Guardians Sue DADS

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.

In mid-October, the state filed a motion to dismiss, arguing no state or federal law had been violated and that the decision had been subject to an appeals process. Wallace responded that department officials had already ruled out a continued placement at Justin's current home. Therefore, writes Wallace, "denial of the Plaintiff's appeal was a foregone conclusion, and not even a pretense of due process was offered." U.S. Judge Lee Yeakel has handed the dispute to magistrate Judge Andrew Austin for a report and recommendation.

Novy, the legal guardian and brother of Wayne, a deaf and mute resident who suffers from serious behavioral problems, filed a lawsuit against Janek in Travis County Court. Novy and his attorney Renea Hicks argue that the state must show evidence that transferring Wayne to the San Antonio SSLC meets standards outlined by Texas' health and safety laws: specifically, that the current placement is no longer appropriate to the person's individual needs, that he can be better treated and habilitated in another setting, and that placement is secured. Novy asserts they have failed to meet any of these requirements.

"The SSLC is acting inconsistently with what state law requires," said Hicks. "They are only allowed to transfer a resident if it's in the best interest of that individual and if they can't provide needed services at the current facility – they haven't established that, which leaves the statute empty of meaning."

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.

"The aspect that distinguishes the Austin SSLC from say, the San Antonio SSLC," said Novy, "is its prime real estate, which suggests to me this effort has nothing to do with the provision of services for Wayne or any of the cottage residents, but everything to do with some sort of privatization, profit-maximizing effort by the state."