It’s time to embrace the principles of Olmstead

By Bernadette Franks-Ongoy

Summer 2012

Because I am the head of Montana’s protection and advocacy system for people with disabilities—and because I’ve had this job for almost 15 years—I know a thing or two about what it takes to make people safe in hospitals and institutions and treatment programs.

I know that the key to safety for people with disabilities is transparency.  Transparency happens when people with disabilities are heard, seen, respected and included.

When a person with a developmental disability reports abuse, transparency means that: The report of abuse is documented and sent on to the right agencies, including law enforcement. The victim is examined, and evidence is preserved.  The victim is included in the fact-finding process and allowed to give a full account of what happened, even if that means some extra steps for the investigator, like getting help from an expert, recording the interview or conducting more than one interview.

In other words, a report made by a person with an intellectual disability is treated with just as much respect as a report made by someone without that kind of disability.

In the spring of 2010, a young woman at the Montana Developmental Center in Boulder, Mont., reported that she had been sexually assaulted. A staff person persuaded her to have sex with him in exchange for Skittles. She reported the assault, but the MDC investigator persuaded her to withdraw her report. Fortunately, she soon reported to another staff person, and that person stood up to the investigator, took the young woman to a hospital and started the process that ended with the attacker being convicted and sentenced to prison.

When DRM learned about the assault and learned that the MDC investigation did not start until more than two days after the victim reported, we asked the Montana attorney general to investigate. The attorney general’s report shows that the MDC investigator often failed to do thorough, competent investigations.

DRM already knew that. Every year for more than 10 years, at least one licensing survey of MDC has concluded that MDC fails to “thoroughly investigate” abuse reports.

We have reviewed many of those MDC investigations, and we know they are often incomplete and incompetent.

The latest Medicaid survey, released in May, again concludes that MDC fails to do thorough investigations.  The survey describes an “investigation” that was done without any input from the MDC resident who had It’s time to embrace the principles of Olmstead reported abuse. The reason no one talked to the victim? “It could have caused a behavior problem,” according to MDC staff.

In June, legislators invited the Department of Public Health and Human Services to talk about MDC’s problems. MDC staff admitted that MDC has been a really troubled facility for a very long time. They admitted that MDC was way overdue for an overhaul. They argued that everything was being fixed.

I wasn’t surprised when the legislators rejected those promises and assurances as too little, too late. Instead, the legislators decided to draft a bill that will require the department to come up with a plan to close MDC and replace it with a different system.

Yes, it’s time to close MDC. It’s time to replace that institution with a system that will serve Montana better, today and for the next decade. It’s time to embrace the principles described by the United States Supreme Court in the 1999 Olmstead decision. People with disabilities can and should almost always be served in the community.

We need a system that is less wasteful, more expert, flexible enough to respond to new demands and cost effective. And we need a system that is safer. Will the department still have a role? You bet! The department can license, certify, monitor, review, inspect and report on the new system and help push it toward excellence.

And as Montana’s protection and advocacy system, we’ll continue to play our part, taking a second look at everything. We will be watching, listening and shedding light onto the system, so that the people it serves are seen, heard and safe.

You can listen to or watch the Children and Families Interim Committee hearing on MDC online. The quickest way to get to the legislative services audio/video archive, is by visiting DRM’s website:  Look for the link on our home page.

Bernadette Franks-Ongoy is executive director of Disability Rights Montana, the civil rights protection and advocacy system for people with disabilities.

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