Disability Rights

Don’t fence them in!

By Roberta Zenker, Disability Rights Montana Staff Attorney

Earlier this year, the Montana Developmental Center (MDC) completed a fence around its Boulder campus at a cost to the taxpayers of approximately $160,000. While the official reason given to justify building the fence was the protection of residents, one wonders about the wisdom of spending these resources on a fence in light of the failure of SB-254 (to close MDC) due in part to the lack of resources in communities for community placements.

“Let me ride through the wide open country that I love, Don’t fence me in,” the old western song goes. “Send me out forever, but I ask you please, Don’t fence me in.” In 1999, the U.S. Supreme Court said pretty much the same thing in its Olmstead decision. The court said that people who experience disabilities have a right to be treated in their communities. Don’t fence me in. Yet, MDC has built a fence.

Bill fell just short

Roberta Zenker is a staff attorney at Disability Rights Montana.

Roberta Zenker is a staff attorney at Disability Rights Montana.

State Sen. Mary Caferro,who is also coordinator for The Arc in Montana, worked hard during the Legislature to close MDC in keeping with the Supreme Court’s mandate. And her bill almost passed.

The thing that kept that from happening is the belief held by some of her colleagues that the state did not have enough resources to fund the 27 people at MDC who are admittedly ready for community placements — some for four years or more — let alone the remaining 25. The reasoning is illogical, if noţ perhaps, a bit disingenuous.

It is much more a matter of proper allocation of resources to assure compliance with Olmstead. And, such compliance is not optional. Numerous lawsuits across the country over the the past 14 years have sought to force compliance with Olmstead. Many of these were initiated by the USDOJ or various state protection and advocacy agencies like Disability Rights Montana, who are duty bound to do so.

The litigious approach can be avoided by taking the reallocation approach. We lost that opportunity this past legislative session, but we can continue to seek closure of MDC. We should, in the meanwhile, provide for placement for the 27 people the MDC treatment professionals have determined should be placed in the community. We could thus begin to accomplish the requirements of Olmstead without an edict from the courts.

Aggravation and expenses

For heaven’s sake, do not throw the MDC residents away with the legislative bath water. We can close MDC. And we should do it now while we have the opportunity rather than enduring the additional time, aggravation and expense for the issue to wend its way through
the federal courts.

Twenty-seven human beings will have the opportunity they deserve and are legally entitled to. Olmstead contemplates that “the State …demonstrate that it has a comprehensive, effectively working plan for placing qualified persons in less restrictive settings, and a waiting list that move at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, …” Id. at 2189.

Providers in communities across the state are willing and able to serve all the residents at MDC, not just the 27 who are waiting. I am aware of similarly situated dual-diagnosed people, who could easily be placed at MDC, who are living in this community.

These are not “dangerous, violent” people as so many seem to assume. I see them every day. They are living healthy, fulfilling, supportive lives outside of an institution, and they are hurting no one. The fact that discussion to the contrary enters the conversation is hurtful, demeaning
and misplaced.

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