State expecting third Justice suit

LITTLE ROCK — Employees of the state Department of Human Services told legislators Thursday that they are expecting the U.S. Department of Justice to file a third lawsuit, against five of the state’s centers for the developmentally disabled.

“While we can’t say for certain the Department of Justice will file a third lawsuit, it is in keeping with their aggressive approach to shut down facilities,” Human Services Director John Selig said after a joint meeting of the Senate Committee on Children and Youth and the House Committee on Aging, Children and Youth, Legislative and Military Affairs.

A Justice Department spokesman did not return a telephone call and e-mail message Thursday seeking comment about a possible third lawsuit.

Selig and Gov. Mike Beebe have vowed to fight efforts to close the centers, saying families deserve to have choices on where disabled loved ones will live.

The Justice Department has investigated centers in several other states, but Arkansas is taking its fight all the way to court. A federal lawsuit filed against the Conway Human Development Center is to go to trial Sept. 8. The state has spent at least $1.5 million in the lawsuit so far.

That lawsuit - the first oftwo that would target all six of the state’s six human-development centers - was filed in January 2009 after years of negotiations between state and federal officials failed.

In the suit, the Justice Department alleged that the state violated the Americans with Disabilities Act by failing to ensure that residents were served in the most integrated setting possible, violated the Individuals with Disabilities Education Act by not providing a free and appropriate education in the most integrated setting and violated the Civil Rights of Institutionalized Persons Act by depriving residents of the care and treatment guaranteed them by the U.S. Constitution and other laws, court records show.

Then last December, Justice Department officials sent Beebe a letter saying they had opened an investigation into the state’s other human-development centers at Alexander, Arkadelphia, Booneville, Jonesboro and Warren.

The letter noted that the federal agency would determine whether residents at the five facilities are “served in the most integrated setting appropriate for their needs” as required by the Americans with Disabilities Act.

The agency also said it would investigate the “conditions of residents’ care and treatment” and determine whether there are “systemic violations of the Constitution or other laws of the United States” under the authority of the Civil Rights of Institutionalized Persons Act. That part of the investigation includes a look at residents’ medical care, behavioral treatments and the buildings in which they live.

Five months after sending the letter, the Justice Department filed a second lawsuit, alleging violations of the Americans with Disabilities Act at the five centers.

Consultants working with the Justice Department continue to visit the five centers as part of the agency’s investigation into the residents’ care and treatment.

That means the federal agency could file a separate lawsuit on those issues, Jim Brader, assistant director for compliance with Human Services’ Developmental Disabilities Services Division, told legislators Thursday.

“That will likely result in litigation,” Brader said. “Depending on the timing, there could be three active lawsuits by the federal government against the state.”

To Carole Sherman, whose son lives at the Arkadelphia Human Development Center, Brader’s news was surprising and frustrating.

“We’re under siege,” Sherman said after the meeting, which she attended as a curious parent. “We just think it’s a misuse of public funds.”

Sherman said her 41-year old son, John, receives good care at the Arkadelphia facility. John functions at the level of a toddler and requires 24-hour care that Sherman and her husband feel is best provided at the human-development center.

She pointed out that the centers in Arkadelphia, Booneville, Conway, Jonesboro and Warren are all in compliance with Medicaid certification requirements, as well as accredited by the national Commission on Accreditation of Rehabilitation Facilities.

Dana McClain, a senior attorney with the Little Rock based Disability Rights Center, said she isn’t surprised that Brader and others are expecting another lawsuit.

Her group is federally funded and monitors complaints at the human-development centers and other facilities. Members of the group have been visiting the centers once or twice a month.

“I think the same things [the Justice Department saw] at Conway, we certainly have concerns about similar issues at the other human-development centers,” McClain said.

She pointed to the Alexander Human Development Center as an example, which the state decided to close because of numerous problems.

The Alexander center lost its Medicaid certification after the state Office of Long Term Care found that it had continually failed to meet federal requirements for protecting residents.

“Obviously care and treatment is an issue,” McClain said.

Though the Alexander center is closing - a process that could take up to a year - Brader told legislators Thursday that it likely will remain a party to any lawsuits in which it is named.

He and Charlie Green, head of the Developmental Disabilities Services Division, also gave legislators an update on closing the center.

Hiring employees to stay until the center closes “has obviously become difficult,” Brader said. So far 22 employees have resigned, one has retired, and 17 were terminated. Information about why the employees were terminated had not been released by Thursday evening.

Even with 40 employees gone, Green said, the center still had 195 “dedicated” employees, many of whom have promised to stay as long as they can.

The state has offered overtime and hired temporary workers to ensure that there are enough people working on every shift to care for the 103 men who live there.

“We have not had a wholesale exodus of direct-care staff,” Green said. “But it’s going to be a tough balancing act as the guys move out.”