- The Washington Times - Monday, May 6, 2002

In 1999, we learned of numerous instances in which severely retarded individuals received such abhorrent care under the auspices of the District of Columbia that they died. Evidence was found in 34 cases documenting neglect, delayed treatment, falsifications in reports and other lapses.
The victims of 14 families sued the city and the city's contractor. The city cross-claimed the contractor. But then the city's attorneys also decided to bill the families for the negligent care. Liens were filed against the decendants' estates on the theory that the decendants were not poor that is, not entitled to Medicaid because of the monetary judgments they might win as a result of their poor care.
These liens are standard practice, I am told. Perhaps, but what's legally acceptable is not always morally defensible. I'm offended as, I think, are most people at the notion that a person who sues over inhumane care can be handed a bill for that care; a bill payable only if and when a court agrees the care was negligent.
These liens are hard to justify as a matter of public policy, public relations and agency accountability. Mayor Anthony Williams recognized the moral repugnance of the city attorneys' tactics when he ordered the liens suspended two years ago. But that suspension has been lifted. The mayor acknowledges that the city's inadequate care was a factor in the deaths. But now he defends the liens, the lawyer's tactics. The city is defending the indefensible.
I wrote the mayor last month urging him to reconsider his reversal in policy, direct city lawyers to withdraw existing claims and refrain from filing future, similar liens. I reminded him that in February 2000 he and Deputy Mayor Carolyn Graham agreed that filing the claims "was not the most prudent exercise of judgment" (to quote Ms. Graham). It was not prudent two years ago nor is it prudent now to bully the families of residents who died in city care. But the mayor is standing behind his reversal and the liens.
City attorneys explain that the liens are filed to pressure the families to settle. Indeed, Sheila Payne's estate sued the city because she died at age 32 of aspiration, which can occur with improper feeding. The city filed a $386,000 lien long after her death. Within weeks Ms. Payne's family settled the case for $40,000. Ms. Payne's mother is suffering from cancer and perhaps did not want a protracted legal battle against the city's big guns.
Lives vs. dollars. City attorneys are doing everything possible to minimize what the city will have to pay for this sordid mess. Perhaps you agree they should do this; after all, it's your tax dollars they're defending. But I see a government that is avoiding responsibility, perpetuating the very climate that fosters such negligent care. People die, the city is sued and then it uses its great weight to force a settlement of only $40,000 per life. Where is the accountability?
A $40,000 settlement has no sobering effect or deterrent value on the persons and agencies that permit inhumane care.
Little seems to have improved within the system. Indeed, D.C. Family Services, the contractor at the center of this controversy, is still doing business with the city. The city is suing D.C. Family Services over negligent care. But at present that contractor operates 13 homes for the mentally retarded, making it the second-largest provider of such services for the city. How can this be? People died and the city continues to do business with the same contractor.
We have rewarded with repeat business a contractor that failed to perform.
Forcing $40,000 settlements may save bucks in the short run, but in these cases it doesn't change the system. Rather, it lets everyone off the hook. The city cheapens its liability and the contractor still gets government funding.
However, a $40,000 settlement does have a deterrent effect on the victims' families. So do the liens. Courts are a last resort. But not if all a plaintiff "wins" is a settlement barely enough to cover legal costs, or a judgment sufficient to pay off a lien.
Neither federal law nor Medicaid policy require the District to file these liens. They are solely a means to exert legal pressure on victims' families. The District can and should use its discretion whether to pursue the liens. It is not within the spirit of the Medicaid program, much less fairness or common sense, for the District or its agent to: (1) provide negligent care; (2) pay damages as a result of the care; and (3) then receive full or partial reimbursement for its negligent care by reclaiming damages.
I'm calling on the mayor to again reverse the liens in these cases and to review the continuance of doing business with the very contractor whose care-giving is at issue.
We've got to put lives first.

Phil Mendelson, at-large Democrat, is a member of the D.C. Council.


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