- Associated Press - Saturday, June 9, 2012

RICHMOND — A federal judge plans to approve a settlement between Virginia and the federal government that would shift the care of people with intellectual disabilities to community-based services.

But the judge wants the agreement to include changes to protect the rights of hundreds of profoundly disabled Virginians who live in state-run facilities.

U.S. District Judge John Gibney said Friday that he plans to include some specific changes to the agreement, then issue a consent decree after the modifications are made. They include making the state accountable to the court for upholding its provisions.

Judge Gibney said he still has concerns that some language in the agreement is too vague and unenforceable.

The $2 billion settlement agreement stems from a lawsuit the Justice Department filed against Virginia over what it called systemic violations of the Americans With Disabilities Act.

It will create nearly 4,200 waivers over 10 years for people with intellectual disabilities who are on waiting lists for special services. Under such waivers, people with intellectual or developmental disabilities give up their right to state institutional care in exchange for services. It also calls for the closure of four of the five state-run training centers for Virginians with profound intellectual and developmental disabilities.

Judge Gibney’s decision followed more than six hours of witness testimony and attorneys’ arguments for and against the settlement and about the current state of community-based services in a packed courtroom.

A group representing profoundly disabled and medically fragile training-center residents opposed the original deal, saying that it would lead to the centers’ shutdown and would deprive their loved ones of what they regard as appropriate care under federal disability law — and, in some cases, put them at risk for death.

Attorneys for Virginia and the Justice Department asked Judge Gibney to approve the settlement, saying that it would benefit thousands of Virginians awaiting services and that it includes appropriate safeguards.

The family group’s attorney, Thomas B. York, said after the hearing that he was glad that Judge Gibney is making a point to include “pretty important language” in the modified agreement that addresses concerns the parents raised when they challenged the settlement regarding their loved ones being forced out of what works for them.

“If the language is strong enough and protects our parents, we’ll be pleased,” Mr. York said.

A key element that Judge Gibney wants spelled out in the agreement is the provision that residents of training centers can insist on remaining in state-run facilities, though they cannot choose specific sites. Another provision is one that states that Virginia officials cannot remove residents from their facilities without their consent or that of their parents or authorized representatives.

Judge Gibney also wants included in the settlement a requirement that the state report deaths and serious injuries of former training center residents who leave state-run centers for group homes or other facilities.

In making his determination to approve the settlement, Judge Gibney found that it was lawful, fair, consistent with public policy and showed no collusion between the state and Justice Department.

Virginia has made an ideological or political decision to shut down the training centers and is using the settlement as a vehicle to do so, Judge Gibney said.

Under the agreement, Southside Virginia Training Center in Petersburg would close by June 30, 2014; Northern Virginia Training Center in Fairfax by June 30, 2015; Southwestern Virginia Training Center in Hillsville by June 30, 2018, and Central Virginia Training Center in Lynchburg — the state’s largest with 400 residents — by June 30, 2020.

A coalition of advocacy groups has voiced support for the settlement, saying that it would address the backlog of Virginians with intellectual or developmental disabilities awaiting services.

Currently, 983 Virginians live in state training centers, down from about 5,800 in the mid-1970s. The shift toward community-based services is part of a nationwide trend and comes after federal special-education law provided assistance to families so their children could remain at home rather than be institutionalized. Virginia enacted its community-based waiver program in 1990.

James Stewart III, commissioner of Virginia Department of Behavioral Health and Developmental Services, said more than 6,300 Virginians with intellectual and developmental disabilities are on the waiting list for Medicaid waiver slots, and 3,000 of them are on what’s considered an urgent waiting list, based on their medical needs.

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