August 14, 2007 - Judge Tauro’s memorandum, accompanying his one-page Order, concurs with the US Attorney's Court Monitor report that "the Commonwealth's stated global policy judgment that Fernald should be closed has damaged the Commonwealth's ability to adequately assess the needs of the Fernald residents on an individual, as opposed to a wholesale basis."
"The logical extension of the Judge's memorandum is that no institution can be closed" according to Leo Sarkissian, Executive Director of The Arc of Massachusetts."A decision like this can have a chilling effect on public policy decision-making, which is, by its very nature, global.We want our state elected and appointed leaders to make policy that considers ALL of the various stakeholders and their needs.Negating the Governor’s ability to do so deprives others who have clearly fallen outside of the Judge’s narrow field of view.”
Another confusing aspect within the memorandum is interpreting the Judge’s description of"systemic failure" as "a problem of any magnitude, which manifests itself on a system-wide basis, across a number of ISP processes."Neither the Court nor the Monitor found any systemic failure in fact, and yet the Court makes clear its decision to reopen the Ricci case was based upon the Commonwealth’s public policy decision not to allow Fernald to remain as a viable option for class members.
Systemic Failure - a matter of perspective
Ironically, the memorandum may actually create "systemic failure" by reversing the expansion of community-based services, as finite revenue will be siphoned from community accounts to insure compliance with Judge Tauro’s memorandum. Forcing DMR to offer Fernald as an "option" to residents and their guardians will require significant operational & capital expenditures to provide the quality services and environment that Fernald residents are entitled to under the lifetime protections afforded them as class members of the 1993 Consent Decrees. We must presume other pro-institutional groups will make similar demands for other institutions such as the Wrentham State School.
The U.S. Supreme Court’s Olmstead v. L. C. decision prompted President George W. Bush to issue an Executive Order, directing “the Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration [to] work cooperatively to ensure that the Olmstead decision is implemented in a timely manner.”
Under this mandate, the U.S. Department Of Health & Human Services issued an
advisory to state Medicaid officials, urging states to adopt plans on how to comply with the ruling.In its first paragraph, the advisory declares: “The Court’s decision clearly challenges us to develop more opportunities for individuals with disabilities through more accessible systems of cost-effective community-based services.”
In response, Governor Swift’s administration offered a meager Olmstead Plan that now sits on shelves collecting dust.Governor Romney chose not to develop a plan.Today, the U.S. Department of Health and Human Services no longer even recognizes Massachusetts as having a Plan.This history, along with inaction in response to Judge Tauro’s memorandum, could leave the Commonwealth at odds with the HHS advisory and vulnerable to a charge that Massachusetts is not adhering to Olmstead.
Other concerns with the Court's memorandum include:
- Not basing a decision on the facts of the situation but on hypothetical concepts such as "transfer trauma."
- A narrow definition of the consumer's rights in refusing community services provided by the Supreme Court's Olmstead decision; others would argue that the decision allows people to choose to remain in institutional settings but not in a particular institution (thus negating the ability of the state to consolidate ANY of its existing institutions).
- The memorandum does not address arguments in The Arc of Massachusetts brief prepared by its attorneys at the Center for Public Representation, intervener Disability Law Center or intervener and several national and state disability rights organizations represented by Holland & Knight.
Does Olmstead Create a Right to Remain in an Institution?
This is the heading of a chapter within a Journal Of Poverty Law And Policy article, written by Jennifer Mathis, Esq., Deputy Legal Director for the Bazelon Center for Mental Health Law.In her analysis, Mathis states: "While the Olmstead decision was based on Congress’ desire to prevent unnecessary institutionalization of individuals with disabilities, litigants have argued that the decision establishes a right to remain in an institutional setting. Courts have uniformly rejected these arguments.”
Read Mathis’s arguments, analysis and numerous legal citations used to back her conclusion by clicking on this link.
The Arc urges anyone with a stake in human services to contact the Governor immediately to request an appeal of Judge Tauro’s decision, by calling 617-725-4005 or by leaving a comment on the
Governor’s website.
Click here to download Judge Tauro’s ORDER August 14, 2007 (pdf)