Toby Terrar, "The Judicial Battle of Washington, DC's Intellectual Underdogs for Gainful Employment: A Socialist Versus Medicaid - People Versus Profit History" International Critical Thought ((ICT) (Academy of Marxism, Chinese Academy of Social Sciences, Beijing, China: December 2018), vol. 8, no. 4, pp. 609-625 (Routledge, Taylor & Francis Group).
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The Battle of the Intellectually Disabled for Jobs, Not Drugs: A Socialist versus Medicaid History
Toby Terrar
To cite this article: Toby Terrar (2018) The Battle of the Intellectually Disabled for Jobs, Not Drugs: A Socialist versus Medicaid History, International Critical Thought, 8:4, 609-625, DOI: 10.1080/21598282.2018.1539920
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Department of History, City University of Los Angeles, Los Angeles, USA
ABSTRACT This article is about the economic rights of Washington, DC’s so- called “intellectually disabled.” They have a history of resisting being drugged up, unemployed and impoverished, in short of being the underdog members of the city’s working class. Structurally the essay proceeds in a chronological fashion which first sketches the historical background of the struggle beginning with the century-long period when there were city-owned training and full-employment programs and a labor theory of value philosophy that backed them up. Then follows the popular resistance to the growth, beginning in the 1970s of the eugenic- dominated Medicaid program. In the name of medical necessity, fiscally conservative members of DC City Council worked to abolish its publicly-owned and locally-financed factories and farms. The article’s final section highlights the resisters’ use of the DC Superior Court’s Mental Health and Habilitation Branch, as it played an important part in their fight for gainful employment, normal family relations and a limitation on the psychotropic and seizure medication which the city and its Medicaid contractors promoted as a substitute for employment and a meaningful life.
ARTICLE HISTORY Received 22 October 2017 Revised 12 January 2018 Accepted 16 January 2018
KEYWORDS Intellectual disability history; habilitation rights; over- medicating; full- employment; people versus profit
This article is about the economic rights of Washington, DC’s so-called “intellectually disabled.” They have a history of resisting being drugged up, unemployed and impo- verished, in short of being the underdog members of the city’s working class (Quality Trust 2009, 6; Longus 2015, 4). Their fight has included opposition to the medical labeling, medicalizing and resulting discrimination which is so entrenched that it goes unrecognized, even among progressive people, and when recognized is dismissed or excused. For them it is a society which cannot give full-employment that is disabled and needs habilitation.
Structurally the essay will proceed in a chronological fashion which first sketches the historical background of the struggle beginning with the century-long period when there were city-owned training and full-employment programs and a labor theory of value philosophy that backed them up. Then follows the popular resistance to the growth, beginning in the 1970s of the eugenic-dominated Medicaid program. In the name of medi- cal necessity, fiscally conservative members of DC City Council worked to abolish its pub- licly-owned and locally-financed factories and farms.
© 2018 Chinese Academy of Social Sciences
CONTACT Toby Terrar TobyTerrar@aol.com
INTERNATIONAL CRITICAL THOUGHT 2018, VOL. 8, NO. 4, 609–625 https://doi.org/10.1080/21598282.2018.1539920
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Farm and Factory Background
DC’s Medicaid versus socialist conflict got its start in the 1970s. Until the post-World War II period, DC’s intellectual resisters enjoyed a working-class life style that optimized their economic, social and education rights. This included publicly-owned farms and factories at Forest Haven in Laurel, Maryland between 1925 and 1991, and for a century the Occo- quan Workhouse and the Lorton Reformatory until being closed respectively in the 1970s and 1990s. In the 1930s they also had the DC unit of the Works Progress Administration (WPA), in the World War II period they had full-employment and over the last 30 years the Mayor’s Summer Youth Employment Program (SYEP) and the Job Corps have given them productive work.2
Forest Haven, Occoquan and Lorton were self-sufficient residential, training and employment centers with textile, furniture, metal fabricating and other factories, farms and dairies. The so-called “feeble minded” helped run these facilities. They were backed-up by unionized civil servants, part of the American Federation of State, County and Municipal Employees (AFSCME). The facilities were funded both from the city’s gen- eral revenue fund and from a barter system in which they had exclusive contracts to pro- vide clothing, upholstery and other textiles, furniture, food, vehicle and road maintenance and other goods, along with custodial and landscape services to the city’s hospitals, schools, libraries, roads and office buildings (Terrar 2016, 6–7).
Despite the full-employment focus, from the underdog view, there never was a period in the city’s history when they did not face significant struggles. But in the post-War War II era the struggle increased because DC’s tax base migrated to the suburbs, leaving an impoverished working class and a local government that was increasingly controlled by a conservative US Congress (Jaffe and Sherwood 1994, 28). One of the resisters in the post-war period, Terry Carroll,3 outlined their full-employment demands:
The principle element in a national habilitation and health program is a full employment program that would provide socially useful, non-hazardous jobs at a living wage to every worker. One of the first steps toward achieving such a program would be the repeal of the 1947 Taft-Hartley Act and its sequel, the Landrum-Griffin-Kennedy Act and an anti- union NLRB [National Labor Relations Board], which have impeded workers’ efforts to unionize and obtain fair working conditions and wages. (Quoted in Terrar 2013, 211)
In 1976 the underdog activists, imitating similar litigation in other jurisdictions, filed a lawsuit against the city in the US District Court for the District of Columbia (D.D.C., a federal district court).4 In that suit, they sought the court’s help to address their
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impoverishment. The federal court, despite its neoliberal prejudices, in the “First Evans Consent Decree” upheld their claims in Evans case, i.e., Evans et al. v. Washington, 459 F. Supp. 483 (D.D.C. 1978). This forced the city to enact the “Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978” (hereafter 1978 Act).5
The 1978 Act set up the Habilitation Branch and a cohort of some 50 court-appointed lawyers for the resisters to use in implementing their program. The National Lawyers Guild praised the activists for establishing the court, stating “there is a need in every jur- isdiction for a specialized court focusing on Developmental Disability issues, given the his- tory of the United States” (Frishberg 2017). Using the court, they won an improved continuum of support, which included both home and community-based services. They also forced the city for many years to fully fund its farms and factories.6
While the 1978 Act was influenced by the Evans decision, it embodied the demands of the resisters, their families and the AFSCME. They supported a vibrant, full-employment system. As Professor Burgdorf (2010, 303, 308) notes, “the bill did not prohibit all new commitments to Forest Haven as the Evans order had. . . . It did not call for the phasing out of Forest Haven nor mandate any major incentives for its termination or reduction.”
Philosophical Background: Labor versus Eugenics
DC’s intellectual militants in defending their role as part of the working class through pub- licly owned farms and factories, followed the same labor theory of value philosophy that guided their counterparts in similar facilities throughout the country. This philosophy rejected the eugenic, literally “good birth,” philosophy of the neoliberals (Becker and Greenberg 1985, 121). For the resisters both physical and mental health depended on hav- ing a job, not medication. That is, employment was essential not for monetary consider- ations but as a condition of personality development. As Shirk (2006, 13) put it, medication made for helplessness, labor made for health.
A principle corollary of eugenicism that was disputed by the underdogs was the use of standardized intelligence quotient (IQ) tests. These tests, which dated back to the 1920s, defined that 3% of the population who scored two standard deviations below the statistical mean, as “disabled” or “retarded.” From the perspective of the low-scorers, such testing was bogus. They backed up their opinion with help from the scholarly community such as Professor Stroman (2003, 12–13). He attacked the unscientific and subjective nature of IQ testing, pointing out, for example, that in 1973 the IQ norm was arbitrarily redefined by the fiscal conservatives to exclude government assistance to half those formerly eligible. Similarly, advocates taking the underdog side publicized in individual court cases how the city employed pliable professionals to upgrade IQ levels in order to make workers ineligi- ble for its services.7 The same was done at the national level to qualify underdogs for the death penalty (Moore v. Texas, No. 15-797, 581 U.S._slip op. [2017]).
DC’s activists in defending against eugenicism contested against IQ testing from its inception. Their scholars (Pevzner 1961; McLeish 1975) documented the anti-worker use of the testing to weed out those who were difficult to exploit. In the socialist world, as described by the above writers, because psychological testing was not used, there were no low IQ scorers. The Soviets maintained that most of those who were stigmatized by the IQ labeling received low scores because of the poverty into which they were born, not because of organic, intrauterine or early lesions of the central nervous system that
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result in a tendency not to progress (Wortis 1967, 1442). As British medical scholar Wing (1974, 433) summed up, because of the Soviet full-employment economy and resulting lack of poverty, there were few “psychosocial” intellectual problems. For him, eliminating poverty eliminated the problem.
Following socialist logic, the resisters in their court advocacy have contended that DC’s Forest Haven educational program in the pre-Medicaid era was correct in focusing on vocational schools and training youth for employment from an early age, no matter what their diagnosis.8 Their advocate, the educator Jean Nazzaro explained how early training, as in the socialist approach, prevented attitudinal and motivational problems that otherwise overshadow the original disability:
To put a child in a situation where he is exposed to failure, even at the preschool or kinder- garten level, is to set things up so that other problems, attitudinal problems and motivational problems, may soon overshadow the original problem of retardation. They feel it is very necessary to protect the child and help him develop the best functioning level he can with the resources he has and not allow any opportunity for the secondary kinds of emotional pro- blems to develop. The earlier they can pick him up in a special program, the more protected he is from these complications, and the more directly they can get to his retardation and begin to work on it. (Nazzaro 1973, 169)
As mentioned above, the socialist focus on early training was practiced in the early For- est Haven era. The facility emphasized job training starting in infancy to maximize work- ing capacity.9 During the 1920s and 1930s this included a system of habilitation units, training centers, vocational guidance units, and prophylactic workshops in the city- owned factories and farms (Wing 1974, 433; Terrar 2016).
From the capitalist perspective, which the medical professional JohnWing reflected, the Soviets were too “paternalist,” too protective of employment rights. Having no under- standing of working class fraternalism, he commented:
The very thoroughness of the service must carry a certain disadvantage. It would require a deeper knowledge of Russian life and custom than I possess to assess how far a certain gentle but insistent paternalism and over-protectiveness is characteristic throughout the whole society. It is plainly evident in attitudes to the mentally retarded. In many cases it brings good results; probably the more severe the handicap the more satisfactory the system. (Wing 1974, 435)10
In defending socialism’s “paternalist” lack of IQ testing, academics like Wortis (1967, 1442; see also, Battin, Rhodes, and Silvers 1998; Manning 1998; Ehrenreich and Fellner 2001; Rosen 2004) condemned the 1920s eugenic philosophy. In their view it was genoci- dal to burden low-scorers by labeling them, using the psychometric testing. In fact, the Rockefeller, Carnegie and other foundations financed eugenic campaigns based on the labeling.11 Eugenicists in some 28 states enacted laws to legitimize forced sterilization of the low scorers.
The eugenicist DC medical profession could not obtain a sterilization law because of popular resistance, but starting in 1933 it commenced sterilizing, arguing that since it was not prohibited, it was legal (Anonymous 1945, 1; see also, Reilly 1991; Larson 1995; Franks 2005; Bruinius 2006; Singleton 2014). At about the same time as Professor Mark Surrell points out, the eugenic-minded German medical profession, not the Nazi party, led in euthanizing their low-scorers starting in 1939.12
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Not dissimilar to the Nazi eugenics, as the resisters have protested, is that the DC medi- cal profession since the coming of the fee-for-service Medicaid system in the 1970s, has performed some 1800 “elective surgeries” on the low-scorers against their will (Anon- ymous 2006, 26). The resisters have brought a series of court cases against this, including in the 2000s those dealing with abortions. In one of these cases, Does I Through III v. District of Columbia,13 the DC Federal District Court Judge, Henry Kennedy, ruled in favor of three women, two of whom had been forced to have abortions. He stated that the involuntary abortion policy violated their due process right to refuse medical treat- ment. The city had argued that undertaking an inquiry into the wishes or interests of the low-scorers was an impossible charge. To this the judge responded that such an argu- ment “offended both common sense and the dignity of retarded citizens.” The court ordered the government to obey its legal obligation to undertake an inquiry as to their wishes.14
In defending their right to be part of the working class, the resisters also disputed a second corollary to the city’s eugenic philosophy, besides the IQ testing. This was the prac- tice of pathologizing or “medicalizing” the low-scorers. As the resisters point out, scoring low on an IQ test makes them no more unhealthy than high scorers.15 Nevertheless the neoliberal City Council has used such thinking to legitimize its attempts to substitute the drug-dominated, federally-funded Medicaid system for the city’s full-employment fac- tories and farms.
Speaking about this, the Georgetown University activist, Professor Jackson et al. (2016, 3) documented in a recent study the bogus nature of the city’s pathologizing of the resis- ters. He writes that at best 20% of a DC citizens’ health has to do with medicine; the bulk of it is determined, as he puts it, by social-economic factors such as employment, family and education. The failure of the city to provide this, in Jackson’s words, is a “structural or institutional injustice.” Expanding on this another scholar, James P. Baker, points out that the focus on medication and the failure to provide full employment with resulting poor health is a national problem. He writes:
Americans with disabilities are on the whole, in poor health. Again, systemic barriers rather than the medical impairment itself define the disability experience. Many factors contribute to the poor state of health among Americans with disabilities. People with disabilities are less likely to be employed, more likely to live in poverty and less likely to participate in the social fabric of their communities. . . . [They] are more than two and half times as likely to be diag- nosed with diabetes and experience higher rates of other chronic conditions. They are less likely to engage in leisure-time physical activity and other recommended health behaviors. For example, they are more likely to smoke and have higher rates of obesity. They are less likely to have good dental health. About 28% report symptoms of depression, and when asked, they are less likely to report being satisfied with their lives. (Baker, Mixner, and Harris 2008, 19)16
Sanders (2016) (see also, Yudelovich 2015) in supporting full employment against the pathologizing of the workers in his 2016 presidential bid, argued that socialism was heal- thier because it focused on labor rather than profit. The planned labor-shortage in the socialist countries made labor costs high, giving workers strength against management in protecting their health. As the academic advocate Lane (1987, 1–2) summarized, because there was no capital under the socialist model, there was no incentive to increase
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the profit of capital by reducing labor costs or the number of workers employed or the healthfulness of their environment.
Following their anti-pathologizing philosophy, the resisters in a 2007 DC Superior Court Habilitation Branch case17 pointed out that the right to employment involved more than merely earning money. They argued that a person’s mental health depended on having a job, not on having medication. Similarly, an advocate (Becker and Greenberg 1985, 121) commented, “This right of employment is not granted because of materialistic- social consideration, but rather from the point of view that work is an essential condition for personality development and the formation of specific personality characteristics.” To sum up, from the resisters perspective eugenicism, not a person’s diagnosis, makes for helplessness.18
In defending against the eugenic assault, DC’s low-scoring workers both protested the slandering and in their daily life ignored it. For example, in terms of IQ testing and the definition of “disabled” or “retarded” as two standard deviations below the statistical mean, DC with its current population of 670,000 has 20,000 low-scorers.19 For 10% or 2,250 of these, which includes the 600 surviving Evans plaintiffs (Brown 2012, 21; Nuss 2012), the DC government’s Department of Disability Services (DDS) provides minimalist services.20 This means food, clothing, shelter and medicine. Ignoring the tests, 90% of DC’s low-scorers, like their fellow higher-scoring working people, rely not on DDS, but on self- help, supplemented by their trade unions, spouses, families, public schools, the penal sys- tem and the DC Social Rehabilitation Administration (SRA). The latter includes Tempor- ary Assistance for Needy Families (TANF) and services for alcoholics, drug-addicts and public offenders.21
Use of Superior Court against Medicaid
The minority of low-scorers who are supported by the city make use of DC Superior Court in defending their rights. A DC advocacy group, University Legal Services (ULS), docu- ments how in large numbers these intellectually marginalized seek gainful work, but the city’s policy in recent years of dumping them on Medicaid has given them a near-zero work option.22 About this another of their allies, American University Professor, Kraiem (2011, 697–698) summarizes, “Capitalism has no role for the elderly and people with dis- abilities. They are non-productive.”More accurately, from their view they do work and are productive, but they are hard for the capitalists to skin. By necessity they are on the side of communist economics—from each according to ability to each according to need.
In 1965 when Medicaid was being contemplated, the marginalized did not intend the program to be used to destroy their livelihood. Nevertheless, after it came upon the scene, fiscally conservative members of the DC City Council in the 1970s began using it to shut down its employment-oriented, locally funded factories and farms.23 Labeling its under- dog workers as pathological and helpless, the city, like multiple other jurisdictions under neoliberal control, condemned them to Medicaid.24 The conservatives simul- taneously endeavored to replace the city-funded unionized and Civil-Service protected direct-care work force with contractor-owned, Medicaid-funded group homes and day programs staffed by at-will workers.
The marginalized point out that while they did not anticipate the consequences of Med- icaid, they were not defenseless. By using their 1978 Act and the Habilitation Court they
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slowed down by decades, as the city complained, the starvation program. The 1978 Act with its provision that each of those committed as wards of the city have a permanently assigned attorney empowered their resistance (see the legal document “DC Code § 7– 1301.03 (19) [2012 Repl. and 2016 Supp.]” for detail). The attorney provision was, as noted, unique to DC and chronically attacked by the Medicaid contractors.25 This was because the marginalized made it a strong tool, frequently bringing contractors and the city to court over violations of the 1978 Act.26
The underdog litigators in obstructing the shutdown of their farms and factories focused on the fact, as they documented in court hearings, that privatization and union liquidation would turn one of their biggest assets, their direct-care staff, into their biggest liability.27
The non-union work force that would take over, as had happened in other jurisdictions, would be unskilled and little motivated because it had none of the government protections existing for workers in other professions, such as the eight-hour day, forty-hour work-week protection of the Fair Labor Standards Act28, the union protections of National Labor Relations Act, or the protections of the Family and Medical Leave Act (FMLA) and DC workers compensation statutes.29 The result would be a constant staff turnover. The city would engage the lowest-bidding, most politically-connected, highest-grafting contractors, whowouldmake their profit by underpaying and over-working these individuals (Stancliffe et al. 2005, 295; Taylor 2008; Rhee and Zabin 2009, 969; Bagenstos 2012).
A leading advocate who argued along these lines was law professor Daniela Kraiem. In her view the city’s exploitation of impoverished direct-care workers would both parallel and be a part of its neglect of the marginalized. She wrote:
An autonomy paradigm—even one deeply rooted in human rights—that rests on a system in which women of color and family caretakers receive wages and benefits so low that they themselves are eligible for public benefits, with little or no health and safety regulations despite dangerous working conditions, is ultimately not rooted in social justice. . . . For a pro- gressive movement based on human and civil rights principles, ignoring the worker on the other side of the equation should not be possible. Much like we cannot countenance a femin- ism blind to the injustices of race and class, I argue that we should not ground a movement for the rights of persons with disabilities in the exploitation of others, especially when those others are overwhelmingly low-income women of color and low-income female members of all races. (Kraiem 2011, 702)
In their court proceedings, progressive advocates exposed those that were behind the deinstitutionalization strategy, such as the Washington Board of Trade-connected con- tractors, their big law firms and their lobby group, the DC Association for Retarded Citi- zens (ARC), whose director was Vincent Gray.30 Observing that the deinstitutionalization program had influence in both parties, advocate Terry Carroll summed up the case for the marginalized working people who opposed it: “I hope you will consider the paradox pre- sented by any proposed system which would be socially funded and privately delivered, with the mistaken assumption that avarice is a motivating factor that inevitably leads to efficiency” (quoted from Terrar 2013, 213).31
An early victory won by the activists at the City Council as the 1978 Act was being voted upon was their defeat of the contractor attempt to split the city’s social services for the marginalized off from the Department of Human Resources (DHR) (Terrar 2016, 14). This would have resulted in giving the contractors a monopoly on budgeting and job policies.32
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Illustrative of how the activists have effectively used the judiciary was the period between 2005 and 2010 when the Habilitation Branch was presided over by Magistrate Judge Diane Brenneman. Always responsive to the voice of the marginalized and knowledgeable in enforcing the 1978 Act, she was feared not only by the contractors but by any of the lethargic or arrogant court-appointed lawyers who were deaf and blind to their clients and ignorant of what she called the “high expectations” of the 1978 Act.33 From the resisters view, she literally saved lives on a daily basis (Longus 2015, 5). On the other hand, the city complained against her frequent orders to pay for services not covered by Medicaid. This conflicted with what historians Harry Jaffe and Tom Sherwood, describe as the Board of Trade doctrine that “kept the city’s social service budget low, held down local taxes, and applied taxes to construction projects at the behest of the white business community” (Jaffe and Sherwood 1994, 28; see also, Terrar 2016, 12).34
In using the judiciary against the privatizers, the advocates relied heavily on the 1978 Act’s prohibition on substituting medication in place of employment. It read:
All customers have a right to be free from unnecessary or excessive medication. . . . Medi- cations shall not be used as a punishment, for the convenience of staff, as a substitute for pro- grams, or in quantities that interfere with the customer’s habilitation program.35
By the time the 1978 Act had become law, the drugging was already a nationwide pro- blem. In the 1976 Forest Haven Congressional Hearings, there was testimony that 50% of the residents were being given psychotropic drugs as a substitute for adequate funding of services.36 As a result of their courtroom access, the marginalized on a daily basis attacked the drug abuse and obtained orders on limiting the use of medication, which the sympath- etic judiciary found to be a type of chemical straightjacket to restrain rebellion against the meaningless Medicaid lifestyle.37 In their court hearings they also used the Constitution to argue that the drugging violated their First Amendment right to speech and locked them into a prison without appearing to do so.38 As backups the activists employed experts on drug abuse and psychology.39 Sympathetic Habilitation Branch judges routinely ruled that rebellion against the neglect of their overwhelmed staff was not a psychotic or seizure disorder.40
Conclusion
This essay has summarized an aspect of the resistance of DC’s intellectual underdogs against the city and its contractors. They won the 1978 Constitution Rights and Dignity Act and over the years have used it in the Habilitation Branch to mitigate the Medicaid disaster, which eventually was used to undermine their system of factories and farms. The older ones, like the Mid-Western working class in the 2016 presidential elections, boast about the good jobs they once held and for which they currently stuggle.
Because of its effectiveness, the hard-won 1978 Act and the underdogs’ use of the Habi- litation Branch as a protector have long been on the brink of being eliminated by neolib- eral members of the DC Council. On the positive side, a majority of American jurisdictions never have shut down their full spectrum institutions. Underdog employ- ment is not necessarily a thing of the past. Further, from the view of the marginalized, working class history is cyclic. When capitalism fails, as it did in the 1930s, and a large
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percentage of the population sees itself as underdogs, they win concessions. In that context the Bernie Sanders employment demands are not unrealistic.
When the concessions fail, the marginalized also see alternatives. Just as DC drugs its marginalized to keep them down, the nineteenth-century British imperialists drugged the Chinese with opium. No concessions were made and the underdogs liberated themselves. Similarly, the Bolsheviks in 1917, when concessions failed, rebelled against daunting oppo- sition. Over the following 70-year period the Soviet underdogs established a full-employ- ment system for themselves that in their view remains unsurpassed.
Notes
1. An earlier article (Terrar 2016) dwelt with the simultaneous battle in the US District Court around the long-running Evans v. Washington case. That litigation dealt with general policy issues, while the underdogs used the Habilitation Branch to defend themselves on a day-in, day-out, case-by-case basis involving more than 1,000 individuals over the span of their entire lives.
2. DC’s positive history of meeting employment needs is summarized in Terrar (2016, 2–12). 3. Carroll was the director of the National Institutes on Rehabilitation and Health Services
(NIRHS) between 1960 and 1971. This was a federally-funded, labor union-backed advocacy organization.
4. Evans case began in 1976 in the FederalDistrict Court and continueduntil 2016, being re-named a number of times, including Evans et al. v. Bowser, Civil Action 76–CV–00293 [D.D.C. 2015]. The case was patterned after the New York case, New York St. Ass’n for Retarded Child, Inc. v. Rockefeller, 357 F. Supp. 752 (1973). The New York case ended with a consent judgment that committed New York State to seek “community placement” for the 5,000 residents at the Willowbrook State School in Staten Island, New York.
5. It was renamed in 2006 as “Persons with Intellectual Disabilities Constitutional Rights and Dignity Act of 1978.” The proposed 1978 Act originated from the DC City Council and its Committee on Human Resources and Aging, which was chaired by DC city council mem- ber Polly Shackleton in 1978. About the legislation, law school professor Burgdorf (2010, 302) writes:
The legislation originated with Bill No. 2–108, introduced by Council member Arring- ton Dixon, which was a revision of an earlier version of such a bill that he had intro- duced in 1973.The version passed in 1978, however, was strongly influenced by the Evans Order issued that year.
6. Terrar (2016, 13) summarizes:
The activists in 1978 were not against private apartment and group homes. These had always been available. But a publicly-controlled institution that offered training and employment in multiple careers to large numbers with a faculty staffed by civil service and trade union-protected employees had also always been available. They did not want to lose it. [references omitted]. Conservative policies had been opposed during the Civil Rights Movement of the 1950s and 1960s. Activists voiced demands for sub- stantive rights and the expansion of state services.
7. See In re Karen Perry, Appellant, No. 15-FM-180, DC Court of Appeals Jan. 12, 2017, avail- able at https://www.dccourts.gov/sites/default/files/pdf-opinions/15-FM-180.pdf; and Brief of Respondent, Appellee, In re A.T., No. 10. A.3d 127, DC Court of Appeals 2010, available at http://www.ecases.us/case/dc/c2551730/in-re-at.
8. This philosophy was embodied in the Soviet constitutions, which stated, “USSR citizens are obliged to show concern for the upbringing of children, to prepare them for socially useful labor and to rear worthy members of a socialist society” (Imbrogno 1986, 166).
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9. Historian Quinn (2008) notes that between 1929 and 1931, some fifteen thousand Americans visited the Soviet Union and learned of their educational methods. Wing (1974, 434) com- ments about what the Americans saw concerning the underdogs:
Many factories have special workshops for handicapped people—for example, a sewing machine factory in the neighborhood of No. 8 dispensary in Moscow has 300 handi- capped people in such a shop, as well as providing sheltered conditions for other han- dicapped people within the open workshops. The standard of work required is, of course, very much higher in the open factories than in the sheltered workshops (though these have a much higher standard than our British day centers). For example, such workers need to be members of a trade union; they need sickness certificates if they wish to stay away from work. In addition, there are special factories with homes attached.
10. However, from the activist perspective, socialism is about fraternalism, not paternalism. Despite his anti-paternalism, Professor Wing endorsed and quoted the Soviet academic, Anton S. Makarenko (1888–1939). Makarenko (1967, xiii) wrote:
Both parents and children engaging in tasks appropriate to their different abilities but always for the common good is necessary for training in later collective living. By observing the example of such cooperative labor and mutual respect, and by himself carrying his proper share of responsibility, the child gradually acquires self–reliance, moral integrity and social dedication.
11. Historian Black (2003) studies how, following Darwinian theory, the Harriman railroad for- tune was used to sterilize the disabled. Among the feminist groups that lobbied for eugenic legislation, as documented by Ziegler (2008) were the National Federation of Women’s Clubs, the Women’s Christian Temperance Union, and the National League of Women Voters. Those who study black eugenic thought include the scholars Dorr and Logan (2011). They write that W.E.B. DuBois, Thomas Wyatt Turner and academics at Tuskegee, Howard and Hampton Universities believed that only fit blacks should procreate to eradicate the race’s “heritage of moral iniquity” (72).
12. According to historian Surrell (2014). Germany’s medical people tended to be militant Nazis. The Polish–Jewish professor, Lemkin (1944) first used the term “genocide” in 1944 to describe the Nazi destruction of Jewish and Slavic ethnic and national groups. However, Sur- rell maintains that the German medical profession followed a similar policy against the low scorers starting in 1939. He defines genocide as the elimination of those groups that are seen as “undesirable” and that being a low scorer was seen as undesirable by the medical system.
13. Does I Through III v. District of Columbia, 232 F.R.D. 18 (D.D.C. 2005). See also Does v. District of Columbia, 374 F. Supp. 2d 107 (D.D.C. 2005).
14. Unfortunately, from the women’s perspective, a more genocidal Federal Appellate Court in 2007 overturned the 2005 decision, ruling that the city could forcibly abort them. To this decision law professor Catherine Blackburn objected that the appellate court was over-ruling the common law which respected the right of persons to make wrong or unwise decisions concerning health, or simply to differ with their health providers on the best course of action. Blackburn (1990, 459) wrote, “The common law has long recognized that only the individual experiences disease; only the individual experiences the effects of treatment for that disease; and only the individual can choose between the effects of disease and the effects of treatment.”
15. Eyman (1987, 2–3) points out that intellectual limitation is not unhealthy. 16. James P. Baker emphasizes that the nature of low scoring is not the reason why they are in
poor health. He writes “Most can or should live long healthy lives” (Baker, Mixner, and Har- ris 2008, 19).
17. In the Matter of J.J. et al. (D.C. Super. Ct. Mental Retardation Mar. 8, 2007, M.R. Nos. 611– 82), “case o,” In re B.G., M.R. 429–482, available at https://cwpublishers.files.wordpress.com/ 2018/06/id-cases.pdf.
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18. Shirk (2006, 13) discusses the deterioration of the disabled under the medical model. 19. The “Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978.” DC Law 2–
137, effective March 3, 1979; codified as DC Code § 7–1301.03(19) (2012 Repl. and 2016 Supp.) does not use IQ scores in defining intellectual disability, but rather focuses on func- tional factors. It defines intellectual disability as:
“Mental retardation” or “mentally retarded” means substantial limitation in capacity that manifests before 18 years of age and is characterized by significantly subaverage intellectual functioning existing concurrently with two or more significant limitations in adaptive functioning.
20. By definition 89% of the low-scorers are mildly retarded, 6% are moderately retarded, and 5% are severely retarded. See footnote 7 of the case In re Margaret Bicksler (501 A.2d 1, 14n.7 [1985]), available at https://www.leagle.com/decision/1985502501a2d11502.
21. According to records of testimony given before US Congressional committees (Forest Haven: Joint Oversight Hearings, Before the Subcommittee on Education, Labor, and Social Services and the Committee on the District of Columbia, House of Representatives, 94th Cong. second session [1976]. Accessed July 20, 2017. http://catalog.hathitrust.org/Record/002939594.), in the 1970s, when the DC population was 722,000, there were 29,000 developmentally “dis- abled,” of which 23,000 were “intellectually disabled.” Of these, 1,100 were served by the DDS. In addition, the DC public schools served 9,000 and the SRA served 14,000.
22. See Brown (2012, 20–21), who writes:
Regardless of where ULS presented, whether it was a day program, prevocational pro- gram, or supported employment program, ULS heard repeatedly from individuals that they want to work. Nevertheless, these individuals encounter a myriad of obstacles to employment. . . . Some individuals are told over and over again that they are not ready for work. They are told this by providers and representatives of DDS (DC Department of Disability Services). This seems to be true nationwide. One study found that “state and federal policy do not consistently prioritize employment.” It also found that com- munity rehabilitation providers have not reallocated resources to community employment.
23. National Council on Disability (2009, 2) states that eleven states closed all their government- run institutions, while others retained all of them.
24. The Medicare Bill (1965) was enacted as an amendment to the Social Security Act of 1935. The bill was known as Title XVIII. Also passed at the same time was Medicaid or Title XIX. The latter provided federal matching funds to states in order to assist, among others, the senior intellectual underdogs that were at or near the poverty-line. DC and the state govern- ments administered the program, following federal guidelines. Since 2001 the Centers for Medicare and Medicaid Services agency (CMS) under the US Department of Health and Human Services, set the guidelines. The federal financial contribution averages 60%, with DC putting up 40%. The guidelines require DC to run a “medical care advisory committee” which oversees the development of new policies and any changes in Medicaid administration. Currently Medicaid covers 42 million Americans, nine million of whom have disabilities. In 1972 Congress expanded Medicaid eligibility to include younger Americans (under 65) who have permanent disabilities. In the same year Congress enacted another program, Sup- plemental Security Income (SSI), which provided a guaranteed income to, among others, the intellectual underdogs (Bozic 2013, 18, 29–30).
25. Over the years, as the judiciary has complained, the city and its contractors did not acknowl- edge their neglect and resisted the courts, including seeking DC City Council legislation in 2002, 2009, 2016 and 2017 to divest Superior Court and the court-appointed attorneys of jur- isdiction (Developmental Disability Reform Act of 2009; Citizens with Intellectual Disabil- ities Civil Rights Restoration Act of 2016).
26. No other jurisdiction provided such strong protection (US President’s Commission on Men- tal Health 1978, 54). The logic of the underdogs in having demanded permanent attorney
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27. Among those who helped in the resistance against the contractors was the national organiz- ation, “Voice of the Retarded” (VOR, http://www.vor.net), as well as their AFSCME-rep- resented, direct care workers. They sponsored research, organized politically, managed public relations, and participated in litigation (Forest Haven: Joint Oversight Hearings, Before the Subcommittee on Education, Labor, and Social Services and the Committee on the District of Columbia, House of Representatives, 94th Cong. second session [1976], p.122. Accessed July 20, 2017. http://catalog.hathitrust.org/Record/002939594). The Greater Washington Central Labor Council, AFL-CIO (The American Federation of Labor and Congress of Industrial Organizations) gave its help by establishing a foster-grandparent program in which 55 trade union families established an “adult-child” relationship with Forest Haven youth who had no parent.
28. Fair Labor Standards Act. 1938. Pub. L. 75–718, ch. 676, 52 Stat. 1060, 29 USC. ch. 8. June 25. 29. The scholars Sabatino and Litvak (1996, 289), Smith (2006, 1857) and Shamir (2009) docu-
mented the exploitation of homecare workers by the various labor and employment laws. 30. Jaffe and Sherwood (1994, 28); Gray (testimony in Forest Haven: Joint Oversight Hearings,
Before the Subcommittee on Education, Labor, and Social Services and the Committee on the District of Columbia, House of Representatives, 94th Cong. second session [1976], p.174. Accessed July 20, 2017. http://catalog.hathitrust.org/Record/002939594). To monitor the Evans decision, the court required the city to establish the office of The Developmental Dis- abilities Professional (DDP). In 1983 DC ARC, Inc. obtained an appointment to carry out the DDP responsibilities. It operated under the name of DC ARC Pratt Monitoring Program. From the underdog perspective, it equated their protection with protecting contractor profit. The resistors were a cash–cow. From this view, there was a conflict of interest in both monitoring contractors and being a multi-million-dollar contractor. The ARC monitor stated (Clay 1996) the following contractor–oriented mandates in a 1996 list concerning the Evans court’s “Remedial Plan,” which it had negotiated:
1. reinforce the mandate to pay providers within 10 calendar days of receipt of an acceptable invoice.
2. requires DHS (Department of Human Services) or the CFO (Chief Finance Office) to sub- mit monthly reports to the Court, Special Master and Court Monitor regarding Medicaid and MRDDA (Mental Retardation and Developmental Disabilities Administration) pay- ments made.
3. assign civil fines, payable to the Clerk of the Court for failure to pay.
4. orders filed audits for ICFs (Intermediate Care Facilities) every three years with desk audits in between.
5. assigns the Special Master Authority to hear and act on any claim from providers of non- payment of acceptable invoices.
6. requires the District to establish a process for the negotiation and final conclusion of at least annual contracts for all Evans class providers by 10/31/96.
7. reinforces the 1:60 ratio case management ratio.
See also, DC ARC (1998, 2); DC ARC (2003) (DC ARC, Inc. in 2003 had gross receipts of $14,799,987).
31. Yale professors Bradley and Taylor (2013) joined with Carroll in noting that the whole society pays more for less:
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The United States faces a central paradox in its health–care system: we spend more than any other industrialized country on health, yet we rank among the lowest in many dimensions of health. Our health–care spending is more than 17 percent of our gross domestic product, nearly double the spending in many other industrialized countries. But we rank far below most of these same nations in measures of life expect- ancy, infant mortality, and maternal mortality, among other key statistics. The huge costs and poor outcomes are difficult for Americans to fathom.
32. At the national level the Board of Trade contractors had the support of politicians like Ronald Reagan who used libertarian “freedom,” “Constitutional Rights,” and “fiscal conservatism” ideology to justify the replacement of the country’s public facilities with homelessness and prisons (Kraiem 2011; Bagenstos 2012, 6, endnote 129). Not unrelated, Ann B. Johnson studies the Medicaid attack on mental health facilities that paralleled the one on the intellec- tual underdogs. About its profit orientation, she writes,
I learned—the hard way—that a program’s client is never the patient but always the funding source, no matter what the program’s mission statement says. . . . What’s more, deinstitutionalization had nothing to do with what patients did or didn’t need, and everything to do with money. (Johnson 1990, xii, xiv)
33. Being federally funded, rather than by the DC City Council, the court–appointed lawyers had no particular loyalty to the city’s starvation agenda. On the judiciary’s federal funding, see DC Code § 11–2601 et seq. (2012 Repl.).
34. By going over her head and threatening to close the Habilitation Branch down completely, the magistrate’s enemies in 2010 were able to cut her tenure short. She was re–assigned to another division (Longus 2015, 4).
35. DC Code § 7–1305.05(h). This provision was incorporated into the DC Department of Human Services policy guidelines. See Department of Human Services of MRDDA (Mental Retardation and Developmental Disabilities Administration) (2001).
36. About the drugging abuse see Forest Haven: Joint Oversight Hearings, Before the Subcommit- tee on Education, Labor, and Social Services and the Committee on the District of Columbia, House of Representatives, 94th Cong. second session [1976], p.90. Accessed July 20, 2017. http://catalog.hathitrust.org/Record/002939594.
37. See In the Matter of J.J. et al. (D.C. Super. Ct. Mental Retardation Mar. 8, 2007, M.R. Nos. 611–82), “case h,” In re J.K., M.R. 10–90; “case k,” In re C.A., M.R. 27–95; “case i,” In re D.E., M.R. 97–85; and “case m,” In re K.S., M.R. 225–82, available at https://cwpublishers. files.wordpress.com/2018/06/id-cases.pdf. In all these cases the resistors won favorable rul- ings against the city’s use of drugs to restrain them. See also, Quality Trust (2009, 6).
38. Their court hearings allowed the activists to protest that the drugging prevented them from speaking spontaneously, taking initiative and voicing their demands, preoccupations and preferences. They are, as one of their advocates, Blackburn (1990, 459) commented, sub- merged in a sweet indifference, divorced from their environment by an invisible partition.
39. The experts documented that “diagnostic approaches are imperfect and imprecise even when done by the most qualified psychiatrists, . . . misdiagnosis may be as high as fifty percent” (Anderson 1984, 1036, 1039; see also, Ashcroft and Fraser 2001). Disability advocate Breggin (2013) called it “medicating normality” (see also, Kirk, Gomory, and Cohen 2013). In his view, to be anxious, depressed or rebellious when not allowed to have a job and family is a realistic response. Another scholarly ally, Sheehan et al. (2015), found that at the inter- national level, using a study of 33,000 intellectual underdogs, some 71% of those being drugged did not have the kind of serious mental or seizure illness for which the drugs were designed. The judge in the Evans case, while not taking an expansive view, repeatedly attacked the government’s psychotropic medication program for not having an overall treat- ment plan, counseling, therapeutic strategies for coping without drugs or efforts to wean them off the drugs. See “Transcript of Motion Hearing before the Honorable Ellen Segal Huvelle.” Evans et al. v. Fenty et al., Civil Action 76–CV–00293, document 1157 (D.D.C.
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Dec. 17, 2009, 37–38), quoting from the “2009 Special Masters’ Report.” In a 2009 Evans case review recorded in ibid., 45, the judge rebuked the government because a resident at a group home owned byWestview Medical and Rehabilitation Services, Inc., was being prescribed ten different psychotropic medications.
40. See In the Matter of J.J. et al. (D.C. Super. Ct. Mental Retardation Mar. 8, 2007, M.R. Nos. 611–82), “case n,” In re M.M., M.R. 488–82, available at https://cwpublishers.files. wordpress.com/2018/06/id-cases.pdf.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes on Contributor
Toby Terrar is a member of the National Lawyers Guild and a disability advocate in Washington, DC. He is a graduate of the University of California, Los Angeles (UCLA), where he majored in history. He has published essays in Journal of San Diego History, Peace Review: A Journal of Social Justice and The Journal of Military History. His web page is http://www.angelfire.com/un/cwp/.
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ICT article first page - add to article
ID article-no. 9.6.3 - ICT published (12-16-18) The Battle of ID (18pp), adobe 5 no wk
Abstract
Use of Superior Court against Medicaid
Conclusion
Notes