State shortchanges mentally retarded
Judge finds accord on care violated
A federal magistrate judge has found that the state has failed to provide adequate treatment and services for some 800 mentally retarded people in nursing homes, repeatedly violating a settlement agreement it made seven years ago to settle a class-action lawsuit.
Citing evidence that the state did not actively treat at least 40 percent of a random sampling of patients whose care was reviewed since 2005, US Magistrate Judge Kenneth P. Neiman called that level of noncompliance "significant and unacceptable."
In his 23-page decision issued Tuesday, Neiman, who sits in Springfield, ordered the Department of Mental Retardation to revise its treatment guidelines and evaluation process for mentally retarded people in nursing homes by May 15 so they mirror federal guidelines established by the Centers for Medicare & Medicaid.
He also ordered the state to work with plaintiffs' lawyers to select a court monitor who will evaluate the treatment plan of each of the estimated 800 mentally retarded nursing home patients who are covered by the class-action suit. Neiman ordered the monitor to file quarterly reports with the court, from July of this year through January 2009, describing the intensity, frequency, and provider of each service provided to each of the people covered by the suit, as well as a copy of the person's treatment care plan.
Juan Martinez, a spokesman for the state's Executive Office of Health and Human Services, said state officials wouldn't comment on the judge's decision because they are still reviewing it.
But Steven Schwartz -- lead counsel for the Center for Public Representation, which filed the class-action suit in 1998 -- called the ruling a victory for advocates of the mentally retarded who have been trying to force the state to provide the care it promised.
"The judge has said you have to give mentally retarded people in nursing homes the same treatment they would get if they were in the Fernald Development Center" or other state-run facilities covered by the federal guidelines, Schwartz said. "The same rules apply."
At facilities like Fernald, staff members are trained to work with mentally retarded patients and offer treatments, like physical therapy programs, throughout the day and on weekends, according to Schwartz.
But he said that is frequently not the case at nursing homes, where the staff is sometimes not trained to work with mentally retarded people and treatment services are interrupted on nights and weekends because of staffing shortages or vacations.
The judge's order "will make a huge difference in the quality, qualification and training of staff, continuity of services, and also in the delivery of services," Schwartz said. "Whatever is in the plan is supposed to happen and if it doesn't happen, there's no excuses."
The class-action suit, filed against Governor Paul Cellucci, was brought in 1998, when there were about 1,600 mentally retarded people in nursing homes throughout the state. It was aimed at getting as many of them as possible moved to community settings, and making sure that those who remained in nursing homes received required services.
Since a landmark settlement, approved by the court, was reached in January 2000, the state has moved hundreds of mentally retarded people from nursing homes to group homes, assisted living facilities, and other community residences.
In his ruling, Neiman found that the state has complied with the community placement provisions that it agreed to under the settlement. 