COFAR blog

A year into the operation of a state commission on the history of the former Fernald Developmental Center and other state institutions, the commission members apparently have yet to discuss that history.

As a result of that and other evidence, we are concerned that the commission’s real purpose may be something else entirely.

In fact, the evidence shows the commission may be poised to recommend the closure of the last two existing state-run congregate care facilities for persons with intellectual and developmental disabilities in Massachusetts — the Wrentham Developmental Center and Hogan Regional Center.

Our concern is based on online minutes and recorded Zoom meetings of the Special Commission on State Institutions since those meetings began in June 2023.  It is also based on prejudicial statements made prior to the establishment of the commission by individuals later appointed to the commission and by organizations given appointing power to the commission.

The commission’s enabling statute states that the commission will “study and report on the history of state institutions for people with intellectual or developmental disabilities or mental health conditions in the commonwealth including, but not limited to, the Walter E. Fernald state school and the Metropolitan State hospital.”

However, a provision in the statute also states, in part, that that the commission’s work “may include recommendations for… deinstitutionalization…(and regarding) the independent living movement.”

Why would a commission established to study and report on the history of state institutions also be authorized to recommend deinstitutionalization — in other words, the closure of currently existing institutions?

The minutes and Zoom recordings of the commission’s meetings thus far indicate that the major subject that appears to have been off the table for discussion has been the history of the state institutions. There simply don’t appear to have been any discussions reflected in the minutes about that history, pro or con. Instead, the discussions have been about numerous peripheral issues.

Might that lack of discussion about institutional history mean the commission has already reached its conclusions?

The commission is required to submit a report to the Legislature with its findings and recommendations by June 1, 2025.

We have repeatedly expressed concern that the commission would examine only the history of the institutions prior to the 1980s when those facilities were notorious for abuse, neglect and poor conditions. We have contended the commission would likely ignore the history of the state institutions after significant improvements to them were made and overseen by a U.S. District Court judge in the 1980s.

We reviewed the minutes and Zoom recordings of the commission’s meetings, which have been posted on line. The meetings were held on June 1, September 6, and October 20, 2023, and on January 18 and March 21 of this year.

Among the additional evidence for our concerns are that:

•  No clear direction thus far appears to have been publicly provided by the commission to its consultant, the Center for Developmental Disability Evaluation and Research (CDDER), regarding the scope of the commission’s inquiry. CDDER, which is part of the UMass Medical School, will apparently be charged with writing the commission’s report.
• There has thus far been no participation on the commission, as required, by a family member of a current resident of the Wrentham Center. That appears to be the only position on the commission that has gone unfilled to date.

A family member, who did initially agree to serve on the commission, said he was told by an administration official that he couldn’t continue to serve because he lives out of state. However, nothing in the commission’s enabling statute requires family members to live in Massachusetts in order to serve on the commission.

During the legislative process to create the commission, we argued for the inclusion on the commission of family members of current residents of both Wrentham and Hogan in order to help ensure that the commission will at least focus to some extent on the high level of care currently provided in those facilities.

According to the minutes, it was only in March of this year, nine months after the start of the commission meetings, that a family member of a current Hogan resident was apparently appointed.

• Four members of the 17-member commission include Healey administration officials or designees, and an additional seven members are appointees of the governor.

The administration has been blocking admissions to the Wrentham and Hogan Centers – a policy that is leading to a steady decline in the number of residents in those facilities. We are concerned that by the time the commission is scheduled to issue its report, the cost per resident at Wrentham and Hogan will have risen to a point at which the administration will begin making a case for the closure of the centers.

Wrentham and Hogan, the state’s two remaining Intermediate Care Facilities (ICFs), provide intensive residential services and are a critical backstop for care for some of the most severely intellectually disabled residents in the commonwealth.

We are concerned that the eventual closure of Wrentham and Hogan is being planned by the Healey administration. The administration and state Legislature, in contrast, have continued to increase the budgetary line item for community-based group homes to over $1.7 billion in the current fiscal year.

Commission members have made previous prejudicial statements

Proponents of the commission made statements prior to serving on the panel that were almost uniformly negative about care at the former Fernald Center, in particular. Those criticisms of Fernald were exclusively focused on the institution’s history prior to the 1980s, and never acknowledged improvements made at Fernald and other similar ICFs after that period.

For instance, several organizations, which were authorized under the commission’s enabling statute to appoint members to the commission, signed a petition and letter to Waltham Mayor Jeannette McCarthy in December 2021 opposing a Christmas light show on the Fernald grounds because Fernald had allegedly exclusively been a site of abuse and neglect. That petition, and one prior to it the previous year, stated that:

The use of this (Fernald) site (for a Christmas light show) is both disturbing and inappropriate, given its history of human rights abuses and experimentation on children. Hosting the Greater Boston Celebration of Lights here ignores the fact that the people who lived at the Fernald School were denied holidays with their families and loved ones for generations.

It appears the minds of the signers of that letter and petition had already been made up about Fernald before the commission was created. Neither the petition or letter noted the positive transformation of Fernald starting in the 1980s, nor the opposition of many families to Fernald’s closure in 2014.

Among the signers of the 2021 petition and letter to McCarthy were four organizations that were later given authorization under the enabling statute to appoint members to the commission – the Arc of Massachusetts, Mass. Advocates Standing Strong, Mass. Families Organizing for Change, and the Boston Center for Independent Living.

A member of a fifth organization, Kiva Centers, which also signed the petition and letter to McCarthy, is also serving on the commission, according to the minutes. Kiva Centers is not specified in the enabling statute as being authorized to appoint a member to the commission.

Alex Green, one of the principal backers of the commission’s enabling statute, started the petitions against Fernald and made numerous negative statements about Fernald, including writing a commentary in November 2020 that advocated deinstitutionalization. Green was appointed to the commission by the Arc of Massachusetts.

In his commentary, Green stated:

I have no doubt that a full reckoning with disability history would have led us to create a society better than this one, where the deaths of disabled Americans — who are often still forced to live in institutional settings — are as many as the anonymous ditches bulldozed for bodies (of persons who died during the COVID pandemic) on Hart Island in New York. (Link in the original.)

Enabling statute is vague about historical scope, but specifies deinstitutionalization and ‘the independent living movement’

The commission’s unclear focus appears to be at least partly due to the vagueness of the commission’s enabling statute, which was enacted as an amendment to the state’s Fiscal Year 2023 budget. A more carefully drafted bill, (H. 4961) which would have given COFAR an appointment to the commission, died in a legislative committee in July 2022.

As noted, the enabling statute states that the commission will “study and report on the history of state institutions for people with intellectual or developmental disabilities or mental health conditions in the commonwealth including, but not limited to, the Walter E. Fernald state school and the Metropolitan State hospital.”

The statute does specify that the commission will review records of former residents of the institutions, assess records of burial locations of those residents, and try to find unmarked graves of residents. But none of those requirements describes the nature of the history the commission will study or the purpose of such a study.

A final requirement in the statute states that the commission will:

…design a framework for public recognition of the commonwealth’s guardianship of residents with disabilities throughout history, which may include, but shall not be limited to, recommendations for memorialization and public education on the history and current state of the independent living movement, deinstitutionalization and the inclusion of people with disabilities. (my emphasis)

It’s not clear what, if anything, that provision in the statute has to do with the history of the state institutions. However, the provision does appear to allow the commission to recommend deinstitutionalization, which we think could mean closures of the Wrentham and Hogan Centers.

The provision also states that the commission may issue recommendations regarding the “independent living movement.” The independent living movement is not defined, but it appears to stand in opposition to congregate care in ICFs. As such, it appears to refer to “community-based” group homes or other community-based living arrangements such as staffed apartments or staffing in private homes.

While so-called community-based care works well for many high-functioning individuals, we have maintained that ICFs remain a critically important option for persons who cannot function in the community system.

Rejected bill contained independence clause and gave COFAR appointment

The previous bill, H. 4961, which had been reported favorably by the Mental Health and Substance Abuse Committee in July 2022, was also vague about how the commission would research and report on the history of the institutions. But it had a number of provisions that would have been helpful to the commission’s charge, but which were removed in the final, budget amendment version.

The rejected bill had stated that the commission would be “independent of supervision or control by any executive agency and shall provide objective perspectives on the matters before it.” That language was taken out of the final budget version.

Also, the rejected bill stated that the commission would “assess the quality of life” of residents currently living in state institutions, including Wrentham and Hogan, and would collect testimonials from current and former residents of state institutions, including Wrentham and Hogan, as part of a human rights report. That provision was also taken out of the final budget version.

Finally, the final version of the enabling statute removed a provision in H. 4961, which would have given COFAR the authority to appoint one person to the commission. The final version of the statute, however, kept that appointing authority for the Arc and the other anti-ICF organizations mentioned earlier.

Focus on issues irrelevant to the history of the institutions

As noted, the commission’s minutes don’t appear to contain any discussion about the actual history of the institutions. Instead, the commission’s discussions appear to have focused on such things as:

• The discovery, a decade after Fernald’s closure, of records of residents that were left behind in a state of disarray on the floors of abandoned buildings on the Fernald campus.

While this is a serious issue that needs to be investigated, it has nothing to do with the history of Fernald or the other institutions while they were in operation. The fact that the Fernald records breach has been the focus of discussion in at least two commission meetings may be an indication of the vagueness of the commission’s scope of inquiry as set out in the enabling statute.

• The hiring of CDDER as the commission’s consultant.

The first commission meeting, held on June 1, 2023, contained a preliminary discussion of a plan to hire a consultant to the commission for “staffing support,” and to use $145,000 in funding allocated to the commission for that purpose.

The commission’s second meeting on September 6 included a discussion of a recommendation that the commission hire CDDER as the consultant. It still wasn’t clear what the consultant was being hired to do.

In the third commission meeting on October 20, the commission voted to hire CDDER, with discussion that CDDER would likely be writing the commission’s report to the Legislature. It doesn’t appear that the commission considered any other consultants for the job.

• The creation of commission working groups for tasks including sending a letter of inquiry to Governor Healey about the records of residents of the state facilities and how to protect and access them; the status of burial locations of former residents; and “developing a framework for recognition” of former residents, including developing memorials.

No working group was established to develop the scope of the commission’s primary charge to study of the history of the institutions.

Family member of Wrentham resident told he could not serve

A family member of a Wrentham Center resident was actually recruited by the director of the Wrentham Center in December 2022 to serve on the commission.

That individual, who lives in Connecticut, said he had scheduling conflicts, but did attend a commission meeting in October 2023. But he said that shortly after that meeting, he was notified by an administration official that he was not eligible to continue to participate on the commission because he lives out of state.

Despite what that family member was apparently told, the commission’s enabling statute does not state that members of the commission must live in the state of Massachusetts. A Guide for Members of Boards and Commissions, published by the Inspector General’s Office, also does not state that living in Massachusetts is a requirement in general of such members.

Commission wasn’t established in good faith

In summary, we don’t believe this commission was established in good faith to study the full history of the state institutions.

The evidence for our conclusion includes the prejudicial statements made by some of the key commission members and organizations involved with the commission, and the language in the enabling statute that specifically says the commission may recommend deinstitutionalization.

Either this is a commission established to study the history of the institutions, or it is a commission established to recommend closure of existing institutions. It can’t and shouldn’t be both, but that is what the enabling statute appears to allow the commission to do.

In fact, the language in the enabling statute authorizing the commission to recommend deinstitutionalization is buried in a dense word salad that appears intended to hide that authorization.

Other evidence includes the enactment of the enabling statute as a budget amendment in an apparent end-run around the more carefully drafted legislation in 2022. As part of that end-run, COFAR’s appointment to the commission was rescinded.

The commission has subsequently failed to appoint a family member who might conceivably have good things to say about the current level of care at the Wrentham Center.

Finally, the evidence includes the lack of discussion in the commission meetings about what the commission is actually going to do. The actual discussions have focused on peripheral issues, including the breach in the storage of confidential records of former Fernald residents a decade or more after Fernald was closed.

All of this evidence may be circumstantial, but there’s an awful lot of it; and we just don’t think it’s all coincidental.