By AUSTIN JENKINS • SEP 30, 2019
For years, families of the developmentally disabled in Washington and their advocates have been frustrated that services in an institution, like one of the state’s Residential Habilitation Centers (RHCs), are an entitlement, but services in the community are not.
Further fueling their frustration has been the fact the budget for Washington’s Developmental Disabilities Administration (DDA) doesn’t automatically increase as the state population increases.
“When we grow, our services do not grow with the population,” explained Evelyn Perez, the assistant secretary for DDA, at a recent legislative work session.
Beginning in the late 1990s, the state faced a series of lawsuits challenging Washington’s care for people with developmental disabilities. One of those lawsuits led to the creation of special 30-bed units, known as Habilitative Mental Health units, at the state’s two psychiatric hospitals.
Settlements in a separate pair of lawsuits filed in 1999 and 2001, on behalf of people with developmental disabilities, resulted in funding increases and additional rights for people seeking services. But those lawsuits did not establish new entitlements.
In recent years, the state of Washington has increased funding for developmental disability services with a focus on moving people out of the state’s psychiatric hospitals and the RHCs. In 2017, the state even briefly eliminated the waitlist for the Individual and Family Services Medicaid waiver, which provides community-based services for children and adults who live at home.
Even so, demand for services continues to exceed funding, developmentally disabled people are languishing in hospitals with nowhere to go and the health, safety and welfare of clients in state-supported, in-home care is sometimes at risk.
Historically, when lawyers have sued on behalf of developmentally disabled people in Washington they’ve done so under federal law, such as the Americans with Disabilities Act. But when families talk about the rights of their loved ones, they sometimes point to something else: Article XIII of the Washington state Constitution.
Article XIII requires the state to foster and support institutions for “youth who are blind or deaf or otherwise disabled” and for people “who are mentally ill or developmentally disabled.”
“If we didn’t owe them anything at all, why is there … Article XIII,” asked Carolyn Guinotte, whose 30-year old son Alan is severely autistic, mostly non-verbal and currently waiting to discharge back into the community from Western State Hospital. “We didn’t have to do this, we did it because we are good human beings, we care.”
Article XIII is what former state Supreme Court Justice Phil Talmadge, who now practices appellate-level law, calls an “overlooked” provision in Washington’s constitution.
“People always think of a constitution as a restriction on what can be done, rather than a prescription about what has to be done and in fact our state constitution has been seen as being prescriptive,” Talmadge said.
Most prominently, Article IX of Washington’s constitution makes it the “paramount duty” of the state to amply fund public schools. In 2007, a coalition sued the state under that provision and ultimately prevailed after a yearslong legal battle. In that case, known as the McCleary lawsuit, the Washington Supreme Court retained jurisdiction and held the Legislature’s feet to the fire, even going so far as to impose sanctions. In the end, the case resolved with the Legislature dedicating billions of dollars in new investment for public schools.
Article XIII is not as cut and dried as Article IX. Even so, Talmadge thinks there could be an opportunity to sue the state under Article XIII on behalf of people with either developmental disabilities or psychiatric needs.
“It is prescriptive, it says you have to do this, it isn’t like you have a choice,” Talmadge said.
One question the courts would have to grapple with is what the framers meant by “institutions.” A narrow interpretation might find the state is obligated only to provide institutional-level care, such as in the RHCs. But Talmadge thinks an argument can be made for a broader interpretation.
“I think with the change to a deinstitutionalized structure, what we’re talking about is really quality services for mentally ill and developmentally disabled people, that’s what the framers had in mind,” Talmadge said. “And I think a legitimate argument can be made that the state has failed its obligation to those populations.”
Talmadge isn’t the only legal expert in Washington who has eyed Article XIII with an eye toward whether it could become the basis for a lawsuit on behalf of vulnerable people.
“I have always thought that there is an opportunity to bring a legal action based on Article XIII, but it would have to be very carefully thought through and structured,” said Hugh Spitzer, a University of Washington law professor and state constitutional law expert.
Spitzer calls Article XIII a “cousin” to Article IX and, like Talmadge, takes a more expansive view of the term “institutions” in the constitution.
“An institution doesn’t mean it has to be a five-story brick building with 500 people living there,” Spitzer said.
But Spitzer also says suing under Article XIII could present some potential legal hurdles, including a historic reluctance on the part of the state Supreme Court to get too prescriptive about how the Legislature should fulfill its obligation under that provision.
Spitzer points to a 1925 case where Pierce County challenged the state for requiring it to pay for the care of low-income, mentally ill people. In that case, according to Spitzer, the court said the state had a lot of flexibility in how it met its duties under Article XIII because of language in that provision that said the state’s mandate was “subject to such regulations as may be provided by law.”
“The courts have been skittish about pushing the Legislature too hard under this constitutional provision,” Spitzer said.
Nonetheless, Spitzer said he has long believed Article XIII creates either an entitlement or a right for people with mental illness or developmental disabilities, and that potential plaintiffs would “have a leg to stand on” if they sued.
“The state can’t just sit around and not do something if you’ve got a bunch of people who aren’t cared for,” Spitzer said.
Currently, Disability Rights Washington (DRW), a legal advocacy group, is suing the state over access to care for developmentally disabled clients who are “being stranded” in hospitals because community-based services are not available.
The lawsuit alleges the state of Washington is violating the rights of clients under three federal laws and under the Olmstead ruling, a landmark 1999 U.S. Supreme Court decision that requires the integration of people with disabilities into the community when appropriate.
The DRW lawsuit, however, does not challenge the state under Article XIII.
David Carlson, director of advocacy for DRW, said there’s a general reluctance to bring state-level constitutional challenges because federal disability laws are so strong.
“To try to figure out something that was written that long ago and what it is supposed to mean is going to be a difficult thing,” Carlson said. “And it may just replicate what is already out there.”
At the same time, Carson acknowledged that federal courts have been reluctant to create an entitlement to community-based services for people with disabilities. For instance, he said, states are allowed to put a per-capita limit on “waiver slots,” which are Medicaid-funded services for people who waive their right to institutional care.
Carlson added that he was “intrigued” by the idea of an Article XIII-based legal challenge, but said that it seemed “kind of like waiting for the grand slam.”
Article VIII lawsuit or not, Carolyn Guinotte just wants better services for her son Alan who she said could have avoided psychiatric hospitalization if he’d had access to the supports he needs in the community.
“I say it’s time for a change, it’s time to get real with this,” Guinotte said. “This is a serious matter.”