CA Coffelt Case Study: 2006 Update

CALIFORNIA

June 6, 2006
To:      Tamie Hopp
 Director of Government Relations & Advocacy, VOR
From:  Bob Cross, Esq.
Vice President, CASH-PCR
Re: PAI

This is in response to your request for an updated perspective on PAI activities in California. The following comments reflect experiences common among families with relatives who reside or until recently have resided in California’s developmental centers (DCs).

A single element, principal to earlier observations pertaining to the “Coffelt” era continues to permeate the relationship between PAI and most families representing DC residents.  That element is PAI’s fervent denial that institutional care must continue to play a part in the broad spectrum of state offered supports and services for persons with developmental disabilities.  PAI adamantly denies that certain individuals are best served in DCs.  This denial takes on many forms.

Capitol People First  et al  v. DDS et al Attacks Developmental Centers

Some prominent examples of PAI efforts to exclude parents, family members and conservators’ representation of DC residents can be found in the documents associated with Capitol People First, et al v. DDS, et al. (CPF).

Casually referred to as “Coffelt II”, CPF was filed in January 2002 by PAI in the California Superior Court, Alameda County, for the apparent purpose of closing California’s remaining DCs.  Two organizations, CASH/PCR and CAR, and a number of individuals filed a Complaint in Intervention.  PAI opposed intervention, filing almost two inches of legal documents in support of its Opposition.  PAI’s opposition was not successful and we were granted status as Intervenors in the CPF action.

Opposition to Parent/Family Intervention

PAI filed the following statements with the Court in its opposition:

Page 1
“To justify their intervention, proposed intervenors have grossly misrepresented the nature of this case, including plaintiffs’ claims and requested relief.”

“In some instances they have gone so far as to rely on apparent misperceptions and outright fabrications.”

“Moreover, proposed intervenors’ motion is supported largely on the basis of inadmissible evidence.”

“The motion for intervention…is, quite apparently, addressed to the concerns and interests of family members, guardians and conservators.”

Page 2
“The other “interest” proposed intervenors assert is a purported interest in preventing any additional expenditures on community based services for the putative plaintiff class because, they fear, it will result in a loss of funding for the DCs.”

“Proposed intervenors apparently are attempting to expand the role of family members and conservators …” (footnote)

“Plaintiffs will not respond in detail…”  “To do so would require a significant deviation from the actual focus of this lawsuit and result in the very expansion and obfuscation of issues and waste of judicial resources that would ineluctably result should the intervention motion be granted.”

Page 5
“Any interest proposed intervenors have in protecting the role of conservators, guardians and parents in the IPP placement process is not implicated by any of plaintiffs’ claims or the requested relief.”

Page 6
“In fact, there is no well established right of parents to intervene in actions on behalf of even non-adult children as proposed intervenors contend.”

Page 8
“The organizations’ and parent representatives’ interests are potentially and actually in conflict with the interests of the plaintiffs and the putative plaintiff class.”

“As a matter of substantive law, parents and guardians of institutionalized persons have different and potentially conflicting interests on matters pertaining to their child’s or ward’s constitutional or statutory rights to liberty and due process.”

Page 10
“They (Intervenors) should not be permitted to hijack this litigation…”

“It is they, however, who would disregard individual determinations and proscribe community placements across the board for DC residents based on the wishes of family members and conservators.”

“Any interest proposed intervenors claim is adequately represented by existing parties.”

Page 11
“Proposed intervenors have distorted plaintiffs’ allegations, claims, and requested relief almost beyond recognition.”

“The mere fact that the State’s interest or its motivation for defending the action may be different from that of proposed intervenors is not a legitimate ground for showing adversity.”

Page 13
“Intervention should not be permitted at all, but is particularly inappropriate at the merits phase of the case.”

Once the Court determined that the Complaint in Intervention was meritorious, Intervenors participated fully in all relevant aspects of the CPF litigation, notwithstanding PAI’s continued assertion that our rights were severely limited.

Insisting upon representing ALL DC residents (Notwithstanding institutional and family hostility)

During the last quarter of 2005 PAI filed its Motion for Class Certification, which was denied by the court.  In its analysis of “Adequacy of Representation,” a key element required in California for class certification, the Court noted:

“Therefore, the Court must be diligent in ensuring that the interests of the named plaintiff and class counsel do not overshadow the interests of the absent class members.”  The Court then opined, “In this case the named plaintiffs are legitimately pursuing claims that they honestly think are in the best interests of all the absent class members.”  “The problem is that reasonable minds can differ and the Intervenors, who represent a sizeable number of absent class members, think that prosecution of the claims is not in their best interest.”

The Opinion continued: “When a class contains various viewpoints, the courts may ensure that these viewpoints are represented by allowing them to join as interveners…”  “The presence of the Intervenors protects their interests because they could present evidence and make arguments to the trier of fact.”  “The Court concludes that Plaintiffs have not demonstrated either (s) they will adequately represent the interests of all the members of the proposed class or (2) the interests of the Intervenors can be adequately protected by their presence in this case.”

The presence of the Intervenors played a part in the Court’s decision to deny class certification:

“The Court finds that the presence of the Intervenors demonstrates that different class members have different goals, suggesting that claims should be made on an individual basis.” (Emphasis added)

Lobbying legislature with anti-institutional positions
An additional issue relevant to CPF has also been raised recently by PAI in the context of its presence as LOBBY for purposes of influencing a California Senate Bill (1337) presently under consideration.  The issue pertains to the right of a DC resident, conservator, parent, family member or other authorized legal representative to pursue Fair Hearing Rights.  The California Welfare & Institutions Code (sections 4701– 4716) provides for an opportunity to seek relief at a procedural hearing when a disagreement arises over one’s Individual Program Plan (IPP).  PAI, in a recent teleconference regarding SB 1337, argued that rights of residency can only be determined by a superior court judge and that residency may not be considered in a Fair Hearing.  The Court in CPF included in its Opinion denying Class Certification the following text:

“In addition, the Legislature created a hearing procedure for disabled persons to seek relief when they disagreed with their IPPs and treatment.”  “W&I 4701-4716.”  “The Court presumes that the Legislature considered this to be an effective means for individuals to seek relief.”

“Finally, the Legislature created the fair hearing procedure under Welfare and Institutions Code 4701-4716 and there is no indication that it is not an effective means for individuals to seek relief.”

Use of overwhelming force
It is remarkable to note, from the standpoint  “our tax dollars at work”, just how efficiently PAI has been able to fill most of the seats in the Superior Courthouse hearing the CPF case.  Given twenty-one regional centers each employing lawyers, the CA Attorney General’s office representation, and, at times three tag teams each with several PAI attorneys and/or their outside counsel firms, Interveners and its pro bono attorneys could quickly be lost in the crowd.  It, also, is noteworthy that this case has run more than four of the five year life allotted to such litigation, a major portion of which was consumed by PAI’s filing a series of apparently flawed Complaints.  The fifth Amended Complaint, filed less than one year ago offered real hope that “Advocacy”, at least, might finally get off the ground.  Is this the kind of activity at taxpayer expense that Congress contemplates when “Reauthorizing” PAI?

Selective representation neglects persons requiring institutionalization
The State of California, while stopping short of a mea culpa regarding numerous avoidable deaths associated with the Coffelt era, is expending a tremendous effort to elevate and more effectively monitor the level of care available to each Agnews DC resident scheduled for movement to the community.  PAI, apparently unwilling to recognize the benefits realized by the State’s more humane approach, is clamoring for more closures. Meanwhile, the shortcomings of community care, often precipitated by undue transfer pressures, receive little or no PAI attention.  Such apparent indifference constitutes an imbalance in PAI’s view of attending to the best interests of ALL Californians with developmentally disabilities.

Heedless of systemic risks, “Dignity of Risk” reigns supreme

The state administration announced its intent to close the Agnews DC in 2003.  Simultaneously, DDS initiated a San Francisco Bay Area study called the Bay Area Project.  At least 100 local concerned citizens and professionals with experience in the field of MR/DD participated.  The objective was to recommend how best to elevate the level of care in the communities receiving transferred Agnews residents.  Reporting conclusions reached in late 2003, the executive directors of the three regional centers whose catchment areas were primary recipients of proposed Agnews transferees each admitted that they presently were ill prepared to handle most of the current Agnews residents. Although PAI attended Bay Area Project meetings and was exposed to the project’s realistic assessments of deficiencies to be corrected in advance of resident transfers, it appears PAI neither objected to nor investigated circumstances surrounding the outflow of transferring residents.  Likewise, at no time did PAI acknowledge or express remorse for the human suffering registered by DC residents transferred to the community during the Coffelt exodus.