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Notice of address change for dues and donations: As of August 1, 2007, dues and donations should be sent to, VOR, 836 S. Arlington Heights Rd., #351, Elk Grove Village, IL 60007. See http://www.vor.net/staff for additional VOR office locations. ----------------------------------------VOR Weekly E-Mail UpdateSeptember 14, 2007-----------------------------------------
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FERNALD UPDATE – STATE APPEALS DECISION TO HALT FERNALD CLOSURE PLANS
A. State to appeal Fernald ruling - Patrick fights for facility's closure
B. Families’ letter to Massachusetts’ legislature sent in advance of the State’s announcement re: the appeal urge State not to appeal
C. State’s Press Release: Patrick Administration Files Appeal in Fernald Case ============================================================ ---------------------------------------------------------------------------------------------- A. State to appeal Fernald ruling - Patrick fights for facility's closure ----------------------------------------------------------------------------------------------
Summary- Background: As reported in the August 31 issue of The VOR Weekly E-Mail Update, on August 14, 2007 a federal judge yesterday halted the state's plan to close the Fernald Development Center in Waltham, ruling that the profoundly mentally retarded residents who have lived there for decades must be given the opportunity to stay. Central to the Federal Court’s decision was a court order requiring that the Department of Mental Retardation “not approve a transfer of any class member out of a state school into the community, or from one community residence to another such residence, until and unless the Superintendent of the transferring school . . .certifies that the individual to be transferred will receive equal or better services to meet their needs in the new location, and that all [Individual Service Plan] (ISP)-recommended services for the individual’s current needs, as identified in the ISP, are available at the new location.” Noting that the State has indicated its intent to close Fernald, the court concluded that the State’s “stated global policy judgment that Fernald should be closed has damaged the [State’s] ability to adequately assess the needs of the Fernald residents on an individual, as opposed to a wholesale basis.”
State to appeal Fernald ruling - Patrick fights for facility's closure Boston Globe September 13, 2007 By Shelley Murphy
Governor Deval Patrick's administration announced yesterday that it is appealing a federal judge's decision that halted the state's plan to close the Fernald Development Center in Waltham, saying the ruling interferes with the state's ability to decide how to best care for its mentally retarded residents.
State officials said that if they win their appeal to the US Court of Appeals for the First Circuit, they plan to close Fernald in several years after gradually transferring the 180 residents to community residences or other state facilities, a move they say would save the state money.
"The people who live at Fernald are central to our concerns," Patrick said in a statement issued yesterday.
The governor said the appeal "is about making sure the state has the latitude to provide the care people need in settings - whether they be institutional or community placements - that also make fiscal sense. Fernald is not such a setting."
Yesterday, JudyAnn Bigby, secretary of the Executive Office of Health and Human Services, called Fernald "the most expensive institution that we're operating," adding that it costs $239,000 per person annually to care for residents at Fernald, compared with about $102,000 per person in a community setting.
Family members and advocates, who waged a lengthy court battle to improve conditions at Fernald in the 1970s and to keep it open now, said they were bitterly disappointed by Patrick's decision to appeal and push forward with the previous administration's plan to close Fernald. The center is home to an aging population, some of whom moved into the facility as children decades ago.
"I think their needs are being met there, and that's the most important thing," said Diane Booher, whose 54-year-old twin brothers have lived at Fernald since they were 5. "I see no need for them to be anywhere else and to risk losing everything they know and the people who know their history."
But other advocates who have pushed for deinstitutionalization hailed Patrick's decision as a major victory for the disabled.
"We respect the families and how they feel, but if our institutions are rebuilt, it will force a new generation into them, and that is not beneficial," said Leo V. Sarkissian, executive director of
The Arc of Massachusetts, which advocates for the developmentally disabled. In August, US District Judge Joseph L. Tauro ordered the state to give residents the opportunity to stay at Fernald. He ruled that there had been a "systemic failure" by the state to consider the needs of longtime Fernald residents when it pushed its plan to close the facility and move people into community settings.
Tauro, who had monitored Fernald for decades while presiding over a landmark class-action lawsuit filed in 1972 over abuse of residents there and at four other state facilities, issued the ruling this summer after reopening the case because of complaints that residents were being transferred involuntarily and receiving inferior care. The judge said in his August ruling that that does not mean the state may never close Fernald.
But, yesterday, Bigby said that Tauro is forcing the state to keep Fernald open by insisting that residents be allowed to remain there.
Under the state's plan to close Fernald, Bigby said, it would maintain a nursing home already on the 196-acre campus and consolidate smaller residences there into a state-run group home that would house 24 people.
Bigby said she is very sympathetic to family members who are concerned about moving Fernald residents from the only home they've known for decades. But she said the state has successfully moved many residents out of institutions in recent years to community settings where their quality of life has improved.
But, Colleen Lutkevich, executive director of the Massachusetts Coalition of Families and Advocates for the Retarded, said the move would break up a community. "It's not what these families want, and it's not what these residents want," she said.
------------------------------------------------------------------------------------------------------------- B. Families’ letter to Massachusetts’ legislature sent in advance of the State’s announcement re: the appeal urge State not to appeal -------------------------------------------------------------------------------------------------------------
Summary: COFAR says move will break up a community. “It’s not what these families want, and it’s not what these residents want,” wrote COFAR Executive Director, Colleen Lutkevich, and President, David Hart.
Massachusetts Coalition of Families and Advocates for the Retarded
September 10, 2007
Dear Representatives and Senators,
This afternoon, Rep. Tom Sannicandro will deliver a letter to Governor Patrick asking that the Governor appeal part of Judge Tauro’s August 14th decision on the Fernald center -- the decision that requires the state to consider the individual wishes of the remaining Fernald Center residents and their guardians rather than proceed with the Romney administration’s announced closure.
It is with great personal regret and high regard for Rep. Sannicandro that we must tell you that – as family members of the most vulnerable citizens served by the Commonwealth – we stand opposed to our old and valued friend on this issue.
Judge Tauro has overseen this case since 1972. His recent decision is unlikely to be overturned. It provides the basis for negotiations that can achieve many of the aims, including more efficient use of taxpayer money, upon which all sides agree.
Here is why the Governor should not, in our opinion, appeal Judge Tauro’s decision:
1) Simple justice. The present residents of Fernald have an average age of 57, and have been there on average 47 years. They suffered there before the court-ordered reforms, and have earned the right to safe and secure treatment for the rest of their lives, with familiar staff in the only home most have ever known.
2) Economy. An appeal will be costly, time-consuming, and unlikely to succeed. In any outcome, Fernald residents retain the right to “equal or better” treatment guaranteed them in the 1983 agreement. Most of the remaining residents are profoundly or seriously retarded, medically and behaviorally complicated, and aging. Their treatment is expensive in any setting, and it is only in the last year that the media have reported misleading figures about the extraordinary apparent expense of Fernald treatment versus the un-audited and unlikely savings to be realized in small group homes – which could not be “equal or better.” Prior to that time, both former DMR Commissioner Morrissey and the ARC of Massachusetts conceded that there were no substantial savings to be realized by closing Fernald – they argued that it was a matter of principle to end the era of large facilities. Their figure in 2004 when the closing was announced was a realistic savings of $2.3 million per year. Spread over 32,000 DMR clients, that would be slightly less than 72 (seventy-two) additional dollars per year per client. Provided only to new clients, it might bring 25-30 of the most disabled young people into the system.
3) Continuum of Care. The six remaining developmental centers, including Fernald, are an integral part of a well-planned system of care. Federal law and legislation recognize that some individuals and their families may at times need and choose to have secure treatment. As medical advances have greatly increased the lifespan of people with mental retardation/development disability, the state needs to maintain a capacity for treating people who have become temporarily unable to live in supported community settings, or who need long-term care more sensitive to their conditions than ordinary nursing homes.
Even now, the six developmental centers provide a variety of centralized services to community-based patients, notably respite and dental services. (The expense of these services has been unfairly added to the Fernald resident’s budget for political purposes.) The increasingly privatized and atomized nature of DMR services in the new century requires both administrative oversight and a safety net. Fernald is part of that safety net.
4) A Time for Healing. When Governor Romney announced he would close all six developmental centers, one effect was to divide and conquer the families and guardians of people served by the Department of Mental Retardation. We whose loved ones cannot always benefit from community integration have been unfairly painted as obstacles to progress. In fact, we who know the worst of these disabilities want only to share our perspectives on long-term care with those in other circumstances, and especially with the young families who call us every day presently and sometimes mysteriously excluded from DMR services. On the particular issue of Fernald, we are among the proponents of the “Postage Stamp” plan to increase the efficiency of Fernald treatment and free up most of the campus for other use. A transparent negotiation with families and guardians is the wisest and surest and quickest path to reducing unnecessary spending at Fernald and freeing up some resources for more people with disabilities.
To appeal this case is politically easy. The governor and the legislature can punt this issue into the federal appeals process and blame the courts for any ongoing problems. The public, which has been lead to believe that the state is spending $260,000 per year for each person with mental retardation, will not immediately demand change. But in the end, all people with MR/DD, and probably all other disability groups as well, will be the losers.
Planning for long-term care for people with MR/DD is hard. There are contending interests, and contending theories. There are scientific unknowns. And now there is a public confusion about the real costs to the taxpayer. Stretched-out social workers turned gatekeepers will have to explain uncomfortable truths about how they allocate resources.
But to appeal the Fernald decision will increase the stress on every family now coping with a disability.
To accept the decision – that people with MR/DD and their families and guardians have the right to individual choices – lays the foundation for compromise and progress.
We urge you – will all respect for the personal experience and commitment of your colleague – to advise and support the governor on the path of compliance with the federal court decision and of a more civil public conversation on the rights, choices, and long-term care of disabled citizens.
Colleen M. Lutkevich, Executive Director David J. Hart, President
------------------------------------------------------------------------------------------------------------- C. State’s Press Release: Patrick Administration Files Appeal in Fernald Case -------------------------------------------------------------------------------------------------------------
The Commonwealth of Massachusetts
DEVAL L. PATRICK - GOVERNOR TIMOTHY P. MURRAY - LIEUTENANT GOVERNOR JUDYANN BIGBY, M.D. - SECRETARY
FOR IMMEDIATE RELEASE: September 12, 2007
PATRICK ADMINISTRATION FILES APPEAL IN FERNALD CASE
BOSTON — Secretary of Health and Human Services JudyAnn Bigby, M.D., announced today that the state will file an appeal to Judge Joseph L. Tauro’s recent decision in the case of Ricci v. Okin, which required the Department of Mental Retardation (DMR) to offer the Fernald Developmental Center as an on-going option for current residents.
The state also announced today that, pending the outcome of the appeal, it intends to work toward closing Fernald and will facilitate a transition that prioritizes cooperative individualized planning with each resident. In the meantime, we intend to comply with the current order while it is in effect.
In announcing the appeal, Bigby said, “We understand and respect that people who have lived much of their lives in institutions and their families may wish to continue institution-based services. The Department of Mental Retardation will ensure that these residents will have an opportunity for placement at one of Massachusetts’ remaining institutions.”
The state’s decision is consistent with a national shift away from institutional care in favor of community living. Decades of research indicate that community settings offer people with mental retardation the best care available and the highest quality of life. The Patrick Administration believes that community living is the best environment in which to ensure family connections, service access, education, training employment and full inclusion for people with mental retardation.
“Our mission is to provide the best available services to individuals with mental retardation, and we are committed to doing what is in the best interest of those in our care,” Bigby added. “Our experience is that most people with mental retardation, including some of the most profound levels of mental retardation and those living with seriously disabling conditions, can and do benefit from the opportunity to live in community settings.”
The Administration also plans to reconstitute the Governor’s Commission on Mental Retardation to advise in the transition process and on other issues facing the DMR. Members of the Commission will be named at a later date.
Dr. Jean McGuire, Assistant Secretary for Disability Policies and Programs, added, “Planned properly, the transition to community life is smooth and offers people with mental retardation opportunities for growth and development. DMR accomplished past closures successfully at Belchertown State School, Dever Developmental Center and JT Berry Regional Center with residents that had similar needs to those now living at Fernald. I am confident that this process will also be successful.”
“As DMR moves forward in the transition process, we will partner with residents and their families in developing individualized service plans in a manner that is compassionate, caring and consistent,” said Department of Mental Retardation Commissioner Elin Howe. “Our highest priority is providing our residential clients with the setting that best suits each individual’s unique needs, whether that is a community-based home, shared living options, or in one of our other institutions.”
There are seven institutions for people with mental retardation in New England—six in Massachusetts. The Commonwealth has lagged behind the region and much of the nation in closing old, expensive and ineffective institutional settings. Fernald is the most expensive of the state’s six institutions to operate, with costs in excess of $239,000 per resident per year, compared to $102,000 for comparable services provided in community settings. In addition, the facility faces at least $14-20 million in needed capital improvements. Closing the facility, which currently has only 180 residents on 196 acres, will enable DMR to consolidate its resources in order to provide the best services available to all 32,000 of its clients throughout the state.
The state will maintain an on-going presence on the Fernald campus. Malone Park, with 24 beds, will remain open and will be run as state-operated group homes.
------------------------------------------------------------------------------------------------- Tamie Hopp
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