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Courthouse News Service
May 1, 2012
Gov. Chris Christie, in violation of federal laws, will "depopulate" a state-owned woman's home by sending its mentally disabled residents to uncertified care centers, subjecting them to "increased danger of death, abuse and neglect," to further his "political plan," the women's guardians say in a federal class action.
Seven named residents of the Vineland Developmental Center sued Gov. Christie, the Vineland Center, the New Jersey Department of Human Services, and top-ranking officers in the New Jersey DHS.
Vineland Developmental Center is an Intermediate Care Facility for the Mentally Retarded (ICF/MR) which currently serves 347 residents, 86 percent of whom have been diagnosed with "profound or severe intellectual disabilities" and 68 percent of whom have lived there for more than 30 years, according to the complaint.
In May 2011, "defendants announced their plan to 'depopulate' and close the Vineland Developmental Center and discharge residents to non-ICF/MR certified, alternative settings," the complaint states.
"Among the reasons identified by defendants for their 'depopulation' plan was the ostensibly high cost of providing the necessary services for the disabled residents of the state's developmental centers."
And they did it dishonestly, according to the complaint: "Defendants have instructed plaintiffs' treating professionals to include language in plaintiffs' individual habilitation plans indicating that Plaintiffs have requested discharge to settings other than Vineland Developmental Center, regardless of whether plaintiffs actually communicated such a request," the complaint states.
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For Immediate Release
March 2, 2012
Update: Intervention Granted, May 9, 2012
Families have taken a stand in Virginia, calling on a federal court to allow them to participate in an action they believe violates the rights of their family members with profound intellectual disabilities and will cause irrevocable harm.
The dispute centers on the legality of a case filed by the U.S. Department of Justice (“DOJ”) against the Commonwealth of Virginia on January 26, 2012, and a proposed settlement agreement submitted the same day. The proposed settlement, which is pending federal court review, would result in the closure of four of the five Virginia Training Centers for persons with profound and other significant intellectual disabilities, by 2021. The fifth is expected to be downsized to accommodate 75 residents at a time for short-term (30 day) stays.
Families and legal guardians, on behalf of residents from each of the five Virginia Training Centers, filed a motion to intervene as parties in the action so they have a legal voice in the outcome of the case. A second, separate motion seeks to dismiss the case, arguing that DOJ did not have standing to bring suit.
Read Complete Press Release
Legal Resources and Filings By Families
March 1, 2012
March 19, 2012
March 29, 2012
April 6, 2012
May 9, 2012
Related Resources
January 27, 2012: VOR Slams Justice Department Plan to Close Virginia Centers for Disabled
March 27, 2012: Congressmen Bob Goodlatte (R-VA) and Jim Moran (D-VA) call on U.S. Attorney General Eric Holder to "reconsider and withdraw the agreement until the Administration and the Congress have time to review the ongoing evidence of massive abuse and neglect leading to the deaths of profound intellectual disabilities (ID) in communities unprepared to take care of them."
April 10, 2012: "State Sen. Steve Newman, R-Lynchburg, said he plans to ask lawmakers next year to add institutional advocates to VOPA’s board of directors, whose members are appointed by the governor and General Assembly." (The News & Advance, April 10, 2012)
April 10, 2012: VOPA Misrepresents the Abuse and Neglect Statistics for Individuals with ID in Virginia, a rebuttal by families to the "highly selective and ideologically biased" data Individuals with ID in that the Virginia Office of Protection and Advocacy’s data provided to U.S. District Judge John Gibney.
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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). |
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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. |
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