What H.R. 1255 Will and Will NOT do

Support H.R. 1255, a bill to assure individual and guardian March 2009
decision-making in class action lawsuits:

What the bill WILL and Will NOT do

Please show your support for H.R. 1255. Cosponsor this legislation today.  

H.R. 1255 WILL:
* Apply only to class action lawsuits that are filed by federally-funded entities using federal dollars against Medicaid-licensed and certified Intermediate Care Facilities for the Mentally Retarded (ICFs/MR).

* Require that prospective plaintiffs (mostly people with severe or profound mental retardation) and their legal guardians receive notice before an ICF/MR class action suit is filed. Advance notice is not required by current law.

* Require that prospective plaintiffs and their legal guardians be given a time-limited opportunity to “opt out” (not be included in) the class action lawsuit. Opting out of these lawsuits is not now an option.

* Address the unwillingness of most federally-funded lawyer groups to involve guardians (including families) of people with severe and profound mental retardation. These lawyers avoid informing and involving the families and do only what is required by current law – no advance notice, no right to opt out.

* Address the distrust federally-funded lawyer groups display of guardian ability and/or motives with regard to acting in the best interests of their loved ones. They go so far as to characterize families and guardians as “clueless” (see e.g., Consortium for Citizens with Disabilities (CCD), July 13, 2007).

* Address the anti-ICF/MR bias of most federally-funded lawyer groups that sue ICFs/MR. Ignoring the wishes of guardians, these attorneys (e.g., Protection & Advocacy or “P&As”) oppose the ICF/MR option for any person with mental retardation.

H.R. 1255 Will NOT:
* “Fly in the face of disability policy,” as opponents of H.R. 1255 have alleged. H.R. 1255 is consistent with federal disability policy which embraces choice and family decision making (see e.g., The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 15001(c)(3)(2000) (emphasis added):“Individuals with developmental disabilities and their families are the primary decisionmakers regarding the services and supports such individuals and their families receive. . .”).

* Affect any other activities of P&A on behalf of people with developmental disabilities and in no way prevent the filing of class action lawsuits on behalf of a consenting class of individuals. The impact of H.R. 1255 on P&A programs would be remarkably small. According to the CCD, in 2006, “Only five percent of [P&A] cases resulted in legal action being taken” (CCD, July 13, 2007), and not all “legal action” was a class action.

* Affect Rule 23 of the Federal Rules of Civil Procedure, relating to class action lawsuits. The notice and opt out benefits of H.R. 1255 apply only when a federally-funded entity proposes to bring a class action using federal funds and only before a lawsuit is actually filed.

* Change in any way state law with regard to the appointment or removal of guardians. Every state has a legal process concerning guardianship.

* In any way “open up” opportunities for class action changes for other constituencies. H.R. 1255 addresses only the specific injustice of attorneys making decisions for the most vulnerable members of our society and their legal guardians – nothing more or less.