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FOR IMMEDIATE RELEASE April 2, 2007 CONTACT: Cathy Costanzo, Center for Public Representation 413-586-6024 Sandy Bernstein, University Legal Services 240-476-8324 Court Rules DC Fails to Protect Residents with Disabilities WASHINGTON — US District Court Judge Ellen S. Huvelle ruled Friday evening that the District of Columbia consistently has violated multiple court orders and failed to protect residents with mental retardation and developmental disabilities – failures that have contributed to preventable deaths and hospitalizations. The judge declined to place the embattled Mental Retardation and Developmental Disabilities Administration, now known as the Department of Disability Services, into receivership. Instead, citing the 31-year “tortured history of this case,” she called upon the parties to devise a remedy “to resolve this matter so that the plight of class members can be improved as expeditiously as possible, and they will not have to continue to await the outcome of this painfully lengthy and cumbersome litigation.” The case, Evans v. Fenty, was filed in 1976 on behalf of residents with mental retardation and developmental disabilities who challenged their deficient habilitation and treatment at Forest Haven. In multiple rulings during the past three decades, the Court has held that class members have a constitutional right to be protected from harm and accorded appropriate treatment and habilitation in the least restrictive environment. The rulings called upon the District to close Forest Haven and place class members in the community with appropriate services. In Friday’s decision, the Court found the remaining 650 class members have suffered as a result of the District’s “wholly inadequate” service delivery system. The District’s “failures are systemic in that they affect many class members served by a cross-section of providers and occur throughout the defendants’ service delivery system,” Judge Huvelle wrote in the 85-page ruling. “They are serious in that they concern matters that are integral to class members’ health, safety and well-being. And, they are continuous in that the same issues of noncompliance have persisted year after year.” Despite decades of judicial intervention, the appointment of a court monitor and two special masters, the District has been unable to achieve desired outcomes for class members. In fact, less than two months ago, the interim DDS director, Kathy Sawyer, told the Court that the department still lacks the authority and the resources to resolve continuing problems. Nonetheless, the judge decided, “at this time,” to defer action on the plaintiffs’ additional motion seeking the appointment of a receiver to run DDS, which she called “ a remedy of last resort.” In the coming weeks, the two special masters are expected to meet with the parties to discuss steps and a timetable to achieve compliance with the court orders. “We are looking forward to working with the Fenty Administration, which inherited this case, to improve services for the vulnerable citizens of the District,” said Cathy Costanzo, an attorney with the Center for Public Representation. Other counsel for the plaintiffs include University Legal Services and Holland & Knight. The Department of Justice is the plaintiff-intervenor in the case. As the Court noted in its decision, “Failures have occurred throughout the defendants’ service delivery system, from providers and case managers to the managerial level.” Citing reports from District’s employees and the Court Monitor, the judge found class members consistently have received inadequate healthcare, and suffered medical neglect. Prescribed medical procedures routinely are delayed, recommended follow-ups are not pursued and nursing assessments are inadequate. “These deficiencies have serious consequences for class members,” the judge stated. Investigators have indicated that at least five deaths in 2004 and 2005 “might have been prevented if health problems had been managed better.” The judge found that District has “failed to comply with the Court’s Orders prohibiting all acts of ‘physical or psychological abuse, neglect or mistreatment’ of class members.” Allegations of abuse are not investigated, incidents are not reported, and corrective actions are not taken against providers who fail to meet performance measures. In addition, Judge Huvelle found that the District has not complied with the 1978 order to place class members “in the least separate, most integrated and least restrictive community settings.” The Court also found that day programs are overly restrictive, inadequate, segregated, expensive and unproductive. Finally, case management, which was envisioned as a safety net to monitor and oversee services to class members, is consistently deficient. The Court found case managers have failed to ensure class members receive necessary services, failed to take action when class members are involved in an incident, and failed to visit their clients a mere eight times a year. “This noncompliance is serious given case managers’ role as ‘the principle link between the individuals being served and the systems involved in the provision of services.’” ###

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