In establishing state commission on institutional care, Legislature ignored committee-approved language proposed by COFAR

September 23, 2022 2 comments

(COFAR Intern Joseph Sziabowski contributed to the research for this post.)

In July, the state Legislature approved the Fiscal Year 2023 budget with an amendment to establish a state commission to study the history of the former Fernald Developmental Center and other institutions in Massachusetts for persons with developmental disabilities and mental illness.

The budget amendment did not contain language proposed last year by COFAR, which would have helped ensure that the commission would not be biased against institutional care for persons with developmental disabilities.

We had expressed concern that the commission, as conceived in previously drafted bills (S.1257, and H.2090), might be used to call for the closure of the Wrentham and Developmental Center and Hogan Regional Center.

As we have reported, key proponents of the commission have promoted the closures of state-run residential care facilities, and have tried to focus public attention solely on the darkest periods of institutional care in this and other states prior to the 1980s.

The commission proponents have declined to acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs). Those improvements were implemented largely due to the intervention of the late U.S. District Court Judge Joseph L. Tauro.

Committee redraft included COFAR language

However, even after the budget amendment was approved in the Senate in May, at least some of the language COFAR had proposed was included in a redraft of one of the original bills.

The redrafted bill (H. 4961), which was approved on June 30 by the Mental Health, Substance Use and Recovery Committee, would give COFAR standing along with other named advocacy organizations to appoint some of the commission members. Each advocacy organization, including the Arc of Massachusetts, would have one appointment.

The redrafted bill also contained our suggested requirement that the commission study the wellbeing of current residents of the Wrentham and Hogan Centers. The previous versions of the legislation included requirements to study the wellbeing only of former state facility residents now living in the community.

We had opposed those previous versions of the commission bill because the versions would preclude assessments of care of current residents of Wrentham and Hogan. We think many, if not most, of those assessments would be likely to be positive.

The Senate budget amendment contains no directives for the study of the wellbeing of either former or current residents of state facilities.

COFAR language superseded

But while the redrafted bill was sent on July 11 to the Health Care Financing Committee, it never emerged from that committee. It has been superseded by the budget amendment, which does not include any of COFAR’s proposed language.

The budget amendment does specify that one current resident and one family member of both the Wrentham and Hogan Centers will be eligible to serve on the commission. The previous bills did not provide for seats for current residents of the facilities or their family members.

However, the budget amendment gives the governor, and not COFAR, the authorization to appoint those Wrentham and Hogan members to the commission. In contrast, the amendment gives three anti-institutional organizations, including the Arc of Massachusetts, the authority to make one commission appointment each.

The budget amendment was bundled with hundreds of other amendments and approved on a voice vote in the Senate in May. As such, the amendment was not subject to a hearing or debate in the Legislature.

The Mental Health Committee’s subsequent redraft with some of our suggested language remains stuck in the committee. As a result, our concerns about possible bias in the commission remain.

Questions remain about the planned commission and its funding

Thus far, we haven’t been able to get answers to some key questions about the planned commission:

  • There appears to be no clear indication when the commission will begin working, or how people can apply to serve on it.
  • While the budget amendment earmarks $145,000 in funding for the commission, there appears to be no indication what the funding will be used for. The amendment doesn’t specify any staff for the commission, for instance.
  • The budget amendment says the commission may study “the independent living movement,” but does not define that movement.

We have made repeated attempts to contact the sponsors of the commission legislation, other key lawmakers, and the governor’s office, which will make many of the appointments to the commission.

Only Representative Sean Garballey, the sponsor of the original House bill to create the commission, got back to us. In a phone call on August 26, Garballey said no decision had yet been made on when the commission will begin operating or when the appointments will be made to it.  He suggested the appointment process could take several months, and might be delayed until the next administration.

Garballey suggested that persons who want to serve on the commission send letters to the Office of Governor Charlie Baker and, if necessary, whomever occupies the office after him. The letters should reference the relevant statute (Chapter 126 of the Acts of 2022, section 144) and articulate the constituent’s case to be on the commission.

Garballey said he was open to receiving recommendations or requests, from persons willing to serve on the commission, that he could pass along to the relevant appointing entities.

Asked about the purpose of the commission funding, Garballey said the money will be spent “at the discretion of the commission and its voting process.” He said he didn’t know with certainty what the funding will be used for.

Garballey said it was his “vision for the commission to tell the whole story,” or the entire history of the state institutions, dating back to the 19th century and moving ahead to the more recent positive reforms.

“I’m looking for a factual history, not one with political bias,” Garballey said. “I would be opposed to any effort to push a certain view or co-opt the commission to shut down any institution,” he said. “I would be appalled and disappointed if the commission was utilized in that way.”

We hope Representative Garballey’s vision regarding the commission prevails. But to ensure that is the case, we hope that the Legislature will amend the now statutory language establishing the commission to incorporate our suggestions. We also would like to see a directive added to the language that specifies that the commission will include the reforms of the 1980s in its historical analysis.

DDS client, who had been denied all contact with his mother, suffers third head injury in group home

September 6, 2022 6 comments

Nick Alemesis, who has a developmental disability, was sent to a hospital on Friday from his Dracut group home with the third head injury he has suffered in the residence since March, his mother Cindy said.

The latest injury occurred just before Cindy was due to visit Nick at the end of a 14-day ban imposed on her contact with him.

Incompass, the corporate provider that runs the group home, had charged that Cindy’s previous phone contact and visits with Nick were causing him to act aggressively and injure himself.

COFAR last week raised concerns about the ban, contending that neither Incompass nor the Department of Developmental Services (DDS) had made a sufficient case for restricting family contact with Nick.

We noted that this case appears similar to at least two others in which providers and DDS blamed family members for inciting aggressive behavior in DDS clients, and subsequently imposed punitive bans on family contact with those persons.

The 14-day ban on all family and social contact with Nick had been at least temporarily lifted at the end of last week. But Cindy was unable to visit Nick in the residence on Saturday, as had been agreed, because Nick had been taken to Lowell General Hospital. She said she was leaving this morning to visit Nick in the hospital.

DDS is, meanwhile, continuing an effort in probate court to remove Cindy as her son’s co-guardian for reasons that have never been made clear. In 2018, Cindy saved Nick’s life after staff in the group home had failed to take him to a scheduled ultrasound appointment, which would have shown his brain shunt was leaking spinal fluid.

In a text message to Cindy, dated Saturday, the Incompass assistant program manager wrote that Nick had been sent to the emergency room at Lowell General for self-injurious behavior and threatening to kill himself. Cindy maintains that Nick has frequently said he would kill himself if he was forced to remain in the group home. She said Nick is afraid to be in the residence.

Cindy is one of two co-guardians of Nick. The other co-guardian, Donna Nolan, is paid by the Department of Developmental Services (DDS) to serve in that role. Nolan is not related to Nick.

Nolan, along with Jean Phelps, the CEO of Incompass, signed off on a provider document on August 17 that imposed the 14-day ban on all family and social contact with Nick.

COFAR has joined Cindy in urging DDS not to send Nick back to the Dracut group home. Cindy said she is concerned Nick has been abused in the residence.

We suggested last week that Nick be placed at the Hogan Regional Center where we think staff are better trained to care for clients who exhibit aggressive behaviors.

Even if Nick’s injuries have been self-inflicted in the group home, it appears to be clear that Cindy’s contact with Nick is not the primary cause of his aggressive behaviors.

Neither DDS Commissioner Jane Ryder nor Jean Phelps, the Incompass CEO, have responded to an August 25 email from COFAR raising concerns about the ban on contact.

Cindy said Nick was previously injured in the group home on March 16, and was injured again two to three weeks ago. Cindy reported that March 16 head injury to the Disabled Persons Protection Commission (DPPC) because the injury had not been reported by the staff.

DDS, which conducted a limited Administrative Review of the March incident, concluded that there wasn’t sufficient evidence to show that Nick’s injury was caused by staff of the group home, and that the injury had most likely been self-inflicted.

UPDATE: Ban on mother’s contact with son at least temporarily lifted

August 30, 2022 13 comments

[UPDATE TO YESTERDAY’S POST (BELOW): Cindy Alemesis was informed yesterday (August 30) that the ban on family contact with her intellectually disabled son Nick would be lifted as of today, at the end of a 14-day period specified by Nick’s group home provider and DDS co-guardian (see post below).

However, Cindy also said that in a phone call yesterday, the Incompass group home manager told her the ban on all contact could be re-imposed if Nick continues to display aggressive behaviors. Cindy believes Nick has been acting out because he may have been abused in the group home, and that he wants to leave it.

Cindy said she asked the group home manager whether the ban on family contact was actually a form of punishment of Nick. “I said to him, ‘so, as punishment, Nick loses his mom?’” Cindy said. “And he said, ‘well Nick has to learn.’”

In a text message to Cindy yesterday, the Incompass director of residential services, said Cindy will be allowed to visit Nick at the group home this Saturday. She will also be allowed one 10-minute phone call a day with Nick. But the Incompass director stated that the phone call would be terminated by staff, “if Nick begins displaying unsafe/inappropriate behaviors during the call.”]

 

Cindy Alemesis, who saved her intellectually disabled son Nick’s life in 2018, was subject to a ban on all contact with him for the past two weeks because Nick allegedly began behaving aggressively after her visits and phone calls.

The ban was imposed on August 17 by Incompass Human Services, a Department of Developmental Services (DDS) group home provider, and by a co-guardian of Nick, who is paid by DDS. The Department is, meanwhile, continuing an effort in probate court to remove Cindy as her son’s other co-guardian for reasons that have never been made clear.

Nick Alemesis and his mother Cindy

Cindy believes Nick acts aggressively because he doesn’t want to remain in his group home in Dracut, and may have been abused there. Cindy has reported at least two incidents of injury suffered by Nick in the Incompass residence.

Both Incompass staff and DDS have failed to report those injuries to the Disabled Persons Protection Commission (DPPC), as required by law.

Neither DDS Commissioner Jane Ryder nor Jean Phelps, the Incompass CEO, have responded to an email last week from COFAR raising concerns about the ban on contact and the alleged failure to report the injuries.

Similar to past bans on contact

The ban on family contact with Nick is similar to bans imposed in at least two other cases, which led to emotional pain and suffering for DDS clients and their families (see here and here).

As we noted in our email to Ryder and Phelps, cutting off family and social contact with DDS clients is an extreme measure that runs counter to their well being and rights under DDS regulations to support human dignity. Among those fundamental rights is the right to visit and be visited (115 CMR 5.04).

In Nick’s case, the ban on contact also follows from previous restrictions imposed by Donna Nolan, the DDS co-guardian, on Nick’s visits to his church and community.

Reason for latest ban on contact disputed

Records sent to us by Cindy show that Incompass has charged that Nick has engaged in “unsafe and self-injurious behaviors” after visits or phone calls from her and other family members.

In an Incompass document titled, “Human Rights Request for Approval of Restriction,” both Phelps and Nolan signed their approval on August 17 of a 14-day ban on all family communication and visitation with Nick as well as “access to social situations” for Nick. The document, which concerned both family visits to the group home and visits by Nick to Cindy’s home, left open the possibility of extending the ban indefinitely.

The document stated that after speaking with his mother by phone on August 9, Nick threw a phone and later a stone from his bedroom at staff, and refused to take his medications.The document alleged that Nick was taken that day to Lowell General Hospital where he exhibited similar aggressive behaviors after Cindy called him and then visited him there.

The Incompass restriction document, however, did not identify any statements or actions by Cindy or any family members that might have incited Nck to act out. Cindy contends Nick acts out because he does not want to live in the group home, or return to it when he is taken elsewhere.

We would echo Cindy’s concern that conditions in the residence itself may be causing his behaviors and injuries. We think the solution to the problem is to change his residential setting.

Text messages and statements from Nick indicate that he may be afraid of being hurt or injured by staff in the group home. Cindy said Nick has told her that staff have “hurt his head.” Cindy also forwarded a July 28 text message from Caitlyn Alekshun of Bridgewell Counseling Services indicating that there is uncertainty as to why Nick has been agitated and engaging in possibly self-injurious behaviors.

As discussed below, an earlier message from Alekshun to Nick’s service coordinator indicated that the group home staff were not providing timely information to her about the possible cause or causes of Nick’s behavior.

We haven’t seen any records that indicate that either Cindy or other family members have done or said anything to incite Nick to act out or injure himself. In a July 21 email, Nick’s DDS service coordinator wrote that he had “observed Nick become dysregulated. Staff report that it is like this every day.” That would appear to rule out Cindy as the sole, or even main cause of Nick’s behaviors.

However, the August 17 restriction document, signed by Phelps and Nolan, concluded that:

Due to these recent events and to Nicholas’ increasingly unsafe behavioral response to interactions with Cindy, both in person and by phone, it is proposed that Nicholas does not have any communication or contact with family members (including, but not limited to Cindy…) for a period of 14 days. This period of time will allow the program to work more effectively with Nicholas to keep him safe, unencumbered by external stimuli that may significantly impact his ability to regulate his emotions and subsequent behavior.

At the end of this initial 14-day period of no-family contact, the treatment team will revisit this restriction and assess whether continuing the practice is warranted for an additional 14-day period(s).

Staff not providing information to clinician

The restriction document did not make it clear how or why contact with Cindy or other family members would incite Nick to engage in aggressive behaviors. We think that without establishing a clear cause of those behaviors, Incompass has not made a case for restricting family contact.

Nick (right) and his pastor, the Rev. Keith Phemister, and Keith’s wife Gloria. Nick has been restricted at least twice this year from visiting his church.

In fact, records indicate that the group home staff have been uncooperative with at least one clinician seeking to determine the cause of Nick’s aggressive outbursts.

In response to the service coordinator’s July 21 email, Alekshun of Bridgewell wrote that she had requested “recent behavioral data from the residence a few times, but haven’t received anything more recent than May.” Such data, she wrote, might “help justify the need for an inpatient placement” for Nick at a hospital setting.

Failure to report injuries

We are also concerned that DDS and provider staff have failed to report potentially serious injuries that Nick suffered in the group home, as required by law. In the most recent case, Cindy said she was forced to report a head injury that Nick suffered on March 16 to the DPPC because the injury had not been reported by the staff.

Both the DDS Decision Letter and subsequent Action Plan resulting from the March 16 incident stated that the alleged abuser didn’t report the injury.

Cindy said the incident resulted in bleeding from Nick’s ear, which would classify the injury as a serious physical injury under DPPC regulations. Nick received emergency room treatment for the injury.

DDS declines full investigation

After Cindy reported Nick’s March 16 head injury, DDS apparently conducted a limited Administrative Review of the incident. Administrative Reviews do not meet DPPC standards for full investigations. The DDS Decision Letter, issued after the review was completed, acknowledged that a “regulatory investigation” had not been conducted.

Given, in particular, that the bleeding Nick suffered from his ear would classify the injury as serious under DPPC regulations, it would appear that either DPPC or DDS should have conducted a full investigation of the matter, and not an Administrative Review. The DDS Decision Letter did not explain why a full “regulatory investigation” was not done.

The DDS Decision Letter concluded that as a result of the limited review, there was insufficient evidence to conclude that Nick had been abused by a staff member, and that Nick had “acknowledged” his injury had been self-inflicted. However, the Decision Letter did not disclose who was interviewed by the investigator. Cindy said she was not interviewed, and it is not clear whether even Nick was interviewed, based on accounts in the Decision Letter and subsequent DDS Action Plan.

The Action Plan, in fact, stated that, “It was reported by the provider that (Nick) exhibited self-injurious behaviors (SIB) causing injury to himself and was restrained.” (my emphasis). This statement appears to imply that the DDS investigator may have relied on an account from the provider, possibly even from the alleged abuser, in concluding that Nick had injured himself.

Both the Decision Letter and Action Plan said only that “during the course of the investigation witness(es) were interviewed and relevant documents were reviewed.” There was no specificity as to which documents were reviewed, or which witness or witnesses were interviewed. In fact, it isn’t clear, based on the word “witness(es),” whether more than one person was actually interviewed.

DPPC regulations (118 CMR 5.02) require that in full investigations, the investigator interview the reporter of the injury — in this case, Cindy. Cindy said that never happened.

The regulations also require that the investigator provide an assessment of the “immediate protective services needs” of the alleged victim to prevent the risk of further harm. There was no indication in the Decision Letter or Action Plan that such an assessment was done in this case.

The Action Plan recommended only that Nick’s residential and day provider staff “create a communication log that documents such incidents so everyone is informed.”  There was no recommendation in the Action Plan relating to failure of the provider or DDS to report the injury to DPPC.

Similarly, DDS and DPPC declined to undertake an investigation of an incident in 2018 in which Nick contracted sepsis and spent eight months in a hospital because of the apparent negligence of staff in his group home. That incident was also not reported by the provider staff or by DDS to DPPC.

No response from DDS or Incompass

As noted, on August 25, I sent an email to both DDS Commissioner Ryder and to Phelps, the Incompass CEO, noting our concerns about the restriction on family contact and about reports of poor conditions and staff treatment of Nick that led him to state and text to his mother that he did not want to remain there. As such, I wrote, we are concerned the residence is potentially unsafe for Nick. To date, I haven’t received a response to my email.

We urge DDS and Incompass to reconsider the restrictions placed on family contact with Nick. We also urge DDS to conduct a full investigation of the injury that occurred to Nick on March 16, and to investigate the care and conditions in the residence.

Finally, we urge DDS to work with Cindy to identify another residential setting for Nick or a placement in an Intermediate Care Facility such as the Hogan Regional Center.

Our updated DDS corporate provider survey: Total number of providers in MA has dropped, but total executive comp. rises to $126 million

August 11, 2022 4 comments

(Research contributed by COFAR Intern Joseph Sziabowski)

Seven years after we published our first survey of the financial compensation of executives employed by corporate providers to the Department of Developmental Services (DDS), our updated survey shows some surprising and not-so-surprising changes.

What might not be surprising is that between Fiscal Years 2012 and 2020, total compensation of CEOs, executive directors, and other DDS provider executives doing business in Massachusetts rose from $102.4 million to $125.5 million. That is a 23% increase.

Also, the average compensation paid per executive rose from approximately $161,000 to $184,000 — a 14% increase.

This trend remained constant across almost all executive categories. Nominal and inflation-adjusted average compensation rose for virtually all executive positions.

(Click to enlarge the summary chart below of total and average compensation of DDS corporate provider executives in Fiscal 2020.)

(You can find our full survey results at DDS Corporate Provider Compensation Survey)

What seems surprising in our updated survey is that despite the increase in total executive compensation between Fiscal 2012 and 2020, the total number of corporate providers actually declined by almost half in those years. Lists of all DDS providers were obtained from DDS in 2014 and again this year under Public Records requests.

Our surveys involved examining the federal nonprofit tax returns (IRS Form 990) of the listed providers for the 2012 and 2020 fiscal years. (Form 990 tax returns for all nonprofits are available at ProPublica and on other sites).

In our latest survey, we also cross-checked data with Massachusetts online Uniform Financial Reports (UFRs) for 149 DDS-funded, corporate providers.

In filling out the IRS Form 990, nonprofit organizations are required to list total compensation of “officers, directors, trustees, key employees, and highest compensated employees.” Key employees must earn over $150,000 and meet a responsibility test, while highest compensated employees are employees other than key employees who earn over $100,000.

The primarily nonprofit corporate providers funded by DDS in Massachusetts provide a range of residential, day program, and other services in the DDS system. While some of these providers do business in other states as well as in Massachusetts, DDS pays more than $1.4 billion per year to the providers to run a network of hundreds of group homes in this state alone.

State responsible for paying approximately 70% of executive compensation

By COFAR’s estimates, the State of Massachusetts was responsible for paying up to $87.8 million of the total $125.5 million in compensation received by the provider executives in Fiscal 2020. (An explanation of our methodology for calculating state reimbursement of executive compensation is below.)

Transfer of assets from public to private ownership

We also found that as of the end of Fiscal Year 2020, the providers held more than $3.82 billion in total assets. During that year, those providers received $5.64 billion in total revenues from public and private sources in Massachusetts and other states.

Assets range from buildings to vehicles to cash reserves, which have largely been acquired by the providers through their use of taxpayer revenues. As such, the assets held by the providers represent a “troubling transfer of that wealth from public to private ownership,” said COFAR President Thomas J. Frain. “We as taxpayers largely paid for those assets, but we’re never getting them back.”

Executive compensation vastly outpaces direct-care wages

The continuing increases in compensation of the provider executives stand in sharp contrast to largely stagnant wages that have been paid to direct-care personnel employed by the providers over the past several years.

It was only on July 28 that Governor Baker signed the state’s Fiscal 2023 budget, which contains a first-ever provision requiring all corporate human services providers receiving state funding under a special reserve account to direct at least 75% of that funding to compensation for direct-care and front-line staff.

There has been scarce information available, however, as to how much the budget provision will raise direct-care wages, and when the additional funding for those increases will be made available.

Frain said he is not persuaded that the new funding will do much to decrease the size of the gap between executive and direct-care wages. Direct-care wages have averaged around $16 an hour in Massachusetts. “The corporate provider service model allows the executives to siphon off large amounts of money that never make it to the direct-care workers,” he said.

Number of providers declined, but total compensation increased

Apparently due to consolidations and mergers, the total number of providers contracting with DDS to provide residential and day program services dropped from 298 to 160 — a drop of 46% — between Fiscal 2012 and the present. (Our numbers are based on the sizes of the two provider lists obtained from DDS in 2014 and this year.)

The apparent reason for the total increase in executive compensation in the period from Fiscal 2012 to 2020 is that there are actually more executives working for fewer providers today than in 2012. The number of vice presidents, in particular, rose from 100 to 162, between Fiscal 2012 and 2020.

As a result, the total number of executives rose to 682 in Fiscal 2020, compared to 635 in Fiscal 2012, according to information contained in the IRS 990 forms we examined.

In other words, the mergers and consolidations among the provider organizations do not appear to have reduced the layer of executive bureaucracy that existed in the provider system in Fiscal 2012. That layer has only grown thicker.

This may be one of the reasons that the promise of taxpayer savings in privatizing DDS services has not been realized.

The latest COFAR survey examined the compensation of 98 CEOs and presidents, 71 executive directors, 79 CFOs, 40 COOs, 162 vice presidents, and 232 other executivess, all earning average salaries of over $100,000.

Other updated survey findings include the following:

  • The average CEO compensation was $263,189 in Fiscal 2020, up from $210,227 in 2012. The average executive director compensation was $163,375, up from $130,835 in 2012.
  • The highest paid president received $903,135 in compensation from The Seven Hills Foundation in Fiscal 2020. In addition, the president’s spouse, listed as the executive VP/CEO, received $391,798 from that organization in Fiscal 2020. Together, the couple received $1.3 million in compensation from Seven Hills.
  • The former CEO of the Devereux Foundation stepped down from that position effective January 1, 2018, but continued to work for the organization. That official received $913,124 in Fiscal 2019 and $683,159 in Fiscal 2020 while averaging only 20 hours per week in the latter year, according to the organization’s IRS tax forms. In Fiscal 2020, the former and current CEO of Devereux received a combined $1.4 million in compensation.

(Click on chart below to enlarge.)

Our methodology for calculating state reimbursement of provider executives

State regulations (808 CMR 1.05 (24) Salaries of Officers and Managers) limit state reimbursements to providers for the cost of compensating their executives. Limited executive compensation data for each provider and allowable reimbursement by the state are included in online UFRs.

For fiscal Year 2020, the UFR Auditor’s Compliance Supplement established a cap on state reimbursement for executive compensation at $187,112. For any executive receiving compensation greater than the cap, that excess amount must come from sources other than the State of Massachusetts, according to the regulations.

The Compliance Supplement also states that state reimbursements of executive compensation must be prorated if human service executives devote less than full time to state programs.

The UFRs submitted by the providers, however, do not appear to clearly show the total amounts of compensation received by all executives working for those providers, or how much of that compensation is actually subject to reimbursement by the state.

OSD did not respond to a request from COFAR to clarify the Compliance Supplement methodology for calculating and prorating state reimbursements of executive compensation.

Based on the guidelines, we did our own calculations of the total state reimbursement due for each provider executive. Operating under an assumption that providers receiving a portion of their funding from out-of-state governments were not devoting full time to Massachusetts programs, we also calculated a prorated reimbursement for those providers. (See the Proration Rates tab in our full spreadsheet for our proration calculations).

We hope that by continuing to bring the issue of executive compensation to light via our periodic surveys, we can persuade the administration and Legislature to take steps to better oversee and limit that compensation.

We think the fact that total compensation paid to DDS provider executives has continued to rise even though the number of providers has dropped is one sign that the provider system is not subject to adequate financial management and oversight.

DDS emails show concern that governor’s COVID vaccination mandate could worsen staffing shortage in state-op group homes

August 8, 2022 1 comment

Department of Developmental Services (DDS) Commissioner Jane Ryder and at least one other top DDS official were concerned last September that Governor Baker’s COVID vaccination mandate for state employees could worsen an already existing staffing shortage in the Department’s state-operated group homes.

Those concerns were expressed in a handful of emails, which COFAR received from DDS late last month after a nine-month battle for internal records relating to closures and consolidations of the homes.

On July 8, the state’s Public Records Supervisor ruled that DDS must produce the records because the Department had not met its burden of proof that the emails were exempt from public disclosure. DDS provided the emails to us on July 29.

The internal emails confirm that there had been closures of some state-operated group homes in Massachusetts due to an executive order issued last August by Governor Baker requiring all state employees to be vaccinated by October 17 or face termnation.

That vaccination mandate applies only to staff of state-run residential facilities. It does not apply to the much larger network of DDS-funded group homes that are run by corporate providers.

As of October 21, we had received unconfirmed reports that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated for COVID.

In an email, dated September 24, Gall Gillespie, the DDS Metro Region director, stated that she wasn’t sure whether Baker was aware of the impact his vaccination mandate might have on the state-operated group home system.  Her email, which was sent to a DDS consultant, stated:

I am not sure the governor knows about the impact (of his vaccination mandate). Jane (Ryder) is briefing the secretary (Health and Human Services Secretary Marylou Sudders).

We have had homes consolidate and close, staff taking individuals home with them, and administrative staff working shifts. Some agencies are asking about the National Guard… We may be asking area and regional staff to fill in shifts if staff get terminated around the vaccine mandate. We cannot ask staff if they are vaccinated; so only know a percentage based on a cross check with DPH.

In an email earlier that same day to the same consultant, Gillespie described “a major crisis looming with the staff shortage…I think it is a problem that is almost too scary to address and it seems not in our control. It also does not directly affect some of our senior staff. Some of us are meeting and trying to come up with plans if we lose 20-40% of our direct care staff on October 17.”

But while those emails show a concern within DDS over the staffing shortages in the group home system and the potential impact of the vaccine mandate, no concerns were expressed in the emails about other potential causes of the staffing shortages such as the problem of low direct-care wages. One email from Gillespie said only that DDS would pay overtime to staff willing to work shifts in state-operated group homes after their regular work week was completed.

We have reported that a key cause of the staffing shortages has been low direct-care wages that have plagued the entire DDS system.

No discussion about future of state-run group homes

Administration officials have declined to comment to us on the staffing shortages or closure reports regarding either state-operated or provider-operated homes. The emails provided to us on July 29 confirm the Department’s concerns about those issues, at least regarding the state-run homes.

But the emails don’t contain any discussions about any plans or concerns DDS might have had regarding the future of the state-run group home system, which was one of the reasons we sought the internal documents.

We view the state-operated group home system to be a crucial backstop for care in the DDS system as a whole. Yet DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years.

Overtime offered to staff willing to work in state-ops

In an email on October 13 to DDS state-operated group home personnel, four days before the October 17 vaccination deadline, Gillespie again referred to the staffing shortage that DDS anticipated “will get worse after the deadline for the vaccine mandate passes.”

Gillespie said that while some staff had volunteered to work in Metro Region homes the previous week, DDS was now offering to pay overtime for staff willing to work shifts in those homes beyond their regular work week. She added that the Central West Region was also looking for volunteers to staff group homes.

In an October 12 email to all of the DDS regional directors, a DDS official listed clinics around the state at which state employees could get vaccinated.

As noted, none of the emails addressed the issue of long-term DDS policies concerning closing or consolidating state-operated group homes. As a result, it’s not clear why DDS fought so hard against releasing these emails to us.

No clear plan for addressing the staffing shortage or direct-care wages

It’s also not clear from the records that DDS has a systematic plan to address the staffing shortage or direct-care wage problems in either the state or provider-run group home networks.

The one thing that the internal DDS documents appears to show is that DDS offcials were, and potentially still are, concerned about staffing shortage in state-run group homes.

But it doesn’t appear DDS has done more to address that issue than to issue appeals for volunteers and offer to pay overtime to staff willing to work beyond their regular work week.

Late last month, Governor Baker signed the Fiscal Year 2023 budget, which includes a provision requiring DDS and other human services agencies to direct up to $173 million in state funding to boost wages of their direct-care workers, But to date, there has been little or no information available as to when that money will start flowing, or even what the impact will be on worker wages.

We think a plan is urgently needed from the administration that includes details on how the administration intends to deal with these issues.

DDS client removed against her will from shared-living home in alleged retaliation for reporting abuse

July 26, 2022 3 comments

It was on a Monday in May that Mercy Mezzanotti, a client of the Department of Developmental Services (DDS), was taken against her will from the home of Karen Faiola, with whom Mercy had been living for four years.

The person who came to take her worked for Venture Community Services, a nonprofit contractor to DDS. Up to that time, Venture had been paying Karen to provide shared-living services in her home to Mercy.

“I told them (the Venture employee and later other managers of the corporation) this is against my human rights,” Mercy said in a phone interview. “I’m my own guardian. I’m not going along with this. But they wouldn’t tell me anything. This should be under investigation.”

Both Mercy and Karen contend that Venture was retaliating against them because they had complained to managers of the organization in April that two of its employees had been verbally abusive toward Mercy.

Karen Faiola (left) and Mercy Mezzanotti

Mercy, 47, has a mild intellectual disability. As she put it, she has “trouble processing certain things.” But while she attended special needs classes in her school district as a child, she took mainstream classes in English and consistently made the honor roll. “I constantly studied,” she said. “I loved school.”

As her own guardian, Mercy has full legal authority to decide where to live, as well as to make other major life decisions. In our view, Venture’s alleged action to remove her from her home against her will was arbitrary if not unlawful.

Mercy and Karen said that the Venture employee drove Mercy on May 23 from Karen’s home in Sutton to the home of a family in Worcester that Mercy didn’t know. She said none of the people in the home spoke English. The next two days and nights were filled with anxiety and emotional trauma for her, Mercy said.

“I thought I would never see my home and Karen and my two cats that I love again,” she said.

Karen said that she conferred with Mercy’s private therapist after getting calls from Mercy saying she wanted to come home. She said the therapist maintained that Mercy had the right to make that decision; so Karen picked Mercy up on May 25, and drove her back to her home.  She said Mercy told her that she no longer wanted to have anything to do with Venture or its employees.

Venture stops payments

On May 23, the same day that Mercy was removed from Karen’s home, Venture notified Karen that they were terminating her shared-living contract to care for Mercy in her home. Karen said DDS officials have subsequently refused to act on her request that her contract be referred to another shared-living manager. She said the organization she suggested to DDS is located near her house and is one that she has experience with.

As a result of the contract termination, Karen said, she has not been paid since May for caring for Mercy in her home. She said that she nevertheless intends to keep Mercy there as long as Mercy wants. “I’m not going to allow anyone to take Mercy to any place she doesn’t want to be,” Karen said.

Under Mercy’s shared living arrangement, DDS had paid Venture to contract directly with Karen for providing residential services to Mercy. Karen said Venture paid her $2,882 a month under the contract.

“Karen has helpd me grow and see my potential and find a voice,” Mercy said. “I feel confident speaking to people.” She said Karen regularly takes her to doctors’ appointments, for pedicures, and to visit her father and a friend of hers.

Mercy added that she and Karen have gone hiking together and go shopping together. She said Karen makes her meals and helps here take care of her cats, while she takes the trash out. “I love Karen,” she said. “She’s  such a dream, such a great person.”

No written reason given in shared-living contract termination notice

Karen said a Venture employee alleged in a Zoom meeting with her and other provider personnel on May 19 that Mercy was going to be removed from her home because she had neglected to take Mercy to doctors’ appointments for the previous three years. Karen said this charge was untrue; and she provided COFAR with a doctor’s summary indicating that Mercy’s doctors’ visits and medications were up to date as of March of this year.

In a May 23 letter to Karen, Dorothy Cote, executive vice president and CFO of Venture, gave notice of the termination of Karen’s shared-living contract, but did not include a reason in the letter for the termination.

Cote’s termination letter cited a provision of the contract, which stated that Venture “may terminate (Mercy’s) placement upon due cause, a suspicion of due cause, abuse or neglect.”  The letter also said Mercy could be removed from the home  “pending the outcome of an investigation.” The letter, however, did not allege due cause, abuse or neglect against Karen. Cote’s letter also did not indicate that an investigation of any kind was pending.

If Venture officials did believe Karen had been neglectful in her role as a caregiver, there appears to be no indication that anyone reported an allegation against Karen of omission of care to the Disabled Persons Protection Commission (DPPC), as they would have been required to do.

Retaliation alleged for reporting abuse

Both Mercy and Karen contend that the sudden removal of Mercy from Karen’s home and termination of Karen’s contract were acts of retaliation by Venture against the two of them.

Karen said Mercy had been living with her for the past four years without incident. But she said that a number of months ago, there were changes in management at Venture, and problems began to develop with the new personnel. One of those new employees, she said, was assigned as a job coach to Mercy.

Mercy maintained that the job coach often harassed her at her job at a Papa Gino’s restaurant by mocking her work ethic. In one instance, in April, she said, the job coach suggested to the Papa Gino’s manager that she should fire Mercy. In another instance, she said, the job coach threatened not to drive Mercy home from work.

Karen said that in addition, a Venture service coordinator assigned to Mercy further abused her emotionally by threatening to remove her from Karen’s home.

Karen said she reported the incidents to a supervisor at Venture, and that led to the removal of Mercy from her home.

Therapist corroborates claims of emotional abuse

Grishelda Hogan, a licensed clinical social worker, has been Mercy’s therapist since 2019. In a July 21 email to Mercy and Karen, Hogan wrote that Mercy had “expressed consistently that she was happy in her home (with Karen)…It was clear in therapy,” Hogan stated, “that (Mercy) was making great strides in her life and I was able to see her self-esteem and self-worth develop as she finally felt seen and heard.“

Hogan stated that Mercy “had been reporting ongoing concerns with her Venture job coach. She reported feeling trapped and unsupported…” Hogan added that Mercy felt she had been lied to, and that the job coach had violated her privacy by talking to another individual on the phone about Mercy’s personal information. She said she passed her concerns on to DDS.

Hogan stated that she contacted Mercy’s DDS service coordinator after she learned that Mercy had been “abruptly moved from her home without warning or discussion despite being her own guardian.

“I shared that Mercy was reporting intense anxiety, difficulty sleeping, feeling sad and defeated, missing her home and her cat and her shared living monitor (Karen),” Hogan stated in her email to Karen and Mercy. “She was reaching out to me consistently asking for help and advocacy to get home.”

Hogan said the service coordinator told her she didn’t know the reason Mercy had been removed from her and Karen’s home. Hogan said Mercy had told her neither Venture nor DDS had ever asked her about concerns in the home prior to the move.

In her email, Hogan wrote that she personally reported to the DPPC that Mercy had been improperly moved from Karen’s home. “Mercy has consistently stated she believes her rights were violated,” Hogan wrote, “and DDS should be held accountable. And she fully believes the move was retaliation due to herself and her shared living monitor (Karen) speaking up.”

DPPC decides against full investigations of emotional abuse allegations 

Karen said she also reported three allegations of emotional abuse against Mercy to the DPPC in May, just before Mercy was removed from her home. Those allegations include instances involving the job coach and the service coordinator, and the then pending removal of Mercy from her home.

Subsequent letters addressed to Mercy from DDS Area Director Denise Haley, dated May 27, indicate that Karen’s allegations were referred to DDS for an Administrative Review.

According to DDS regulations, an Administrative Review is undertaken when the DPPC “screens out” abuse and other allegations for full investigations by either the DPPC itself or DDS (115 CMR 9.11). It’s not clear to us why DPPC would have screened out Karen’s and Hogan’s allegations, as both Karen and Mercy stated that Mercy had suffered emotional injury as a result of the alleged abuse.

No response to COFAR query sent to DDS area director and Venture CFO

On July 19, I sent an email query to DDS Area Director Haley and to Cote, the Venture executive vice president and CFO, raising our concerns about the removal of Mercy from Karen’s home and the termination of Karen’s shared-living contract, apparently without written cause. I cc’d Anthony Keane, the DDS Worcester regional director.

In the email, I discussed Karen’s and Mercy’s allegations of retaliation by Venture against them for having alleged abuse by Venture employees. I asked for any comment Cote or Haley might have. To date, I have not received a response from any of those persons to my email.

DDS removes client’s eligibility for Medicaid funding for shared living services

In my email to Haley, Cote, and Keane, I said we were also seeking an explanation for the apparent disqualification by DDS of Mercy from eligibility for Medicaid Intensive Support Waiver Services. A July 6 legal notice from DDS stated that Mercy was being denied eligibility for the Intensive Support Waiver. No reason was given for that denial in the notice, other than an unsupported and unexplained statement that there were “no waiver services” available.

We agree with Mercy that a full investigation is warranted of Venture’s apparently unlawful removal of her from her home, and of the other alleged instances of emotional abuse against her. We also would urge DDS to immediately refer Karen to another shared-living contracting agency, and that she be reimbursed retroactively for having provided shared-living services to Mercy since May.

This case appears to fit a pattern in which family members or other individuals who report abuse or poor care of DDS clients are dismissed or find themselves subject to retaliation by corporate providers or by the Department itself. We are hoping that in continuing to shine a light on these cases that we can help one day break this pattern.

Fiscal 2023 state budget will finally require DDS providers to boost direct-care wages

July 21, 2022 3 comments

Corporate providers to the Department of Developmental Services (DDS) and other human services agencies will be required to direct up to $173 million in state funding to boost wages of their direct-care workers, under the Fiscal Year 2023 state budget.

This past Sunday, 17 days into the new fiscal year, a state legslative House-Senate conference committee approved a budget plan that includes mixed results for our budget priorities. But it appears the approval of the direct-care wage provision is a big win.

On Monday, the Legislature gave formal approval to the overall $52.7 billion state budget, and sent it to Governor Baker for his signature.

Assuming that the governor does not veto it, the direct-care wage provision will require any corporate human services provider receiving state funding under a special reserve account to direct at least 75% of that funding to compensation for direct-care and front-line staff.

The problems of inadequate direct-care wages and resulting staffing shortages have reached critical levels in the state’s human services system; and, up to now, the administration and Legislature appear to have done little to address them.

The conference committee approved $230 million in funding for the provider reserve account for Fiscal 2023 — the same amount proposed by Governor Baker. The 75% funding provision would appear to require that $173 million in the reserve account be directed by human services providers to boost direct-care wages.

The passage of the funding provision was hailed by SEIU Local 509, a human services employee union that had been pushing for it, along with COFAR. But it remains unclear how much the requirement will raise direct-care wages, and how the 75% fundng provision will be tracked and enforced. We have called for a mnimum direct-care wage of $25 per hour.

On Twitter, Peter MacKinnon, president of Local 509, termed the enactment of the 75% wage provsion “a powerful statement of support for these essential workers and a significant first step in repairng the workforce crisis plaguing the human services industry.”

Additional reserve account funding proposed

The House earlier this week approved a separate bill (H.5034) that would establish a separate $100 million reserve fund based on federal COVID relief funding for the corporate providers, and would require that 90% of that reserve account be directed to direct-care staff.

The Senate has proposed funding that reserve account at $250 million, but has not yet acted on the legislation.

Conference committee approves flawed state commission budget language

The Fiscal 2023 budget also includes what we consider a flawed proposal to establish a state commission to study the history of institutional care in Massachusetts of persons with developmental disabilities and mental illness.

We had urged the conference committee not to approve what appeared to be a last-minute Senate budget amendment to establish the commission because it is not clear to us that the proposed commission will acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs).

We support the establishment of a commission to study the full history of the state facilities. But our concern is that proponents of further deinstitutionalizaton and privatization in the DDS system could use the commission, as established in the budget, to call for the closures of the Wrentham Developmental Center and Hogan Regional Center, and potentally other state-run residential facilities.

Nominal increases approved in funding for ICFs and state-operated group homes

The budget conference committee also approved nominal funding increases for state-operated group homes and the Wrentham and Hogan ICFs.

Both the House and Sente essentially adopted the governor’s budget numbers for those line items. The ICFs and state-operated group homes will receive increases in the current year of between 5% and 6% from the just-completed fiscal year.

However, in inflation-adjusted terms, these budget increases amount to cuts in funding for both the ICFs and state-operated group homes. According to the Bureau of Labor Statistics, the inflation rate in New England was 7.9% as of June.

We will keep fighting for adequate funding for state-run services in Massachusetts. And we will continue to bring you news of the efforts at long last to address the direct-care wage problem in the state.

 

Our state budget priorities for Fiscal Year 2023

July 6, 2022 3 comments

Fiscal Year 2023 in Massachusetts actually started this past Friday — on July 1 — but, as has become inceasingly the case in recent years, the state Legislature has gone past the fiscal year deadline wthout enacting a state budget.

For nearly a month, the Fiscal 2023 budget has been subject to closed-door deliberations in a conference committtee whose job is to iron out differences between the budget positions adopted this spring by the full House and Senate.

As a result, our budget priorities remain up in the air — dependent on the decisions being made by the six-member conference committee. Until the committee submits its report to the full Legislature, we won’t know the outcomes of the following priorities (not necessarily in order of importance to us):

1. More funding for direct-care wages

In early June, the Senate approved a budget provision requiring that any corporate human services provider receiving state funding under a special reserve account direct at least 75% of that funding to compensation for direct-care and front-line staff.

There was no such requirement in the House version of the budget. As a result, the House-Senate conference committee will decide whether the 75% provision stays in the final budget.

Earlier this year, both the House and Senate approved $230 million in funding for the reserve account for Fiscal 2023 — the same amount proposed by Governor Baker. The 75% funding provision would appear to require that $173 million in the reserve account be directed by human services providers to boost direct care wages.

We are supporting the 75% funding requirement although it is unclear how much the requirement would raise direct care wages. We have called for a mnimum direct care wage of $25 per hour.

2. Higher funding for state-operated group homes and Intermediate Care Facilities

State-operated group homes and the Wrentham Developmental Center and Hogan Regional Center would receive nominal dollar increases in the Fiscal 2023 budet.

But while the increase for the state-operated homes would have been roughly equal to the inflation rate when the governor proposed his budget in January, the proposed funding increase both for those residences and the Hogan and Wrentham centers would be lower than the inflation rate today.

Both the House and Sente have adopted the governor’s budget numbers for those line items. In inflation-adjusted terms, these budget numbers amount to cuts in funding for both the ICFs and state-operated group homes.

While we don’t expect the conference committee to increase funding for either line item, we hope it doesn’t cut either one.

State-operated group homes and the Hogan and Wrentham centers are the backbone of the Department of Developmental Services (DDS) system because they care humanely and efficiently for even the most profoundly intellectually disabled and medically involved people. They also provide jobs.

The developmental center or Intermediate Care Facility (ICF) line item has been cut by $68.4 million, or 39%, over the past decade, when adjusted for inflation.

That decrease in funding when adjusted for inflation stands in contrast to funding for the DDS corporate residential line item (5920-2000), which has skyrocketed over the past decade to over $1.4 billion. That is an amount that dwarfs the funding for state-operated group homes and the two remaining ICFs in Massachusetts.

3. Rectifying problems with state commission on the history of state facilities

We have urged members of the budget conference committee not to approve what appears to be a last-minute Senate budget amendment that would establish a state commission to study the history of institutional care of persons with developmental and other cognitive disabilities.

As is the case with proposed legislation still in committee to establish the commission, the Senate amendment does not make it clear that the proposed commission would acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or ICFs.

Given that the House did not adopt a similar budget provision to establish the commission, the commission proposal is subject to the House-Senate conference committee.

We think it is unwise for the conference committee to adopt the commission idea as a budget provision. This is an idea that needs to work its way through the checks and balances of the committee process.

At the least, we think language should be added to the proposed legislation stating that the commission will examine the complete history of the state’s institutional facilities.

4. Correcting misleading language that the U.S. Supreme Court ordered the elimination of institutional care

We have asked legislative leaders to correct language in the budget that mistakenly implies that the U.S. Supreme Court ordered the closures of institutions for persons with developmental disabilities.

The budget language cites Olmstead v. L.C., the Supreme Court’s landmark 1999 decision, which considered a petition by two residents of an institution in Georgia to be moved to community-based care.

The Olmstead decision has been frequently mischaracterized as requiring the closure of all remaining state-run congregate care facilities in the country. The decision, however, explicitly states that federal law — specifically the Americans with Disabilities Act (ADA) — does not require deinstitutionalization for those who don’t desire it.

In one of three instances in which we are seeking changes or corrections, the budget language states that DDS must report as of December 15 to the House and Senate Ways and Means Committees on “all efforts to comply with …Olmstead…and… the steps taken to consolidate or close an ICF…” (my emphasis)

In letters sent in May to the chairs of the House and Senate Ways and Means Committtees, we noted that closing institutions was not the intent of the Olmstead decision, which was written by the late Justice Ruth Bader Ginsburg.

We are concerned that the misstatements in the ICF line item in the state budget each year could allow the administration and Legislature to justify continuing to underfund the line item, and possibly to seek the eventual closures of the Wrentham and Hogan centers.

Once again, given that this language is in both the House and Senate versions of the budget, it isn’t clear that the conference committee will make any changes in this particular budget. But whatever the short-term outcomes, we will continue to fight for these priorities.

We’ve been in a nine month battle with DDS to view 8 emails about closures of state-operated group homes

June 30, 2022 1 comment

Last week, we filed the second of two appeals with the state Public Records Division for eight internal emails from the Department of Developmental Services (DDS) that may concern plans to close or consolidate state-operated group homes.

After two months of negotiations with DDS last fall, we had narrowed our Public Records request to just those eight emails. But following the negotiations, DDS simply declined in December to provide them, contending they are exempt from disclosure under the state’s Public Records Law.

As of the filing of our second appeal last week, our battle with the Department for records concerning its state-operated group home policies had stretched to nearly nine months.

In denying our request for the eight emails in December, DDS cited what is known as “Exemption d” to the Public Records Law, which says that a state agency can decline to disclose internal records “relating to policy positions being developed by the agency.”

As I’ll explain further below, we have countered that Exemption d does not apply in this case because the policy in question was adopted by the administration last August, and was no longer being developed when we requested the emails. We have suggested that the state Public Records Supervisor Rebecca Murray inspect the emails herself to determine whether Exemption d does or does not apply to them.

We’ve been concerned about the future of the state-operated group home network for years. While those homes are likely to recieve a nominal increase in state funding in the coming fiscal year, it is clear that DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years. Yet the Department has not provided any public information about its intentions regarding the future of the state-run residental system.

State-operated group home network facing unique pressures

We view the state-run group home system as as a crucial backstop for care in the DDS system as a whole. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the corporate provider system.

Yet the state-operated system has been facing unique pressures, particularly since the start of the COVID crisis. Last October, we received a report from a COFAR member that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated for COVID.

Just weeks prior to that – in August — Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated. That vaccination mandate applies only to staff of state-run residential facilities. It does not apply to the much larger network of DDS-funded group homes that are run by corporate providers.

Baker administration would not provide information

We initially emailed DDS Commissioner Jane Ryder and the press office at the Executive Office of Health and Human Services (EOHHS) on October 14 with questions about the reports of closures and consolidations in the state-operated group home network.

Ryder never responded to our query. A spokesperson for EOHHS said in a response to our email that we would have to file a Public Records Request for that information.

Records request narrowed from more than 1,000 emails to just 8

Based on the EOHHS response, we filed a Public Records request with DDS on October 15 for internal records that concerned closures or consolidations of DDS state-operated group homes due to unvaccinated staff or for other reasons.

In an initial response to our request on October 29, DDS stated that there were potentially 1,600 emails responsive to our request, and that producing the documents would require us to pay a $1,000 fee.

We agreed to narrow our request. And in a December 13 written response to us, a DDS attorney said the narrowed search had turned up a total of eight emails that were determined to be responsive to our request.

DDS cites “implementation of” the governor’s executive vaccination order as an “ongoing and evolving” policy

But despite identifying the eight emails as responsive, the DDS attorney stated in the December response that all eight of those emails were being withheld because they fell under Exemption d to the Public Records Law.

The attorney described the “implementation” of the governor’s vaccination order as “an ongoing and evolving policy matter.”

Renewed request for the 8 emails

In May of this year, after an initial appeal that did not result in the production of any additional documents by DDS, we tried again. We renewed our request for just the eight emails with the intention of appealing for a second time if DDS once again cited Exemption d. That is, in fact, what happened.

In a June 13 response, the DDS attorney stated that the “implementation” of the governor’s executive order was “still an ongoing and evolving policy matter which is still subject to the deliberative exemption.”

This time, the DDS attorney stated that:

While the governor’s executive order was implemented on August 19, 2021, ongoing and evolving policy matters continue related to the Agency’s implementation of the Executive Order, and the deliberative exemption applies to those policy decisions.

The DDS attorney added that the governor’s executive order had:

…impacted the discussion about and process of handling staffing shortages at DDS. The vaccine policy is still impacting the Department’s staffing shortage. Therefore, the records are still exempt under (Exemption d). (My emphasis)

DDS conflates policy implementation with policy development

In our second appeal of DDS’s response — which we filed on June 23 — we argued that the Department was “conflating the separate steps of policy development and policy implementation.”  We noted that Exemption d refers to policy positions “being developed” by an agency. The exemption does not say that records relating to policy positions that are  “being implemented” are exempt from disclosure.

We pointed out that public policies or policy positions are normally implemented after they have been developed or formulated. The implementation of policies can go on for years or decades or more. As we put it:

Certainly, the intent of “Exemption d” was not to allow agencies to assert that so long as policies are continuing to be implemented, all records concerning those policies remain exempt from disclosure.

We added:

As of June 23, now more than 10 months after the governor signed Executive Order 595, (DDS) says the policy is “still impacting the Department’s staffing shortage,” and has “impacted the discussion about and process of handling staffing shortages at DDS.” Here again, (DDS) appears to be talking about problems or issues the Department is having in implementing the executive order.

Finally, we suggested that the Public Records Supervisor review the eight emails in-camera to determine whether or not Exemption d does or does not apply to them.

In sum, we don’t know what is in the eight emails or whether the emails might shed any light on DDS’s plans for the future of the state-operated group home network. But given the administration’s unwillingness to provide any public information about those plans, all we can do is to fight for documents that are legally available and that might disclose the administraton’s intentions.

The fact that DDS is fighting back so hard to prevent the release of just those eight emails leads us to believe we may be onto something in seeking their release.

Senate budget amendment for commission on history of state schools continues to raise concerns of bias against state care

June 20, 2022 1 comment

In what appears to be an end run around the legislative committee process, the state Senate last month approved an amendment to state budget legislation that would establish a state commission to study the history of institutional care of persons with developmental and other cognitive disabilities.

But as is the case with proposed legislation still in committee to establish the commission, the Senate amendment does not make it clear that the proposed commission would acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs).

We have previously raised concerns about the legislation to establish the commission (S.1257, H.2090), which has been in the committee process for more than a year.

Given that the House did not adopt a similar budget provision to establish the commission, the proposal will be subject to a House-Senate conference committee that is currently meeting on the Fiscal Year 2023 state budget.

The Senate budget amendment addresses some concerns we previously raised about the proposed commission legislation, including language that indicates a bias against the state’s two remaining developmental centers – the Wrentham Developmental Center and the Hogan Regional Center in Danvers.

We do support efforts to study the history of the former state schools in Massachusetts for persons with developmental disabilities. Toward that end, we support proposed legislation to open up all historical state records to public inspection (S.2009, H.3150). But we want to ensure that the proposed commission considers the full history of these institutions, not just the darkest parts of that history prior to the 1980s.

Our concern is that proponents of further deinstitutionalizaton and privatization in the Department of Developmental Services (DDS) system could use the commission to call for the closures of the Wrentham and Hogan centers, and potentally other state-run residential facilities.

As we have pointed out many times, Wrentham and Hogan today provide state-of-the-art care, and are closely tied to their surrounding communities.

Budget amendment would provide four seats for residents and family members at Wrentham and Hogan

In one major improvement over the proposed legislation in committee, the Senate budget amendment would give residents and family members of the Hogan and Wrentham centers four out of what appear to be 16 seats on the commission.

But even in the Senate amendment, the makeup of the commission appears to still be largely dominated by opponents of the ICFs.

Also troubling is that pro-deinstitutionalization organizations such as the Arc of Massachusetts would specifically appoint at least three members of the commission. Meanwhile, the Hogan and Wrentham members would be appointed by the governor, who has also been a supporter of deinstitutionalization and the privatization of public services.

Commission proponent’s op-ed focuses on dark and early period of Fernald Center’s history

It is also troubling that some key proponents of the commission have continued to publicly express largely negative views of the history of the state schools without mentioning the significant upgrades that occurred starting in the 1980s in those institutions.

In discussing the Senate budget amendment in an op-ed in The Boston Globe on June 7, Alex Green, a major proponent of the commission, focused on the darkest years in the history of the state facilities in Massachusetts. Green specifically noted the connection of the former Fernald Center, in particular, to the eugenics movement in the late 19th and early 20th centuries.

Eugenics has been correctly characterized as a “scientifically erroneous and immoral theory of ‘racial improvement’ and ‘planned breeding.'” It gained popularity during the early 20th century.

In protests Green has organized against Fernald, and in petitions to Waltham Mayor Jeanette McCarthy, Green has similarly focused exclusively on  human rights abuses at Fernald in the first half of the 20th century. The Arc and other advocacy organizations have signed on to those petitions.

The early history of Fernald and the other state schools in Massachusetts is certainly a deeply troubling one. And the man for whom the institution was later named — Walter E. Fernald — was initially an active proponent of eugenics laws that were being adopted in the late 19th and early 20th centuries in the U.S. 

But by the 1920s, even Walter Fernald had come to reject the principles of eugenics, andbecame a supporter of community placement…” for persons with developmental disabilities, according to the Encyclopedia Britannica.

The commission legislation does not specify that the commission would examine the history of Fernald subsequent to Judge Tauro’s involvement

We have repeatedly objected to the commission legislation on the grounds that it doesn’t specify that the commission would consider the full history of the state schools.

The improvements at Fernald and the other institutions were undertaken as a result of the intervention of the late U.S. District Court Judge Joseph L. Tauro. Tauro noted those improvements when he disengaged from his oversight of a landmark consent decree case in 1993. He wrote that the improvements had “taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.”

The Senate budget amendment provides little specificity as to the historical focus of the commission. It does, however, contain this fairly convoluted sentence, which raises a number of questions about the commission’s focus. The sentence 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)

Given the commission will be largely dominated by organizations in favor of deinstitutionalization, we are concerned any such study of that issue may be biased.

It is also curious that  the history and current state of the independent living movement and deinstitutionalization would be included in the commission’s charge, given the subject of the commission is the history of state institutions.

The Senate amendment doesn’t define the “independent living movement.” Also, a complete study of just deinstitutionalization would take the effort of a separate commission in itself.

In addition, we think it is unwise for the budget conference committee to adopt the commission idea as a budget provision. This is an idea that needs to work its way through the checks and balances of the committee process.

As part of that committee process, the concerns we’ve raised about the makeup and possible bias of the commission still need to be addressed. At the least, we think language should be added to the proposed legislation stating that the commission will examine the complete history of the state’s institutional facilities.

The full history of the state institutions for persons with cognitve disabilities in Massachusetts starts with the founding of those facilities, and it continues to the present day.

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