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Support H.R. 1255, a bill to assure individual and guardian March 2009
decision-making in class action lawsuits:
What the bill WILL and Will NOT do
Please show your support for H.R. 1255. Cosponsor this legislation today.
H.R. 1255 WILL:
* Apply only to class action lawsuits that are filed by federally-funded entities using federal dollars against Medicaid-licensed and certified Intermediate Care Facilities for the Mentally Retarded (ICFs/MR).
* Require that prospective plaintiffs (mostly people with severe or profound mental retardation) and their legal guardians receive notice before an ICF/MR class action suit is filed. Advance notice is not required by current law.
* Require that prospective plaintiffs and their legal guardians be given a time-limited opportunity to “opt out” (not be included in) the class action lawsuit. Opting out of these lawsuits is not now an option.
* Address the unwillingness of most federally-funded lawyer groups to involve guardians (including families) of people with severe and profound mental retardation. These lawyers avoid informing and involving the families and do only what is required by current law – no advance notice, no right to opt out.
* Address the distrust federally-funded lawyer groups display of guardian ability and/or motives with regard to acting in the best interests of their loved ones. They go so far as to characterize families and guardians as “clueless” (see e.g., Consortium for Citizens with Disabilities (CCD), July 13, 2007).
* Address the anti-ICF/MR bias of most federally-funded lawyer groups that sue ICFs/MR. Ignoring the wishes of guardians, these attorneys (e.g., Protection & Advocacy or “P&As”) oppose the ICF/MR option for any person with mental retardation.
H.R. 1255 Will NOT:
* “Fly in the face of disability policy,” as opponents of H.R. 1255 have alleged. H.R. 1255 is consistent with federal disability policy which embraces choice and family decision making (see e.g., The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 15001(c)(3)(2000) (emphasis added):“Individuals with developmental disabilities and their families are the primary decisionmakers regarding the services and supports such individuals and their families receive. . .”).
* Affect any other activities of P&A on behalf of people with developmental disabilities and in no way prevent the filing of class action lawsuits on behalf of a consenting class of individuals. The impact of H.R. 1255 on P&A programs would be remarkably small. According to the CCD, in 2006, “Only five percent of [P&A] cases resulted in legal action being taken” (CCD, July 13, 2007), and not all “legal action” was a class action.
* Affect Rule 23 of the Federal Rules of Civil Procedure, relating to class action lawsuits. The notice and opt out benefits of H.R. 1255 apply only when a federally-funded entity proposes to bring a class action using federal funds and only before a lawsuit is actually filed.
* Change in any way state law with regard to the appointment or removal of guardians. Every state has a legal process concerning guardianship.
* In any way “open up” opportunities for class action changes for other constituencies. H.R. 1255 addresses only the specific injustice of attorneys making decisions for the most vulnerable members of our society and their legal guardians – nothing more or less. |
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TO: Members, U.S. House of Representatives
FROM: Robin Sims, VOR President Peter Kinzler, Chairman, VOR Legislative Committee
DATE: March 18, 2009
On March 3, 2009, Rep. Barney Frank introduced H.R. 1255, a bill “to protect the interests of each resident of intermediate care facilities for the mentally retarded [ICFs/MR] in class action lawsuits on behalf of such resident.”
Already, H.R. 1255 has 16 cosponsors, including 9 original cosponsors. Last Congress, more than 40 cosponsors supported identical legislation introduced by Rep. Frank. This year and last, the bill has drawn strong bipartisan support from members across the political spectrum.
H.R. 1255 would give residents of ICFs/MR and, where judicially appointed, their legal guardians (usually close family members), the right to receive notice of federally-funded lawsuits involving the residents’ ICF/MR homes and then to decide whether or not they want to be a part of the lawsuit. Currently, federally- funded lawyers make these decisions, often without consultation with the residents and their legal guardians and always without the right to opt out.
Reform is desperately needed. Twenty-eight federally-funded class action lawsuits have been filed, resulting in the closure of at least 15 ICFs/MR in 9 states, involving thousands of individuals with developmental disabilities. Federally-funded attorney groups are most often motivated by a bias against the ICFs/MR option when filing these lawsuits. Since 1996, every federally-funded class action has been for the primary purpose of removing residents from their ICF/MR home (“community integration”); the condition of care at the targeted ICFs/MR was not at issue in any of these cases. An added offense is the fact that most of lawsuits filed against U.S. Department of Health and Human Services (HHS)-funded ICFs/MR are filed by HHS-funded Protection and Advocacy (P&A) agencies, making these cases, in effect, HHS v. HHS, an absurd use of scarce federal dollars.
Federal law (see e.g., the DD Act) embraces the policy that individuals and their families/guardians are the “primary decisionmakers” regarding the services and supports received. H.R. 1255 would help ensure that this promise is real for ICF/MR residents and their legal guardians who find themselves caught up in a lawsuit they do not support, being represented by attorneys who do not even consult them.
Please cosponsor H.R. 1255 today. Contact Pilar Falo, Legislative Counsel to Rep. Barney Frank, at 202-225-5931 to add your support.
Sincerely,
Robin Sims Peter Kinzler
President Chair, VOR Legislative Committee |
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THE NEED FOR H.R. 1255:
a bill to protect the interests of residents of intermediate care facilities
for people with mental retardation (ICFs/MR) in federally-financed class action lawsuits
About H.R. 1255
On March 3, 2009, Rep. Barney Frank (D-MA), along with nine other members of Congress, introduced H.R. 1255, a bill to protect the interests of residents of intermediate care facilities for people with mental retardation (ICFs/MR) in class actions lawsuits filed, purportedly, on behalf of such residents. Original cosponsors were: Rep. Steve Cohen (D-TN), Rep. David Dreier (R-CA), Rep. Bob Goodlatte (R-VA), Rep. Paul Kanjorski (D-PA), Rep. Dan Lungren (R-CA), Rep. James Moran (D-VA), Rep. Ron Paul (R-TX), Rep. Ted Poe (R-TX) and Rep. Debbie Wasserman Schultz (D-FL).
H.R. 1255, if passed, will require that before federally-financed class action lawsuits against Medicaid-certified and funded ICFs/MR can proceed, residents and guardians must receive notice of the lawsuit and be given a time-limited opportunity to opt-out of the proposed lawsuit, or do nothing and join in.
Why H.R. 1255 is needed and supported by families of ICF/MR residents
Although legal guardians often object strongly to the lawsuit and its closure objectives because they are pleased with the care their loved ones are receiving, under current law there is no requirement that residents or legal guardians be notified of a lawsuit and they do not have the right to opt out. Consequently, many residents of ICFs/MR are swept into these lawsuits against their or their guardians’ wishes.
Class action lawsuits have closed many ICFs/MR and reduced options for those who need fulltime care
Federally-funded attorney groups have pursued at least 28 class action lawsuits against ICFs/MR, driven primarily by a bias against ICF/MR care. In fact, since 1996, every federally-funded lawsuit against an ICF/MR has been for the primary purpose of removing residents from their ICF/MR home (“community integration”); the condition of care at the targeted ICFs/MR was not at issue in any of these cases.
Fifteen of these cases have led to the closure of ICFs/MR, affecting thousands of individuals with mental retardation (see, http://www.vor.net/classactions.htm). Bizarrely, despite the fact that ICFs/MR are a residential option created by federal law and funded and monitored by HHS, most of these lawsuits are filed under the Protection & Advocacy (P&A) program, whose lawyers are also funded by HHS. These ideologically-driven suits are essentially HHS v. HHS.
H.R. 1255 could help prevent tragic outcomes and preserve residential choice
Families have good reason to be concerned. Closures oftentimes result in tragic outcomes for the former residents (see e.g., http://vor.net/abuse_neglect.htm, listing examples of systemic abuse, neglect and higher death rates in community settings for people with mental retardation who have been moved out of ICFs/MR in many states and the District of Columbia).
H.R. 1255 is consistent with federal law; specifically, the Developmental Disabilities Assistance and Bill of Rights Act (DD Act), which authorizes funds for P&A attorneys, embraces the policy that individuals and their families/guardians are the “primary decisionmakers” regarding the services and supports they receive (see, DD Act, 42 U.S.C.15001(c)(3)(2000)).
Individuals and their families/legal guardians should make fundamental care decisions, not lawyers.
To cosponsor H.R. 1255, contact Pilar Falo, Legislative Counsel to Rep. Frank, at 5-5931. |
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