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THE NEED FOR H.R. 1255:
a bill to protect the interests of residents of intermediate care facilities
for people with mental retardation (ICFs/MR) in federally-financed class action lawsuits
About H.R. 1255
On March 3, 2009, Rep. Barney Frank (D-MA), along with nine other members of Congress, introduced H.R. 1255, a bill to protect the interests of residents of intermediate care facilities for people with mental retardation (ICFs/MR) in class actions lawsuits filed, purportedly, on behalf of such residents. Original cosponsors were: Rep. Steve Cohen (D-TN), Rep. David Dreier (R-CA), Rep. Bob Goodlatte (R-VA), Rep. Paul Kanjorski (D-PA), Rep. Dan Lungren (R-CA), Rep. James Moran (D-VA), Rep. Ron Paul (R-TX), Rep. Ted Poe (R-TX) and Rep. Debbie Wasserman Schultz (D-FL).
H.R. 1255, if passed, will require that before federally-financed class action lawsuits against Medicaid-certified and funded ICFs/MR can proceed, residents and guardians must receive notice of the lawsuit and be given a time-limited opportunity to opt-out of the proposed lawsuit, or do nothing and join in.
Why H.R. 1255 is needed and supported by families of ICF/MR residents
Although legal guardians often object strongly to the lawsuit and its closure objectives because they are pleased with the care their loved ones are receiving, under current law there is no requirement that residents or legal guardians be notified of a lawsuit and they do not have the right to opt out. Consequently, many residents of ICFs/MR are swept into these lawsuits against their or their guardians’ wishes.
Class action lawsuits have closed many ICFs/MR and reduced options for those who need fulltime care
Federally-funded attorney groups have pursued at least 28 class action lawsuits against ICFs/MR, driven primarily by a bias against ICF/MR care. In fact, since 1996, every federally-funded lawsuit against an ICF/MR has been for the primary purpose of removing residents from their ICF/MR home (“community integration”); the condition of care at the targeted ICFs/MR was not at issue in any of these cases.
Fifteen of these cases have led to the closure of ICFs/MR, affecting thousands of individuals with mental retardation (see, http://www.vor.net/classactions.htm). Bizarrely, despite the fact that ICFs/MR are a residential option created by federal law and funded and monitored by HHS, most of these lawsuits are filed under the Protection & Advocacy (P&A) program, whose lawyers are also funded by HHS. These ideologically-driven suits are essentially HHS v. HHS.
H.R. 1255 could help prevent tragic outcomes and preserve residential choice
Families have good reason to be concerned. Closures oftentimes result in tragic outcomes for the former residents (see e.g., http://vor.net/abuse_neglect.htm, listing examples of systemic abuse, neglect and higher death rates in community settings for people with mental retardation who have been moved out of ICFs/MR in many states and the District of Columbia).
H.R. 1255 is consistent with federal law; specifically, the Developmental Disabilities Assistance and Bill of Rights Act (DD Act), which authorizes funds for P&A attorneys, embraces the policy that individuals and their families/guardians are the “primary decisionmakers” regarding the services and supports they receive (see, DD Act, 42 U.S.C.15001(c)(3)(2000)).
Individuals and their families/legal guardians should make fundamental care decisions, not lawyers.
To cosponsor H.R. 1255, contact Pilar Falo, Legislative Counsel to Rep. Frank, at 5-5931.
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Advocacy Materials In Support of H.R. 1255 
