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Saturday, January 28, 2006

Ind. Gov't. - Still more on: Lawsuit seeks to block closing of Silvercrest [Updated]

The Louisville Courier Journal reports today on the arguments yesterday on the state's closing of Silvercrest Children's Development Center in New Albany. (Access yesterday's ILB entry here.} Some quotes from the story by Dick Kaukas:

Witnesses disagreed in Floyd Superior Court yesterday about whether the state's decision to close the Silvercrest Children's Development Center in New Albany would harm Indiana residents.

Seven parents with children being treated at the center argued that they were unable to find effective services in their communities. * * *

But witnesses for the State Department of Health, which announced in November that it would shut Silvercrest down when effective alternative treatment can be arranged for the children there now, disagreed. They argued that such children can receive more effective treatment in their communities.

The hearing was held in a lawsuit filed earlier this month by Silvercrest parents and a union representing center employees. * * *

After the day-long hearing, Special Judge Cecile Blau said there was too much evidence for her to issue a ruling from the bench, as she had been asked to do. But she said she would reach a decision "as soon as possible." * * *

The proceedings started with Mary Jane Lapointe, one of the plaintiffs' lawyers, arguing that the state was unconstitutionally usurping legislative powers by closing the center.

Lapointe said the decision to close Silvercrest was one that only the legislature could make. She cited "mandatory" language in the statute creating Silvercrest, outlining what the center was required to provide, to bolster her position.

Lapointe also told the judge that an act by the state that violates laws and the constitution, as she contended the closing would, in itself constitutes irreparable harm to residents. She said no other damage need be shown for an injunction to be issued against the closing.

The testimony from the parents and other plaintiffs' witnesses was presented as another argument in case Blau rejects the claim that only the legislature could lawfully close the center.

Representing the state was Steven Jackson, who rebutted Lapointe's argument by contending that other statutes give Monroe as the state health commissioner "complete administrative control" over Silvercrest, including the decision to close it.

In addition, Jackson said, Indiana standards for interpreting statutes say that decisions of an agency such as the health department should be respected by judges "if the agency's interpretation is reasonable."

Finally, Jackson said that the legislature has passed other statutes in which there is clear direction, requiring hearings and other steps before an institution is closed.

If the General Assembly had intended to reserve the right to close Silvercrest to itself, Jackson said, it would have said so. And he said it did not.

Also testifying for the state yesterday was Patricia Rogan, a special education professor at Indiana University. She said that sending students to centers like Silvercrest "is an outmoded model" and that it's more effective to treat them in their own communities, allowing them to stay home and attend the local schools.

But several witnesses for the parents, including Dr. Emily Stapp, a psychiatric consultant at Silvercrest, said there simply are no effective services in many communities.

If there were, she and other witnesses testified, there would have been no need to send students to Silvercrest in the first place.

[Update] The New Albany News Tribune has a report today by Chris Morris. Some quotes:
Mary Jane Lapointe, the counsel representing Silvercrest Children’s Development Center in New Albany, said Friday only the legislature has the ability to close the facility.

Steve Jackson, representing the State of Indiana, said Department of Health Commissioner Dr. Judith Monroe has that authority.

It will be up to Judge Cecile Blau to determine who is right.

Blau heard arguments for both sides Friday in Floyd County Superior Court in New Albany. After seven hours of testimony, Blau said she will review the testimony and documents and hopes to “make a decision” as soon as possible.

A group of parents, along with the American Federation of Municipal Workers, is seeking an emergency injunction to keep Silvercrest open. The Department of Health announced in November it planned to close the facility.

In the affidavit, the group states that since Silvercrest was established by the Indiana General Assembly, it can only be closed by the legislature.

“They have ignored a legislative mandate,” Lapointe said. “And this has nothing to with helping the children in the community. This has to do with saving money.”

The Department of Health made the decision to close Silvercrest after a study was conducted last summer by Family of Social Services Administration, the Office of Management and Budget, the state Department of Education and The ARC of Indiana. The study concluded that students need to move away from a facility-based program and moved back into the community. It also concluded that the $8 million annual budget at Silvercrest could be better spent helping more children than the 70 who are served annually at the facility.

Posted by Marcia Oddi on January 28, 2006 11:26 AM
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law