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national Voice of the Retarded, that the Olmstead case specifically authorized the use of facilities as appropriate centers of treatment for those persons who want and need them.
Congress also provided that persons with mental retardation and other developmental disabilities have the freedom to choose whether to receive services in a state-operated facility or in a community-based residence under the Home and Community Based Waiver [42 U.S.C. section 1396n(c)(2)(C)]. COFAR has strongly opposed efforts to close the ICF/MR facilities because comparable services are not currently available in the community-based system.
Boulet and Rolland Class member protections
Two federal court cases in addition to the Ricci case have resulted in additional services to persons in the Massachusetts DMR system who aren't Ricci Class Members:
1. In Rolland v. Cellucci, plaintiffs with mental retardation were unnecessarily admitted to, and inappropriately confined in, nursing homes regardless of their preferences or DMR's clinical review teams. In the nursing homes, they were not provided with even minimally adequate training, habilitation, or support services. In this case, DMR was alleged to have violated federal regulations by failing to provide appropriate Medicaid habilitative services to all eligible class members in accord with federal Medicaid law and Title XIX of the Social Security Act.
From Fiscal Year 2001 to Fiscal Year 2007, DMR was required under a settlement of the case to move hundreds of people who wished to leave nursing homes into community-based residential care. Up to 150 persons per year have been affected. In addition, DMR was required to divert a total of 275 potential nursing home admissions over 6 years, and to provide specialized services--including work supports, social supports, community outings, and other services--to those who remain in nursing homes.
2. In Boulet v. Cellucci, DMR acknowledged that as of July 2000, there were 2,437 persons with mental retardation and eligible for Medicaid on a waiting list for care, including 1,961 individuals waiting for state-funded, out-of-home placements; 210 waiting for non-residential services; and 266 waiting for both of those.
Under the July 2000 settlement, DMR agreed to request $85 million in additional appropriations to provide for 1,250 new state funded out-of-home placements and interim services for the plaintiffs from Fiscal Year 2002 through Fiscal Year 2006. The Court ruled that the state had violated its obligation under the federal Medicaid statute that assistance be provided with reasonable promptness. Applicants for care had been kept on a waiting list for long period of time when residential settings were available.
Protections for state facility residents facing transfers to other locations
For Ricci Class Members and others in the DMR system who are facing transfers from their DMR-
funded residences (in some cases involuntarily), DMR regulations provide some protections against a loss of services following the transfers. The regulations also allow for appeals of the transfers themselves.
Ricci Class Members are further protected Under U.S. District Judge Tauro's disengagement order in the Ricci v. Okin case that DMR must not approve a transfer to the community unless the director of the state facility or the DMR Regional Director certifies that the person will receive equal or better services in the new location, and that the ISP-recommended services are available there (see above).
NOTE: The question of whether equal or better services exists in the community is key to ongoing litigation before U.S. District Court Judge Joseph Tauro. In January 2005, Judge Tauro ordered the DMR to provide the attorney for Fernald Developmental Center plaintiffs in the Ricci v. Okin case with records relating to the ISPs for all Fernald residents, including those who are transferred elsewhere. Comparing the ISPs of Fernald residents before and after they are transferred from the facility will shed light on whether care and services diminish once the residents are transferred elsewhere.
If your ward or family member is facing a transfer from a facility or other type of residence, there are protections offered in DMR regulations:
115 CMR 6.63: Transfers: Special Requirements.
For an explanation of these regulations, see Transfer Regulations under the Part 4 of this Advocacy Guide--the Individual Support Plan process.
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