|
|
|
|
|
|
REMINDERS: Tamie Hopp’s new
email address is Tamie327@hotmail.com. vor@compuserve.com is no
longer valid. See
http://www.vor.net/staff for additional VOR addresses and
contact information. VOR is the only
national organization advocating for a full range of residential
and support options for people with mental retardation,
including Medicaid-certified Intermediate Care Facilities for
the Mentally Retarded (ICFs/MR) and home and community-based
care. VOR supports choice. ---------------------------------- VOR Weekly E-Mail
Update ---------------------------------- =======================================================
Table of Contents
LEGAL NEWS
1. Conservator Wins an Important Case on Behalf of the Developmentally Disabled
2. Private Group Homes for the Mentally Retarded Must Follow State Law
3. Promises, Promises: The District has three months to show it can help its developmentally disabled residents.
4. NY Governor Spitzer Announces Multi-State Lawsuit to Secure Health Insurance for Children
======================================================= ------------------------------------------------------------------------------------------------- 1. Conservator Wins an Important Case on Behalf of the Developmentally Disabled ------------------------------------------------------------------------------------------------- Summary: A recent California state appellate court held that conservators and other authorized representatives of the developmentally disabled have a statutorily protected role in the planning for treatment and placement decisions. As a result of the decision, conservators and other authorized representatives of the developmentally disabled will be better able to secure the legislatively mandated level of appropriate care, which has all too frequently been overlooked in the rush to “de-institutionalize” this vulnerable population. Author: Don Querio, Esq. Severson & Werson
Date: October 26, 2007 The published opinion in Conservatorship of Whitley (North Bay Regional Center v. Maldonado) (1st Dist. Ct. App, Oct. 10, 2007) ___ Cal.App.4th ___, 2007 WL 2937808 guarantees conservators and other authorized representatives of the developmentally disabled a role in planning for their treatment and out-placement to community facilities, as well as a full administrative appeal if the conservator or representative objects to a treatment or out-placement plan. Facing constrained budgets and pressure from advocacy groups, the state-funded agencies serving the developmentally disabled try to move those individuals from state-run institutions to private community facilities that are often unable to adequately care for them. After 39 years at the state-run Sonoma Development Center, the 52-year-old Whitley was targeted for a move to a private facility in Fairfield which was too far away for his family to maintain regular contact and offered less adequate care than at the Center. Whitley’s sister and conservator filed an appeal with the California Court of Appeal after a trial court decision rejected her challenge to the planned move. The San Francisco law firm of Severson & Werson handled the appeal on a pro bono basis, since the conservator, like most relatives of the developmentally disabled, could not afford to fight this battle on her own. Jan Chilton, the firm’s appellate specialist, spearheaded the effort, with Donald Querio’s and Joshua Whitehair’s assistance. The opposition included the North Bay Regional Center, the agency trying to displace Whitley, the Attorney General, on behalf of the State Department of Developmental Services, and a federally-funded advocacy group, Protection & Advocacy, Inc. At the firm’s request, the Court of Appeal first issued a writ of supersedeas, halting the planned move pending the conservator’s appeal. After full briefing and argument, the court issued its opinion upholding the rights of conservators and other authorized representatives to participate fully in the treatment and out-placement planning process and to challenge objectionable plans through a legislatively-provided administrative appeal, followed by court review on administrative mandate, if necessary. The wholly discretionary and truncated “Richard S.” court review, to which the agency had wrongly steered Whitley’s conservator, is reserved for persons to whom the Legislature has not given the right to an administrative appeal. As a result of the decision, conservators and other authorized representatives of the developmentally disabled will be better able to secure the legislatively mandated level of appropriate care, which has all too frequently been overlooked in the rush to “de-institutionalize” this vulnerable population. ------------------------------------------------------------------------------------------------- 2. Private Group Homes for the Mentally Retarded Must Follow State Law -------------------------------------------------------------------------------------------------
Summary: “The judge has made it clear that privatizing the system of care for people with MR/DD does not undo the rule of law protecting mentally retarded people served by the Commonwealth from being evicted from their homes. Private non-profits can’t pretend that they are above the law.” – David Hart, President, Massachusetts Coalition of Families and Advocates for the Retarded (COFAR) (VOR’s Massachusetts affiliate).
FOR IMMEDIATE RELEASE: October 17, 2007 COFAR http://www.cofar.org/
Court: Private Group Homes for the Mentally Retarded Must Follow State Law
In a decision likely to affect persons with developmental disabilities for years to come, Superior Court Judge Geraldine S. Hines issued a preliminary injunction Monday prohibiting the Massachusetts Department of Mental Retardation and Nexus, Inc. of Woburn from transferring Kristine Medeiros, 37, from her group home in Woburn without affording her the protections of M.G.L 123B, the statute which regulates the movement of mentally retarded people from their homes. The judge specifically rejected the argument by DMR and Nexus attorneys that privately operated group homes under contract with DMR were not “facilities” regulated by Chapter 123B.
“This decision about one woman is an important precedent for the vast majority of the 32,000 people in Massachusetts with mental retardation/developmental disability,” said COFAR President David J. Hart. “The judge has made it clear that privatizing the system of care for people with MR/DD does not undo the rule of law protecting mentally retarded people served by the Commonwealth from being evicted from their homes. Private non-profits can’t pretend that they are above the law.”
The case is unrelated to, but has some parallels with, the federal court case about closing the Fernald Center, where Judge Joseph Tauro ruled August 14 that residents must be offered the option of remaining in their long-term home. That case has been appealed by DMR to the United States Court of Appeals.
Background: Kristine Medeiros has mental retardation and autistic tendencies, and developed retinal detachment in one eye since moving to the Woburn home five years ago. Kristine is verbal and friendly, although she can self-injure when frustrated or confused. She can write notes to her parents and house staff describing what happens to her. After a year of arguments with her parents about face guards and medication errors, Nexus notified DMR that it was canceling the contract regarding Kristine’s services effective August 28, 2007 and would evict her from her home of 5½ years. Nexus and DMR gave no notice and no hearing as mandated by M.G.L. 123B, and the proposed new home, with lower-functioning (non-verbal) residents, does not meet Kristine’s needs.
Chapter 123B Section 3 (http://www.mass.gov/legis/laws/mgl/123b-3.htm) guarantees that transfers of people with mental retardation require 45 days written notice to guardians, which notice has to include a statement of how the transfer “will result in improved services and quality of life for the retarded ward,” and the right of guardian to “examine” the new facility. Individuals and guardians may appeal, and no transfer can be made while the appeal is in progress.
------------------------------------------------------------------------------------------------- 3. Promises, Promises: The District has three months to show it can help its developmentally disabled residents. ------------------------------------------------------------------------------------------------- Saturday,
September 15, 2007 U.S.
District Judge Ellen S. Huvelle, presiding over the 31-year-old
class action lawsuit involving onetime residents of the
notorious Forest Haven facility, has made no secret of her
aggravation over the lack of progress in protecting the health
and safety of developmentally disabled residents. Decrying "the
tortured history" of the case, Judge Huvelle in March found D.C.
officials in "systematic, continuous, and serious noncompliance
with many of the court's orders." Still, she has resisted
placing the Department of Disability Services in receivership.
This week, she issued an order that refreshingly focuses on
tangible steps to improve the health and safety of the some 650
surviving members of the plaintiff class. The beauty of the
judge's approach is that it compelled the city and the
plaintiffs to come up with specific goals that can be
accomplished in the next 90 days. There's nothing pie in the sky
about the list that Judge Huvelle accepted this week. It
includes recruiting five providers of high-quality residential
care, expanding a medical clinic program, figuring out which
homes really are substandard, and identifying and treating the
25 most medically fragile residents. Key to recruiting and
retaining qualified providers is the District's promise to
increase the rates it pays. Cost-of-living increases
inexplicably were frozen for five years. That D.C. Mayor Adrian
M. Fenty (D) is agreeing to come up with the $4.7 million city
share (Medicaid and Medicare would pick up the rest of the $15.6
million tab) is a hopeful sign of his administration's
commitment to reform. ------------------------------------------------------------------------------------------------- 4. NY Governor Spitzer Announces Multi-State Lawsuit to Secure Health Insurance for Children ------------------------------------------------------------------------------------------------- STATE OF
NEW YORK
----------------------------------------------------------------------------------- Tamie Hopp ======================================================= |
|
VOR * 836 S. Arlington Heights Rd., #351 * Elk Grove Village, Illinois * 60007 877-399-4VOR ph. * 847-258-5273 fax * tamie327@hotmail.com |
