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Sutherland Files Suit to Protect Rights of Physically Disabled

January 31, 2003

ATLANTA (January 31, 2003) – Sutherland Asbill & Brennan LLP today filed a civil rights lawsuit on behalf of seven physically disabled individuals who receive, or are at risk of receiving, Medicaid-funded long-term care services in nursing homes when instead they are eligible to receive care in their own homes and communities.

The lawsuit filed in the U.S. District Court for the Northern District of Georgia (Atlanta Division), CA# 1:03-CV-0288, alleges that the plaintiffs' segregation in nursing homes violates the Americans with Disabilities Act (ADA).  According to the 1999 U.S. Supreme Court ruling in Olmstead v. L.C., unjustified institutional isolation of persons with disabilities is a form of discrimination.

One of the seven plaintiffs, Michael Birdsong, 35, is living in a Lawrenceville nursing facility.  He suffers from spina bifida and hydrocephalus, but is otherwise medically stable.  He would further develop his physical independence with the appropriate therapy and independent living skills training, which are not offered to him in the nursing home.

Mark Johnson, the Director of Advocacy of  the Shepherd Spinal Center in Atlanta, said, "Unfortunately, many people think nursing home care is the only option for people with severe disabilities.  The reality is that the assistance they need can be provided in their own homes without being isolated from the rest of society and segregated in impersonal facilities."

To serve persons with physical disabilities in a non-institutional setting, the State of Georgia offers two home and community based programs: the Community Care Services Program (CCSP) and the Independent Care Waiver Program (ICWP).  The suit alleges that the way the programs are administered fails to adequately inform the physically disabled individuals of the waiver alternatives; the waiver information is passed along to nursing home directors who often fail to pass the information on to the individuals with physical disabilities.

"Waiver programs have been available in Georgia for approximately two decades, but the Departments of Community Health and Human Resources do not make this information available to potential program consumers in a way that would permit access to these programs," explained Charlie Lester, a litigation partner with Sutherland's Atlanta office who represents the plaintiffs pro bono.  "Hundreds of individuals with disabilities have been determined by the State to be eligible for home and community-based programs, but have been placed on waiting lists and have not received these services."

The government says the reason for this treatment of individuals with physical disabilities is lack of funding for waiver programs.  Yet, the government admits that home and community-based care costs significantly less than institutional care.  For example, the Georgia Department of Human Resources reported that in 2001 the per-client cost of non-institutionalized care was a mere 26% of the cost of nursing-home care, for a total savings of $221 million in funds from the CCSP alone. 

"We're delighted that Governor Perdue has put so many items in regards to the Olmstead case in this year's state budget," said Pat Puckett, Executive Director of Statewide Independent Living Counsel of Georgia (SILC).  "It is a shame that this funding was not put in place in earlier years too."

In addition to Mr. Lester, Sutherland attorneys Teresa Wynn Roseborough and Judy O'Brien are involved in the matter.  All are available to comment on the case.  To view a copy of the complaint on line please visit,  sutherland_tax_interest_complaint012803.pdf.

Sutherland Asbill & Brennan LLP is a national law firm known for solving challenging business problems and resolving unique legal issues for many of the nation's largest companies.  Founded in 1924, the firm has grown to more than 350 lawyers with offices in Atlanta, Austin, Houston, New York, Tallahassee and Washington.  For further information about the firm, please visit sutherland.com.

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