Fernald shutdown can resume, federal appeals court rules

October 1, 2008 04:36 PM Email| Comments (0)| Text size – +

By John R. Ellement, Globe staff

A federal appeals court today said the Patrick Administration can restart its shutdown of the Fernald Development Center in Waltham, a process that was put on hold last year by a federal judge who has overseen the once notorious state facility for the mentally retarded for decades.

In a unanimous ruling, the First Circuit Court of Appeals said US District Court Judge Joseph L. Tauro was well-intentioned, but wrong as a matter of law when he reopened a 1993 consent decree.

УWe do not decide the issue of what path best serves the interests of the residents of Fernald and the other parties who have a stake in this matter,ТТ Chief Judge Sandra Lynch wrote for the court.

УPeople of good faith can and do passionately differ about the Commonwealth's intention to close the Fernald Center. We hold only that the district court lacked authority to reopen the consent decree in this case...ТТ

In a telephone interview, a Patrick administration spokeswoman said they will soon resume designing individualized placements for the 163 men and women who remain at the facility, which once housed 2,000 adults.

Jean McGuire, assistant secretary for the Executive Office of Health and Human Services, said the closure will not be done abruptly. УI donТt think people have to be afraid that we are going to come swooping in,ТТ she said in a telephone interview. УThere will be lots of options for people to look at in terms of what serves their family member best.ТТ

McGuire said the Fernald closure is being pursued because the administration's policy is to place people with significant special needs in a community-based setting and because Fernald's aged physical plant makes it the most expensive Department of Mental Retardation facility to operate.

She said it costs $256,000 per Fernald resident compared to an average cost fo $107,000 in a community setting.

Families of long-time residents had pushed Tauro, who has watched over the Fernald school since the 1970s and was responsible for forcing the state to improve conditions there over the years, to block the shutdown.

And they were prepared to keep fighting despite the legal setback. "We are not going away quietly,'' said Marilyn Meagher, president of the Fernald League for the Retarded, an umbrella group of relatives and guardians of residents.

Meagher, whose sister has been at the facility for 54 years, said the group will see if they can appeal their case to the US Supreme Court. She said she and others will also challenge any involuntary transfer order to the state courts.