Realizing Olmstead: Talley Wells ’98

April 28, 2015Duke Law News

Tally Wells '98 with his client, Harold Anderson

The success Talley Wells ’98 has had advocating for Georgians with disabilities only demonstrates that more work is needed

 

Before rheumatoid arthritis put him in a nursing home, 6-foot-6 Harold Anderson lifted 200 pounds without much thought and handled jackhammer duty for a Georgia road paving crew. But at age 48, he began to lose his strength. “I couldn’t hold anything, and then my legs and knees couldn’t hold me up and it was hard to walk,” he says. “When I sat down, it was hard to get up, and then I got to the point where I could not get back up at all.”

Anderson, who uses a wheelchair, spent the next seven years in nursing homes. He was sick a lot, catching whatever viruses circulated among the residents. After being denied state support, he feared he would never live independently again. Then a social worker suggested he call Talley Wells at the Atlanta Legal Aid Society.

“I went out to see him and wondered what the heck he was doing there wasting away,” Wells recalls. “How could the bureaucracy and the people who assessed him not think he was capable of living and doing all sorts of things in the community instead?”

Wells brought an administrative action challenging the state’s assertion that Anderson’s care would be too expensive in the community. The case was resolved after a judge mediated the action in the nursing facility. Thanks to Wells’ advocacy, Anderson has been in his own apartment since March 2010, with the assistance of an aide for daily tasks. Anderson’s call echoed many that Wells takes at the Legal Aid Society, where he directs the Disability Integration Project, an epicenter of the legal fight to integrate people with disabilities into community settings. Through litigating, advocating, and educating, Wells is pushing the state of Georgia to meet its obligation to help people like Anderson regain their lives outside of institutions.

It is a duty imposed by the landmark 1999 Supreme Court decision in Olmstead v. L.C., which many people involved in disability rights call their version of Brown v. Board of Education. Landmark or not, a legal decision means nothing without implementation.

“Just because people with disabilities had rights, it didn’t mean anybody would enable their enforcement,” says Wells. He credits the founder of the Disability Integration Project, Sue Jamieson — who was the lead lawyer in Olmstead and who he considers his mentor — with being a true access-to-justice pioneer by first questioning whether mentally ill and developmentally disabled people should be housed in institutions against their will. “She found a group of people who needed lawyers and advocates that even legal services had not connected with,” he says.

Taking over leadership of the project from Jamieson in 2007 was a natural move for Wells, who had earlier been in general practice at the Legal Aid Society. Wells and his wife, Laura Magistro T’93, have been deeply involved as volunteers with L’Arche, a global organization that builds communities around people with intellectual disabilities, since they first heard of it as Duke undergraduates, and they helped lead a successful, multi-year effort to establish one in Atlanta. He welcomed the opportunity to apply his professional skills to a similar cause.

“I had gone into legal services work because that’s where my passion was — providing legal services to folks who otherwise wouldn’t be able to afford an attorney,” he says. “And working with people with developmental disabilities had become a passion of mine.”

The Supreme Court ruled in Olmstead that a disabled individual with a desire to live outside an institution has the right to do so if that person’s medical team determines that the community setting is appropriate and the provision of services is a reasonable accommodation — that is, it is not unduly burdensome on the state. Otherwise, forcing someone to live in an institution is a violation of the Americans with Disabilities Act.

But in Georgia, the promise of Olmstead met grim reality: In the five years that followed the decision, 115 mentally ill and developmentally disabled people in state hospitals died under suspicious circumstances linked to overcrowding and poor care. The U.S. Department of Justice (DOJ) investigated and ultimately reached a settlement in which the state agreed to enable each person with a developmental disability housed at a state-run regional hospital to transition into the community. Another 9,000 people with severe and persistent mental illness would get support and housing to live in the community.

Just because people with disabilities had rights, it didn't mean anybody would enable their enforcement.
— Talley Wells '98

A Venn diagram of Wells’ work and influence would feature overlapping circles. One is directly representing clients such as Anderson. Another is working closely with state and national policymakers — including the independent reviewer of the state’s compliance with the DOJ settlement — to identify solutions that work in Georgia and might be replicated elsewhere and policies that aren’t working or obstructing progress. Wells’ influence rests on maintaining relationships across the political spectrum, and in this regard, his open, energetic disposition serves him well.

“He’s brilliant and tireless at accomplishing Olmstead enforcement,” says Jamieson. Adds Atlanta Legal Aid Litigation Director Charles Bliss: “Talley has come up with solutions to problems and pointed the way for the state and state actors to continue implementing this. A major social shift like this takes years to implement, and in that way, Olmstead is on the same path as Brown. Major things have happened but major things still need to be done so [people with disabilities] can really maximize their humanity.”

In some cases, one fight gives way to another. That’s what happened after Keith McGarity, a 58-year-old man with Down’s Syndrome and congenital heart problems, moved from a state institution into a group home near his elderly parents. When county officials tried to close McGarity’s group home, one of only three in the area, Wells and his colleagues relied on Olmstead and the Fair Housing Act to keep it open.

McGarity’s father shared his story last October in a StoryCorps interview and on the “I Am Olmstead” website Wells created. The site, olmsteadrights.org, represents the third circle of his work, in essence marketing Olmstead so the public, legal community, and institutionalized clients know about these rights. The “I Am Olmstead” campaign, anchored by the website, offers a detailed, plain-language history of the decision and advocacy resources.

Most memorable are the stories of the people, like McGarity and Anderson, who crusaded for, benefited from, and can be helped by Olmstead.

“When you Google Olmstead, my goal is that you find something powerful,” says Wells. He constantly feeds his social media channels with variations on the message: Olmstead is helping disabled people live as they wish, but thousands more are still in need.

“The website is about access to justice in all sorts of ways,” he says, noting that in a recent month, almost 700 unique visitors from across the country accessed it.  “Legal services and other public-interest attorneys use it for thinking about Olmstead’s use in their worlds. It’s also for people to advocate for justice for themselves, and for the community to understand that this is happening and it’s exciting.”

Access and justice, as envisioned by Olmstead, have far to go, says Wells, who regularly speaks to law students about the case. This year, as the ADA celebrates 25 years (and Olmstead just passed 15 years), more than 7,000 Georgia residents with disabilities are waiting for Medicaid waivers, a necessary step to realize the ruling’s benefit. And last September, four years after the DOJ settlement, the independent reviewer called Georgia’s system of supports for individuals with intellectual and developmental disabilities still “seriously compromised.” “We’ve made extraordinary progress, and that’s shown how much more work is needed,” says Wells.

Through Wells’ advocacy, people like Harold Anderson, who now serves on the board of the Atlanta Legal Aid Society, continue to gain independence and show what access to justice can mean to an individual. Anderson says he hasn’t had “one bad day” since he left the nursing home five years ago. He recalls his first conversation with Wells.

“After we talked, it was like I saw a light at the end of the tunnel. I knew I was going to get out. Talley was more determined than I was to get me out.”