Ricci v. Okin, Civ. A. No. 72-0469-T
| Decision Date | 25 May 1993 |
| Docket Number | 75-3910-T,Civ. A. No. 72-0469-T,75-5023-T and 75-5210-T.,74-2768-T |
| Citation | 823 F. Supp. 984 |
| Parties | Robert Simpson RICCI, et al., Plaintiffs, v. Robert L. OKIN, M.D., et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Nonnie S. Burnes, Hill & Barlow, Beryl W. Cohen, Boston, MA, for plaintiffs.
Kim E. Murdock, Gen. Counsel, Dept. of Mental Retardation, Douglas Wilkins, Asst. Atty. Gen., Boston, MA, David Ferleger, Philadelphia, PA, for defendants.
Suzanne Durrell, Asst. U.S. Atty., Boston, MA, for the U.S.
Twenty-one years ago, I made my first trip to Belchertown, to see for myself the conditions alleged in a class action filed on behalf of the residents there.
To put that time frame in some perspective, I point out that the law clerk who accompanied me that day, Mark Brodin, is now a tenured professor at the Boston College Law School—a rookie Boston lawyer named Bill Weld had passed the bar less than two years earlier—and Kris Brown, the law clerk now working on these cases, was four years old.
Similar actions were later filed on behalf of the residents of Fernald, Monson, Dever and Wrentham.* I went to see them all, and the sights, sounds, smells and generally deplorable conditions I witnessed are as vivid in my mind today as they were those many years ago.
But, thanks to the healthy tenacity and persistence of the parents, friends and counsel of people with mental retardation—the enlightened leadership of responsible state and federal officials, and the oversight of the Office of Quality Assurance and predecessor Court Monitors—those initial inspection tours became the first steps in a process that has taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.
For the past two decades, literally thousands of hours have been devoted to fashioning a comprehensive remedial program that has included multi-million dollar capital improvements, establishment of a responsible program of community placement, as well as significant staffing increases geared to meeting the individual service plans and overall needs of those with mental retardation.
The result is that, working together, we have created an environment for persons with mental retardation that is now characterized by human dignity and opportunity for growth. And we have done so in a way that consistently ensured a full measure of value for every tax dollar spent.
Despite this progress, these institutions and the related programs are, of course, not perfect. More needs to be done. And, most important, all concerned, both in the private and governmental sectors, need to be ever vigilant that we do not permit any erosion of the significant progress that has been made.
Given this progress, and the demonstrated good will and dedication of Governor Weld to the mission of safeguarding the health, safety and well-being of people with mental retardation, I am today signing a comprehensive Order closing the federal court's oversight of these cases.
A key factor in my decision to do so is Governor Weld's commitment to make permanent the historic improvements that have been achieved during the past twenty years—a commitment manifested and memorialized by the Executive Order he is issuing today, creating the Governor's Commission on Mental Retardation.
This Commission will be an independent citizen oversight body whose multi-faceted mandate and authority will include monitoring the quality and effectiveness of the Commonwealth's programs of services designed to address the wide variety of needs of people with mental retardation.
The nine members of the Commission will be selected by the Governor. Three of these members will be nominated by the existing Advisory Panel of the Office of Quality Assurance, thereby providing significant input from those who have been so intimately involved with these cases over the years.
The Commission will be served by a full-time Administrator appointed by the Governor. The Administrator will be a person who has demonstrated knowledge and experience with respect to quality assurance in the delivery of services to people with mental retardation.
The Commission will have access to all relevant information concerning people with mental retardation. It will serve as an ombudsman to resolve disputes, and it will provide a visible and credible forum to ensure that the Commonwealth fully complies with its obligations to its citizens with mental retardation.
The Commission will work cooperatively with the Department of Mental Retardation, and will serve as a source of valuable advice to the Commissioner and to the Governor with respect to issues affecting the quality of care for persons with mental retardation.
This independent citizen task force, having oversight responsibility for monitoring quality assurance, is the first of its type in the nation. And Governor Weld is to be commended for his foresight and sensitivity in creating this atmosphere of citizen inclusion with respect to the critical responsibility for monitoring the efforts of the Department of Mental Retardation.
I know that Governor Weld will choose the Commission members and the Administrator with great care. To his appointees I repeat something I said in 1982:
The retarded have no potent political constituency. They must rely on the good will of those of us more fortunate than they, and the Constitution which controls the manner in which all of us must meet our varied responsibilities.
Ricci v. Okin, 537 F.Supp. 817, 836 (D.Mass. 1982).
My hope is that those words will serve as something of a standard for the Commission members and the Administrator as they assume this important public trust.
An Order will issue.
After notice and hearing, and with the consent of the parties, it is hereby ORDERED:
1. This Order supplants and replaces each of the consent decrees and all orders of the court in these matters. All such consent decrees and outstanding orders are hereby vacated and dissolved. These five consolidated cases shall be and hereby are closed and removed from the court's active docket. Any action to enforce the rights of the plaintiff classes may be brought before the court only pursuant to the terms of paragraph 7 below.
2. Defendants shall continue to provide services to the members of the plaintiff class as set forth in this paragraph.
a. Defendants shall substantially provide services to each class member on a lifetime basis. The specific services to be provided to each class member1 to meet this obligation, and defining this obligation, shall be set forth in an Individual Service Plan ("ISP") that details each class member's capabilities and needs for services, pursuant to the regulations governing the preparation of ISP's, as currently set forth in 104 CMR 20, et seq. (the "ISP Regulations").2 Such services shall include, as appropriate for the person, residential programs; day programs; recreational and leisure time activities; medical, psychological, dental and health-related professional services; respite care and crisis intervention services; support and generic services, such as guardianship and adaptive equipment services; and transportation services.
b. Defendants shall not seek to amend, revise, or otherwise modify the ISP Regulations as they affect class members except upon 60 days written notice to plaintiffs' counsel, with an opportunity for plaintiffs to comment upon the proposed changes. Any amendments must leave in place a process that is at least the substantial equivalent of the regulations currently set forth in 104 CMR 20, et seq., with regard to the definition of the ISP, the individualized nature of the ISP, the existence of an appeal process, and the principles contained in footnotes 2 and 3 herein.
c. Sufficient adequately trained and experienced personnel, as reasonably determined by the Department of Mental Retardation based on professional judgment, shall be available to substantially meet the needs set forth in each class member's ISP.
d. Defendants shall maintain certification of state schools under federal Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq., and maintain compliance with the Department of Mental Retardation's Title XIX obligations with respect to services in the community, for as long as the state participates in those programs for each facility or service as to which the state receives Title XIX funds.
e. Within nine months of the date of this Order, defendants shall enter into an agreement with contracted consultant retardation professionals or with a nationally recognized evaluation group to review community programs on a periodic basis.
3. a. Defendants shall continue to use the Single Standard Methodology for staffing state schools for five months, or until the implementation of an alternative staffing plan pursuant to the procedures set forth in subparagraph 3(b) below, whichever is later.
b. If the defendants wish to discontinue use of the Single Standard Methodology, defendants shall provide to the Governor's Commission on Mental Retardation for its review during at least one meeting an alternative staffing plan that will assure the presence of adequate numbers of appropriately trained staff at each state school sufficient to meet the needs of the individuals who continue to reside there. This alternative staffing plan shall be formulated by the Department of Mental Retardation based on its reasonable, professional judgment and may or may not utilize specific ratios for staff.
4. Defendants shall not approve a transfer of any class member out of a state school into the community, or from one community residence to another such residence, until and unless the Superintendent of the transferring school (or the Regional Director of the...
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