By Glen Johnson

Associated Press writer

September 13, 2007

BOSTON - Gov. Deval Patrick, citing cost and the availability of alternative settings, has decided to forge ahead with state efforts to close the Fernald Development Center for the mentally retarded - a step bitterly opposed by some patients' relatives.

The Democratic governor announced Wednesday he was filing an appeal of an August federal court ruling that found the Waltham facility's 180 residents must be given the option of staying. He also said that while he would comply with that order during the appeal, he would continue planning to close the facility.

"Our decision to appeal (the) ruling is about making sure the state has the latitude to provide the care people need in settings, whether they be institutional or community placements, that also make fiscal sense," Patrick said in a statement. "Fernald is not such a setting."

The governor added: "Of course, we will work closely with each resident of Fernald and his or her family to place them in the alternative setting that best fits their individual needs."

Beryl Cohen, an attorney for the Fernald League for the Retarded, which opposes the proposed closure, called the decision a "disgrace" and said the families would fight the effort.

"He's a rich man who had bowed to special interest groups and has no understanding of the handicaps that the people at Fernald are facing," Cohen said. "This will be decided by the U.S. Court of Appeals. That's where it belongs."

A statement issued by Dr. JudyAnn Bigby, Patrick's secretary of Health and Human Services, noted there were seven institutions for people with mental retardation in New England, including six in Massachusetts.

"The commonwealth has lagged behind the region and much of the nation in closing old, expensive and ineffective institutional settings," the statement said. It labeled Fernald "the most expensive of all," with costs in excess of $239,000 per resident per year, compared with $102,000 for "comparable services" in community settings.

Meanwhile, Patrick and Bigby said the facility faces $14-20 million in needed capital improvements.

"Closing the facility, which currently has only 180 residents on 196 acres, will enable DMR to consolidate its resources in order to provide the best services available to all 32,000 of its clients throughout the state," the statement said.

Fernald is the nation's oldest publicly funded facility for people with developmental disabilities. Many of its residents have lived there for decades.

Leo Sarkissian, executive director of The Arc of Massachusetts, the state's largest advocacy group for the mentally retarded, praised the decision, saying Fernald is too expensive to maintain and siphons money from other programs.

"There are scarce resources and there is a growing adult population in need of services," he said.

The state argued in May that a federal judge doesn't have authority to force the state to keep Fernald open. Bigby said decisions about the future of Fernald "are entrusted to the commonwealth and not the court."

Yet U.S. District Court Judge Joseph Tauro ruled Aug. 14 that Fernald residents must be given the option of staying. In 2006, Tauro also blocked involuntary patient transfers.

In a decision cheered by their relatives, the judge said the state had compromised its ability to assess what was best for the residents because of its "stated global policy judgment that Fernald should be closed."

Tauro wrote: "It does not mean that the commonwealth may never close Fernald. It does mean, however, that the DMR must carefully assess the needs and wishes of each resident, and provide a genuine and meaningful opportunity for their guardians to participate in their placement decisions."

Those placement options, he said, "shall include Fernald."

The appeal sets up a showdown between Patrick, once the top civil rights official at the U.S. Justice Department, and Tauro, who has directed two decades of reform of the state system after a class action lawsuit exposed abuses ranging from vermin infestation to unexplained resident injuries.

In 2006, Tauro assigned U.S. Attorney Michael Sullivan to investigate the state's closure plan. Sullivan reported in March that Fernald residents would not receive "equal or better" service at alternative facilities.

Tauro said he agreed with Sullivan's assessment that residents depend on "the importance of simplicity, continuity and consistency in the surroundings, activities and caretakers that help residents live each day."

Even if the main facility is closed, the state plans to maintain a presence on the Fernald campus. Malone Park, with 24 beds, will remain open and run as a state-operated group home, the statement from Bigby said.