I 112th CONGRESS 1st Session H. R. 2032 IN THE HOUSE OF REPRESENTATIVES May 26, 2011 Mr. Frank of Massachusetts (for himself, Mr. Goodlatte, Ms. Wasserman Schultz, Mr. Culberson, Mr. Payne, Mr. Moran, Mr. Rush, Mrs. McMorris Rodgers, Mr. Manzullo, and Mr. Filner) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To protect the interests of each resident of intermediate care facilities for the mentally retarded in class action lawsuits by federally funded entities involving such residents and in Department of Justice actions that could result in an agreement to move such a resident from that resident’s facility.

1.

Purposes; definitions

(a)

Purposes

This Act is enacted to further carry out the Congressional intent of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 and the Americans with Disabilities Act and the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999) to permit individuals with disabilities and their legal representatives to choose where to live from a full continuum of options— (1)by prohibiting class action lawsuits by federally funded entities unless the residents of ICFs/MR are given notice of the proposed action and an opportunity to opt out; and (2)by permitting such residents and their legal representatives to intervene in such lawsuits. (b)

Definitions

In this Act, the terms ICF/MR and ICFs/MR refer, respectively, to an intermediate care facility for the mentally retarded and intermediate care facilities for the mentally retarded.

2.

Protecting the interests of each resident of an ICF/MR in class action lawsuits involving such resident

(a)

In general

Notwithstanding any other provision of law, no entity that receives funds from the Federal Government may use such funds to file a class action lawsuit involving the residents of an ICF/MR unless the resident (or, if there is a legal representative of the resident, such legal representative), after receiving notice of the proposed class action lawsuit, has the opportunity to elect not to have the action apply to the resident. (b)

Notices; resident right of withdrawal from lawsuit

(1)

Plaintiff notice of proposed lawsuit to facility

If an entity uses funds from the Federal Government to file a class action lawsuit involving the residents of an ICF/MR, the entity shall provide notice of the proposed lawsuit to the facility at least 90 days before the date of filing of the lawsuit. (2)

Facility notice of proposed lawsuit to residents

Not later than 30 days after the date the facility receives such notice, the facility shall provide notice of the proposed class action lawsuit to each resident of such facility on behalf of which the lawsuit is proposed to be filed and, if there is a legal representative of such a resident, to such representative. (3)

Resident right to withdraw from lawsuit

A resident (or, if there is a legal representative of such a resident, the legal representative) may elect not to be part of such a proposed lawsuit by filing a notice of such decision with the facility within 60 days of the date the facility notifies the resident or legal representative of the proposed class action lawsuit. (c)

Legal representative defined

In this section of the Act, the term legal representative means, with respect to a resident of ICF/MR, an individual who has been appointed under State law to be a legal guardian, conservator, or other representative for the resident and who is authorized under law to make decisions on behalf of the resident with respect to care and treatment of the resident in the facility. (d)

Effective date

This section shall apply to lawsuits filed after the date of the enactment of this Act.

3.

Protecting the interests of each resident of an ICF/MR in actions conducted by the Department of Justice that affect their choice of residency

(a)

Resident involvement in Department actions involving residents of ICFs/MR

In any action taken by the Department of Justice, including investigations and other actions under the Americans with Disabilities Act, the Civil Rights for Institutionalized Persons Act, and any other Act, that involves the residents of an ICF/MR, the Department shall consult with the residents (or, if a resident has a legal representative, the resident's legal representative) among all other interested parties before taking action. (b)

Resident right of intervention in Department actions involving residents of ICFs/MR

In any action under subsection (a), a resident (or, if a resident has a legal representative, the resident's legal representative) shall have the right to intervene in the proceeding. (c)

Effective date

This section shall apply to all actions taken by the Department of Justice after the date of the enactment of this Act.

4.

Preservation of States' rights

Nothing in this Act shall be construed to require a State (as defined for the purposes of title XIX of the Social Security Act) to include ICFs/MR services as an option under its Medicaid plan under such title.