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Underdogs for Gainful Employment: A Socialist Versus Medicaid -
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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
[email protected]
INTERNATIONAL CRITICAL THOUGHT 2018, VOL. 8, NO. 4, 609–625
https://doi.org/10.1080/21598282.2018.1539920
!l Routledge ~~ Taylor&FrancisGroup
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
610 T. TERRAR
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
INTERNATIONAL CRITICAL THOUGHT 611
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
612 T. TERRAR
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
INTERNATIONAL CRITICAL THOUGHT 613
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
614 T. TERRAR
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
INTERNATIONAL CRITICAL THOUGHT 615
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
616 T. TERRAR
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).
INTERNATIONAL CRITICAL THOUGHT 617
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.
618 T. TERRAR
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
INTERNATIONAL CRITICAL THOUGHT 619
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:
620 T. TERRAR
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.
INTERNATIONAL CRITICAL THOUGHT 621
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