P&As Filed, Joined, or Intervened in Few Lawsuits Relating to Deinstitutionalization

National data sources indicate that, from 1975 through 2002, P&As filed,  joined, or intervened in approximately 24 lawsuits related to  deinstitutionalization on behalf of individuals with developmental  disabilities. Most but not all of these lawsuits were intended  to be class actions against large public institutions for persons with mental  retardation and other developmental disabilities. Although most  of the suits were settled a number of years ago, the impact of the suits can  be ongoing. P&As’ Communications in Three States Were Consistent with Federal Rules but Not as Comprehensive as Some Parents Desired

P&As in the three states communicated with parents and guardians as  required by federal rules in the lawsuits we reviewed. In the three cases  settled as class actions, P&As provided notice to all class members at the  time settlement was proposed to the court, as required by federal rules. Such notice was not required in the other three cases we reviewed, which  were not class actions. P&As in the three states reviewed  indicated that they did not try to communicate with all individuals  potentially affected by the six lawsuits, including parents and guardians,  but did communicate with organizations representing some parents and  guardians during these stages of the lawsuits. However, even if P&As had  provided notification during the stages specified by the parents and  guardians, under the applicable federal rule of civil procedure an  individual has no explicit right to opt out of a class in this type of case. Representatives of some parent groups told us they were not  satisfied with the extent of P&A communication because they believed  that P&As should have communicated with parents and guardians in the  six lawsuits we examined before filing or intervening in the suits and prior  to class certification by the court. P&As in the Three States Assumed Various Roles in Monitoring Individuals Transferred to Community Settings

P&As assumed various roles in monitoring the health and well-being of  individuals with developmental disabilities transferred from institutions to  community settings in four of five lawsuits we reviewed in California,  Maryland, and Pennsylvania that had been resolved. In these three states, P&A roles and  responsibilities varied with the circumstances of the lawsuits and  initiatives P&As undertook as part of their general role to protect and  advocate the rights of individuals with developmental disabilities. State  developmental disabilities services agencies, however, continue to have  the primary responsibility for ensuring the health and well-being of  individuals, including monitoring these individuals when they receive  services in the community. Representatives of some parent groups told us  that parents and guardians have been dissatisfied with the adequacy of  P&As’ monitoring role in community placements, while representatives of  other parent groups told us they generally supported the P&A monitoring  role. With respect to the three lawsuits filed and settled as class actions, the  settlement agreements did not specify a monitoring role for the P&As, but  the P&As assumed specific roles in monitoring individuals transferred to  the community. Regarding the other three lawsuits not settled as class  actions, the P&A also undertook a role in monitoring affected individuals  in one of these suits. Of the three other lawsuits we reviewed, one was settled, one was  dismissed, and the third is ongoing litigation. ACF said it was a thorough  analysis of the three P&As’ involvement in deinstitutionaliation lawsuits  for the population examined. The three P&As stated that the report is accurate, and provided technical  comments. Appendix I: Objectives, Scope, and Methodology

We examined (1) the extent to which Protection and Advocacy agencies  (P&As) engage in litigation related to deinstitutionalization on behalf of  individuals with developmental disabilities, (2) how P&As have  communicated with parents and legal guardians in deinstitutionalization  lawsuits, and (3) the role, if any, that P&As have played in monitoring the  health and well-being of individuals transferred from institutions to  community settings within the context of these lawsuits. From the national list we identified six lawsuits in  three states—California, Maryland, and Pennsylvania—to study in more  detail.
Why GAO Did This Study

Congress established the Protection and Advocacy system in 1975 to protect the rights of individuals with developmental disabilities, most of whom have mental retardation. Protection and Advocacy agencies (P&A) use investigative and legal activities to advocate on behalf of these individuals. Deinstitutionalization has refocused delivery of care to this population over the last several decades from large public institutions to community settings. Refocusing service delivery resulted from (1) the desire to deliver care in the most integrated setting and to control costs and (2) the outcomes of deinstitutionalization lawsuits brought by P&As and others. Some parents have raised concerns that P&As emphasize these suits over other activities, inadequately inform them of family members' inclusion in the suits, and do not adequately monitor individuals after their transfer to the community. GAO was asked to review the extent to which P&As engage in lawsuits related to deinstitutionalization of these individuals, how P&As communicate with affected parents and guardians in these suits, and the role P&As have played in monitoring the well-being of individuals transferred to the community. GAO compiled a national list of lawsuits related to deinstitutionalization involving P&As and reviewed the suits and related activities in three states--California, Maryland, and Pennsylvania.

What GAO Found

Lawsuits related to deinstitutionalization brought on behalf of persons with developmental disabilities are a small part of P&As' overall activities for this population. GAO identified 24 such lawsuits that P&As filed, joined, or intervened in from 1975 through 2002. During the same period, P&As filed or intervened in 6 of these lawsuits in the three states GAO reviewed--California, Maryland, and Pennsylvania. Three of the 6 were settled as class actions; the other 3 were intended, but not settled, as class actions. One is ongoing, one was dismissed, and one was settled by multiparty agreement. P&As' communications with parents and guardians regarding the lawsuits in the three states were consistent with federal rules. For the three suits settled as class actions, P&As complied with the requirement to provide notice to all class members when a settlement agreement is proposed to the court. Such notice was not required in the other three cases, which were not class actions. Representatives of some parent groups told GAO that parents and guardians were dissatisfied with the extent of P&A communication with them before a settlement was proposed, citing problems such as not receiving notice of a family member's inclusion in the class, which the parent or guardian opposed. P&As in the three states told GAO they did not communicate with every person potentially affected by the six lawsuits before a proposed settlement agreement, although they did communicate with organizations representing some parents and guardians during that time. However, even if P&As had made such notification, under the applicable federal rule of civil procedure, an individual has no explicit right to opt out of the class in this type of case. P&As in the three states assumed various roles in monitoring the health and well-being of individuals transferred to community settings in four of the five resolved lawsuits we reviewed, although state developmental disabilities services agencies have the primary responsibility for ensuring the quality of services provided to these individuals. P&As' roles varied with the circumstances of the lawsuits and the initiatives P&As in the three states undertook using their authority to protect and advocate the rights of individuals with developmental disabilities. For example, although the three class action settlement agreements did not specify monitoring roles, the P&As assumed roles, such as reviewing information about the quality of community services that the settlement agreements required the states to develop and reviewing care plans of individuals who had been transferred. Representatives of some parent groups told GAO that parents and guardians have been dissatisfied with the adequacy of the P&As' monitoring role in community placements, while representatives of other parent groups said they generally supported the P&A monitoring role. The Administration for Children and Families said GAO's analysis of the three P&As' involvement in deinstitutionalization lawsuits is thorough and the P&As GAO reviewed said that the report is accurate.