• By SARAH TITLEY Staff Writer The state has filed its long-awaited response to a lawsuit related to the proposed closures of Polk and White Haven state centers.

The lawsuit, filed in January by residents of Polk and White Haven centers, contends the residents' rights were violated by the decision announced in August 2019 to close the centers within three year.


Violations refer to the U.S. Constitution, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Medical Assistance Program.


The response, filed Monday by state attorneys, doesn't acknowledge any specific allegations made by the plaintiffs in the suit. The plaintiffs include six Polk Center residents and seven White Haven residents, and their families.

Instead, the response supports a motion to dismiss the suit that was filed last month by the state.


The state claims the lawsuit - which was filed against Gov. Tom Wolf, several state officials and departments, and the Polk and White Haven centers - fails to meet standards required for a lawsuit to move forward.


Attorneys said "pleading standards have shifted," meaning that plaintiffs must "plead more than the simple possibility of relief to survive a motion to dismiss."

"A complaint must do more than merely allege the plaintiffs entitlement to relief; a complaint has to 'show' such an entitlement with its facts," attorneys for the state said.

Aside from the alleged inability to prove relief is possible, the state claims the plaintiffs have no case.


"Plaintiffs cannot state a claim for relief under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), the Medicaid Act or the Due Process Clause," the state said.

Attorneys claim that "generally" it is the responsibility of the federal government to investigate and terminate funds given to a state under the Medicaid Act.

In regards to a due process clause, or allegations that the plaintiffs will be deprived of their Fifth Amendment rights due to the closure of the centers, the state claims the plaintiffs can't provide supporting evidence.


"Their complaint is based on speculative harm that might occur if Polk and (White) Haven centers are closed and the plaintiffs are moved to the community," the response said.

The state said the plaintiffs must show that their liberty is "substantially curtailed" by the state and argued that "individuals are not physically restrained in community settings, nor is (their) freedom substantially curtailed, which prevents the assertion of a Due Process Claim."


To dispute the plaintiffs' claims under ADA and RA, the state turned to a familiar defense under the Olmstead Act.


The defense has been wielded by both state officials and proponents of closing the centers in almost every public hearing regarding Polk Center.


In the response, attorneys quoted the decision made by the Supreme Court in the original Olmstead v. L.C. lawsuit in 1999 and go on to say that federal courts have "consistently held that there is no obverse Olmstead argument that requires that developmentally disabled individuals are discriminated against by being required to live in the community."

The state also said courts have "rejected" the argument that a state's decision to close an institution like Polk or White Haven violates the rights of residents of those facilities.

Attorneys claim another familiar lawsuit in their defense that supporters of the centers have often championed as an example of fighting back - Benjamin v. Department of Public Welfare.


The Benjamin case was a lawsuit filed by several residents of White Haven in 2009 in which several more residents - including two named plaintiffs in the current lawsuit - successfully intervened.


State attorneys say the Benjamin case "addressed the need to move residents of (Intermediate Care Facilities for Individuals with Intellectual Disabilities) ICF/IIDs into the community," and, ultimately, is similar to the current lawsuit.


Because Benjamin was a class action lawsuit and, according to the state, included all residents of ICF/IIDs to those living in the centers today, the lawsuit is "barred by res judicata."


Res judicata, or claim preclusion, is a legal loophole of sorts that means a matter that has had a formal judgment or decision by a competent court may not be pursued further by the same parties, according to the term's dictionary definition.

The state claims that because all plaintiffs named in the current lawsuit were part of the Benjamin case, "are barred ... from filing new claims with the same factual underpinnings or theory."

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Polk Center backers stress at rally 'hope is not gone'


It was a celebration of fortitude Friday evening at Bandstand Park in Franklin as members of the Polk Strong effort gathered together to look back on a year of work.

"We still have hope, the hope is not gone," said Tracy Kiselka, one of the many Polk Center employees who attended Friday's rally in the park. About 40 to 50 people showed up for the event.

Friday marked one year since Gov. Tom Wolf took Polk Center, its employees, its residents and their families by surprise and announced the center would close within three years.

Efforts have been ongoing since then to fight the state's order and keep the center open.

"I think we all know what we were doing when we found out," said Shari Slater. The group of co-workers surrounding her nodded along and shared their exact location when they heard the news.

A common sentiment shared at past rallies and hearings has been that employees fighting to save Polk Center care more about the safety of the individuals they take care of than their employment. That sentiment was shared once again when Terra Anderson answered Slater with her exact location and a memory.

"I just cried, and not for me, but for them (the residents)," she said.

Another commonality between many employees is the ability to brag how many generations have held a position on campus.

Anderson and Kiselka, who are sisters, are no different and said both their mother and father had worked at Polk.

Slater is a fourth generation Polk Center employee, and Patty Fike, who attended the rally with her family that double as co-workers, said Polk is "kind of a family thing."

Fike, who has been an employee for 22 years, said it wasn't the fact that her aunt was a resident of the center that drew her to a career at Polk, but that family had worked there before her.

Now she said she not only has to worry about her aunt, who she said has lived at Polk for going on 57 years, finding a new home, but the added thought she could be one of the last in a legacy.

"It's scary and sad," Fike said.

Fike said every day at work she sees the goodness in humanity, whether it be between the residents themselves or the nature of the relationships between staff and residents.

"It's the one place in this society I still see compassion," said Fike.

She said that at this stage in the battle to save Polk she has "a lot more hope" than she did at the start, but she added she still worries about her aunt.

"If my aunt is evicted I know it will be a death sentence," Fike said.

Kiselka, meanwhile, said the road to closure has already negatively impacted many residents.

"They're living in terror right now," Kiselka said.

She related that many residents panic if they're introduced to a stranger because they believe the person is there to take them away.

Slater agreed and said that is why she is fighting so hard against Wolf and the state Department of Human Services.

"Gov. Wolf is trying to be their voice, would you want someone you don't even know speak for you," Slater asked during her rally speech.

She later said the entire Polk Strong movement is centered around giving residents a voice.

Polk retiree Susie Blair, who spent 34 years working at the center from the time she was 17, said she has seen the heartache that taking residents from their home against their will has caused.

"I was there when they said to pick five people from each cottage to be sent to live in the 'community,'" she said.

Blair said at that time community group homes were almost unheard of, but she said many residents were sent away. She said that when a resident was sent to live in the community, Polk employees were no longer allowed to contact that individual.

"It just breaks all the bonds they've created," Slater interjected.

Blair said that on a few occasions, residents who had been sent to live in the community who had a higher IQ and understanding of money and transportation would "find their way back."

"They'd show up on the doorstep crying, 'please take me back,'" she said.

She said many things are different today than when those instances occurred, like the amount of residents who have that kind of mental ability, but she said the largest difference is the standard of care.

"(The employees) give more thought, love and emotion than these people have received in the last 100 years," Blair said.

Looking toward the future, all who attended Friday's rally shared one thing in common - hope.

"Polk Center Strong was born one year ago today, and here we stand this year as Polk Center Stronger," Slater said during her speech. "Next year we will be Polk Center Stronger Than Ever, and after that it will be Polk Center Forever."


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