VOR, 92 families file Amicus Brief; ask court to overturn PA settlement

   VOR and 92 individuals filed an Amicus Curiae brief in support of nine appellants (families of Pennsylvania’s ICFs/MR), seeking to overturn a class action settlement initiated by five named plaintiffs (represented by Protection & Advocacy) and the State of Pennsylvania.  The case is Benjamin v. Pennsylvania Department of Welfare.

    The named plaintiffs in this action seek to transition from ICFs/MR to smaller community-based residences. Appellants and VOR did not oppose their right to do so.  Rather, the appellants and VOR oppose the plaintiffs' attempt to impose their choices on appellants through a settlement and broadly defined class of individuals that includes all residents with profound intellectual disabilities who are unable to articulate their opposition to being moved.   The Court granted class certification in the face of no opposition by the Pennsylvania Department of Welfare. 

    The appellants' and VOR's concerns with this settlement are two-fold: (1) residents with profound intellectual disabilities often cannot get the care they need from the smaller residences; and (2) implementation of the settlement could so significantly depopulate the centers as to render ultimate closure inevitable.  In fact, such transfers have already resulted in ICF/MR closures elsewhere and will likely do so in Pennsylvania as well.   Even the District Court, in its decision approving the settlement, expressed concern about the problematic provisions which interpret silence as consent.  

    Specifically, VOR argued that the District Court's ruling to certify the class was at odds with the Supreme Court of the United States' ruling in Olmstead v. L.C., which supported the right of individuals to choose a residential setting according to need. “The solution is not to move everyone from one type of facility to another. This is not only in direct contravention of Olmstead, but will cause unspeakable harm to those in need of institutional care.”

    VOR is represented by attorneys Lesli Esposito, Nancy Rappaport and Jill Czeschin, of DLA Piper (Philadelphia). VOR’s brief, filed December 27, 2011, was the second Amicus Curiae brief in this case in support of ICF/MR residents and their families. The first, filed in August 2010, supported the efforts of families to intervene in the case. 

Read VOR's December 27, 2011 Brief opposing settlement.

Read VOR's August 2010 Brief supporting intervention (coming soon).

Federal Settlement Threatens Choice in Pennsylvania

A Federal District Court in Pennsylvania has approved a settlement agreement that families of Pennsylvania's state-operated ICF/MR residents worry could threaten their loved ones right to choose ICF/MR care. Read the decision here.

Although the approved settlement requires that only residents who "do not oppose" transfer will be moved, an express opposition is required. Silence is considered consent. Even the judge acknowledged that this requirement is problematic for those residents who have profound intellectual disabilities who are not respresented by a legal guardian and do not have involved family members. Families are concerned that these individuals will be targeted for transfer, resulting in rapid downsizing and ultimate closure of the affected facilities. More than 100 families submitted letters of objection to the Federal Court in advance of the hearing at which the proposed settlement was considered. Although the federal judge acknowledged the objection letters, calling many "eloquent," he nonetheless approved the proposed settlement.

Plaintiffs were presented by the Pennsylvania Protection and Advocacy (P&A) system.

Read the Order approving the proposed settlement and the detailed Memorandum here.

Department of Justice Activities Throughout the USA: Background and advice for State Officials and Advocates

In February 2011, Tom York was a presenter at the Association of Public and Private Developmental Disabilities Administrators annual conference. Mr. York has been practicing law for more than 30 years and has been focused on helping states to respond to the DOJ for the past 20 years. He has been the lead attorney on U.S. Department of Justice (DOJ) cases in many states and most recently completed a six week trial in the DOJ suit against Arkansas. A decision in favor of the State was issued on June 7, 2011.

Mr. York opened his presentation with a warning about the motives of the DOJ. He believes that the DOJ is trying to close Public Residential Facilities (PRFs) and he gave a series of quotations by Sam Bagnestos, the head of the DOJ’s Civil Rights Division to support his claims. These quotations show that Mr. Bagnestos’ personal philosophy is anti public residential facilities. Mr. York also presented the arguments that the DOJ is using in CRIPA, ADA, and Olmstead suits. Read More.

Family Choice Prevails in Arkansas

Read the full decision here.

“Most lawsuits are brought by persons who believe their rights have been violated. Not this one . . . All or nearly all of those residents have parents or guardians who have the power to assert the legal rights of their children or wards. Those parents and guardians, so far as the record shows, oppose the claims of the United States. Thus, the United States [Department of Justice] is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons – through their parents and guardians disagree.” 

In an 85-page ruling, the Chief U.S. District Judge J. Leon Holmes said DOJ failed to prove its claims that the Conway Human Development Center violated its residents’ rights under the U.S. Constitution, as well as under the Americans with Disabilities Act (ADA).

Holmes questioned the authority, expertise and methods of several expert witnesses used to support the federal government’s arguments. He extensively cited testimony of residents’ parents and guardians who were satisfied with the treatment the residents receive there.