Archive for December, 2018

DDS lags independent DPPC in abuse substantiations

December 18, 2018 1 comment

Although the state Department of Developmental Services investigates far more abuse allegations of the developmentally disabled in Massachusetts than does the independent Disabled Persons Protection Commission (DPPC), DDS found a lower percentage of the allegations to have merit than did the DPPC between Fiscal Year 2015 and the present, data provided by the DPPC show.

While the DPPC is technically the lead state agency in investigating complaints of abuse and neglect of the disabled in the state, the agency is so poorly funded that it is forced to refer most of the complaints it receives to DDS and other agencies to investigate.

As the chart below shows, the DPPC “substantiated” an average of 22.7% of the abuse allegations that the agency itself investigated from Fiscal Year 2015 through 2019. During that same time period, DDS substantiated an average of only 13.6% of the allegations that the Department itself investigated.

The chart is based on the DPPC data, provided to COFAR under a Public Records Law request.

Chart on DPPC and DDS substantiated abuse cases

When allegations of abuse are substantiated, DDS and its corporate providers of care are usually required to take corrective measures, which can include providing training, changing procedures, and barring alleged abusers from further employment in the system. The DPPC has a separate State Police Detective Unit that refers some of the allegations to local district attorneys offices for separate criminal investigation and prosecution.

The DPPC, which was established in 1987 as an independent agency to investigate allegations of abuse and neglect of adults with intellectual and other disabilities, had only four investigators on its staff (not counting the State Police Unit) as of Fiscal Year 2017, according to its latest online annual report. Despite that, the agency received more than 11,000 reports of abuse of the disabled that year, according to the annual report.

According to the DPPC data, the agency itself investigated an average of only 144 abuse complaints per year between Fiscal Years 2015 and 2018, the last year for which complete data were provided. During that same period, the DPPC referred an average of 1,743 complaints per year to DDS to investigate.

But while DDS does have more investigative resources than the DPPC, DDS’s main function is to manage and oversee care to the intellectually and developmentally disabled through a network of both state-operated and corporate provider-operated group homes and other facilities. As such, DDS appears to face a conflict of interest in investigating allegations of abuse and neglect in its own system.

The DPPC data for Fiscal 2019 are only partial so the percentage of substantiated cases between the DPPC and DDS may not vary as widely as of the end of the year as they appear to do now. But there seems to be a pattern going back to Fiscal 2015 that verifies concerns we’ve raised that DDS has an incentive to downplay complaints of abuse and neglect in its own facilities, whether they are state or provider-operated.

The DPPC doesn’t appear to want to talk with us. Neither Nancy Alterio, the executive director of the agency, or anyone else there has agreed to several requests for an interview.

Apparently, very little has changed since 2004 in the relationship between the DPPC and DDS except that prior to at least that year, DPPC officials were willing to state publicly that DDS was compromised in investigating abuse within its own system.

The January 2004 issue of The COFAR Voice noted that the DPPC had issued a position statement charging that DDS (then the Department of Mental Retardation), the Department of Mental Health, and other state agencies were “vulnerable to pressures that could compromise the integrity of their investigative findings (in abuse cases).”

There have been instances, the DPPC statement noted, in which information contained in investigative reports had been altered “to absolve the service-providing agency from liability.”

The DPPC statement added that among the reasons that the DPPC should conduct abuse investigations internally were that it would lend integrity to the investigation process and would provide a “political safety valve” to other agencies, whose own investigations might otherwise be branded as “whitewashes.”

The DPPC statement even compared the investigations of abuse by service-providing agencies to the recent sex abuse scandal within the Catholic Church in which the system had “closed its eyes to its failings and attempted to protect itself by protecting the wrongdoers within it.”

Thomas J. Frain, COFAR’s president, is also quoted in the 2004 article, as saying, “DMR is dependent on these providers for services and is going to be very reluctant to sanction them for either poor service or abuse. We need an independent organization like the DPPC to do this.”

Seeking additional information

Last week, we asked the DPPC for additional data, including:

  1. The number of investigators employed by DDS and the DPPC to investigate complaints of abuse  from Fiscal Year 2004 to the present.
  1. Any written agreements between the DPPC or DDS or written policies or guidelines that concern the process of determining which abuse complaints are assigned for investigation by the DPPC and which complaints are assigned for investigation by DDS.

We have also asked both the DPPC and DDS for comment on the data showing a higher percentage of substantiation of abuse complaints by the DPPC. So far, we have not heard back from either agency on that question.

And we’ve asked the DPPC whether they stand by the agency’s statement prior to 2004 that the agency should have the resources to conduct all abuse investigations internally. We’ve asked DDS as well whether they agree that the DPPC should conduct all abuse investigations.

We’ll be back here to report on the answers we get from each agency. It’s certainly possible that the DPPC and DDS will provide a reason we haven’t thought of as to why the abuse substantiation rates differ between each agency. (We would note that the overall percentage difference between 2015 and the present appears to be large enough that it is likely not due to chance alone.)

Whatever that reason given, if a reason is given, for the difference in the substantiation percentages might be, we’ll report it. But the perception of a conflict of interest remains in having the DDS investigate its own system. Thirty-one years after the creation of the DPPC, that needs to be changed.


Judge Joseph L. Tauro, a giant in the treatment of the developmentally disabled, dies at 87

December 3, 2018 Leave a comment

Retired U.S. District Court Judge Joseph L. Tauro, who oversaw the upgrade of the institutional system of care for the intellectually and developmentally disabled in Massachusetts for decades starting in the 1970s, died on November 30 at the age of 87.

Tauro changed the course of history for persons with developmental disabilities in Massachusetts. His many rulings in the landmark Ricci v. Okin class action litigation over conditions in the institutional system in the 1970s and 1980s improved the lives of thousands.

Judge Tauro

The Honorable Joseph L. Tauro

“Judge Joseph L. Tauro treated developmentally disabled individuals and their families with dignity and compassion, and he listened when no one else would,” said Colleen Lutkevich, COFAR executive director. “In 1972 and for the next twenty years, he took a disgraceful system of care where people were warehoused in overcrowded facilities with minimal services, and he used the power of his office and the law to bully and cajole the state and federal government into doing the right thing.”

Tauro ruled in the case of Ricci v. Okin, a combined class-action lawsuit first brought by activist Ben Ricci over the conditions at the Belchertown State School.  Those conditions were chronicled in Ricci’s book, Crimes Against Humanity, and later in books such as You’ll Like it Here, a 2016 account  by Ed Orzechowski of the life of Donald Vitkus, a survivor of the former Belchertown State School.

In 1972, separate lawsuits were initially filed on behalf of the residents of five state schools: Fernald, Dever, Monson, Wrentham, and Belchertown. The lawsuits charged that the facilities were understaffed and that conditions in them were inhumane.

Tauro, who visited the facilities to observe the conditions first hand, noted two decades later in his 1993 disengagement order from the case that the legal process had resulted in major capital and staffing improvements to the facilities and a program of community placements. Together, those improvements and placements 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.”

“Services in the facilities were turned around through increased funding and staffing,  and the community system of the Department of Developmental Services was also built, allowing appropriately placed residents to find new homes and jobs in cities and towns all across Massachusetts,” Lutkevich said.  “For those who remained in the facilities, their days also became meaningful, with clinical services, and therapeutic, recreational and work opportunities never before thought possible.”

Involvement in the effort in the 2000s to keep Fernald open

Despite his official disengagement from the Ricci case, Tauro’s involvement in the case did not end after 1993. Eleven years after his disengagement order, he went on to play a dramatic role in an effort by the original plaintiffs in the case to keep the then Fernald Developmental Center open in the face of attempts by the then Romney and later Patrick administrations to close it along with other remaining developmental centers in Massachusetts.

Ultimately, Tauro’s 2007 ruling in the case that the Fernald Center should remain as a residential option to its residents was overturned by the First Circuit U.S. Court of Appeals.

The Appeals Court ruling dealt an enormous blow to the decades of work that Tauro had done in the Ricci case, in part, because the appeals court’s decision included no deference to Tauro’s rulings and expertise. Nevertheless, Tauro’s re-involvement in the case after 2004 demonstrated his caring and humanity as clearly as his earlier involvement had in the 1970s and 1980s.

Speaking about the residents of the Fernald Center during a November 2004 hearing in his courtroom on the potential reopening of the case, Tauro noted that many of those residents were elderly. “In the remaining moments of their lives,” he said, “they ought to be treated with great dignity.”  His remark drew strong applause from the close to 200 observers in the courtroom, many of whom were family members of the residents.

Successive administrations undercut Tauro’s rulings in the Ricci case

Efforts to chip away at Tauro’s legacy in the Ricci case began in the early 1990s under then Governor William Weld, who moved to close nine state-run human services facilities in Massachusetts, including three developmental centers serving the developmentally disabled.

Then in 2003,  then Governor Mitt Romney announced plans to close at least four of the six remaining state-run developmental centers. All of those facilities had undergone upgrades in care and conditions as a result of Tauro’s involvement in the Ricci litigation. Hundreds of millions of dollars had been spent on the upgrades.

Starting with Fernald, those remaining facilities slated for closure included the Glavin, Monson, and Tampleton centers.

Plaintiffs charge that Tauro’s disengagement order had been violated

In 2004, Beryl Cohn, an attorney for the original Ricci plaintiffs, charged that the Romney administration was trying to close Fernald in violation of Tauro’s 1993 disengagement order.  Cohen cited the administration’s planned closure of Fernald in conjunction with
“unprecedented” personnel reductions and budget cuts in the then Department of Mental Retardation system.

According to the plaintiffs, some 30 years after the Ricci class action lawsuit had been filed, the Romney administration had allowed a recurrence of some of the same conditions at certain of the state facilities that had sparked the original case, including insufficient staffing, lack of equipment, delayed maintenance,  infestation of vermin, and other problems.

Tauro’s disengagement order had also required that before anyone could be transferred out of a state-run facility, care in the new location must be certified as equal or better.

In July 2004, the then Fernald League and other plaintiffs filed a motion in U.S. District Court to seek Tauro’s renewed involvement in the Ricci case.

During a contentious hearing in his courtroom in November of 2004,  Tauro appeared to accept the argument that a rush to close Fernald and the other facilities without adequate plans for the welfare of their current residents could violate his disengagement order. He also noted that many communities had not accepted group homes for the developmentally disabled, and that it could be difficult to find placements for Fernald residents.

“What’s the advantage in hurrying to speed up the closing (of Fernald) if it’s going to speed up litigation that’s going to last for five years?” Tauro said in pointed remarks to counsel for the Department of Mental Retardation and DMR Commissioner Gerald Morrissey, who was in attendance. “I don’t know if I’ll accept this case. If I do, I’ll come up with a solution…Let’s get it done right so everyone applauds it.”

Tauro forbids discussions of transfers from Fernald 

In January 2005, Tauro stated that he was prepared to step back into the case if Cohen were to demonstrate that care and services to transferred individuals were being cut. He ordered DMR officials to provide Cohen with Individual Support Plans (ISPs) for all Fernald residents, including those who had been transferred elsewhere.

Over the next six months, Tauro continued to hold hearings. In June of that year, he warned the administration not even to discuss transferring residents out of Fernald with families unless the ISPs stated the moves were appropriate. “If there is no ISP in place, then
there will be no discussions on transfers (out of Fernald),” Tauro said, as DMR Commissioner Gerald Morrissey and his legal staff sat before him in the courtroom. “If that’s not going to happen, then we are going to have a little trouble.”

Tauro appoints U.S. attorney as court monitor in Fernald closure 

In February 2006, Tauro appointed then U.S. Attorney Michael Sullivan as Court Monitor in the case and asked Sullivan to review the transfers by DMR of 49 residents from Fernald since 2003.  Pending the completion of Sullivan’s review, Tauro ordered a halt to all further transfers from Fernald to other locations.

In March 2007, in a stunning blow to the Fernald closure advocates, Sullivan recommended to the newly installed Patrick administration that Fernald remain open.

In making the recommendation that Fernald remain open, Sullivan maintained in his report to Tauro that while the level of care there might be able to be duplicated elsewhere, the loss of familiar surroundings and people “could have devastating effects [on the residents] that unravel years of positive, non­abusive behavior.” Nevertheless, Sullivan concluded that the state had followed the letter of Tauro’s 1993 disengagement order in that administration officials had technically certified that persons transferred from Fernald would receive equal or better care.

Sullivan also told Tauro that he found two areas of “significant concerns” in community-­based care. One involved the delivery of medical services in the community, and the second involved the potentially higher risk of abuse and neglect in community­-based residences than in the facilities and other state-­operated residences.

Final ruling that Fernald must be offered as a residential option

Despite Sullivan’s recommendation, the Patrick administration did not back away from the Romney administration’s position on the developmental centers, and continued to press ahead to close Fernald.

That led to Tauro’s final ruling in August 2007 that Fernald residents and their families and guardians must be offered the option of remaining at Fernald. The ruling was seen by the administration as preventing the closure of Fernald, and the administration appealed the ruling to the First Circuit U.S. Court of Appeals.

Tauro’s final ruling is overturned

Without considering the merits of Tauro’s reasoning in his 2007 ruling, the three-judge federal appeals court panel ruled in October 2008 that Tauro never had jurisdiction to reopen the Ricci case. As such, the appeals court allowed the Patrick administration to proceed with Fernald’s closure. That closure, however, was not completed for another six years as more than a dozen families and guardians of the remaining residents exercised their right to administrative appeals of the transfers of the residents.

Tauro seals the records

After the First Circuit Court of Appeals overturned his 2007 ruling that Fernald remain as a residential option, Tauro closed the Ricci case and sealed the documents. Among those documents was a report that Sullivan had provided to Tauro on what appeared to be the involuntary removal from Fernald of Anna Tross,  a 91-year-old resident of the facility.

According to testimony at a March 2008 hearing held by Tauro into the circumstances surrounding Tross’s removal from Fernald, Tross had told several people that she didn’t want to leave Fernald.

Appeal to U.S. Supreme Court to restore Tauro’s Fernald order fails

In February 2009, the Fernald plaintiffs, represented by Hofstra University law professor Leon Friedman, filed a petition for Certiorari with the Supreme Court, seeking to restore Judge Tauro’s 2007 order keeping Fernald open as a residential option.

The petition also sought to resolve the issue of whether Appeals Courts should give deference to district court decisions in consent-decree cases.  In this instance, the First Circuit Court acknowledged that it had not given any deference to Judge Tauro, despite his 35 years of expertise in overseeing the Ricci case.

The Supreme Court declined without comment to issue a Writ of Certiorari to consider the Fernald plaintiffs’ appeal.

Created national models

The Boston Globe noted that in his 41 years on the bench, Tauro “crafted decisions that created national models not only for the care of the developmentally disabled, but also for the rights of the mentally ill to refuse unnecessary medication and avoid solitary confinement except in emergency situations.”

“Whatever powers the Constitution has granted our government, involuntary mind control is not one of them, absent extraordinary circumstance,’’ Tauro wrote in a decision in the 1970s that established what are known as “Rogers Orders,” protecting the rights of the mentally ill.

“Judge Tauro was a fearless judge and a moral humanitarian who made the ‘impossible’ possible,” Lutkevich said. “He nearly single-handedly changed the lives of thousands of individuals with intellectual disabilities and their families.  COFAR families are forever grateful to him.  May he rest in peace.”

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