State seeks right to close Fernald

Governor Deval Patrick's administration argued yesterday that a federal judge, whose prior oversight forced dramatic improvements at state institutions for the profoundly mentally retarded, has no authority to order the state to keep the Fernald Development Center open.

In a 61-page brief filed yesterday in federal court, the state urged US District Judge Joseph L. Tauro not to issue an order he had proposed earlier this month. The order would give Fernald's remaining 186 residents the choice of staying at the Waltham facility, which has been slated to be closed.

Patrick told reporters at an unrelated event yesterday that the state wants the latitude to decide which facilities are appropriate for mentally retarded residents under its care. "We believe the least restrictive setting is best, but isn't necessarily appropriate for everybody," he said.

A woman whose 54-year-old twin brothers have lived at Fernald since they were 5 said she believes the judge has the authority to protect residents whose civil rights are being violated.

"They were abused by the Department of Mental Retardation during their early years at Fernald," said Diane Booher, past president of the Fernald League for the Retarded. It took the rulings Tauro made while presiding over a landmark class-action lawsuit filed in 1972 for abuse of residents at Fernald and four other state facilities for the mentally retarded to stop and for improvements to be made, she said.

"That's why I'm not ashamed to say they deserve the choice to stay there," Booher said. "This group was harmed, and that's why they should finish out their lives with some kind of dignity."

After 20 years of monitoring Fernald and the other facilities, Tauro closed the case in 1993, but told advocates they could appeal to him if the quality of care deteriorated. In 2003, Governor Mitt Romney, moved to close Fernald and began transferring residents to community group homes or smaller state facilities.

The judge agreed to review the case after Fernald supporters complained that residents were being transferred to facilities where they received less care, in violation of the judge's earlier orders.

After conducting a yearlong investigation at the court's request, US Attorney Michael J. Sullivan recommended in March that Fernald remain open for residents who wanted to stay. In a report to the court, he wrote, "Our office has concluded that some residents at Fernald could suffer an adverse impact, either emotionally or physically, if they were forced to move from Fernald."

However, the report rejected assertions that the state had violated residents' rights or sent them to inferior facilities, even though six residents died within two years of being transferred.

In its brief, the state argued that Tauro had no authority to intrude in the case because Sullivan had not found violations by the state, which has safely transferred hundreds from Fernald and other institutions.

The state said the average cost of services at Fernald is $259,000 per person annually, compared with $102,103 per person for residential community-based services.

Sixteen advocacy groups for families and the developmentally disabled joined to file a brief yesterday, calling Sullivan's findings "dangerous and unfounded" and saying that his recommendation to let residents stay at Fernald would "harm the rights of people with intellectual disabilities, rather than protect them."

Health and Human Services Secretary Judyann Bigby issued a statement yesterday saying that the future of Fernald "continues to be under review."

Stephen Heuser of the Globe staff contributed to this report.