Mr. Chairman, as we consider today’s narrow topic of class action lawsuits against intermediate care facilities that care for individuals with intellectual disabilities, we must be sure that our focus is always on this key question—how can we ensure that people with mental disabilities receive the best care possible, appropriate to their individual circumstances?
Since the 1960s, aided by the advent of psychotropic drugs, there has been a national effort to move away from caring for people with mental disabilities in large institutions. Today, there is a broad consensus that, where possible, people with intellectual disabilities should be integrated into their communities, in less restrictive settings. This has been aided by the Americans with Disabilities Act, and the DOJ regulations implementing the ADA, which require state and local governments to administer programs in the most integrated setting appropriate to the needs of the individual.
In 1999, the Supreme Court made clear in Olmstead v. L.C. that, with respect to persons with intellectual or developmental disabilities who have been institutionalized in intermediate care facilities, unjustified institutionalization of such persons constitutes unlawful segregation of persons with disabilities and, therefore, is a violation of the ADA.
The Court clarified in Olmstead, however, that the obligation of states to integrate institutionalized persons into community-based programs only attached where: (1) the state’s medical professionals conclude that such placement is medically appropriate; (2) the resident of the institution does not oppose placement in a community-based program; and (3) such placement can be reasonably accommodated in light of the state’s resources and the needs of others with mental disabilities.
The Olmstead Court endeavored to promote the integration of persons with mental disabilities into the mainstream of American society while being flexible enough to recognize that not all such persons are able to live in a community setting, and they may require a higher level of care than community programs may be able to provide.
Some families of persons with intellectual disabilities are concerned, however, that the carefully balanced approach set forth by the Court has, in practice, become a bias toward community integration, even when an individual would be best served by remaining in an institution. These family members believe that deinstitutionalization efforts have placed their loved ones at unnecessary risk by denying or eroding their ability to remain in an institutional setting, which may be necessary for their care.
They are concerned that when States move individuals out of institutional settings and into community-based care, such placements have sometimes been used as an excuse for the State to save money and to reduce their commitment to care for individuals with disabilities, with predictable and tragic results.
Furthermore, some have argued that when class action litigation is filed to enforce Olmstead, individuals with disabilities and their families do not have an adequate ability to participate in the case, or to opt out, even though the court’s decision will inevitably impact the care available to the individual.
For this reason, back in the 111th and 112th Congresses, our former colleague, Representative Barney Frank, introduced legislation that would have effectively curtailed the use of class actions to enforce Olmstead by “protection and advocacy” agencies—which are federally-funded entities charged with enforcing the rights of persons with disabilities. Among other things, the bill would impose a pre-suit notification requirement and would give residents of intermediate care facilities that are the target of a potential lawsuit or their legal representatives the right to “opt out” of a putative class before a class action could be filed against that facility.
Opponents of this legislation argued that the bill would make it too difficult to pursue class relief on behalf of institutionalized persons with intellectual disabilities, by making it too hard to form a class in the first place, and by giving potential defendant facilities the opportunity to intimidate residents into opting out of a potential class action.
Moreover, they noted the bill was unnecessary to the extent that it was intended to help class members who objected to a class action because Rule 23 of the Federal Rules of Civil Procedure, which governs class actions, already includes a number of procedural protections for class members. These include the numerous requirements for class certification and the ability of class members to challenge any proposed settlement agreement that might affect their interests.
It is almost axiomatic that class actions are a key tool of civil rights enforcement, including the enforcement of rights that protect people with disabilities from unjustified segregation. Therefore, we must be wary of legislative efforts to curtail their use. As a society, we have made much progress in breaking down physical and social barriers against persons with disabilities since the ADA’s enactment. Efforts to undermine enforcement through litigation could threaten to turn the clock back. At the same time, we must recognize that some litigation may have unintended consequences.
For too long, many people with intellectual disabilities were shunted to the outskirts of society, their fundamental dignity and value ignored. We must be mindful that in protecting the rights of individuals to be cared for in community-based settings, we have an equal duty to protect the rights of those for whom an institutional facility is more appropriate. Ensuring that each person with mental disabilities receives the level of care best suited to their individual needs requires a careful balance.
I look forward to hearing from our witnesses today as to how we can best strike this balance and I yield back the balance of my time.