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Final ruling decides training center's fate

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Legal options to prevent the Carroll facility's closing have been exhausted.

By Christopher Brooke, Reporter

RICHMOND — A federal court judge dismissed a complaint to prevent the closing of Virginia’s training centers, while giving final approval to a settlement agreement between the state and the U.S. Department of Justice regarding care for the intellectually and developmentally disabled.
While in negotiations with the federal government over Americans with Disabilities Act concerns involving the state’s facility-based care, Virginia officials have proceeded with an idea to close four of five training centers — including Southwestern Virginia Training Center in Carroll County — and encourage more “community based services.”
A group of individuals from training centers across the state filed to intervene in the settlement agreement process and sought to keep open the places they consider their homes, but federal Judge John Gibney Jr. rejected their arguments in his final ruling Aug. 23.

In his ruling, Gibney wrote that this third-party challenge ultimately fails on legal grounds because no training center resident has yet been harmed by the results of the agreement.
When the court approval of the agreement between the state and justice department fell to Gibney, he opened the case up to comments from those affected and treated them as amicus curiae briefs, allowed when someone who is not a party to a case voluntarily offers information to assist the court in deciding a matter before it. The judge also toured the facilities himself.
Gibney tried to insert some additional language in the agreement to protect the training center residents, which both negotiating parties rejected.
Looking back over the history of the training centers, he noted in his ruling that Virginia created the hospital-like facilities like the one in Hillsville and then encouraged those with various kinds of intellectual and development disabilities to use them.
But, since Virginia opened the training centers, experts have been advocating a movement to more community-based care, Gibney wrote. As that model of care has gained acceptance, training center population statewide has dropped from 6,000 to around 1,000 residents total.
The federal Americans with Disabilities Act also added steam to the community-based care movement, the judge wrote. Courts have ruled that placing people in special facilities is more like an act of segregation, based on the ADA law. “The United States, through the Department of Justice, believes that hospital-type settings are precisely the kind of segregated facility frowned upon in the ADA,” the judge’s opinion noted.

More Medicaid Waivers Available
Virginia’s effort to transition to a more community-based care system affects more people than those living at the training centers, Gibney noted. It also affects thousands of people waiting for assistance.
Negotiations between the state and federal governments resulted in Virginia promising many more Medicaid waivers to help both training center residents and those left waiting.
“Medicaid waivers are, essentially, government subsidies to pay for care and services for disabled people,” Gibney wrote. “Virginia’s problem was that it spent so much money on training centers that it had very little left over for waivers.”
The waivers can pay for disabled people to stay in intermediate care, group homes and even to live in family homes.
In the end, Virginia agreed to provide 4,170 additional waivers to meet the needs of disabled people.
Gibney recalled that the settlement agreement puts forward detailed plans for services to disabled citizens in community-based care.
He found no basis in law not to support the agreement. “The decision of what kind of services to offer to citizens and how to allocate limited funds are inherent in the sovereign power of the states,” Gibney wrote.

Judge Finds Complaint Premature
He found invalid the argument by the intervenors that the settlement agreement requires the state to close its training centers, putting the residents out of their homes.
“The intervenors read the consent decree incorrectly,” the judge wrote. “Nothing in the decree compels Virginia to close any facility. Decisions of that sort lie in the hands of the Virginia General Assembly.
“If it deems wise, the General Assembly can appropriate funds to continue to operate some or all of the training centers, even while funding the Medicaid waivers,” the judge said.
Furthermore, Gibney pointed to a Virginia law that protects anyone from being forced out of a training center against their will.
In deciding whether it’s in the public’s interest to approve the settlement, the judge pointed to all the new Medicaid waivers that Virginia will give out.
“In this case, the court need not look beyond the number of people receiving greater, more beneficial services,” he wrote. “In training centers, fewer than 1,000 Virginians receive services. When the waivers are fully funded, over 4,000 people will be able to afford the services they need.”
Finally, Gibney found that the intervenors do not have a case, partly because they cannot appropriately make a third-party complaint under the law.
Intervenors sought relief from the court in preventing the training centers from closing, the judge added.
“No one has been involuntarily removed from a state facility,” Gibney wrote. “Whatever injury the intervenors might suffer simply has not occurred yet.”
Nor does the agreement compel the closing of the local training center, unlike what the facilities’ supporters say. “The settlement agreement does not have the effect attributed to it in the third-party complaint.”

Parent Advocates React
Wanda Robinson, a member of the Parent Advocacy and Advisory Council and parent of a resident at the Southwestern Virginia Training Center, said parents have the same goal in mind now as when they started: “We’re still looking for safeguards for our residents.”
She and other advocates understand that state officials have already been carrying out changes, anticipating the final approval of the settlement agreement.
That includes discharging more than 60 residents from the Central and Southside training centers, she said.
The Robinsons’ daughter has already been affected by changes, as staff shortages occur because training center workers have been accepting other employment opportunities.
Beyond that, there is still a shortage of appropriate community-based care in rural areas of Virginia.
“There is no intermediate care facility in the entire Mount Rogers district,” Robinson said. “There is no other place for her to go.”
And parents have reason to believe that state officials including Gov. Bob McDonnell are working to repeal the very same 1970s law that Judge Gibney cited, which prohibits training center residents from being discharged against their will.
“I’m sorry, it’s been on the books for several decades for a reason,” Robinson said.