On March 6, 2018, the U.S. House of Representatives’ Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing titled “Examining Class Action Lawsuits Against Intermediate Care Facilities for Individuals with Intellectual Disabilities”. ANCOR staff and one of our lobbyists attended the hearing in-person. Video of the hearing can be accessed here.
Four witnesses testified:
Ms. Martha Bryant, the parent of a person with a disability in Virginia;
Ms. Caroline Lahrman, the former President of VOR and the parent of a person with a disability in Ohio;
Mr. Pete Kinzler, the parent of a person with a disability in Virginia;
Ms. Alison Barkoff, Co-Chair of the Consortium for Citizens with Disabilities (CCD) and the sibling of a person with a disability.
The stated goal of the hearing was to examine class action lawsuits against ICF-IIDs. This included actions against both public and private Intermediate Care Facilities (ICFs – considered by statute institutions regardless of size). Specifically, the hearing focused on the Virginia Olmstead settlement agreement and the current Ball v. Kasich action pending in Ohio.
The core sentiment of the testimony provided by Ms. Bryant and Mr. Kinzler is that they perceived their children to be forced to leave their homes in a VA Training Center (public state ICF) due to Olmstead enforcement and current class action procedures. They believe that these procedures do not offer sufficient opportunities for families to opt-out.
Ms. Lahrman proposed that class action suits be prohibited and instead that individuals with disabilities undertake individual actions.
All three parents advocated advance notification before a class action could be requested, which would include an opt out provision.
They claimed the lack of opt-out options from such class action suits removes choice about the health care and general care of people with IDD from their families, emphasizing that community settings were inadequate to meet the needs of people with more acute disabilities. One of the Virginia parents stated that 25% of the 40 people forced to leave the Northern Virginia Training Center have died.
Alison Barkoff, Esq, former DOJ attorney now with the Center for Public Representation, testified that class action lawsuits are essential to protecting the rights of people with disabilities to obtain waiver home and community based services. She clarified that advance notification and opt out provisions would make class actions “unworkable”. She further explained that shifting to requiring individual legal actions would increase the legal burden on people with disabilities, making it harder for them to defend their rights to community access and thus curtailing essential protections.
She explained that current federal rules governing class actions offer sufficient options for parents who do not wish to participate, and that public institution closures usually result not from legal action but from states re-allocating resources because of increased demand from people with disabilities for community services.
In light of House Judiciary Chairman Goodlatte’s (R-VA) focus on abuse and neglect in private services during the hearing, which echoed the contents of a letter he had sent to U.S. Attorney General Jeff Sessions in December 2017, ANCOR is concerned that the hearing reinforces the misperception that private services are not safe. While at this time there is no legislation to limit class action suits against ICF-IIDs, it is unclear how much traction this issue currently has in Congress. ANCOR is closely monitoring the conversation and will keep ANCOR members informed on any future developments.
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