UPDATE: Judge expected to rule for training center families | WSLS 10

UPDATE:

A federal judge wants Virginia to let residents of its mental-health training centers choose to continue living in a training center if they don?t want to move into a smaller home.

The recommendation from U.S. District Judge John Gibney was a partial victory for Central Virginia Training Center families and others who intervened in a court case that could have closed all but one of the state?s five training centers.

Gibney said his action offers new protection to some of the 6,000-plus Virginians who are intellectually disabled and are on waiting lists to receive state assistance.

?The measure of a society is how it protects its most defenseless people,? Gibney told an audience of about?200 people who watched the hearing from three courtrooms, two of them via closed-circuit television. The hearing lasted six hours.

Several of the training centers still are likely to close, Gibney said, but those residents must be offered a choice of whether to live in another training center or in a small group home. There was no hint Friday of which training center, if any, would take care of the residents.

Gov. Bob McDonnell would have to sign off on Gibney?s proposal before a training center could be kept open for those who choose one.

The current plans calls for keeping a training center open in Chesapeake, but only for short-term care of people in crisis situations.

Families of 13 training-center residents intervened in the case because, they say, their loved ones will be safer in a training center than a smaller, intermediate-care facility operated by the government or a private business.

Virginia, under pressure from the Justice Department, is proposing to switch its financial resources from operating training centers to paying for Medicaid waivers to finance the care of people living with their families or in smaller homes.

Gibney said he mostly approved of the plan, but it needs to be tweaked because it doesn?t spell out the choices available to current training-center residents.

Virginialaw and a federal court ruling known as the Olmstead Case both say residents of training centers can?t be forced to move out, but the plan doesn?t acknowledge those factors, Gibney said. ?

The judge told attorneys for the Justice Department, Virginia?s attorney general?s office and the families who intervened he will propose language to allow residents to continue to live in a training center, even though it may not be the one in which they currently live.

The new proposal will have to be reviewed by Gov. Bob McDonnell, said Allyson Tysinger of the attorney general?s office.

James Stewart, commissioner of the state agency overseeing training centers, testified that continuing to operate one or more training centers would require substantial additional funding from the state.

Gibney asked the lawyers to respond to his draft language in three weeks.

Jane Powell, sister of a CVTC resident, said those who intervened hoped Gibney would reject the agreement, but there was good news in his decision.

?Now, we seem to have the choice of one training center, at least, but only if the Commonwealth and the Department of Justice agree,? she said.

Colena Jones, a Fredericksburg resident whose son, Vernon Jr., receives 24-hour nursing care at home after receiving a Medicaid waiver last year, said she appreciated Gibney?s ruling and his comments about disabled people in community settings.

?Children and the elderly, anyone who is disabled, will benefit? from Gibney?s decision ?because it takes their families to focus on this and give them loving care,? Jones said.

EARLIER:

RICHMOND, Va. (AP) - 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.

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.

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 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 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," York said.

A key element that 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.

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, 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, 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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