Trial wraps up in lawsuit against the state by developmentally disabled Texans

A month-long trial alleging the state illegally warehoused more than 3,600 intellectually or developmentally disabled Texans in nursing homes wrapped up Thursday, but a ruling is not expected until the first part of next year.

Chief U.S. District Judge Orlando Garcia of San Antonio said it may be “a while” before he decides the matter because he has to pore over the testimony of a multitude of witnesses and evidence presented during the non-jury trial. Following closing arguments Thursday, the judge also ordered additional legal briefings over at least the next month.

“I know the issue is incredibly important,” the judge said. “I will review everything carefully, the briefs. …We will take the necessary time to decide the matter.”

The plaintiffs, disabled persons represented by organizations that include The Arc Texas and the Coalition of Texans With Disabilities, first sued state officials in 2010 alleging the state’s actions violated federal law and kept disabled persons from a better quality of life.

The case was later certified as a class action, and the Justice Department joined the suit as an intervenor in 2012, siding with the disabled plaintiffs.

In 2013, the state and the plaintiffs reached an interim settlement agreement that in part called for Texas to expand community services and create a service team for each disabled person. In return, the suit was put aside for two years, according to testimony. But the agreement was ended in 2015.

“We were on different planets. I think the planets were always far apart,” Elizabeth Brown Fore, deputy chief of the general litigation division for the Texas Attorney General’s Office, told the judge in response to a question during her closing arguments. “There was an effort so that an agreement could be made, but…some of the stickier issues were left to the end. The stickier issues should have been handled at the beginning.”

But, she added: “We don’t believe federal law requires what they believe federal law requires, and that’s what it boils down to.”

She further argued that the state is abiding by federal laws and goes beyond what requirements say, but that the actions failed to appease advocates.

“Everyone who has asked to leave a nursing home, or be diverted instead, and who has met the criteria and is safe, according to treatment officials, to be moved into the community and has requested it, has been moved into the community,” Brown Fore said. “It feels like every time we make a step, they say, ‘Ok, but it’s still not quite enough.’”

Trial testimony included expert witnesses dueling it out about what current or best practices are for dealing with the disabled, the varied care in nursing facilities and what federal law or regulations, including amendments over the years, say or mean.

Some of the disabled plaintiffs or their relatives also testified about how the disabled persons suffered setbacks — wearing diapers because they were unable to use the bathroom, gaining weight and developing diabetes from inactivity, for example — when they were placed in nursing homes. A community setting, like being placed in a group home, gave them access to better quality of life, such as being able to get a job, take in a movie, visit with friends and family and attend church services.

Lawyers for the plaintiffs and the Justice Department said in closing arguments that the state violated the Americans With Disabilities Act, Medicaid rules and other federal laws through a series of shortcomings that included: An inadequate screening process to ensure that people who did not need to go to nursing homes instead got diverted into a community setting, or that if they were placed in a nursing facility, they did not get specialized services and that they were not even given adequate information that they had the option of seeking a community setting. The plaintiffs want the judge to find that the state violated federal law and issue an order instructing officials to comply.

“The crux of our case is what is happening to 3,600 developmentally disabled people who are in nursing homes throughout Texas,” attorney Steven Schwartz with the Center for Public Representation, said in closing arguments. “They should be receiving specialized services while there in the nursing home facility, active treatment and the opportunity to move out into the community.”

Schwartz and attorney Alexandra Schandell with the Justice Department, gave examples of disabled persons who languished in nursing facilities only to flourish when they were moved to a community setting.

Among them was Richard Krause, a disabled 38-year-old man who Schwartz said had no support, rehabilitative treatment or specialized services that were required while he was in a nursing facility from 2001 until 2014.

He went from sitting or lying in his nursing home bed, not being able to use the bathroom on his own and wearing diapers to working, getting around in a wheelchair, and going to the bathroom on his own when he was finally placed in a community-based setting with necessary support.

“It was only because of the advocacy of Disability Rights Texas, (pressure from his father)…and because he was a named plaintiff that his life changed,” Schwartz said. “For the other 3,600 people still in nursing homes, little has changed.”

Hearing reveals chilling details of fatal Southwest flight

There was a loud bang, and suddenly the Southwest Airlines jet rolled sharply to the left. Smoke began to fill the cabin, and flight attendants rushed row by row to make sure all passengers could get oxygen from their masks.

When flight attendant Rachel Fernheimer got to row 14, she saw a woman strapped in her lap belt but with her head, torso and arm hanging out a broken window.

The harrowing details from the April 17 fatal flight were released for the first time as the National Transportation Safety Board began a hearing Wednesday into the engine failure on Southwest Flight 1380, which carried 144 passengers and five crew members.

The flight attendants told investigators at least one of the male passengers put his arm out of the window and wrapped it around the woman’s shoulder to help pull her back in. Fernheimer said when she looked out the window, she could see that one of the plane’s engines was shattered, and there was blood on the outside of the aircraft.

Flight attendants asked for medical volunteers. A paramedic laid the woman across a row of seats and began chest compressions. They tried a defibrillator but it indicated that there was no shock. The paramedic and a nurse took turns at CPR.

Passengers asked if they were going to die. Fernheimer said she squeezed their hands. “She told them that they were going to make it,” an investigator wrote.

Pilots Tammie Jo Shults and Darren Ellisor landed the crippled Boeing 737 in Philadelphia. The passenger in the window seat, Jennifer Riordan, was fatally injured — the first death on a U.S. airline flight since 2009. Eight other passengers, including at least one of the men who helped pull Riordan back in the window, suffered minor injuries.

Wednesday’s hearing in Washington focused on design and inspection of fan blades on the engine, made by CFM International, a joint venture of General Electric and France’s Safran S.A.

An official from CFM defended the design and testing of fan blades like the one that snapped on the Southwest plane as it flew high above Pennsylvania, triggering an engine breakup that flung debris like shrapnel into the plane.

After the fatal accident, CFM recommended the use of frequent and more sophisticated tests using ultrasound or electrical currents.

Another Southwest jet had suffered a similar blade-related engine breakup in 2016 over Florida.

CFM and federal regulators considered the Florida incident an aberration.

“We determined early that we would require some corrective action in that it was an unsafe condition,” an FAA expert on engines, Christopher Spinney, testified on Wednesday, “but we also determined we had some time.”

Rather than order immediate inspections of fan blades after the 2016 incident, the FAA began a slower process for drafting a regulation and getting public comment before enacting it. That process was still underway when the fatal accident occurred nearly two years later.

Since the deadly flight, widespread inspections have turned up eight other fan blades on similar CFM engines that also had cracks. The fan blade that broke was last inspected six years earlier and, it was determined, suffered from metal fatigue even then — but it went unnoticed by a less sophisticated exam used at the time.

Fan blades have been thought to have no real lifetime limit. CFM and FAA officials said they were now considering whether blades must be replaced at some point even if they don’t show wear.

Representatives from CFM also testified about testing and certification of jet engines, which are supposed to be built to prevent pieces from breaking off and flying free.

The investigation is continuing. Most of Wednesday’s hearing was highly technical. It was led by one of the safety board’s five members, Bella Dinh-Zarr. The full board is expected to determine a probable cause for the accident in the next several months.

Meanwhile, Riordan’s husband, Michael, said in a statement on behalf of his family that they were “grateful for the heroic actions of the passengers who tried to save Jennifer’s life.”

“The most important thing now is making sure that the aircraft and engine failures that caused Jennifer’s untimely and unnecessary death never happen again,” he said.

Vintage World War II plane crashes into an apartment parking lot killing 2 in Fredericksburg

The pilot killed when his vintage World War II fighter plane crashed in Fredericksburg Saturday has been identified as Cowden Ward Jr. of Burnet, according to a Facebook post.

The post noted that the passenger was a World War II veteran and former B-17 pilot.

“We hope that everyone will remember his infectious smile, his passion for flying our nation’s veterans, and above all remember him for the amazing pilot, friend and caring person he was,” the statement read.


The crash of a vintage World War II fighter plane into a parking lot of a Fredericksburg apartment complex has killed two people, according to authorities.

The National Transportation Safety Board is investigating the crash of the modified Mustang P-51D, according to officials. Texas Department of Public Transportation Sgt. Orlando Moreno confirmed the two deaths.

The Mustang crashed into the parking lot about 3:15 p.m., according to an NTSB spokesman. The Federal Aviation Administration said in a release that the aircraft was destroyed in the crash and several cars were damaged.

In a tweet posted Saturday evening, the National Museum of the Pacific War, which is in Fredericksburg, said one of the two killed in the crash was a veteran.

The museum initially reported both people killed were veterans.

The crash occurs roughly two weeks after a helicopter crashed into a hill while taking a newlywed couple from a Uvalde wedding to their honeymoon, according to a preliminary NTSB report. The groom and bride, William Byler and Bailee Ackerman Byler, both 24, and the pilot, 76-year-old Gerald Lawrence, were killed.