v. James Smith, Jr., Acting Commissioner of the New Jersey Department of Human Services et al., Docket No.: 01-5505 (SRC). The agreement provides for a damage award for every person who was a patient on the ward where the searches occurred, attorney fees, and the adoption of a hospital-wide search policy that was drafted by DRNJ’s expert, Clarence Sundram. The search policy establishes standards and guidelines for conducting searches of the person, their room, and mail. The settlement also requires the defendants to submit a monthly report to DRNJ detailing any searches that occur in the hospital. The report will include the circumstances of the search, whether the patient cooperated, the extent of the search, whether any contraband was found, the disposition of the contraband, whether force was used, clinical justification for the search, the unit where and shift when the search was conducted. For a more comprehensive account of DRNJ activities, please see our annual report available on the Publications page.
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an Equal Opportunity Employer and provides services to all persons with
disabilities regardless of race, creed, religion, color, national origin,
age, marital status, familial status, sex, sexual or affectional orientation,
ancestry or disability. Copyright 2008 DRNJ |
