VOR, 92 families file Amicus Brief; ask court to overturn PA settlement

UPDATE: Third Circuit Court of Appeals by Judgment and Opinion, Grants Intervention, Vacates and Remands Settlement and Class Certification.

December 2011

 VOR and 92 individuals filed an Amicus Curiae brief in support of nine appellants (families of Pennsylvania’s ICFs/MR), seeking to overturn a class action settlement initiated by five named plaintiffs (represented by Protection & Advocacy) and the State of Pennsylvania.  The case is Benjamin v. Pennsylvania Department of Welfare.

    The named plaintiffs in this action seek to transition from ICFs/MR to smaller community-based residences. Appellants and VOR did not oppose their right to do so.  Rather, the appellants and VOR oppose the plaintiffs' attempt to impose their choices on appellants through a settlement and broadly defined class of individuals that includes all residents with profound intellectual disabilities who are unable to articulate their opposition to being moved.   The Court granted class certification in the face of no opposition by the Pennsylvania Department of Welfare. 

    The appellants' and VOR's concerns with this settlement are two-fold: (1) residents with profound intellectual disabilities often cannot get the care they need from the smaller residences; and (2) implementation of the settlement could so significantly depopulate the centers as to render ultimate closure inevitable.  In fact, such transfers have already resulted in ICF/MR closures elsewhere and will likely do so in Pennsylvania as well.   Even the District Court, in its decision approving the settlement, expressed concern about the problematic provisions which interpret silence as consent.  

    Specifically, VOR argued that the District Court's ruling to certify the class was at odds with the Supreme Court of the United States' ruling in Olmstead v. L.C., which supported the right of individuals to choose a residential setting according to need. “The solution is not to move everyone from one type of facility to another. This is not only in direct contravention of Olmstead, but will cause unspeakable harm to those in need of institutional care.”

    VOR is represented by attorneys Lesli Esposito, Nancy Rappaport and Jill Czeschin, of DLA Piper (Philadelphia). VOR’s brief, filed December 27, 2011, was the second Amicus Curiae brief in this case in support of ICF/MR residents and their families. The first, filed in August 2010, supported the efforts of families to intervene in the case. 

Read VOR's December 27, 2011 Brief opposing settlement.

Read VOR's August 2010 Brief supporting intervention (coming soon).