The Law: Legally Ensured protections
Guardianship (also called Conservatorship in some states) is a legal process whereby an individual (“guardian”) is appointed by a court to make decisions regarding major life decisions (as defined in state law) such as medical care, living arrangements, and financial management on behalf of a person (“ward“) who lacks the ability to comprehend and do those things for him/herself (Parent Association for the Retarded of Texas, 2010).
As families prepare for the closure of the Clover Bottom Developmental Center, on May 28, 2010, a court ruled in favor of the right individuals and legal guardians the right to choose another ICF/MR (deemed a “congregate” setting), even when professionals have determined the individuals could be provided in a more integrated setting.
The question before the federal district court in Tennessee was whether the Americans with Disabilities Act (ADA) precluded Clover Bottom residents, or their legal guardians, from choosing “congregate care.” The U.S. Department of Justice and People First of Tennessee argued against the right of choice when professionals have deemed another setting to be more “integrated.”
Citing Olmstead and Medicaid law, the Court ruled in favor of the state and families, recognizing the freedom to choose a large ICFs/MR placement even if the individual could be appropriately served in a more integrated setting.
“The intersection of citizen choice and the ADA was addressed by the Supreme Court in Olmstead v. L.C.,” wrote the court. “[T]here is no federal requirement under the ADA that community-based treatment must be imposed on citizens who do not desire it.”
Click here for the decision and order.
A federal judge has dismissed a lawsuit brought by The Arc of Virginia against the State of Virginia challenging a state plan to renovate and resize the Southeastern Virginia Training Center (SEVTC). Judge Robert Payne held that The Arc failed to establish a "case or controversy" ripe for judicial review and, thus, the court lacked jurisdiction to hear the case. The Virginia Office of Protection & Advocacy represented the Arc. The U.S. Department of Justice participated as Amicus ("Friend of the Court") in support of the plaintiffs.
Noting that deinstitutionalization was the plaintiff's central motivation in this case, Judge Payne held that, in this situation, the State has indicated that no one will reside at the new SEVTC who doesn't want to be there.
"Here, there is evidence that shows that many individuals will choose to live in the new facility. In fact, at least 84 of the 155 legal representatives of the current SEVTC residents have made formal pleas to permit their loved one to remain in the new facility rather than be placed in community housing (citation omitted). Thus, the argument made by Arc and the United States regarding the risk of institutionalization fails to account for a key principle in the Olmstead decision: personal choice. And here, where more residents desire to remain in institutional care than the new facility can provide for, there is little to no risk of institutionalization for those whose needs do not require it and who do not desire it."
Click here to read the full decision.
Update: Judge accepts revised settlement; preserves choice
Illinois Judge sides with choice; rejects proposed settlement and decertifies class
Residents of Illinois’ private facilities for persons with developmental disabilities and their families celebrated an early-July decision in Ligas v. Maram. The lawsuit, filed by Illinois’ Protection & Advocacy against the State of Illinois, has concerned the families of people with developmental disabilities who are private facility residents after learning of its filing in 2005. The lawsuit, filed by just nine plaintiffs, was filed on behalf of a class of 6,000 people.