COFAR blog

If any more evidence was needed that the human services providers and the Patrick administration are attempting to tarnish the Fernald Developmental Center’s families in order to discredit the highly successful model of state-run care for the intellectually disabled in Massachusetts, today’s Boston Herald story provides it.

“16M to care for 14 people,” is the headline; and in the story, Gary Blumenthal, president of the Association of Developmental Disabilities Providers, calls the cost “excessive” and blames it on the guardians of the remaining Fernald residents because they are delaying the Center’s closure.  Those guardians have simply exercised their statutory right to file administrative and Superior Court appeals of the transfers of their wards out of Fernald.

Moreover, we’ve just learned that DDS stated in Superior Court earlier this month that the cost of operating Fernald may actually be $9.8 million, not $16 million (more about that below).  Secondly, if, in fact, 95 staff do remain at Fernald for the remaining residents, as the Herald story and DDS say, that is an indication of mismanagement on the part of DDS; it’s not the fault of the guardians.

Meanwhile, in a comment on our previous post on Blue Mass Group about the use of Fernald as a political football, Blumenthal (under the user name, Garyof Sudbury), chides COFAR for encouraging “endless appeals and endless studies” in an effort to keep the developmental centers open.  This is a mischaracterization of COFAR’s role in advocating for adequate care for DDS clients.

Here, to the best of our knowledge, is what is really happening regarding Fernald and the other developmental center closures:

1.  Earlier this month, the administration provided numbers on the cost of operating Fernald that are nearly 40 percent lower than what it is publicly citing to the Herald.  In a comment posted on the COFAR blogsite, Stephen Sheehy, the attorney representing the remaining Fernald residents, states that on May 6,  DDS submitted an affidavit in Middlesex Superior Court that the cost of keeping Fernald open is approximately $9.8 million per year.

DDS Commissioner Elin Howe stated in a conference call last week that the cost of operating Fernald this year was $15.6 million.  The Herald is saying $16 million (and stating, by the way, that was the cost last year when there were far more than 14 people left at Fernald).  So, who knows what the real figure is.

2.  The administration and the ADDP are ignoring COFAR’s longstanding proposals to rightsize the remaining developmental centers in Massachusetts or otherwise operate them more efficiently. 

COFAR and other affiliated organizations have long called for “postage-stamp” arrangements at the developmental campuses that would enable current residents to remain there and receive the same level of care while the rest of the campuses were developed for other uses.  No one is advocating the preservation of  large, outdated buildings on these campuses.  What we do want to preserve is the model of care that currently exists there in the most cost-effective way possible.

The administration has never even wanted to discuss the postage-stamp approach.  They have always viewed the issue in purely binary terms: either we continue to operate all the facilities as they are today, or we close them all and evict all their remaining residents.  There have been no other options even worth considering for them.

3.  The ADDP is deliberately mischaracterizing the history of litigation over Fernald in order to paint COFAR as somehow responsible for the cost of delay in closing Fernald.

Here’s a brief history of that litigation (reprised from my response to GaryofSudbury):

From 1974 to 1993, U.S. District Court Judge Joseph Tauro presided over the landmark Ricci v. Okin consent decree case, which brought about significant improvements in care and services at Fernald and other developmental centers in Massachusetts.

In 2004, the Fernald plaintiffs in the Ricci case (some of whom are COFAR members) urged  Tauro to reopen the case, not to delay Fernald’s closure, which Tauro said he would not do, but to investigate apparent violations of Tauro’s order that transfers out of Fernald must result in equal or better care.  It was the Patrick administration — not COFAR or the Fernald plaintiffs — who then went to court to appeal Tauro’s 2007 ruling in which he found that DDS had engaged in a systemic violation of his order.

In 2008, the U.S. Court of Appeals overturned Tauro’s 2007 ruling.  The Fernald plaintiffs appealed to the U.S. Supreme Court, arguing that the Appeals Court had not given Tauro due deference in their decision. The Supreme Court declined to hear the case.

Since that time, some of the Fernald guardians have exercised their statutory and regulatory rights to file administrative appeals of the transfers of their wards from Fernald, on the grounds that these transfers would not result in improved services.  COFAR has not publicly or privately encouraged or discouraged those appeals.  We fully support the personal decisions that any guardian chooses to make in these cases.

It’s perhaps ironic that if the administration had agreed years ago to consider our proposal to develop cost-effective group homes delivering the current level of care on the current campuses, we could have avoided all the delays and litigation that the providers and the administration are now decrying.

In summary, as we pointed out in our previous post, what we’re now seeing is a campaign by the administration and the providers to use Fernald to discredit a proposed budget amendment that would require an independent cost study before the Templeton, Monson, and Glavin developmental centers could be closed.  The argument being made by the administration and the provders is that this budget amendment would cause delays in the closures of those three facilities, and that soon we will be paying the same high costs to keep those centers open that we’re allegedly paying for Fernald.

This is nonsense.  An independent cost study will simply help us determine whether we’re on the right track fiscally in closing these facilities.  As I hope we’ve shown, we can’t leave it solely up to this administration to provide credible numbers or other information about this matter.

The Fernald Developmental Center may be almost closed, but it’s now apparently being used as a political football by the administration and the human service providers who are seeking to close at least three additional state facilities for persons in Massachusetts with intellectual disabilities.

In the past month, both the providers and the administration have cited an allegedly high current operating cost for Fernald as a reason to oppose a cost study prior to closing the Monson, Templeton, and Glavin centers.  Nevermind that Fernald is not even included in a proposed state budget amendment calling for the cost study.  

Moreover, while we haven’t yet seen the Fernald budget numbers the providers and the administration are citing, we understand the reportedly high cost is due to a decision by the administration to maintain an unusually high number of staff at the facility for its 19 remaining residents.   The reason for the high staffing level isn’t clear.  The guardians of those remaining residents have filed administrative appeals of Fernald’s closure.

During the ongoing budget debate in the Legislature, the Department of Developmental Services  and the Association of Developmental Disabilities Providers have been telling legislators that it is costing as much as $917,000 per resident per year to operate Fernald.   As the linked State House News story shows, ADDP President Gary Blumenthal last month cited that Fernald cost figure, which was disclosed by DDS,  in order to discredit a House budget amendment requiring an independent cost study prior to closing Monson, Templeton, and Glavin.

The logic of the administration and the provders appears to go something like this:  “Because we’re spending an unusually high amount this year to keep the Fernald Center open for the remaining residents,  we shouldn’t even waste time studying the cost of closing or maintaining  three other facilities where the costs actually happen to be considerably lower.   The Fernald cost shows we must close all four of these facilities as fast as possible.”

That this tactic has had an impact in the Legislature became clear when a small group of COFAR members met on Wednesday of last week with a staff member of Senator Stephen Brewer, chairman of the Senate Ways and Means Committee, to push for the cost study amendment.   The staffer, without any prompting, mentioned she had heard Fernald was costing $18 million this year to operate.

That afternoon, in a conference call, I asked DDS Commissioner Elin Howe about the reported $18 million cost.  Howe said the cost was closer to $15.6 million, which would translate to a still sky-high figure of $821,000 per person to keep Fernald running this year.  When I asked what the money was being spent on, Howe said the high cost was due to the fact that 95 staff remain at Fernald — a staff-to-resident ratio of 5 to 1.

I was so taken aback by what Howe had just said that I didn’t think to ask her why the administration is maintaining such a high staffing ratio at Fernald.  That ratio appears to be the reverse of the 1 to 3.2 staff-to-resident ratio required under federal regulations for Intermediate Care Facilities.   The next day, at DDS’s request, I submitted a written question to Howe about the situation.  I haven’t yet gotten a response.

Howe, by the way, said that if I wanted to get the same Fernald budget numbers that Blumenthal was citing to the State House News Service and which DDS has apparently provided to legislators, I would have to file a freedom of information request.  I did so the next day.

I then heard that day from Senator Brewer’s office that the high staffing level at Fernald is reportedly due to a court order that has prevented DDS from moving the remaining 19 residents there into one building on the campus.  But we’ve heard from other sources that there may not actually have been any such court order.

Whatever the reason for Fernald’s current operating cost, to introduce Fernald into a debate over whether to even study the cost of operating the Monson, Glavin, and Templeton centers is disingenuous and misleading.  Luckily, Senator Brewer now appears to understand that.  “We know it’s not accurate (to link the alleged Fernald cost to the other three facilities),” the staff member said.