Home > Uncategorized > Help needed on Barney Frank’s lawsuit opt-out bill

Help needed on Barney Frank’s lawsuit opt-out bill

For a number of years, U.S. Rep. Barney Frank has proposed a common-sense piece of legislation which would give guardians of persons with intellectual disabilities a say in federally funded lawsuits supposedly brought on their wards’ behalf.

This year, Frank’s bill (H.R. 2032), is reportedly picking up some steam in Congress, where it was recently referred to the Judiciary Committee’s Constitution Subcommittee.  Tamie Hopp of VOR, a national nonprofit that advocates for a care continuum that includes developmental centers, has termed this “real progress.”  VOR is working to get to the next step, which is a hearing on the bill, either at the subcommittee or the committee level.

H.R. 2032 would prohibit any entity that receives funds from the federal government from filing a class action lawsuit involving the residents of an Intermediate Care Facility for the developmentally disabled (ICF/DD) unless the residents’ guardians have the opportunity to opt out of the suits.

In addition, the bill would require the U.S. Department of Justice to consult with the guardians in any investigations undetaken of developmental centers in which their wards are living, and provide a right of intervention to guardians if the DOJ files a lawsuit.

According to the VOR, there have been dozens of class action suits filed by federally funded legal “Protection and Advocacy” agencies and by the DOJ around the country since the 1970s, seeking primarily to shut state ICFs/DD.  Those lawsuits have brought about the closures of at least 15 developmental centers, resulting in the forced transfers of thousands of residents from their longtime homes, often with tragic consequences.

Despite the record around the country of signficant improvements in the care and conditions in ICFs and the relatively greater levels of abuse and neglect in the community system, we’ve never heard of a case in which the DOJ has brought a legal case against conditions in the privatized community-based system of care.

Thus far, Frank’s bill has 65 co-sponsors in the House, including three of the 10 members of the Massachusetts House delegation — Reps. Richard Neal, Michael Capuano, and James McGovern.  The seven other House members of the delegation have yet to sign on.

COFAR is asking people to call their congressmen and urge them to co-sponsor H.R. 2032 and request that a hearing be scheduled on the bill either by the subcommittee or the full Judiciary Committee.  Advocates of privatized care, including human services contractors around the country, are lobbying in opposition to the bill, as they always do.

In Massachusetts, no federally funded class-action suits have yet been filed against ICFs.  But at least two federally funded P&A organizations — the Disability Law Center and the Center for Public Representation — particpated as parties in court litigation in recent years over the Fernald Developmental Center.  In that litigation, the DLC and the CPR have repeatedly taken the side of the Patrick administration in seeking to close Fernald, and not the side of the residents or their families, who want to stay there.

While the DOJ suits don’t specifically call for the closure of the developmental centers, critics of the DOJ, such as the York Legal Group in Pennsylvania, note that closure of the centers is the DOJ’s ultimate goal.

Legal action brought by families and guardians of developmental center residents beginining in the 1970s brought about significant improvements in care in those facilities to the point where today, these centers provide state-of-the-art care.  It is unfortunate, however, that the federal government and advocates of privatizing public services are today using this same method of class action litigation to work against the interests of those families and guardians. 

In fact, families and guardians are fully capable of filing their own lawsuits if they feel aggrieved by the system and are knowledgeable about the various living options available to them.  They don’t need the government or anyone else to tell them what’s best for them.

You can find telephone and email contact numbers for the Massachusetts House members here.

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  1. October 21, 2011 at 1:40 pm

    There’s nothing radical about Barney Frank’s bill. Federal law (The Developmental Disabilities Assistance and Bill of Rights Act) already states that individuals with developmental disabilities and their families are the “primary decisionmakers” regarding services and supports such individuals and their families receive, including choosing where the individuals live from available options (42 U.S.C. 15001(c)(3)).

    In filing lawsuits to close developmental centers and naming residents of those centers as plaintiffs in those suits, the DOJ and other opponents of the developmental centers are failing to recognize the families and guardians as the primary decisionmakers.

  2. Anonymous
    October 21, 2011 at 9:41 pm

    My mother sacrificed a full scholarship to college to stay home and help her aging parents care for her developmentally disabled brother, “Champ”. When my Dad began dating Mom, he quickly learned he’d be inheriting another “brother” if he married Mom; many of their dates were spent taking Champ fishing, to ball-games, for ice cream or on other outings. Eventually, Champ’s needs exceeded what could be provided at home and he went to live at the Fernald Center. For decades, Dad drove to the Fernald to bring Champ to our home on birthday and holiday sleepovers during which he assisted my uncle with bathing, toileting and other tasks. We took him on outings to the beach and to circuses. Mom prepared Champ’s favorite dishes and helped him eat, not enjoying her own meal while it was hot because she worried constantly over Champ’s swallowing issues and frequent choking episodes. Dad and/or my Mom would sacrifice their scarce free time to attend ISPs and other meetings to assure Champ’s needs were met. When I was a child, my uncle admired a brand new Yosemite Sam doll I’d received as a gift and took it from me. When I protested, my Mom said, “Champ doesn’t understand that it’s not his; let him have it. God will reward you for being kind.” Two generations later, I gave my grandnephew the same explanation when Champ took something that belonged to him. With tears of loss in his eyes, my grandnephew smiled and generously gave his toy to Champ, saying, “It’s a really cool toy, Champ. I hope you like it and play with it a lot like I would.” Even though we struggled financially with my father working long hours doing manual labor outdoors in all kinds of weather, when my Mom’s parents died, she didn’t use her small inheritance to buy nice things for herself or our home or even to pay our bills. Instead, she put it in a trust account to be used on Champ’s behalf after she died in hopes of meeting his needs without putting financial burdens on her children. When Mom died and Dad’s health declined, my sister & I took over the role of co-guardians though Dad remains our advisor and Champ’s staunchest advocate. We agonized over finding a home for him when we were told he’d be forced out of the Fernald, his home of 3 decades. We lost days of pay in order to go to meetings and tour other prospective homes. We took over the duty of providing transportation for visits; instead of the 33 minute one-way commute when he lived at Fernald, we have a 63 minute one-way trip—if traffic cooperates. We still bring Champ home for the holidays though his care is too demanding for us to keep him overnight anymore. When my father could no longer do so, my brothers took over the job of carrying Uncle Champ in & out of our house as he could not navigate stairs. We do the Christmas shopping and wrapping and the time-consuming labeling of clothing & other belongings. Should my uncle outlive us, these responsibilities will fall to my niece who, since childhood, has also understood that we do for Champ because we are his family. WE are his family. WE are the ones who who should make the decisions for him.

    • Sue
      October 22, 2011 at 2:01 pm

      Thanks for sharing Champ’s story. The family or guardians should be the only ones who are the decision makers. You couldn’t possibly have stated it any better.

  3. Anonymous
    October 21, 2011 at 10:47 pm

    Well done blog, David. Mav

  4. Sue
    October 22, 2011 at 12:49 am

    Just to make sure I’m understanding this correctly—-The government is paying to sue itself?

    GOVERNMENT funded P & As and the GOVERNMENT DOJ are filing lawsuits against the GOVERNMENT (on the supposed behalf of people who did not retain them and without their knowledge)to close GOVERNMENT funded ICFs with the intent of those same unknowing people being kicked out of their homes?

    I guess it makes sense in this respect–no one but a lawyer paid by the government would represent someone in a lawsuit without the person’s knowledge or without being retained?

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