Robert Velevis was an associate at Weil, Gotshal & Manges when he and Yvette Ostolaza, a partner, filed a pro bono class action lawsuit in 2010 alleging the state of Texas was violating federal law by confining people with severe disabilities in poorly run nursing homes without offering them community-based living alternatives and services.
He and Ostolaza knew the case would not resolve quickly, but they didn’t anticipate just how long the legal battle would stretch.
Fifteen years later, after a lateral move to Sidley Austin, promotion to partner and raising his second child from birth to high school, Velevis and his team are finally seeing the case conclude. It’s ending on a high note — with a favorable outcome for their clients, and as Ostolaza notes, for countless residents of Texas.
This summer, U.S. District Court Judge Orlando Garcia of the Western District Court of Texas issued a sweeping 475-page opinion, finding that “Texas’ actions have caused irreparable injury to people with [intellectual and developmental disabilities] who are in nursing facilities.” The parties faced a deadline to submit their proposed remedial order last week; the state filed an objection to the judge’s findings.
“This case — with the class action aspect of it and the sheer number of families that it will impact and perhaps impact other states because of the rulings here by the federal judge — It’s the kind of stuff that, when you look back on your career, make you very proud,” Ostolaza said.
An Indelible Juxtaposition
Ostolaza, now Sidley’s management committee chair and an executive committee member, developed a passion for representing people with disabilities when she took on some cases early in her career. She got her first such client when she attended a pro bono clinic, a wheelchair-bound military veteran who was not getting certain services. Ostolaza represented him in an administrative proceeding and won.
“I was sort of hooked because it was such a game-changer for him,” Ostolaza said. “It felt like I could really make a difference by using my legal degree to help.”
Her pro bono work led to one of her clients recommending Ostolaza to the Center for Public Representation and Disability Rights Texas, as they were preparing the 2010 lawsuit against Texas.
At the time, Ostolaza was co-heading the commercial litigation group at Weil, Gotshal & Manges. She looked at the case and interacted with the families of clients, at which point “it was hard to not imagine taking on the matter,” she said.
Right away, she brought on Velevis, who flew around the state meeting with clients in the facilities. What he saw left an indelible impression. Their clients were relatively young — some in their 20s — and active. They were assigned to roommates who were elderly, with drastically different limitations on their mobility.
“That juxtaposition, to me, has been something that has stuck since I was there and really was the animating force behind what we’re trying to do in this case, which is to get people that don’t need to live in nursing homes out of nursing homes,” Velevis said.
The lead plaintiff in the case, Eric Steward of San Antonio, had lived an active life before complications from epilepsy led to hospitalization. Before that hospital stay, Steward lived with seven other people in a community-based facility, where he had a private bedroom, participated in vocational training and sports, competed in the Special Olympics, and enjoyed routine outings such as going to movie theaters and restaurants.
But he was discharged from the hospital to a nursing facility, where he was condemned to live for eight years at the time of the lawsuit filing. He was then 44. In the nursing facility, Steward received no vocational training and was deprived of meaningful interaction with the outside world, which led to depression, his lawyers said.
In December 2010, the groups filed the lawsuit in a San Antonio U.S. District Court on behalf of more than 4,500 people, alleging Texas was violating the Americans with Disabilities Act and other federal laws.
“Like all of us, individuals with intellectual and developmental disabilities want and deserve to live in the community where they can fully participate in community life,” Ostolaza said in a news release at the time.
A Near-Settlement
The parties to the lawsuit were on the verge of a resolution in 2013. The interim agreement would have expanded community living options for people with intellectual disabilities, prevented the unnecessary placement of those with severe disabilities in nursing facilities when safe community living was possible and offered educational activities to inform affected individuals and their families about available community-based living options.
That same year, Ostolaza, Velevis and many of their team members made a lateral move to Sidley Austin and took the case with them.
But in 2014, Gov. Greg Abbott took office, succeeding Rick Perry. The state then declined to sign the settlement agreement, setting the stage for trial.
“We thought this was a case that should have resolved before trial, because what we were asking for was really just compliance with federal law,” Velevis said. “[We were] disappointed both as advocates for our clients and, frankly, as citizens and taxpayers of the state of Texas, that the state would prefer to litigate this case rather than solve the quite obvious problem that our case presented.”
Changing Lives
Throughout the years that followed, some of the named plaintiffs would get the services they sought, including movements from the nursing homes into the community. Velevis and Ostolaza suspect the state was attempting to moot the case.
“That’s part of why it took longer,” Ostolaza said. “You can’t blame a plaintiff who is getting a benefit from moving forward.”
Finally, a three-week bench trial was held in October 2018, where Sidley Austin lawyers served in prominent roles.
On June 17, Judge Garcia issued his 475-page opinion.
“The irreparable injury resulting from Defendants’ ongoing refusal and failure to provide people with [intellectual and developmental disabilities] with preadmission screenings, professionally appropriate assessments of their habilitative needs, specialized services to meet those needs, and active treatment is severe and ongoing,” Judge Garcia wrote.
Ostolaza and Velevis lauded the opinion as one of the most comprehensive and detailed they’ve seen in their careers.
“I can say I’ve never gotten a case that had a 475-page opinion,” Velevis said. “And when I tell other people about the length of the court’s opinion, other longtime practitioners, many times their jaw drops.”
“It’s an order that can leave no room for doubt as to the expectation going forward,” Ostolaza added.
Reflecting on the longevity of the litigation, Ostolaza and Velevis said many of the associates and even summer associates who were initially on the case have since made partner. Personally, their families grew during case. All the while, they represented high-profile clients in high-stakes matters, including Lehman Brothers Holdings Inc. and the Texas Rangers baseball club. Velevis is now a co-chair of Sidley’s pro bono committee in Dallas.
But this was meaningful in that it was the first systemic change case for both lawyers.
They praised their law firms for allowing them the time and resources to stick with the case pro bono over so many years and lauded their co-counsel at the Center for Public Representation and Disability Rights Texas.
“One of the great things we get to do as lawyers — especially when you’re fortunate enough to be part of a firm that supports pro bono services — is use our degrees to change lives in a meaningful way,” Ostolaza said.
The Sidley Austin team also included Angela Zambrano, Margaret Allen, Natali Wyson and Mason Parham.
The legal team was also led by Steven Schwartz, special counsel for the Center for Public Representation and Garth Corbett, senior attorney for Disability Rights Texas.