Tauro calls for "hold" on plans to close Fernald

BOSTON—U.S. District Court Judge Joseph Tauro said Wednesday that the Romney administration should "put a hold" on continuing efforts to close the Fernald Developmental Center and other state facilities and should try to search for common ground with supporters of state facilities for the most severely and profoundly retarded state residents.

In a hearing in his packed chambers at the Moakley Federal Courthouse, Tauro also indicated that should agreement not be reached, he may consider stepping back into his historic oversight role over care for the mentally retarded in Massachusetts—a role he disengaged from in 1993. The judge scheduled the hearing on a motion filed in July by plaintiffs to reopen the landmark Ricci v. Okin case, which brought about improvements in care for the retarded in both state facilities and the community between 1972 and 1993.

During Wednesday's hearing, Beryl Cohen, attorney for the Fernald, Belchertown, and Monson plaintiffs in the case, alleged that the administration's closure plans coupled with budget cuts and staffing reductions at Fernald and other state facilities constituted "systemic violations" of Tauro's order. "You (Tauro) are the last and only hope for thousands of family members of the most needy and disadvantaged persons in this Commonwealth," Cohen said.

Tauro appeared to accept the argument that a rush to close Fernald and the other facilities could violate his disengagement order, which stipulated that no residents should be transferred unless equal or better care was available elsewhere. "What's the advantage in hurrying to speed up the closing (of Fernald) if it's going to speed up litigation that's going to last for five years?" Tauro said in pointed remarks to counsel for the Department of Mental Retardation and DMR Commissioner Gerald Morrissey, who was in attendance. "I don't know if I'll accept this case. If I do, I'll come up with a solution…Let's get it done right so everyone applauds it." He gave the parties a week to come up with an agreement.

The judge's comments immediately led to a scheduled meeting for Thursday morning between attorneys for DMR and the plaintiffs in the case. "In my wildest dreams, I didn't think it (the court session) would go this well," said Colleen Lutkevich, executive director of COFAR, a statewide advocacy group for the mentally retarded. COFAR supports the plaintiffs' motion to reopen the case. "The judge cut through it all and got to the heart of the matter."

Tauro also noted that many Fernald residents are elderly, adding that "in the remaining moments of their lives, they ought to be treated with great dignity." His remark drew strong applause from the close to 200 observers in the courtroom, many of whom were family members of facility residents.

DMR General Counsel Marianne Meacham insisted during the hearing that "there is no rush" to close Fernald and that the DMR was working "assiduously to guard the rights of the Ricci class members."

But Tauro said the administration's policy of closing Fernald and the other state facilities without an adequate plan for the welfare of its current residents "could qualify as a failure to comply with my (1993 disengagement) order." He noted that many communities have not accepted group homes for the mentally retarded and that it could be difficult to find placements for Fernald residents.

Meacham also maintained that there was a plan for protecting the residents and that it was similar to the process used to close the Belchertown and Dever State Schools in the 1990s. But Tauro interrupted Meacham, saying her response "seems to assume they're going someplace. Where are they going to go?" Tauro maintained that the DMR's primary focus should be the individual plans of care, also known as Individual Service Plans or ISPs, for the facility residents. "I say with great deference and respect to the Governor, you can't have a wholesale abandonment of any place until you've satisfied the ISPs for all individuals. There's nothing that trumps the ISPs."

Tauro also drew strong applause from the packed gallery when he objected to Meacham's statement that some Fernald residents would be relocated to the Wrentham Developmental Center and other facilities that are also scheduled for closure. And Tauro repeatedly asked Meacham what would happen to Fernald's 252 residents after the facility is closed.

Tauro also appeared to invite Governor Romney to accompany him on a tour of Fernald to ascertain the conditions there first hand. Tauro toured the Belchertown State School and other state facilities after the Ricci case was filed in 1972. "(Governors) Dukakis, King, and Weld came with me (to tour the facilities)," Tauro said.

Cohen ran through a litany of recent problems at Fernald, including infestations of mice and other vermin in many of the buildings and cottages on the Center's grounds and staffing shortages so severe that residents have had to wait months in some cases for such essential items as diapers and padded helmets.