Protection & Advocacy Agencies and Class Actions: The Example of the Staley Lawsuit in Oregon

Let’s talk about “class actions.” They say the Staley lawsuit in Oregon was a class action. Although the case wasn't originally presented as a class action, there was a reason that the lawyers at Oregon Advocacy Center (Oregon’s protection and advocacy agency) worked with the lawyers for the state of Oregon to quickly convert it to one. We could criticize the Staley Settlement as just another “coupon settlement” – a favored legal maneuver that protects the defendant by binding everyone in the “class” with an unreasonably low settlement or a minimal benefit, such as a small check or a coupon for future services from the defendant -- in this case, the State of Oregon. This allows the defendant to forestall major liability by preventing a large number of people from litigating their claims separately and possibly winning larger individual awards. But, the Staley Settlement is unique in that it discriminates against certain members of its own defined class. It provides some members with immediate, comprehensive relief regardless of how long they’ve waited, and for the rest, a “coupon” for services available only on a timeline that is still unreasonable and still determined by the defendant.

The definition of a “reasonable” wait for relief is defined in the settlement itself: “thereafter, all individuals who become eligible to receive support services will receive the services contained in the agreed-upon ISP within 90 days after they become eligible.” This definition of reasonable is also reflected in the period of time between September and December (90 days), in which the original plaintiffs received their services. Yet, 6 years later 2,000 other members of this “equal” class are still waiting to cash in their coupons!

Then there’s the fact that in the Staley case,” the class was defined as “all similarly-situated individuals with developmental disabilities who are or may be eligible to receive services under the federal Medicaid program.” Where is the common wrong that these individuals have suffered as a result of the actions of the defendant? Just being eligible for services doesn’t distinguish someone as a member of a “class” for the purposes of a class action. Similarly-situated would be that you’ve been denied services and you’ve waited an unreasonable length of time, just as the original plaintiffs had complained. It’s shocking that the court even accepted this definition of the class. Could be that this demonstrates the judge’s own bias about developmental disabilities, that it’s really the disability itself that causes the suffering, not any action of the defendant. But, we know that being denied services is unique to some and not to others – the similar wrong they’ve suffered that warranted a lawsuit in the first place.

A common argument is that the requirement of court approval of a settlement and the ability of class members to opt out of settlements provide sufficient protections from these kinds of negative results of class action settlements. The argument goes no member of the so-called “class” has contested the settlement or the modification, so it must be OK with them, right? That would depend on whether they ever received a notice or that they understood it if they did. What a cruel irony! In the case of the Staley Settlement, in order for the members of this “class” to participate effectively in the legal process, they require exactly the kind of assistive services they are waiting for: assistance with interpretation of information, communication aids and accommodations, transportation to get to the court house, the state Capitol or to the implementation planning group meeting (assuming they were ever invited), and advocates to accompany them there to speak up for their rights. It’s doubtful that a class action could ever be an appropriate legal tool to be used by protection and advocacy agencies in a case like this.

The benefit of the Staley Agreement for the State is clear: “During the life of the Agreement, the Advocates [Oregon Advocacy Center] and The Arc of Oregon shall forebear from commencing any action on behalf of adults with developmental disabilities eligible for ICF/MR services on the basis of claims that are substantially the same as the claims asserted by plaintiffs in the Lawsuit.” But, wait a minute. The “Advocates” in this case are the publicly funded legal resource established by the DD Act because it was recognized that people with developmental disabilities are less likely to have access to lawyers! No kidding. Now more than ever.

The only thing the Staley Settlement accomplished was to take the teeth out of the P&A agency, so that people who are still waiting don't have the option to bring lawyers to argue that the state is investing too little and taking too long, and that they are being discriminated against because they’re still waiting for the Medicaid services they are already eligible for. Class action settlements are always designed to make things easier on the defendant. All you have to do is read the settlement and compare it to the state’s “Six Year Plan.” It’s always been in the plan to delay services for the waiting list while they shifted those already in services into cheaper (for the state) slots. Either Oregon’s P&A “advocates” did some very poor lawyering in this case (but they wouldn’t admit to that, would they?) or they were complicit with the governor’s lawyers to protect the state’s interests first and foremost (not likely they’ll cop to that one, either).