Both court decisions reject anti-institutional biases of groups and organizations ranging from state vendors to the U.S. Department of Justice.
In the Tennesse case (People First of Tennessee vs. Clover Bottom Developmental Center), a U.S. District Court judge ruled on May 28 that individuals and legal guardians can choose a large Intermediate Care Facility for their wards and loved ones even if professionals have determined that those residents should be transferred to community-based group-home settings.
The case concerns the pending closure of the Clover Bottom Developmental Center in Tennesse and the wish of guardians to move residents there to another ICF. The DoJ had argued against that right of choice, contending professionals had determined the community system was “more integrated.”
The U.S. District Court decision quoted from the brief of the Parent Guardian Association, which argued that:
Conservators [and guardians] — who have the longest and most meaningful relationship with their loved ones and the greatest investment in their well-being — are in the best position…to assess the risks…of the less protective environment of community settings…and to make an informed decision…to decline community placement.
It would have been nice had the First U.S. Circuit Court in Boston similarly recognized the validity of the Fernald guardians' argument that transferring residents from Fernald would not result in equal or better care for them.
In the California case, a state appellate court ruled on June 22 against a state vendor agency, which was seeking to block admission of Michael, a profoundly developmentally disabled man, to the Sonoma Developmental Center, an ICF.
In 2008, an administrative law judge in California had sided with Michael's parents, who had sought to have him admitted to the Sonoma Center because his existing ICF was slated to close. However, the admission had been blocked by the San Andreas Regional Center (SARC), a state vendor that contracts to develop individual care plans for California citizens with developmental disabilities.
The administrative law judge stated in her decision that:
…it was evident Michael's family was motivated by their love and devotion to him…[and] given his very severe and significant developmental disabilities and medical issues, a developmental center is the least restrictive and best environment for him…
The administrative law judge's decision was appealed by the state public defender, who was purporting to represent Michael, and who wanted him placed in a community-based group home. (You'd think, given the state budget problems in California, that the public defender's office there would stick to representing defendants in criminal cases.)
A trial court judge sided with the public defender, and against Michael's parents. But the appellate court reversed the trial court and described the public defender's appeal as “ostensibly on behalf of Michael but effectively on behalf of SARC (the vendor that had blocked his admission to the Sonoma Center).”
It should be noted that, according to the appellate court decison, Michael has an IQ of 10, is legally blind and is paralyzed in all four limbs. Nevertheless, the SARC objected to the Sonoma Center because it was “a locked facility where Michael would not be free to leave on his own.”
Michael's parents and the administrative law judge pointed out that given Michael's level of disability, the relative freedom of the group home proposed for him was irrelevant to him. Moreover, they argued, unlike the group home, the Sonoma Center would be able to provide 24-hour medical and nursing care, which Michael did need.
We're not legal experts, but we hope these two court decisions do reflect a return to common sense in the care of the developmentally disabled and a recognition of the rights of families and guardians in these very senstive cases.
The key to both of these rulings is the “common sense” referenced in the last paragraph.
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p>I’m glad to see in the Tennessee case that the administrative law judge ruled in favor of parents and guardians. That’s common sense. Why shouldn’t family members have more say about their loved ones than “professionals”?
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p>In the California case, the trial court judge who sided with the public defender because the Sonoma Center is a locked facility, ” … where Michael would not be free to leave on his own” could use an injection of common sense. How can an individual with an IQ of 10 be free to make his own decisions? How can the same individual, who is also blind and paralyzed, ever “be free to leave on his own”?
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p>And how can that same trial court judge not see that the San Andreas Regional Center (SARC), a state vendor, is not exactly a neutral party?
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p>Charles Dickens wrote in Oliver Twist that “The law is an ass.” Every so often, common sense prevails.
and when you speak with parents, many of the stories are pretty funny.
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p>Friends with a profoundly disabled child, blind, with a rare genetic disease that compromised his immune system were urged to place their child in a program to ‘interact’ with others.
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p>They visited the program and were assured their blind child would appreciate the sunny and colorful environment (filled with germs that would have created constant treatment and additional hospital visits for the parents).
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p>One young social worker asked Mom ‘Don’t you want your child to be independent?’ When she stopped laughing, she assured the social worker ‘yes and I want him to get married and have children.’
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p>When this child turned 21, an attorney insisted on ‘interviewing’ him alone and read his rights to him.
When the attorney said ‘Now do you understand your rights?’ he got a raspberry from this non-verbal adult.
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p>Just because ‘the law says….’ doesn’t excuse stupidity.
There’s nothing funny about people in positions of authority whose ideology trumps their common sense. But there is a grim sense of parody in the incidents you recount. Unfortunately, these people with authority pay no price for their stupidity. It is the vulnerable clients of the system and their families and guardians who end up paying the price. For them, it’s no laughing matter.
But if you came to my home and explained the legal rights to a nonverbal, profoundly disabled blind adult, who is the ass?
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p>Fortunately, the situation I recounted involved biological parents who prevailed over the ‘system’ by tossing them out – but not without a fight.
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p>To believe regulations can be written as one size fits all is foolhardy – “If (blank), then (blank)” because of the wideranging needs of this special population.
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p>It would seem that bureaucrats obsess about meaningless details and overlook the honest potential and the ‘goal’ – which should be to allow the individual to achieve the highest level of capability (minimal in some cases), but pretty significant in others.
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p>Integration into the community in many cases results in astounding growth and postive results, but is not appropriate for all.
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p>In one instance, we were asked to accept a placement of a client who was physically larger than either of us and known to be physically violent toward others and destructive. When that client was removed from a subsequent placement, we were again asked to consider the placement. Is that really an appropriate placement?
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p>It is also my understanding that DSS has care and control, but no funding to provide for this population until adulthood which seems to be problematic. Correct me if I’m wrong.
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p>I am aware of those lacking advocates to speak up for them and for those who fall prey to this level of incompetence it is worrisome. Instead of accomplishing what we believed we were, in some cases, individuals are ill-served to their detriment.