H.R. 3995 - ACTION
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=====
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VOR Weekly E-Mail Update
February 29, 2008
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FOCUS: STATE NEWS
Table of Contents
1. Washington State: VOR approved as Amicus; Summary
Judgment denied
2. Massachusetts: Ricci court mulls arguments on
transfers
3. California: State Legislator, a champion for people
with disabilities, reintroduces abusive caregiver registry bill
4. Maryland: Short but sweet – Letter to the Editor
supports choice
5. New Jersey: Waiting List Exceeds 8.000
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1. Washington State: VOR approved as Amicus; Summary Judgment
denied
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With good results, VOR’s participation as Amicus Curiae began as
quickly as it ended in Lamb v. Washington. In this case, state
defendants sought to have the case dismissed arguing that state
officials were immune from suit under the state’s Abuse of
Vulnerable Adults Act (AVAA). Plaintiffs are 4 former residents
of Fircrest Habilitation Center, a state operated ICF/MR, who
allege that their move has caused them to suffer “abuse” or
“neglect” as those terms are defined in the AVAA.
VOR request to participate as Amicus Curiae was approved, the
same day the court ruled against the state. In support of the
plaintiffs, VOR, through its pro bono attorney Mike Rato,
argued, in part, “VOR respectfully requests the opportunity to
rebut the Defendants’ narrow interpretation of the AVAA . . .
VOR believes this that this issue – apparently one of first
impression – is a cornerstone of the Act, and that acceptance of
the Defendant’s position would seriously undermine the goal of
protecting the developmentally disabled from abuse.” On February
25, 2008, the Court agreed, granting VOR’s request to
participate as Amicus and rejecting the State’s AVAA immunity
arguments.
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2. Massachusetts: Court mulls arguments on transfers
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Summary (Source: Boston Globe, Feb. 26, 2008): A court hearing
earlier this week is part of years of litigation over whether
the residents would be best served by staying at Fernald, a
state operated ICF/MR, or moving to a group home. Beryl Cohen,
the lawyer representing families and guardians of residents,
asked the judge to order prosecutors to look into the
circumstances of the recent transfer of several residents from
Fernald, including a 91-year old woman (the subject of the
hearing earlier this week). In August, Federal Judge Tauro
barred officials at Fernald from moving any residents unless
they and their guardians agreed. Governor Deval L. Patrick, like
Governor Mitt Romney before him, wants to close Fernald and move
residents to group homes. The Patrick administration is
appealing Tauro's order to the US Court of Appeals for the First
Circuit, where arguments are expected in a few months. VOR, and
its statewide affiliate, COFAR, are seeking to participate as
Amicus Curiae in the appeal.
The Daily News Tribune
By Richard Conn
Tuesday, February 26, 2008
A federal judge said yesterday he may ask the U.S. Attorney's
office to investigate whether a 91-year-old mentally retarded
woman was moved against her will from the Walter E. Fernald
Developmental Center to a group home in Bedford.
U.S. District Judge Joseph Tauro said at the end of several
hours of testimony that he would issue a ruling soon.
Beryl Cohen, an attorney for the Fernald League - a group of
guardians looking to keep Fernald open - asked the judge to
broaden the federal prosecutor's investigation. He asked that
the scope include other transfers out of Fernald completed by
the Arc of Greater Boston - a corporate guardian - which were
approved by the state.
The 91-year-old woman, who was referred to in court yesterday as
"A.T." lived at Fernald for some 50 years before she was moved
on Feb. 13.
She is legally blind, hearing impaired and has a heart
condition.
Tauro ruled in August that Fernald must remain an option for its
current residents as long as it's open. The state announced the
next month it would appeal that decision.
Yesterday's hearing was called primarily to consider a motion
filed last week from the Fernald League, which asked Tauro to
bar the transfer of any more residents from the facility until
an appeals decision was rendered in the case.
Tauro quickly turned down that request, and said stopping the
transfer of residents was not the intention of his order last
year, nor was trying to block the state from closing the
facility.
"My concern is that people who are there and want to stay there,
get an opportunity to stay there," Tauro said.
But after that ruling, an unexpected full day of testimony
followed, most of which revolved around A.T.
Cohen first called to the stand Linda Curran, a former
caseworker with the Arc of Greater Boston, who said she would
not approve the woman's transfer out of Fernald, because A.T.
said on many occasions that she wanted to stay there.
However, Curran said that after choosing to keep the elderly
woman at Fernald she was told by her bosses at Arc of Greater
Boston of the longtime Fernald residents, "We gotta move them
out."
However, Terri Angelone, chief executive officer for the Arc of
Greater Boston, testified that employees were never pressured to
transfer residents from Fernald to other facilities. Angelone
also said Curran did not look at the Bedford home as an option
for Fernald residents.
After refusing to move A.T. and other Fernald residents, Curran
said her caseload was then given to another employee in October.
She gave her notice in January and her last day with the Arc of
Greater Boston was on Friday.
Attorneys for the Arc of Greater Boston and the Department of
Mental Retardation called to the stand Carrie Johnson, who now
serves as the corporate guardian's case manager for some Fernald
residents. She said that A.T. was happy with the move to Bedford
when she was moved on Feb. 13.
"She said she wanted to stay," Johnson said. "She expressed that
she was content, 'this is it."'
Johnson said that A.T. has not expressed a desire to go back to
Fernald since the move.
But Cohen questioned the method of how the woman was moved. He
said A.T. was told she was going on an "outing" instead of being
moved permanently from Fernald.
"It's critical to determine in my point of view whether A.T. was
deceived, if not worse," Cohen said.
The state has been given until tomorrow to file its appeal brief
to Tauro's August decision.
An attorney for the state asked yesterday that Tauro stay his
order, a request which he denied.
"The Aug. 14 order stands, even though the case is on appeal,"
Tauro said. "The order stands."
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3. California: State Legislator, a champion for people with
disabilities, reintroduces abusive caregiver registry bill
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California Political Desk
February 15, 2008
SACRAMENTO, CA -- Assemblymember Noreen Evans (D-Santa
Rosa), Chair of the Assembly Democratic Caucus, reintroduced
legislation yesterday to protect the developmentally disabled
from abusive caregivers by creating a registry to track them and
prevent them from further employment as a caregiver.
"The Governor vetoed a similar bill last year," said Evans. "I
hope that he sees things differently. Developmentally disabled
people cannot fight back against their abusers. We need to pass
this bill and protect them."
Assembly Bill (AB) 1983 directs the Department of Developmental
Services to establish a registry of care providers with abusive
histories and make the information available to the groups
hiring caregivers. The bill also: requires employers to consult
the registry prior to hiring a caregiver; prohibits the hiring
of any caregiver listed on the registry; requires employers of
caregivers report instances of abuse to the department for
inclusion on the registry.
The first two points listed above were added AB 1983 in order to
respond to the Governor´s veto message of AB 1192, a
substantively similar bill authored by Evans last year which
passed the Legislature unanimously.
"We received word from the Administration too late last year to
respond to the Governor´s concerns the first go around," added
Evans. "This bill is an effort to craft a bill the Governor will
sign."
Forty-four percent of abusers make contact with their victims as
unlicensed, direct care workers. If caught, investigated, and/or
fired, many abusers move on to another agency because they can.
Without knowledge of a caregiver´s past, employers continue to
hire abusive caregivers.
Abuse of the developmentally disabled population encompasses
physical, sexual, verbal, and financial abuse, as well as
neglect, abandonment, abduction, isolation, and deprivation of
needed goods and services. Developmentally disabled persons face
a higher risk of abuse because they are often segregated from
the mainstream population and are heavily dependent on others
for their basic needs.
"This bill will help prevent abusive caregivers from moving
around the state to continue their violence and abuse," added
Evans. "We need to stop the cycle of violence. A registry will
help protect the public from these criminals."
Individuals with developmental disabilities are 11 times more
likely of being sexually assaulted and 13 times more likely of
being robbed than people without disabilities. One study by the
University of California, Irvine found that there are five
million crimes against the developmentally disabled each year.
AB 1983 is sponsored by the REACH – Registry to End Abusive
Caregiver Hiring -Project. Further information about this bill
is available online at http://www.leginfo.ca.gov.
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4. Maryland: Short but sweet – Letter to the Editor supports
choice
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Related news: See author Andrew Booth’s call for community
resource centers in Maryland in the February 15, 2008, VOR
Weekly E-Mail Update (http://vor.net/Feb152008.htm), and
information about the “recent admissions decision,” (Reese v.
DHMH) he references in the November 9, 2007, VOR Weekly E-Mail
Update (http://vor.net/Nov92007.htm).
Md. policy violates federal mandate for choice in care
Andrew W. Booth
Salisbury
(Booth is chairman of the Holly Center Task Force of the Greater
Salisbury Committee)
As a condition of Maryland's participation in Medicaid, the
state must certify to the federal government that it provides
the choice to individuals to receive care in the community or an
institution, including an intermediate care facility for the
mentally retarded like our Holly Center.
In a recent admissions decision, the secretary of the Department
of Health and Mental Hygiene sought to sidestep this choice
requirement by simply rejecting an individual's admission to
Holly Center, then "stonewalling" further hearings or review
expecting them to go away. The Court of Special Appeals of
Maryland found this practice violated the Fourteenth Amendment
right of due process, which guarantees the opportunity to be
heard and to present evidence.
It is unconscionable that the DHMH also tried to conceal its
policy of satisfying the "choice" requirement with the sham of
offering out-of-state institutional placements to beneficiaries
at state expense. This is an outrageous ruse to disregard the
federal and state choice requirements at the expense of our most
fragile citizens.
The state of Maryland needs to wake up and follow the lead of
neighboring Virginia with its community resource centers that
efficiently serve both state residential center clients and
community-based clients.
This practice would both benefit the disabled and save us tax
dollars.
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5. New Jersey: Housing Waiting List Exceeds 8.000
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N.J. fails to fulfill promise to house disabled - Waiting list
for aid grows to more than 8,000 instead of being eliminated
By Susan Livio
The Star-Ledger
Sunday, February 10, 2008
This was supposed to be the year of hope for thousands of
families raising children with developmental and intellectual
disabilities.
A state law enacted more than a decade ago promised a group home
or apartment for disabled adults who longed for independence or
whose parents needed respite after decades of physically and
emotionally draining care.
With careful planning and steady investments, the law said, the
waiting list of 4,700 people could be eliminated by 2008.
Without it, the list would escalate to a staggering 7,500
people.
As of January -- the month the list was to have been eliminated
-- there were more than 8,000 people waiting for housing
assistance, according to budget records and state Department of
Human Services statistics. The list surpassed even the early
dire predictions in part because no money was spent on housing
for disabled people for five of the past 10 years.
Among those on the list are Michael and Debbie Legutko's sons
Derek, 23, and Frankie, 20. Debbie Legutko, who has been their
full-time caregiver, survived breast cancer and heart valve
surgery.
"We feel like we are going to be with these kids for the rest of
our lives, and the older we get the harder it gets to do what it
takes," said Debbie Legutko, 53, of Ringwood. "Up until now, we
didn't need that much for them. Now we are looking for services
the state is supposed to provide. They've given us nothing."
The Arc of New Jersey, a family advocacy group, is trying to
attract political and financial support to reduce the waiting
list but has been unable to gain any traction as most state
lawmakers are focused on a looming budget deficit and Gov. Jon
Corzine's plan to pay down the state's debt by raising highway
tolls.
"We know the score. New Jersey is going through tough times,"
said Tom Baffuto, The Arc's executive director. "We are in a
year where we'll be facing draconian budget cuts. But this is
the number one priority with our families. We think this is a
crisis situation that is only going to get worse."
After visiting families at home and witnessing "firsthand the
profound commitment so many families make to caring for a
relative," state Public Advocate Ronald Chen sent a letter to
Corzine in December backing The Arc's proposal.
"This is a very real crisis and it must be addressed this fiscal
year and every year thereafter until it is resolved," Chen's
letter states.
Lilo Stainton, Corzine's spokeswoman, stressed the budgets are
tight. "It's too early to comment on specifics for the upcoming
budget, but Governor Corzine has made clear that it will include
deep and painful -- but necessary -- spending cuts," she said.
Paring the waiting list became a popular cause in 1994, when
voters passed a $160 million housing bond act for people with
developmental disabilities and mental illness.
The Legislature followed up by spending roughly $24 million a
year to pay private companies to staff the group homes and
supervised apartments. With state and matching federal cash
flowing from Medicaid, about 400 to 500 people with disabilities
were scheduled to leave the waiting list each year.
When Gov. Christie Whitman enacted a law in 1997 requiring the
Department of Human Services to develop a blueprint to end the
waiting list by 2008, the goal seemed within reach, Baffuto
said.
But by 2002, the economy stalled and state budget coffers
emptied. The waiting list "fell off the radar screen," Baffuto
said.
It surfaced in the current state budget in the form of a modest
proposal from Corzine that commits $2.8 million to move about 28
people off the list this year.
There are 7,400 people with developmental disabilities living in
subsidized community housing in New Jersey, according to the
state budget. Every year, 900 more people are added to the
waiting list by their parents, and 300 people move to the top of
the list because their parents or caregivers die.
On the eve of budget negotiations for the coming budget year,
which begins July 1, The Arc is asking lawmakers to support the
"10 Percent Solution."
Of the 8,000 people on the list, half are considered "urgent"
placements because their parents are 55 or older or they suffer
from a chronic physical or psychiatric disease. Moving 10
percent of them off the urgent portion of the list each year
would cost the state about $15 million, which would be matched
by the federal government.
Baffuto called the plan "a reasonable, attainable goal" that
won't break the bank.
The advocates have a powerful emissary: Senate Majority Leader
Steve Sweeney, whose teenage daughter is disabled.
"I absolutely support it. This is a very reasonable approach to
deal with the waiting list, which has to be dealt with," Sweeney
said.
Sweeney (D-Gloucester) said he believes Corzine "gets it. ... We
have to find the money."
The Department of Human Services would like to tackle the
waiting list, but instead it is grappling with "a worsening
fiscal picture that has us all reconsidering our priorities,"
Assistant Commissioner Kenneth Ritchey said.
The Division of Developmental Disabilities' $1.4 billion budget
is also under pressure from the hundreds of people living in
state institutions who have sued the state to live in
less-restrictive community housing. Most group homes and
apartments for disabled people are 98 percent full, Ritchey
said.
"The numbers are overwhelming us," Ritchey said. "But I
recognize families should not have to wait for an emergency" for
help.
Debbie and Michael Legutko wonder whether their sons will have
to wait long.
Derek needs a place to live because he works, can take care of
himself with supervision, and wants his own life, his mother
said. "He'd like to live in Manhattan or Orlando," she said.
She worries most about her younger son, Frankie, who needs a
ventilator to breathe because of a birth defect. He graduates
from school in June and has few opportunities for work or
housing. Only nursing homes are equipped to handle him.
Legutko said she met with Ritchey and his boss, Commissioner
Jennifer Velez, but they offered no solutions.
"I would like for him to be placed where he is going to be happy
while I am still alive," she said.
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Tamie Hopp
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