Home > Uncategorized > Judge rules against Fernald transfer

Judge rules against Fernald transfer

A state administrative judge has thrown a new hurdle in the path of the closure of the Fernald Developmental Center, ruling that moving one of the remaining 14 residents out would not be in that resident’s best interest.

In a June 9 decision, Administrative Law Magistrate Kenneth Forton ruled that the resident, identified as Daniel O., would not receive improved services and quality of life if he were moved, as planned, to the Wrentham Developmental Center.

This is the first appeals case to be decided in favor the remaining Fernald residents, whose guardians have appealed the transfers to the state Division of Administrative Law Appeals.  The appeals have already kept Fernald open a year beyond the administration’s planned closure date;  and the administration appears to be projecting that the Center will stay open at least another year as a result of the ongoing litigation.

But before the Association of Developmental Disabilities Providers once again rushes in to blame the guardians of these intellectually disabled residents for the cost of delaying Fernald’s closure, let me pre-emptively make a few points:

1.  As the guardians’ attorney, Stephen Sheehy, has pointed out, the appeals are not intended to keep Fernald open.  They are based on a state law, which says that the state must show that a resident’s services and quality of life will be improved if he or she is to be transferred to another location.

In the case involving Daniel O., the administrative magistrate has concluded that he will not receive improved services or quality of life as a result of the move to Wrentham, at least under the circumstances established by the Department of Developmental Services.  If DDS can demonstrate that the move will be in Daniel O.’s best interest, his guardian will not object to it, Sheehy says.

2.  It is DDS, not the guardians, that is responsible for the cost of keeping Fernald running for the 14 remaining residents while the appeals are pending.  DDS has continually refused to discuss longstanding proposals by the guardians and other advocates for a settlement of the dispute.

For years, we have proposed a “postage stamp” arrangement for Fernald under which new, cost-effective housing would be provided in a reduced section of the campus for the current residents, while the remainder of the campus was developed for other uses.  A compromise based on the postage-stamp idea would end the entire litigation process and allow the state and the Fernald guardians and families to move forward with a cost-effective plan for the future.

Sheehy has stated that DDS remains uninterested in negotiating any type of compromise settlement.  The adminisration has even refused to discuss proposals for saving money during the appeals process by consolidating the remaining residents into one building or location.  Right now the residents are dispersed among several buildings on the campus.

3.  The ADDP has repeatedly inflated the current cost of operating Fernald, stating erroneously that the state is spending as much as $1.3 million per month for the remaining residents there.  In fact, the $1.3 million is an average figure for care throughout the entire current fiscal year, during which there have been as many as 70 residents at Fernald.  The reason for the per-person cost at Fernald has risen is solely due to the mathematical fact that the number of residents left there has steadily declined.  It is a reason to look for more cost-effective ways to operate the Center,  but DDS inexplicably refuses to do.

4.  The ADDP has wrongly stated that  the continued operation of Fernald and the other developmental centers for a small number of people is taking away funding for thousands of people in the community.  This is comparing apples to oranges.  Most of the people in the community system don’t have the high level of needs that the developmental center residents do.  Even if the centers were all closed tomorrow, the state would still have to spend a much larger-than-average amount of money per person to care for those former residents elsewhere.

Think of it this way:  A university with 30,000 students buys 80 helmets for the football team.  The ADDP is effectively arguing that this is unfair — the school should be buying helmets for everyone.  It’s a false argument.  Not everyone in the school needs a helmet; in fact, only a small minority need them.  If the school, out of a misguided sense of fairness, decided not to buy the helmets for the team, it wouldn’t save money in the long run.

  1. Ed
    June 17, 2011 at 9:30 pm

    It’s very encouraging to hear that Judge Forton was able to see with clarity the inappropriateness of the proposed move for Daniel O. Common sense prevailed.

    The analogy of the football helmet purchase in point #4 above is excellent. And regarding the “postage stamp” proposal in #2, I still can’t understand DDS’s refusal to acknowledge the reasonableness of such a plan. True, this stamp would cost more than 44 cents, but it would save a ton of money in service, maintenance, and legal costs.


  2. June 20, 2011 at 9:32 pm

    I’m posting the following very kind comment to this post, which was emailed to me by James Kramer, whose brother-in-law, Jimmy Holdsworth, resides at the Templeton Developmental Center. James asked me to post the comment on his behalf, as he is “computer challenged.”

    Dear COFAR:

    Thank you for your work. On behalf of my brother-in-law, Jimmy Holdsworth, of Templeton Developemental Center, who is 60 years old, and has autism, I wish to commend you. I also believe I can speak for my Mother-in-law, Mary Holdsworth, my lawyer sister-in-law, Judith Holdsworth, and my wife, Elizabeth Holdsworth Kramer, in again thanking you for your work. I am thankful for the “common sense” decision of the Judge, in this case, and the excellent reasoning of your entry on the blog. Thank you for the thoughtful and intellectual
    abilities and actions that you are giving in your work. The late Fred Rogers, of Mister Rogers Neighborhood “fame”, I believe, would be proud of your work. Fred Rogers was a friend of the late Catholic writer, Henri Nouwen, who late in his life, found his calling with the L’Arche Catholic Homes for those with severe disabilities. Henri Nouwen wrote of his experiences in the last books of his life. He found his life and work very meaningful in his last years. Henri
    Nouwen left being a high positions of teaching theology at Harvard and Yale to become the chaplain at the L’Arche Toronto homes. I believe that you are involved in a similiar mission, albeit, in the so-called “secular” domain. I think you should regard your work and mission to be similiar to the work of Mr. Rogers and Fr. Nouwen. I think that should give you a “good feeling”. I hope you will know from this of my high appreciation for all that you are doing, and
    for all that how you spending your professional lives to “serve the least” and the least able to defend what is in their best interest. You are in an intellectual “battle” and I, for one, admire what you have done and what you are doing. I think that Mr. Rogers would be proud of you-all.

    I believe that it would be best to develope LEED certified “green” housing units, in the “postage stamp” concept, for new future housing, of those who are in state custody, like our Jimmy Holdsworth. I believe that should be happening in a state that is in the forefront of “green” technology such as Massachusetts is. This kind of housing should be built to take the place of the current
    housing such as Fernald and Templeton. It would be an intelligent and simple solution, and it is the way that all of us should be moving in the future. We are all going to have to make more intelligent and simple healthier everyday choices, in order to survive the challenging finanacial situation we are in. I have worked as a missionary with the Mennonite church in the past, and
    that is the way we are going to have to work and live in the future. There is a past American history of intelligent and simple meaningful living and we will need to do this in the days, months, and years to come.

    As a recent expression of this kind of mindset on television I can not more highly recommend the life and work of the late Fred Rogers. Not only in his work with television, but also in his work off-screen, he shows us the way of living that we will need. I cannot recommend more highly the watching of episodes of “Mister Rogers Neighborhood” for daily inspiration. I cannot
    recommend more highly the decision to see in your work a continuation of his work, and to see that we all make everyday a special day just by being ourselves, and serving our “neighbors” with reverence, intelligence,simplicity, and kindness. What is essential is invisible to the eyes, and
    I believe that you are serving God, and your neighbors, with a special grace and intelligence, and I wish to encourage you, in your hearts, to know of my appreciation. I don’t have a lot of money to contribute to this cause, but know, for sure, that you are in my daily thoughts and prayers. Please
    know that I think that those whom you represent are very blessed to be represented by you, and your work.

    You may put my remarks on your blog, as I am computer challenged – 🙂

    With warm regards,
    for your intelligent and kind service,

    God bless,

    Mr. James A. Kramer


  3. Sue S
    June 20, 2011 at 10:48 pm

    A very heart-felt message. I hope the courage of Fernald guardians and the work of the people at COFAR inspire Mr. Kramer’s family to fight for what they know is in the best interest of his family member and the good quality of life he has come to know at Templeton.


  4. Ed
    June 21, 2011 at 5:12 pm

    That’s a beautiful endorsement from Mr. Kramer. We’re in good company when we’re mentioned along with Fred Rogers. I recently returned from the annual VOR conference in D.C., and was impressed by being in the same room with so many caring parents and guardians who are fighting similar battles in states all over this country.


  5. Margaret Chisholm
    July 7, 2011 at 11:55 pm

    My brother Danny Healey died in January, 2001, at the age of 42 and after 28 wonderful years at Fernald. He had been failing in the last couple of years of his life, but sad to say we were grateful that he died peacefully before we had to face the horror of his being evicted from the happy home he had known at Cottage 13. it breaks my heart to observe the suffering of the families like ours who are fighting for the well being of their developmentally delayed relatives who were so well served by Templeton, Fernald, etc. I wish you continued courage, energy and dtermination as you fight for your loved ones’ safety and full flourishing. God bless all of you.


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