Speaking out for People with
 Intellectual and Developmental Disabilities

Arkansas Testimonial 2006

STATEMENT OF WILLIAM F. SHERMAN
ATTORNEY FOR PARENT/GUARDIAN ASSOCIATION
STATE OF ARKANSAS

AR Bar No. 6406
Tel: (501) 372-3148

I am William F. Sherman, attorney at law. My address is 809 N. Palm Street, Little Rock, Arkansas 72205. I am a graduate of the University of Virginia Law School and I have been in the practice of law since 1964 in Arkansas.  In addition to federal and state courts in Arkansas, I am licensed to practice in the U.S. Supreme Court and the 4th, 6th, 8th and 11th Circuit Courts of Appeals. I have been admitted to appear pro hac vice in other state and federal courts.

Since 1990, I have represented parents and guardians (and their associations) of disabled persons residing in state-operated developmental centers, licensed as Intermediate Care Facilities for the Mentally Retarded (“ICF/MR”).  When class action lawsuits have been filed by advocacy groups seeking to downsize or close the centers or otherwise change policies governing the centers, parent-guardian groups have successfully intervened in a number of cases.  Typically, the parent guardian groups (my clients) object to class certification, sometimes successfully as in recent Arkansas litigation.  The parent guardian groups which I  have represented have not had class representative status and usually would not ask for it.  Always, the parent guardian group objective has been case dismissal or resolution, to prevent the case from undermining the special programs for mentally retarded persons, which have occurred in a number of other well-recognized cases.

In May, 2003, the Arkansas Protection and Advocacy (“P&A”) called Disability Rights Center (“DRC”) filed a class action lawsuit in the Eastern District of AR U.S.  No. 4-03-CV-00205SWW (“Case # 1”).  The named-plaintiff, “Jane Doe” was a resident of an ICF/MR whose legal guardian was not consulted by DRC.  The suit challenged Arkansas’ admission and discharge policies to the state’s six ICFs/MR.  I represented the statewide parent-guardian association, Families and Friends of Care Facility Resident (“FF/CFR”) in its successful move to intervene in the case.  The following year, DRC sought to substitute three other individuals as named-plaintiffs in the case (“Case #2”), after “Jane Doe” died.  These individuals also had legal guardians with whom DRC did not communicate prior to bringing an action in their disabled wards’ names.  The federal judge dismissed the suit.  DRC brought a third case in Eastern District of AR (“Case #3) using two of the three named-plaintiffs in Case #2.  Case #3 did not seek class action status.  FF/CFR intervened on motion and court order.  The court ruled on 11/23/04, granting in part and denying in part motions for summary judgment of Plaintiffs and Defendants and finding in part for the State Defendants and in part for the Plaintiffs.  DRC appealed the case to the 8th Circuit Court; the parent-guardian group cross-appealed. The 8thCircuit Court affirmed the Arkansas District Court’s ruling that state court hearings for admissions to developmental centers are not required to satisfy due process standards.  The Court also ruled that due process does not require annual court reviews of admissions to determine whether discharges should be ordered. State administrative due process procedures are adequate for admissions to and discharges from developmental centers, although the District Court originally found deficiencies in the procedures for discharges.

My introduction to this field of law began during 1991-1992, when I represented the statewide parent group by intervening in an Arkansas case filed by an advocacy group (“ARC”) to close the Arkansas centers.  The predecessor P&A to DRC intervened by alignment with ARC. The parent-guardian group, aligned with the state defendants, was successful in decertifying the class; the case was dismissed.

I am familiar with the history of  P&As, which are funded under the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. Section 15001) and the national organization, National Disability Rights Network ("NDRN"), to which over 50 P&As belong.   I am familiar with the outcomes of many P&A lawsuits: downsizing and closing publicly-operated ICFs/MR (states of MD, FL, CA), having represented parent guardian groups in those states.

Families of ICF/MR residents cannot meet the challenges brought by P&A suits without incurring enormous financial burdens. The well-funded, unchecked ability of P&A groups to bring and settle “systems-change” lawsuits (at taxpayer expense) places them in powerful positions which cannot be matched by families/guardians on the basis of costs and financial burden.

Families in Arkansas object to DRC’s cases for reasons which include:

  • The P&A cannot adequately and fairly represent the class;
  • Class certification is not appropriate under Rule 23, Fed. R. Civ. P.;
  • Legal guardians were not consulted prior to DRC’s using their disabled wards as named-plaintiffs;
  • Litigation is generally not the best venue for addressing DRC’s concerns regarding ICFs/MR admission and discharge procedures and quality of care issues.  The Arkansas legislature and the Administration can more appropriately address such concerns (although the jurisdiction of courts to address due process and equal protection concerns is unquestioned); and
  • Public funds supporting DRC’s litigation place parents/guardians in an unfair disadvantage.