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Help needed on lawsuit opt-out legislation

October 21, 2011

One irony of the Messier v. Southbury Training School lawsuit, which may one day lead to the closure of the state facility, is that it was supposedly filed on behalf of the residents of the school.

In 1996, those residents were involuntarily named as plaintiffs in the suit, which was filed by the Arc of Connecticut and other organizations seeking to shut the school.  The irony is that the families and guardians of those residents don’t want the school to close and, by and large, don’t want their loved ones at the school to  move elsewhere.

It’s frustrating to many of those families and guardians that outside groups, such as the Arc, have been trying for years to shut down STS in the  names of their loved ones and wards.  This kind of “help” from which the recipients would rather be spared has, in fact, been happening to guardians of developmental center residents all over the country; and one member of Congress who has been trying to change it is U.S. Rep. Barney Frank, a Massachusetts Democrat.

Frank has filed a bill in Congress for the past few years, which would give guardians of residents of developmental centers such as STS the right to opt out of federally funded class action lawsuits filed to close those centers. 

This year, Frank’s bill (H.R. 2032) was referred to the Judiciary Committee’s Constitution Subcommittee.  That represents “real progress” for the legislation, according to Tamie Hopp of  VOR, a national nonprofit that advocates for a care continuum that includes developmental centers.  VOR is working to get to the next step, which is a hearing on the bill, either at the subcommittee or the committee level.

Thus far, the bill has 65 co-sponsors in the House, but no member of the Connecticut congressional delegation has yet co-sponsored the measure.  The STS Home & School Association is asking people to call their congressmen and urge them to co-sponsor H.R. 2032 and request that a hearing be scheduled on the bill either by the subcommittee or the full Judiciary Committee.

H.R. 2032 would prohibit any entity that receives funds from the federal government from filing a class action lawsuit involving the residents of an intermediate care facility for the developmentally disabled (ICF/DD) unless the residents’ guardians have the opportunity to opt out of the suits.

In addition, the bill would require the U.S. Department of Justice to consult with the guardians in any investigations undetaken of developmental centers in which their wards are living, and provide a right of intervention to guardians if the DOJ files a lawsuit.

According to the VOR, there have been dozens of class action suits filed by federally funded legal “Protection and Advocacy” agencies (P&As) and by the DOJ around the country since the 1970s, seeking primarily to shut state ICFs.  Those lawsuits have brought about the closures of at least 15 developmental centers, resulting in the forced transfers of thousands of residents from their longtime homes, often with tragic consequences.

Despite the record around the country of signficant improvements in the care and conditions in ICFs and the relatively greater levels of abuse and neglect in the community system, we’ve never heard of a case in which the DOJ has brought a legal case against conditions in the privatized community-based system of care.

The P&A’s are funded, by the way, by the U.S. Department of Health and Human Services, which also provides funding for the developmental centers.  Thus, in filing lawsuits to close the developmental centers, HHS is, in effect, suing itself.  We think this is, at best, a waste of our tax dollars.

It’s not clear whether Frank’s bill would have given STS guardians a say in the filing of the Messier case, which was brought in 1994, because it’s not clear that the original plaintiffs in the case, which include the Arc of Connecticut, are federally funded. 

It does appear that Frank’s bill would have applied to a separate lawsuit that was brought against STS by the DOJ in 1985.  That case, U.S. vs. Connecticut, concerned substandard conditions at STS.  In the succeeding 21 years, care and conditions at STS were significantly upgraded; and in 2006, U.S. District Court Judge Ellen Bree Burns released STS from judicial oversight, declaring that STS was by then providing a “state-of-the-art model of institutional care.”

The Messier case was closed last year on the basis of an agreement that didn’t involve the STS families and guardians themselves.  The agreement was that teams of administrators and clinicians would help those families and guardians make “informed decisions” about leaving STS.  There’s really no need for that arrangement.  The STS families and guardians are, and always have been, fully capable of informing themselves about the options available to them. 

While there’s no doubt that legal action was needed in the 1980s to raise the standards of care at STS, the unfortunate effect of all that litigation is that today it is no longer working in the interest of the families and guardians at STS. 

You can find telephone and email contact numbers for the Connecticut House members here.

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One Comment
  1. There’s nothing radical about Barney Frank’s bill. Federal law (The Developmental Disabilities Assistance and Bill of Rights Act) already states that individuals with developmental disabilities and their families are the “primary decisionmakers” regarding services and supports such individuals and their families receive, including choosing where the individuals live from available options (42 U.S.C. 15001(c)(3)).

    In filing lawsuits to close developmental centers and naming residents of those centers as plaintiffs in those suits, the DOJ and other opponents of the developmental centers are failing to recognize the families and guardians as the primary decisionmakers.

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