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Judge bars the closing of Fernald

Says patients must be given chance to stay

A federal judge yesterday halted the state's plan to close the Fernald Development Center in Waltham, ruling that the profoundly mentally retarded residents who have lived there for decades must be given the opportunity to stay.

US District Judge Joseph L. Tauro found there has been a "systemic failure" by the state to consider the individual needs of longtime Fernald residents by pushing its plan to close state institutions and transfer residents to community-based group homes or smaller facilities.

In a seven-page ruling, Tauro said he agreed with the results of a court-ordered investigation by US Attorney Michael J. Sullivan, who concluded in March that for some Fernald residents a transfer "could have devastating effects that unravel years of positive, nonabusive behavior."

Tauro said his ruling does not mean the state may never close Fernald, which currently houses about 185 residents. "It does mean, however, that the Department of Mental Retardation must carefully assess the needs and wishes of each resident and provide a genuine and meaningful opportunity for their guardians to participate in their placement decisions," he wrote.

The state could now urge a federal appeals court to overturn Tauro's decision. It could continue to operate the facility as it is or choose to sell off part of the 190-acre property for development while continuing to care for remaining residents.

Juan Martinez, a spokesman for the Executive Office of Health and Human Services, said in a statement: "We are currently reviewing the memorandum and order issued by Judge Tauro today so that we may better understand them and decide how best to respond. In the meantime, the Patrick Administration has not made a decision on the future of Fernald."

The ruling, capping a 35-year legal battle over the state's care for the mentally retarded, was greeted as a victory by relatives and supporters of Fernald's residents and as a disappointing defeat by groups that have been pushing for the shutdown of all state-run institutions for the developmentally disabled.

"I'm pleased to hear that maybe this is going to come to an end and people can live their lives out in peace that want to stay there," said Marilyn Meagher, president of The Fernald League for the Retarded.

"There are many people who would like to stay at Fernald, and my sister is one," said Meagher, whose 56-year-old sister, Gail, has lived there since she was 4 years old. "It now gives us a choice."

But Leo V. Sarkissian -- executive director of The Arc of Massachusetts, which advocates for the developmentally disabled -- called the decision disappointing and said it will force the state to spend money to keep Fernald open at a time when there are waiting lists of mentally retarded people who are seeking placement in community-based group homes.

"We hope it's going to be appealed," Sarkissian said. "It's going to leave a legacy for this case not any of us want, basically to keep those state institutions open as long as possible."

Tauro monitored Fernald for decades while presiding over a landmark class-action lawsuit filed in 1972 over abuse of residents there and at four other state facilities for the mentally retarded. Tauro closed that case in 1993, but told patients' advocates at the time that they could ask him to reopen the case if the quality of care deteriorated.

In 2003, Governor Mitt Romney moved to close Fernald, which once housed as many as 2,000 people, saying residents would be better off in less costly community group homes and smaller state facilities. At the same time, the administration said it would open up the tract for development.

Fernald supporters contended that residents were being transferred to facilities where they received less care, in violation of the judge's earlier orders, prompting Tauro to review the case four years ago.

Governor Deval Patrick's administration argued in a lengthy brief to the court that Tauro did not have the authority to order the state to keep Fernald open because Sullivan's yearlong investigation had not found violations by the state, which has safely transferred hundreds from Fernald and other institutions.

Yesterday, Tauro officially reopened the old case and amended his prior orders, requiring the state to offer Fernald residents the option of remaining at the facility.

Diane Booher, whose 54-year-old twin brothers have lived at Fernald since they were 5, said Tauro's ruling will ensure that any transfers from Fernald are voluntary.

"If anybody wants to leave, this order should eliminate any question of coercive and harassing elements that the department has had in place since 2003," Booher said.

Colleen Lutkevich, executive director of the Massachusetts Coalition of Families and Advocates for the Retarded, said she hopes Tauro's ruling will encourage the Department of Mental Retardation to work with families of the remaining residents.

"This can bring us to a place where we can all talk and reach a new solution that will benefit Fernald residents and DMR," said Lutkevich, referring to proposals that call for selling off some of the campus, while renovating an area for the residents.

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