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DOJ |
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Department of Justice Final Report
VOR Concerns and
Recommendations
[U.S. Department of Justice Final Report] October 2002 Including Stakeholders The DOJ report, citing the benefit of including
stakeholders, indicates that “the Department will initiate a more targeted,
and smaller-scale meeting with leaders and advocacy groups that deal with
Department-specific issues.” Ralph F. Boyd, Jr., the Assistant Attorney
General for the Civil Rights Division, will chair this meeting with advocacy
groups. This meeting will review issues pertaining not only to the ADA, but also
enforcement of the Fair Housing Act, and the Civil Rights of Institutionalized
Persons Act.” (Section I(C)(6), The Americans with Disabilities Act of 1990
(ADA), Blueprint for Future Action, The Department will tailor its existing
mediation program to address Olmstead-related claims and will work toward the
possibility of implementing a formal referral arrangement with HHS.). VOR
requests the opportunity to participate at this meeting(s). General
Principles VOR
submits that the DOJ must adhere to the following principles in any actions to
carry out the letter and spirit of the Olmstead decision:
1. The population of people with
disabilities - including mental and physical disabilities - is incredibly
diverse. All policies must reflect these diverse and over time, changing, needs.
2. The Olmstead decision
embraces the maintenance of a full array of quality support options for people
with disabilities based on choices and needs. This includes own-home, community,
and institutional options, where necessary.
3.
Nothing in the Olmstead decision negates the legally-established role of
individuals and family members and guardians of people with mental retardation
as primary decisionmakers regarding services, supports and policies impacting
their loved one's care.
4. Designated agencies should
work with States to help them assess their compliance with the Olmstead decision
and the ADA in providing services to qualified individuals with disabilities in
community-based settings, as long as such services are appropriate to the needs
of those individuals. (See, Olmstead Executive Order, Sec. 2(a)). Concerns
VOR
is aware that DOJ reform efforts will consider CRIPA’s effectiveness. At the
heart of VOR’s concern is the realization that some DOJ personnel are
motivated by an anti-institution, anti-choice, ideology, which often fails to
consider individual need and quality care. This is a grossly inappropriate use
of federal funds and abuse of federal authority, which may even be illegal.
Several examples taken from DOJ Delivering on the Promise report (in boxes on
the following pages) provide the basis for VOR’s concern:
Citing
United States v. Tennessee as an example of a CRIPA “accomplishment” has no
basis in fact for the majority of those transferred from Arlington Developmental
Center: “A
court-appointed committee that investigates neglect and abuse of mentally
retarded people in the Memphis area has asked a federal judge to leave Arlington
Developmental Center open. There are insufficient community resources to
properly care for severely handicapped residents outside a state-run
developmental center, according to the letter sent last week to U.S. Dist. Judge
Bernice Donald. The 11-member committee expressed concern about a recently
proposed settlement of a 1992 lawsuit that would allow the state to gradually
close its only developmental center in West Tennessee . . . The committee says
70 percent of 209 abuse complaints involving former Arlington residents now
living elsewhere have been substantiated . . . The letter also noted 80 percent
of the contract agencies that serve former Arlington residents averaged a 15
percent compliance rate with state regulations.” (The Commercial Appeal,
February 20, 2002).
Example
2: Washington, D.C.
DOJ
should not be applauding itself for correcting a situation it helped create. VOR
agrees that DOJ involvement, with family support, was needed when it filed the
1991 lawsuit to address the deficiencies at Forest Haven. Following the closure
they helped realize, DOJ paid no attention to how former Forest Haven residents
were doing in their new homes until a decade later when widespread abuse,
neglect and death was reported by The Washington Post in two award-winning
investigative series (http://www.washingtonpost.com/invisible). These 14
articles in March 1999 and January 2000 revealed 116 deaths and more than 350
incidents of abuse, neglect, molestation or stealing. In total, there were no
investigations documented by the Department of Human Services, only 69 of the
116 deaths revealed by The Post were documented by the Department of Human
Services, only 8 autopsies performed and no fines levied against the providers.
It was only after The Post series that DOJ responded to the situation and
directed “its energies to ensuring that individuals receive adequate
protections, services and supports in the community.” Too little too
late. Other examples of DOJ’s lack of follow- through can be noted (see e.g.,
the closings of Great Oaks in Maryland and Fairview Developmental Center in
Oregon).
Example
3: Government Indoctrination (The Government knows your child better than
you do!)
This
insults the intelligence of families who care for their loved ones. There is no
need to spend federal funds to indoctrinate families on their children’s
needs. The implication is that the government would show families good community
settings and compare them with bad institutions. This is grossly unfair and
perhaps an illegal use of federal funds and abuse of federal authority. The real
aim should be to help families make intelligent decisions based on what is
available and best meets the particular needs of the individual, consistent with
Olmstead. Example
4: Institutionalization and Medicaid fraud
To
expand the potential causes for litigation against a facility, even one
providing high quality care, to include fraud (a crime) places a tremendous
strain on an already targeted option of care. It pressures facilities to
transfer residents without regard to what community options may (or may not) be
available. It places a facility in the position of making decisions based on a
fear that they will be charged with fraud rather than considering a person’s
needs and where he/she is best served. VOR can’t help but believe this new
approach to targeting facilities is again motivated by an ideology against
facility-based care without regard to the impact it will have on the people
choosing and being served well in our nation’s facilities.
Example
5: Mediation, the need for “lay advocates,” and the role of
family/guardians
It
is well-documented that some DOJ personnel are biased against large facilities.
VOR is, therefore, very concerned that the Mediation Program will be used to
further deinstitutionalization efforts rather than legitimate attempts to ensure
quality service delivery as required by the Olmstead decision. To guard against
such bias, DOJ must provide balanced, un-biased training. VOR
asserts that “lay advocates” for people with mental retardation and other
cognitive disabilities are only needed when the individual does not have a
guardian or otherwise involved family member or when said guardian seeks,
interviews, and chooses an advocate or lawyer. Every effort must be made to
first identify a guardian, close relative or friend. Recommendations 1.
All DOJ efforts, including outreach efforts to families, must be unbiased and
balanced. The
above examples illustrate that some DOJ personnel are biased against the large
facility care option for people with mental retardation, without regard to their
cognitive levels and need. This must cease. DOJ
outreach efforts to families must be unbiased and balanced. Families, as primary
decisionmakers, require complete information to make informed decisions:
DOJ must compile a list of community providers, providing a complete performance
report (good and bad) of each listed provider;
DOJ must compile a list of ICFs/MR providers (public and private, small and
large), providing a complete performance report (good and bad) of each listed
provider;
DOJ must arrange for tours of successful community-based AND ICFs/MR providers
(public and private, small and large). 2. DOJ must focus its activities on improving conditions in community-based settings. 3. DOJ and CMS must communicate and work as partners in ICFs/MR and waiver enforcement efforts Any
reform to CRIPA must include a requirement that CMS first exhaust all of its
remedies to achieve compliance before DOJ can pursue a CRIPA investigation. All
CRIPA investigations and lawsuits must include communication with the families
of those directly impacted by DOJ’s involvement. VOR is pleased about the
DOJ's willingness to involve family members in CRIPA investigations, but also
perceives that the CRIPA actions are in the first instance motivated by
opposition to large centers. VOR
is aware that enhanced communication is contemplated. The Department of Justice
has indicated it is trying to enhance communication and collaboration with CMS.
The Department of Health and Human Services is funding investigative positions
at DOJ, but there is no requirement that applicants have prior HHS/CMS
experience. VOR suggests that only individuals with HHS/CMS experience be
assigned to these investigative positions. Tamie
Hopp
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VOR * 836 S. Arlington Heights Rd., #351 * Elk Grove Village, Illinois * 60007 877-399-4VOR ph. * 847-258-5273 fax * tamie327@hotmail.com |
