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Closure Announcement from the Patrick-Murray Administration
Appeals Court Rules Overturns Federal District Court
A three judge panel ruled in October that the District Court had overstepped its bounds. This meant that the Commowealth could move ahead with closing Fernald if it so wishes. Plaintiffs other than The Arc requested that the appeals court amend or clarify its judgment. On November 18, it issued this revised judgment and released the following:
"The Orders of the District Court dated August 14, 2007 and February 27, 2008 are reversed and we direct entry of judgment that all claims made which resulted in the issuance of those Orders be dismissed with prejudice to their renewal in federal court proceedings. The 1993 Disengagement Order remains in full force and effect."
The Arc applauds the Appeals Court decision. It opens the way for closure of Fernald and other schools, allowing individuals to move into community options. Our thanks to attorneys at the Center for PUblic Representation for working so hard and well on our behalf and for all those with disabilities.
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September 2008
| Advocacy Groups Hope that Appeals Court overturns Judge Tauro’s Order
Waltham: On September 3, the United States Court of Appeals for the First Circuit will hear arguments to decide the future of Fernald State School. Disability Advocacy organizations such as The Arc of The United States, the National Disability Rights Network, and United Cerebral Palsy all support Governor Patrick’s decision to close the school and his appeal of a federal court decision.
“Massachusetts is behind national trends in shifting resources from bricks, mortar and institutional expenditures to individually driven community based services and supports,” said Board President Fred Misilo of The Arc of Massachusetts. “We have 5 state institution campuses for less than 1000 people while waiting lists grow for community living and employment services and in home family support. The state faces a budget crisis; we should not be using our limited resources to maintain and renovate institutions.”
The NASDDDS or National Association of State Directors of Developmental Disabilities Services (NASDDDS is comprised of the public agencies in all fifty States and the District of Columbia with a statutory mandate to serve persons with ID/DD). It also supports the state’s appeal stated in its legal brief, “We have observed time and again that responsible, carefully-planned institutional closures have benefited virtually all persons with ID/DD...Our observations are informed by many examples of successful institutional closures throughout the country,”
The panel hearing the appeal includes Chief Judge Sandra Lynch, Judge Bruce Selya, and a retired judge, Judge William W. Schwarzer.
The Arc of Massachusetts is one of the original plaintiffs in the Ricci decree and worked to establish a community plan as part of the Settlement. Leo Sarkissian, executive director stated that “overturning Judge Tauro’s decision is one of the critical actions needed if we are to address the needs of the thousands of people waiting for community services today in Massachusetts. The state’s present budget difficulties further increase the importance of the appeals courts’ decision on this case." The Center for Public Representation is representing The Arc at the appeal.
For more background on this issue, see related legal briefs here and read about litigation and evolution of services here.
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Barney Frank files pro-institution bill
November 14, 2007
In a new twist to the ongoing debate over instiutions, Congressman Barney Frank has introduced a bill that would limit lawsuits taken to address the conditions in, or the closure of institutions. The bill applies to any agency or organization that receives federal funds and is a reminder that pro-instition groups remain active not just in Massachusetts, but in the nation’s capital. click here to read more
Fernald appeal the sensible choice - "Painful as it may be, this is a struggle worth pursuing"
Boston Herald Editorial
September 17, 2007
By appealing a judge’s ruling that the Fernald Developmental Center in Waltham remain open as long as the guardians of its 180 residents want them to stay, Gov. Deval Patrick risks a lengthy legal battle - not to mention alienating the families of some of the commonwealth’s most vulnerable citizens. click here to read more
Patrick to appeal ruling
By Glen Johnson
Associated Press
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. click here to read more
EOHHS Secretary Bigby announces Governor's decision to appeal Tauro order, close Fernald
Arc update
September 12, 2007
BOSTON – Today, EOHHS Secretary JudyAnn Bigby, joined by EOHHS Assistant Secretary for Disability Policy Jean McGuire and DMR Commissioner Elin Howe, announced Governor Deval Patrick's decision to appeal US Judge
Tauro's order... click here to read more
Promises made, and a community's hope
Arc Editorial
September 10, 2007
On a crisp fall day on October 24, 2006, thousands of people with disabilities traveled from across the state to the Perkins School in Watertown to meet candidate-for-Governor Deval Patrick. Standing alongside Senator John Kerry, Patrick spoke to the crowd...click here to read more
State must appeal ban on Fernald closing
Boston Herald Op-Ed
By Gary Blumenthal
Federal Judge Joseph Tauro’s recent decision to bar Massachusetts from closing the Fernald Development Center affects far more than the 187 people with mental retardation living at the Waltham institution. His ruling opened a complex legal, human and social issue with the potential to impact tens of thousands of lives across Massachusetts and the nation. click here to read the rest of this column
Judge Tauro's Fernald ruling, analysis, service implications & ACTION STEPS
Sunday, August 26, 2007
On Tuesday, August 14, 2007, US Judge Joseph Tauro issued a ruling in the Fernald state school case. To recap, Tauro's directive comes over a year after he ordered a halt to all transfers from the institution. On February 9, 2006, Tauro appointed US Attorney Michael J. Sullivan to investigate whether DMR had violated the rights of the 43 residents who have been transferred from Fernald since 2003.
Judge Tauro's ruling sets back closure indefinitely.
While DMR and the Governor contemplate their response, The Arc, in conjunction with our allies, MFOC, MASS, ADDP, ILC's and many others, need to send a very strong message, asking Governor Patrick to appeal Judge Tauro's ruling.
Taken literally - if the decision stands, the closure of Fernald, along with all of its resources, will drag on, potentially until the last resident/or guardian refusing to move into the community OR tranfser, is deceased. If the decision stands, it will set precedent and the same process will inevitably occur for each of the other 5 remaining institutions. For more detailed analysis, including links where you may download a copy of both Judge Tauro's order and memorandum, click here.
We have a brief window of opportunity to communicate with the Governor asking him to appeal. We do not have time for emails or letters - PLEASE call the Governor's office.
MAIN: 617-725-4005 or 1-888-870-7770 (in-state)
If you are uncomfortable using the phone, you can convey your comments via the Governor's online feedback page. Whether you speak to a person or are directed to voicemail, simply state:
I am calling to [ask, implore, beg] that Governor Patrick appeal Judge Tauro's recent court order regarding the Fernald Developmental Center. I ask this because the Governor cannot ensure both community and facility-based populations will be sustained indefinitely.
As long as states continue to operate large public facilities, state funds will be used to support those facilities, per capita costs of operating facilities will continue to increase and expansion of community services will remain stagnant or decline in the face of inflation.
If you represent an unserved group, such as people on the autism spectrum, you might throw in the fact that such individuals, if not eligible for DMR services, are falling through the cracks at a record pace as their prevalence and need grows. Ask how the Governor plans to fund non-existent adult services as these children age out of their mandated special-education services. Ask why, in his recent capital budget proposal, the Governor has CUT funds to some of the most successful housing programs benefitting people with disabilities. These are all fair questions - and they deserves a response in the context of the Fernald debate.
Please forward this message to others, to your membership, to anyone you know who cares about the quality of community-based services, such as staff salaries, autism services (an oxymoron?), MRC, family support and day/work programs, just to name a few - we need to get the word out fast and generate calls before decisions are made.
Looking beyond Fernald
Boston Globe
By Joan Vennochi, Globe Columnist
August 16, 2007
CHANGE is hard. It isn't always bad.
Judge Tauro's order - dissolves prohibition on transfers from Fernald, but provides more questions than answers - read the memo
August 15, 2007
Judge Joseph Tauro's memorandum released on Tuesday, August 14, 2007, appears to create a "Catch 22" for Governor Patrick and those implementing the Commonwealth's disability policies by arguing that "global policy judgment" will potentially hurt clients still remaining at the Fernald State School. The Arc, and other disability groups, strongly encourage the Commonwealth to appeal the Judge's order. For more detailed analysis, including links we have posted where you may download a copy of both Judge Tauro's order and memorandum, click here.
Globe runs second editorial
June 25, 2007
The Boston Globe has run a second editorial, different in tone from its June 6th opinion piece, entitled Good care knows no ideology (June 25, 2007. We are unsure why the Globe editorial board has chosen to follow-up on its previous piece, since nothing particularly newsworthy has occurred since June 6.
The Globe’s most recent editorial advises that¼/SPAN>“Creative solutions would first require Arc and its supporters to stop the provocative campaign to close all of the institutions.”
We agree that creative solutions are necessary, but new ideas have been crafted and have received scant attention from the Globe. For example, we welcome the Globe’s recognition that the land on which Fernald and other institutions sit, is an asset that could be used to generate revenue to build new housing – a “creative” proposal The Arc and other organizations have espoused, long before US Attorney Sullivan made the recommendation in his March 6, 2007 report, and long before the Globe heralded the notion in its June 25 editorial. The proposal we support is in the form of a bill, filed by State Rep. Kay Khan, that is silent on the question of closure – hardly a “provocative” idea.
The Globe also characterized the ongoing debate on Fernald in David and Goliath terms - calling "Massachusetts Arc (formerly the Association of Retarded Citizens) a powerful advocacy group for retarded residents in the state" that "enjoys the support of the private vendors who operate roughly 2,000 group homes under contract with DMR.
Despite getting our name wrong, we appreciate the Globe's depiction of The Arc as a strong advocacy organization. However, the primary reason we have grown to become a respected voice for "retarded residents" (note to editor - check out most recent usage terms for people with disabilities, adopted by state and national groups, including President Bush), is not because we are beholden to private vendors or state officials with whom we frequently spar, but because 1) we were founded by families and have a rich 50 year history predating the current debate on Fernald; and 2) the position we take on Fernald happens to be the one supported by hundreds of local, state and national organizations. If there is power in numbers, then we are fortunate to be part of a national movement that includes grassroots organizations, civil rights groups, and university-based programs.
The Boston Globe and the Boston Herald, Massachusetts’ two largest daily newspapers, recently published editorials reflecting their board's position with regard to the future of the Fernald Development Center. For the first time, one of the papers (the Herald) has taken a position supporting closure, reflecting the broad national and state consensus of self-advocates, families, civil and disability rights groups and members of the academic community.
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Keep Fernald Open, And Others Will Pay
Boston Herald Editorial
June 5, 2007
The fate of 186 profoundly disabled adults living at the Fernald Development Center in Waltham should never boil down to dollars and cents alone. And yet we can’t overlook the fact that the enormous resources that are spent keeping this Victorian-era facility open could threaten the care of other mentally disabled residents of the commonwealth. (read more)
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The Folly Of Closing Fernald
Boston Globe Editorial
June 6, 2007
THE 186 aging residents of the Fernald Development Center now receiving intensive treatment on the state-run campus deserve to live out their lives in familiar surroundings without fear of eviction. Deinstitutionalization is not the right remedy for every man and woman with mental retardation, despite the assertions of advocates for group homes. (read more)
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Why The Fernald Center Should Close
Boston Globe Op-Ed
By Mary Ellen Mayo and John Nadworny
May 31, 2007
FOR ALMOST five years, a battle has been waged to keep open the Fernald Developmental Center in Waltham, the nation's oldest public institution (read more)
State and National Disability & Family Organizations File Amicus in Closure of State Institution Lawsuit
May 31, 2007
Today was the deadline for filing of legal pleadings in response to a report compiled by US Attorney Michael Sullivan. As reported below, US Attorney Sullivan, acting as "Court Monitor", recommended that Fernald Developmental Center stay open. At the same time he affirmed that his investigation found that all individual moves from Fernald which he reviewed resulted in "equal or better services".
The Arc of Massachusetts is a plaintiff in the case and an argument objecting to the US Attorney's Report was filed by the Center for Public Representation on our behalf with the Disability Law Center, which is acting jointly as an intervener in the case. Some of the key points noted in the brief include:
- Research which overwhelmingly points to better outcomes for individuals who have moved from institutions when compared to those who remain - this includes growth in adaptive skills and social skills.
- The role of clinical or professional assessments in determining movement or transfer and the continuing national movement to serve individuals with disabilities in community based settings.
In addition, an amicus brief (friend of the court) arguing for closure, was initiated and submitted by the Association of Developmental Disabilities Providers (authored by Holland and Knight LLP).
DMR, under the aegis of the Patrick Administration, also filed a brief today. The brief carefully sidesteps the question as to whether Fernald should remain open by claiming such a decision is an executive prerogative of the Governor. It argues the court should cease its involvement since the US Attorney’s report found all transfers of residents from Fernald had complied with all applicable laws, including the Court's directive that residents only be transferred to settings in which they receive care equal or better to that afforded them at Fernald.
In January 2005, US District Judge Joseph Tauro denied pro-institution counsel’s motion to reopen the Court’s involvement in the oversight of Fernald, one of the institutions included in the 1993 “consolidated consent decrees”, unless it could be demonstrated that persons transferred from Fernald were not receiving equal or better care. The Sullivan report found no such deficiencies.
The State House News reported today that Governor Patrick said: "We filed a brief today in the Fernald case, and in that brief, we will take a position that the administration ought to have the latitude to make a judgment about which facilities or whether facilities are going forward, and we will make that judgment in the fullness of time. We believe, as a matter of philosophy and law, that the least restrictive setting for people in communities is best, but isn't necessarily for everybody."
An official statement on DMR’s brief was released by Health And Human Services Secretary Judyann Bigby.
Read an op-ed, published in today’s Boston Globe, coauthored by Mary Ellen Mayo, President of The Arc of Massachusetts; and John Nadworny, coauthor of "The Special Needs Planning Guide" and a member of the Governor's Commission on Mental Retardation.
Click here to read the DMR brief
Click here to read the ADDP amicus brief
Organizations that signed the ADDP amicus brief:
- The Arc of the United States, Washington, D.C.
- United Cerebral Palsy, Washington, D.C.
- The National Disability Rights Network, Washington, D.C.
- The Association of Developmental Disabilities Providers of Massachusetts
- AdLib, Inc., Berkshire County, Massachusetts
- Boston Center for Independent Living
- Independent Living Center of the North Shore and Cape Ann, Inc.
- Massachusetts Advocates Standing Strong
- The Massachusetts Council of Human Service Providers, Inc, Boston, Massachusetts
- Massachusetts Families Organizing for Change
- MetroWest Center for Independent Living, Inc.
- Northeast Independent Living Program of Greater Merrimack Valley
- Self Advocates Becoming Empowered (Region 8)
- Service Employees International Union (SEIU)
- Local 509 of the Service Employees International Union
- The Stavros Center for Independent Living of Western Massachusetts
Fernald Property, Who Stands To Benefit?
By John Thomas, Deputy & Policy Director, The Arc of Massachusetts
Guest Columnist, Waltham Daily News
March 27, 2007
In a recent story (Rep. Targets Housing For Residents, March 21, 2007), George Mavridas, a Director at COFAR, a group opposed to the closure of Fernald, said he is skeptical of a bill concerning the disposition of surplus property, filed by State Representative Kay Khan… (read more)
Rep. Targets Housing For Residents
By Rebekah Metzler
Waltham Daily News Correspondent
March 21, 2007
BOSTON - The decision on what will happen to the Walter E. Fernald Development Center is still a few months away. What happens if the state decides to sell the land? (read more)
Letter: Mass. Nurses Association describes community transition as “death sentence”
Waltham News Tribune
March 2, 2007
Boston Center for Independent Living’s Executive Director objects to Massachusetts Nurses Association claim that moving residents into community “is tantamount to a death sentence.” (read more)
Summary of Federal Court Hearing on US Attorney Sullivan's report on the Ricci Class and the Closure of Fernald State School
March 7, 2007
On Feb. 8, 2006, federal Judge Joseph L. Tauro ordered the state of Massachusetts to indefinitely suspend the transfer of residents from the Fernald State School in response to members of a plaintiff group from the 1993 Consent Decree who have resisted efforts to close the Fernald facility. Judge Tauro appointed U.S. Attorney Michael J. Sullivan to examine whether the state’s Department of Mental Retardation (DMR) had violated the rights of the 43 residents who were transferred out of Fernald since 2003.
Following Sullivan’s recommendation that Fernald remain open, Judge Tauro scheduled today’s court hearing to decide whether or not the investigation conducted into Fernald should be expanded to include a greater examination of the DMR system and other institutions covered by the consent decrees.
The Court hearing began at 12:20 pm after court officers made an effort to accommodate the standing room-only crowd. US Attorney Michael Sullivan spoke first and summarized the report he had prepared. He noted that there are 3,959 Ricci class members remaining.
The report found that the Commonwealth was in compliance with the court order including “equal or better” services and in the areas of planning and consent. There were a couple of instances where DMR’s policies were different than those argued for by the Fernald counsel, but Atty. Sullivan did not find that DMR was out of compliance with the Court’s 1993 final order in the case.
The US Attorney utilized services of 3 physicians to review records. He also employed a satisfaction survey which resulted in 92% of respondents providing favorable responses at a level of 1 or 2 (out of 5) regarding their new locations. 78% of respondents gave a favorable response at the highest level.
The US Attorney related three concerns that made him wary of further placement: high turnover in community settings; higher rates of abuse (especially sexual abuse) in the community; and, because nurses and doctors are not available in each community residence, less immediate availability of medical services as compared to the facilities.
In a similar review of abuse in 2004 and 2005 (using data provided by the Disabled Persons Protection Commission [DPPC]), The Arc of Massachusetts found that there were no significant differences between institution and community-based settings in the prevalence of abuse (substantiated and pending or substantiated only) when comparing 24/7 residential services in the community and institution (ICF-MR).
The US Attorney’s recommendation is that Fernald should stay open as “some [residents] could suffer an adverse impact, either emotionally and/or physically” if they are forced to move to the community or another ICF. Mr. Sullivan also concluded that for “some, many or most” of the Fernald residents, a move to “any other place would not meet an ‘equal or better’ service outcome.”
Attorney Beryl Cohen, counsel for the class members at Fernald, Monson, and Belchertown, noted the historic occasion and had high accolades for US Attorney Sullivan. Mr. Cohen said that he agreed with the report and recommendations in every detail.
DMR Counsel Marianne Meacham, after thanking Mr. Sullivan for his efforts, stated that the US Attorney had found that none of the rights allegations, originally stated by Mr. Cohen in support of their motion to reopen the case, were substantiated. She also argued that it was proper to vacate the Judge’s February 2006 order as there was nothing in the Monitor’s report that should prevent voluntary discharges from Fernald. During her presentation, Judge Tauro asked Meacham several questions and made remarks then and later indicating his feeling that no one should be forced to leave Fernald. Tauro also said he felt DMR had been pressuring families to agree to alternative placements.
Attorney Rick Glassman (representing intervener, the Massachusetts Disability Law Center) echoed Meacham’s concerns about the US Attorney’s recommendation about Fernald’s future. Judge Tauro pressed Glassman on this point, i.e. what was Glassman’s opinion on forcing someone out of a specific ICF-MR. Glassman answered that although the federal Americans with Disabilities Act (ADA) doesn’t force anyone to leave an ICF setting, it also doesn’t empower individuals to choose the ICF of their choice. In addition, he noted that the report made general comments and conclusion about the potential impact of change and did not identify specific clients who would be at risk.
Judge Tauro stated that he felt Fernald should not be closed as a policy matter. The Arc feels this assertion begs the question: “What should DMR do in regards to resources as the Fernald population declines?” which the Judge assumed it would. The Judge used the term “withering vines” in regard to the population decline, asking “Can Fernald outlive them?” Advocates and other families fear the cost of maintaining and upgrading Fernald will create a renovated facility that would provide beds in a segregated setting, long after the present population is gone.
During the ongoing discussion, Judge Tauro stated that US Attorney’s report should merit the legal status of a report by a Judge Magistrate. He said he would allow as much time as needed for response. In an order announced the next day, Judge Tauro identified May 31, 2007 as the last date for the submission of comments in response to the US Attorney’s report.
Attorney Robert Fleischner, representing The Arc, thanked the US Attorney for his efforts and then noted that The Arc had filed a motion with the intervener (DLC) to allow 2 individuals and others whose transition process had met the conditions developed by the Court to move out of Fernald. The Judge stated that he didn’t want to decide the case piecemeal. In response to this, a parent stood and asked if she could speak. She noted how her son had been waiting to move to a community program for over one year and asked the Judge to allow him move to his new home in Taunton. The Judge was about to deny the request when the US Attorney asked for a sidebar. After the sidebar the Judge said he would consider the parent’s request. However, the next day the Judge granted the Fernald parents’ motion to extend his order prohibiting any discharges from Fernald. It remains to be seen how the Court will respond to another motion, to be filed by The Arc, DLC, or perhaps the Monitor, to allow discharges.
The Wrentham families’ attorney then stood to request the same investigation by the US Attorney of all Wrentham clients and probably all who had left the institution. Attorney Fleischner noted that The Arc opposed the motion and expansion of the Monitor’s role. The Judge said he would consider the motion.
The Arc of Massachusetts is represented by Center for Public Representation Attorney Robert Fleischner and Executive Director Steve Schwartz. Disability Law Center is an intervener in the case, and is represented by Attorney Rick Glassman and Executive Director Stan Eichner.
The Arc responds to US Attorney's report on Fernald
March 7, 2007
In a 27-page document released on March 6, 2007 regarding Fernald State School, US Attorney Michael Sullivan found that most residents were positive about their moves to the community or other Intermediate Care Facilities. From the perspective of DMR, as well as the guardians and the residents, community placement for many individuals has been a great success.” Mr. Sullivan did not substantiate many of the assertions of Fernald attorney Beryl Cohen, stating that individuals were moved without planning and agreements by guardians. The report states: “Our office did not find that DMR initiated any transfers without the full knowledge and consent of guardians. There were no allegations from any of the guardians, or from our medical doctors, that there were any unmet active treatment needs for the individuals transferred.”
At the same time, the US Attorney recommended that Fernald residents should be allowed to remain at the facility "since for some, many or most, any other place would not meet and 'equal or better' service outcome."
The report was requested by US District Judge Joseph L. Tauro who, last year, ordered a halt to all transfers of Fernald residents after some families alleged that the rights of 43 individuals who had left the facility in recent years had been violated as per terms of consent decrees that were a result of the Ricci v. Okin case, which brought about improvements in services in both state facilities and the community between 1972 and 1993. The families calling for a halt in transfers argued that individuals had not been provided "equal or better care" as required by the earlier Tauro ruling in 1993.
Today, in the Moakley Federal Courthouse, Judge Tauro is expected to issue a decision as to whether or not the investigation should be expanded to include a greater examination of the DMR system and other institutions covered by the consent decrees. The Arc, also a plaintiff, has been represented by Steven J. Schwartz, who has filed motions against expanding the investigation.
While we appreciate the US Attorney's assertion that change is difficult, particularly for state school residents the report characterizes as "fragile," we believe the Commonwealth has moved well past the point where it can afford both a growing community service system and the new capital costs associated with maintaining aging institutions that serve a decreasing number of individuals.
A conservative capital budget estimate to maintain Fernald is pegged at $25 million while others argue that capital improvements could exceed $75 million, based on comparable costs of renovating similar institutions in recent years. Depending on the estimate, the Fernald renovations would cost between $100,000 and $300,000 per resident. As the population declines, others may be forced into the institutions.
Given the U.S. Attorney's conclusions and its policy implications on the future of the remaining six large institutional facilities in Massachusetts, we question how equal protection and consideration can be given to all residents with disabilities living within the Commonwealth - especially those with limited or no services. We also urge advocates to be prepared to fight for already scarce resources as the state budget moves ahead and elected and appointed officials react to today's report and tomorrow's response by Judge Tauro.
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