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Mary McTernan, a key advocate for the developmentally disabled, dies at 79
Mary McTernan, a longtime advocate in Massachusetts and in Washington for persons with developmental disabilities, died Saturday at the age of 79.
McTernan served as president of COFAR from 1992 to 1994, and was president of the VOR, COFAR’s national affiliate, from 2005 until 2009. She served on the VOR Board until 2014.
George Mavridis, also a past COFAR president and a current VOR Board member, described McTernan as “a friend and a mentor.”
Mary McTernan
McTernan was active in many efforts on behalf of the developmentally disabled, including an effort to protect the rights of residents of developmental centers in Massachusetts both before and after the late U.S. District Court Judge Joseph Tauro officially disengaged from his oversight of the Ricci v. Okin class-action lawsuit in 1993. In that year, she was named to the Governor’s Commission on Mental Retardation.
She also wrote much of the language of a bill originally sponsored by former Massachusetts Congressman Barney Frank to give families and guardians of residents of developmental centers the right to opt out of federal class-action lawsuits seeking to close the residents’ longtime homes. Both the VOR and COFAR are continuing to push for passage of that legislation.
While at the VOR, McTernan enlisted attorney William Burke to prepare VOR’s Amicus Brief for the landmark 1999 Olmstead U.S. Supreme Court decision, which recognized the need for community-based care for those who can benefit from it, and institutional care for those who cannot.
In its decision, the Supreme Court quoted from the VOR brief that “each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing that, on a case-by-case basis, that setting may be in an institution.”
After Attorney Burke died, McTernan arranged for the creation of the Burke Legal Fund to help VOR members and local organizations with legal expenses.
McTernan’s efforts often went unheralded, and Mavridis said that was part of her operating strategy. Echoing the words of Harry Truman, “she often said you can accomplish an awful lot if you do not want to get credit,” Mavridis said.
McTernan’s activism began after the birth of her daughter, Mary Elizabeth, who was intellectually disabled. McTernan became president of the Hogan Regional Center and later went on to head COFAR and then the VOR.
In the early 1990s, when McTernan was president of COFAR and Mavridis was vice present, McTernan asked Mavridis to go with her to Washington, D.C., where the VOR holds its annual meetings. There, she took Mavridis around to the offices of the Massachusetts congressional delegation as part of the VOR’s annual Washington Initiative, and “showed me the ropes,” Mavridis said.
The VOR has credited McTernan with “professionalizing and organizing” the Washington Initiative.
McTernan was a former teacher in the Boston public school system and a member of the League of Women Voters. She had a doctorate in public administration from Boston College, and in 1987 was awarded the Boston College Alumni award for outstanding service in education.
Since 2000, McTernan had lived in the Brooksby Village retirement community in Peabody where Mavridis also lives. Mavridis remained her friend and supporter until the end.
Mavridis has suggested that memorial donations may be sent to COFAR in care of Colleen Lutkevich at 3 Hodges Street, Mansfield, MA 02048. Donations can also be made online at www.cofar.org.
Mavridis also suggested that those wishing to make a memorial donation who knew McTernan for her work with VOR may send it to VOR at 836 South Arlington Heights Road #351, Elk Grove Village, IL 60007. Donations can also be made online at www.vor.net.
Condolence cards can be sent to McTernan’s sister, Irene Welch, at 6667 SE Yorktown Drive, Hobe Sound, FL 33455.
New academic paper defends the Pacheco Law, which has been vilified for 25 years for the crime of protecting taxpayers
The Pacheco Law in Massachusetts is a textbook example of how a good piece of public policy can be trumped and misrepresented for political and ideological reasons.
Now, a new paper published on a website called In the Public Interest has attempted to set the record straight about the 25-year-old law, which has unjustly been used as a political punching bag for almost that length of time.
Full disclosure: I’m one of the three authors of the paper, which is titled, “The Pacheco Law: 25 Years of Taxpayer Protection.” The Pacheco Law, which is also known as The Taxpayer Protection Act, requires a detailed cost analysis prior to privatizing government services.
As a one-time newspaper reporter who covered the legislative debates over the law, and now as a research and communications director for COFAR, I have long been interested in the far-reaching efforts in this state to privatize human services, in particular. In the past two decades, during which I worked for the state Inspector General’s Office and then became an adjunct instructor in public policy at Framingham State and other universities, I’ve become a fan of the Pacheco Law.
Lakeville State Hospital — one of many state-run human services facilities that were closed in Massachusetts. A loophole in the Pacheco Law allowed the closings without invoking the law’s cost analysis requirement.
The lead author of the paper is Elliott Sclar, an economist who is professor emeritus of urban planning at Columbia University. Also authoring the paper was Michael Snidal, a doctoral student in urban planning at the university.
Dr. Sclar and I were among a group of people who were asked last year by state Senator Marc Pacheco of Taunton to write the paper as part of a larger project to examine both the history and political future of the 1993 Taxpayer Protection Act, of which Pacheco, of course, was the chief author and sponsor.
In the Public Interest describes itself as “a comprehensive research and policy center on privatization and responsible contracting.” As the Center notes, our paper presents evidence that the Pacheco Law has saved the taxpayers hundreds of millions of dollars in the past quarter century.
Thus far, Senator Pacheco’s project has received some preliminary funding from a public employee union in New York, the Amalgamated Transit Union. I should note that the funding the project has received pales in comparison with the huge amounts of money that have been spent to have organizations such as the Pioneer Institute vilify the Pacheco Law.
As I’ve noted on this blogsite in the past, the opponents of the Pacheco Law, which include Massachusetts Governor Charlie Baker, The Boston Globe’s editorial page, the Pioneer Institute, and many others in neo-liberal political circles, claim the law has almost completely stifled innovative efforts to privatize public services in Massachusetts.
But as we pointed out in the paper, what the Pacheco Law has really done has been to ensure in several cases that a comprehensive cost-benefit analysis was undertaken before state-run services in Massachusetts could be privatized. It’s not innovative if taxpayers end up paying more for a service, and it’s not innovative if the quality of the service is worsened rather than improved.
Privatization, of course, has been the focus of a long-running debate between those who claim that government is inherently inept and wasteful, and those who claim that the sole purpose of privatization is to enrich corporate interests that want to make easy money from government contracts. In Massachusetts, arguments over the Pacheco Law have usually been cast in those mutually exclusive terms.
Left out of the discussion, however, has been a third view, which is that privatization can work if it is subject to adequate competition, analysis, and oversight, and that policy measures such as the Pacheco Law provide the necessary analysis. That’s the view we took in our paper.
Privatization proponents have benefited from a loophole in the Pacheco Law
The basic requirement of the Pacheco Law is that before services can be outsourced, the state auditor must affirm that the move will actually save money, and that the resulting privatized services will be equal or better than the services provided by state employees.
Opponents of the Pacheco Law never mention the fact that 75 percent of the privatization applications made to the state auditor since the law’s inception have been approved. In addition, a major push for privatization in the field of human services has taken place in Massachusetts without triggering the Pacheco Law at all.
As we noted in the paper, successive administrations from Governor William Weld onwards have exploited what is essentially a loophole in the Pacheco Law with respect to human services. The loophole stems from language in the law implying that services can be privatized and subject to the law’s cost analysis requirement only if the services are currently performed by state employees.
That language has allowed successive administrations to assert that they are not outsourcing if they simply close a state-run residential center for the developmentally disabled, for example, and subsequently send either the former residents or others waiting for services to a privatized residential facility.
The Pioneer Institute erroneously contended the Pacheco Law lost money for the MBTA
As our paper points out, the Pacheco Law was invoked when the MBTA tried to outsource the operation and maintenance of Boston area bus lines in 1997. The state auditor concluded, after a review required by the law, that the agency had failed to prove that privatization would save money, and in fact, that outsourcing the bus service would actually cost the state $73 million more than keeping the function in-house.
We have calculated that without the Pacheco Law, the MBTA would have gone ahead and outsourced the bus service, resulting in compounded losses exceeding $200 million over the ensuing years. Those calculations were based on my own finding in 2015 that the cost of contracted commuter rail services at the MBTA actually rose faster since 2000 than did in-house bus service costs.
Our paper’s combined findings stand in sharp contrast to a claim made in an influential report by the Pioneer Institute in 2015 that the failure to privatize the bus service ultimately cost the MBTA $450 million.
In fact, the Pioneer study had inappropriately compared bids proposed by the two prospective bus service vendors with actual costs incurred by the MBTA in 1997, and applied the same cost-escalation factor to the bids and in-house costs between 2003 and 2013.
The Pacheco Law requires agencies like the MBTA to compare “apples to apples” bids under which both numbers represent a projection, i.e. a contracted projection against a projection of in-house services delivered in a “cost efficient manner.”
Ultimately, as we pointed out in our paper, both our cost calculations and the Pioneer’s report were based on back-of-the-envelope calculations that, even if done correctly, fell far short of the comprehensive cost analysis required by the Pacheco Law.
Recent history of privatization in Massachusetts
Our paper attempts to place the Pacheco Law in the context of the history of privatization in Massachusetts from the 1980s onward. The law was a response to a worldwide privatization trend beginning in the 1980s. And one of the most ardent proponents of the trend was William Weld, who became governor of Massachusetts in 1991 “with an unabashed conviction that less direct government service provision guaranteed better outcomes.”
But while outsourcing in itself wasn’t new when Weld took office, the difference now was that “neoliberal contracting or privatizing had become a matter of ideology, a belief that the private sector is always competent and the public sector inherently deficient.”
In Massachusetts and elsewhere, a major effort was begun to privatize governmental services and functions with little supporting analysis and few checks or balances.
Among those working under Weld to carry out the rush to privatize was Charlie Baker, at the time secretary of human services and later secretary of administration and finance. Baker came highly recommended to the administration by the Pioneer Institute.
Privatization proposals “flew in from near and far” – from local think tanks like the Pioneer Institute and from “antigovernment hard hitters” like the Heritage Foundation and the Cato Institute, the latter declaring Weld the best governor in America.
Weld’s subsequent closings of the state-run Paul A. Dever State School in Taunton and nearby Lakeville Hospital “hastily pushed families dependent on chronic care away from places they had called home for decades.” The equipment at Lakeville was given away to the private Parkwood Hospital in New Bedford at no cost.
As a Globe Spotlight series in 1993 showed, the Weld administration and its privatization arrangements “were deeply conflicted by special interest money, lobbyist motivated lunches, and massive corporate campaign donations.”
In this context, Pacheco, whose Senate district included Dever and Lakeville, first proposed his legislation while he was a member of the House in 1992. It didn’t pass then, but did pass the following year after Pacheco had been elected to the Senate.
As noted above, however, Weld and subsequent governors, Republican and Democratic, continued to shut facilities for the developmentally disabled and to expand the private system of corporate, provider-run group homes without invoking the Pacheco Law.
Costs misrepresented
Both the Romney and Patrick administrations claimed that privatized care for the developmentally disabled was cheaper per resident than state-run care by comparing the average cost per resident in privatized residences to a calculated cost of care in state-run developmental centers such as the now-closed Fernald Developmental Center. This comparison was disingenuous; Fernald served a population with a much more profound level of intellectual disability and more severe medical needs than the population in the privatized community system.
Their cost comparison method also overstated the state costs per resident. The administrations simply divided the total Fernald budget by its population of residents to determine the cost of care, overlooking the portion of Fernald’s budget that went to programs that benefited community-based residents.
In bypassing the Pacheco Law, these administrations never seriously considered proposals to operate developmental centers more efficiently, something the law explicitly calls for.
Had the cost and quality analyses required by the Pacheco Law been used in the contracting of services for the developmentally disabled in Massachusetts since the 1990s, a better understanding of the costs involved in that process and higher quality care would have resulted.
The Pacheco Law would have:
1) ensured that all potential costs were fully analyzed prior to closing state-operated facilities, and
2) ensured the quality of care run by corporate providers be equal or better that state-run facilities.
Privatization can work if it is subject to competition, analysis and oversight
Our paper concludes with the observation that governments may be able to maintain quality of service and reduce their bottom line if there exists a competitive private market that has a known quality and price. In those instances, it can often be shown that costs can be reduced by privatizing services.
However, unproven generalizations about the cost effectiveness of privatization must be subject to scrutiny.
In sum, as we noted, the Pacheco Law’s 25-year anniversary, which occurred last month, “provides a ripe occasion to start a national dialogue about how we restore vibrancy to a public sector that has been badly damaged by ideological attacks on government.”
New data provide more evidence that the DPPC should do all abuse investigations
New data provided by the Massachusetts Disabled Persons Protection Commission (DPPC) and the Department of Developmental Services (DDS) raise further questions about the ability of DDS, in particular, to adequately investigate cases of abuse and neglect within its system.
As such, we think the data provide yet a further reason to place all investigative resources and functions within one independent agency — the DPPC.
The latest data, received under Public Records Law requests to both agencies, show that not only does the DPPC have fewer abuse investigators than does DDS, but the DPPC investigators themselves appear to have lower caseloads than do their counterparts at DDS.
Yet, the DPPC is the state’s sole independent agency charged with investigating abuse and neglect of disabled adults. As we have reported, the DPPC is so poorly funded that it has to refer most of the complaints it receives to DDS and other service-providing agencies to investigate.
The caseload data comes on top of previous data we received showing that the DPPC investigators tend to find that a higher percentage of abuse allegations have merit than do their counterparts at DDS. Given the DDS caseloads are higher than the DPPC’s, it appears possible that DDS investigators aren’t able to do investigations as thoroughly DPPC investigators.
The latest data obtained from DDS and the DPPC also show that the number of substantiations of abuse allegations in general has been dropping in investigations done, particularly by DDS.
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. Because of that, DDS appears to face a conflict of interest in investigating allegations of abuse and neglect in its own system.
Higher DDS caseloads
The chart we created below shows the consistently higher average caseloads that DDS investigators have had compared with the DPPC’s investigators, although the DPPC’s caseloads have been rising in recent years.
Between Fiscal 2010 and 2018, DDS’s yearly caseload has averaged 51.9 abuse investigations per investigator, while the DPPC’s average caseload has been 27.9. (DDS has employed an average of 31.4 abuse investigators each year while the DPPC has employed an average of 4.6 investigators each year in that time frame.)
Source: DPPC and DDS data
Based on the DPPC’s data, our second chart below depicts the dropping abuse substantiation rate each year for both the DPPC and DDS.
According to the data, the annual percentage of abuse allegations that have been substantiated by DDS and the DPPC dropped from a high of 28% in Fiscal 2006 to about 13% in Fiscal 2018. The conclusion we draw from this particular data is that funding to both agencies for investigations has been increasingly inadequate.
The DPPC’s higher abuse substantiation rate since Fiscal 2012
The data going back to Fiscal 2004 show that the DPPC began consistently substantiating a higher percentage of abuse allegations than DDS starting in Fiscal 2012. There were three years between Fiscal 2004 and 2011 in which DDS substantiated a higher percentage of allegations than did the DPPC.
There don’t seem to be clear reasons for either the relatively higher abuse substantiation rate by the DPPC or the dropping substantiation rate by DDS, in particular, although, as noted, one reason might be DDS’s relatively high caseloads.
The DPPC’s policy to reserve more serious cases for itself
It’s possible that the DPPC has had a higher abuse substantiation rate because the agency has tended to reserve what might be considered the most serious abuse cases to itself, and that those more serious cases would be more likely to be substantiated than would the less serious cases assigned to DDS.
At first glance, a policy document we received from the DPPC on assigning cases would seem to support that theory. The policy lists a number of instances in which the DPPC assigns more serious cases to itself provided that it has the resources to do so.
But the DPPC policy is dated 1998. There doesn’t seem to be a clear pattern of abuse substantiations from either the DPPC or DDS that lines up with the policy or its revisions in 2013 and 2016.
DDS says DPPC substantiation data misleading
In a response earlier this month to our questions, DDS maintained that the data we used from the DPPC doesn’t reflect the true abuse substantiation rates for DDS.
The DDS response included a lengthy explanation for why this is so, but the gist of the explanation seems to be that the DPPC data doesn’t account for all of the cases that DDS investigates, and that the DPPC counts the cases differently than DDS. We don’t think, however, that any such differences would affect the overall results of our analysis because we used the DPPC’s substantiation-rate data for both the DPPC and DDS, and we are assuming that the DPPC has been consistent in how it accounts for the cases investigated by both agencies.
The DDS’s conflict of interest
As we’ve stated, the data point toward the logic of having all abuse investigations done by one independent agency. The current system under which abuse investigations are done by separate agencies makes no sense, and leads at the very least to the perception that the investigations done by DDS are not thorough and cannot be relied upon.
As we reported in our January 2004 issue of The COFAR Voice, the DPPC itself issued a position statement at that time charging that DDS (then the Department of Mental Retardation) and other state agencies were “vulnerable to pressures that could compromise the integrity of their investigative findings (in abuse cases).”
Filing legislation to place in investigative resources solely within the DPPC
We will share our findings regarding the DPPC and DDS investigation data with the Legislature’s Children, Families, and Persons with Disabilities Committee. We hope these findings will concern them as much as they concern us.
We are also seeking to file legislation in the current legislative session to place all resources for abuse and neglect investigations within the DPPC, and to place all DDS provider licensure and monitoring resources within an independent state Office of Quality Assurance.
The Children and Families Committee initiated a review of the DDS system in January of 2018 and called in the DDS commissioner and DPPC executive director on two occasions last year to testify about abuse and neglect in the DDS system. Both officials insisted the system is functioning smoothly and offered no suggestions for changing it.
The families in our organization know that the system isn’t fine and it isn’t running smoothly. The Children and Families Committee, however, has not allowed those family members and guardians to testify publicly about their experience with the system.
We hope things finally begin to change in the new legislative session, which just started this month, and that the Legislature will begin to take concrete steps to protect the developmentally disabled in this state from abuse and neglect.
A clear starting point would be to give the DPPC, the state’s independent abuse investigation agency for the disabled, the necessary tools and authority to do the job.
Illinois transparency laws could be a model for programs providing care to disabled in Massachusetts
When it comes to the public’s right to know, Massachusetts state government has not been in the forefront in recent years, and issues concerning the developmentally disabled appear to be no exception.
Not only are investigative reports on abuse and neglect of the developmentally disabled largely kept secret in this state, but those reports are primarily done by the same agency that provides and manages services for the disabled. In those situations, there appears to be little incentive to let the public in on what the investigations have revealed.
As the new two-year legislative session begins in Massachusetts, COFAR will push for legislation that would make information about the care in the Department of Developmental Services system more available to the public. One place to start appears to be the adoption of online information about performance of DDS provider agencies and abuse and neglect in that system.
Such information, which exists in Illinois, could help families and guardians in making the difficult decision on placement of their loved ones in DDS-funded facilities.
Illinois abuse data on providers could be a model for Massachusetts
Illinois has both a human services “provider scorecard,” which offers comparative information about group home provider performance, and an online database that allows comparisons of numbers of abuse allegations and abuse substantiations among individual providers in the state. One caveat about Illinois is that these information sources appear to be extremely difficult to locate on that state’s Department of Human Services website.
The Illinois database appears to be a response to a series of articles in 2016 by The Chicago Tribune, which had described a system of privatized group homes in that state in which “caregivers often failed to provide basic care while regulators cloaked harm and death with secrecy and silence.” The relative lack of coverage of these issues by mainstream media outlets in Massachusetts, and the relative lack of interest as well in the Legislature, may explain why few if any of these sources of online information are available in this state.
The DDS in Massachusetts does provide online provider licensure reports. But these reports on individual providers tend to contain vague and generic findings and recommendations that make comparisons among providers difficult. The licensure reports, which are also difficult to find on the DDS website, don’t reveal or discuss findings of abuse or neglect within the residential or day program facilities.
At least some of that comparative information that is missing in Massachusetts can be found on the Illinois Human Services Department website.
Provider Scorecard
Among the comparative online information available about the Illinois human services system are licensure scores for providers in the state known as BALC scores. As the website notes, the BALC scores are divided into several categories:
A (BALC) score of 100% indicates the provider is in full or acceptable compliance;
93-99% is considered an acceptable standing;
80-92% results in a written “Notice of Violations” and requires an acceptable plan of corrections;
70-79% indicates the agency is minimally compliant and will be on probation for up to 90 days; and
69% and below results in the disallowance of new admissions.
While the DDS licensure system in Massachusetts provides ratings for providers on dozens of individual measures, the ratings are difficult to understand, and there is no way for the public to compare providers on overall performance as there is on the Illinois provider scorecard site.
Also potentially important on the Illinois provider scorecard are comparative ratings of the average health risk and average maladaptive behavior of the residents of provider residences. No such information is available in Massachusetts.
The Chicago Tribune stated that the Illinois provider scorecard includes group home inspection results and links to online copies of investigative findings involving abuse, neglect or financial exploitation. We were not able, however, to locate those links.
Disclosure of data would supplement an abuse registry
The types of online information available or reportedly available in Illinois would be something that would potentially supplement a proposed registry in Massachusetts of caregivers who have had abuse charges substantiated against them.
The proposed registry in Massachusetts came close to enactment last year, but ultimately was not approved. Even that registry, however, would itself not be transparent in that the names of the persons listed in it would not be made public under the legislation that was under consideration in the just-concluded 2017-2018 legislative session. So it is important that there be information about DDS-funded programs that individuals, families, and guardians can consult to judge the performance of providers for themselves.
The Illinois abuse data list needs to be viewed cautiously, but we think most people looking for residential placements would do that.
For instance, in the Illinois substantiated abuse database, the most important column in the data appears to be the number of substantiated abuse allegations per 100 people served for each provider.
That data can vary widely from year to year, even for the same provider. As the charts we developed from the data for two of the providers show, the Village Inn Cobden had a higher rate of substantiated abuse than the Royal Living Center in Fiscal 2017, but the Village Inn had zero substantiated abuse allegations in Fiscal 2015 and 2016. In both cases, the number of allegations of abuse rose substantially over the three-year period.
Public disclosure needed of abuse investigation reports
According to the Chicago Tribune, Illinois Human Services Secretary James Dimas told Senate and House lawmakers that his department had launched reform measures to heighten enforcement of group homes statewide and increase public transparency of the system.
The Tribune stated that:
…one of the most sweeping reforms outlined by Dimas would provide limited public access to previously sealed investigative files. The department is working with the Illinois attorney general’s office to provide group home addresses and full enforcement histories to families and guardians.
“I’m committed to transparency,” said Dimas, who was appointed in May 2015 by Illinois Gov. Bruce Rauner.
We think similar transparency is needed for investigative reports done by the Massachusetts Disabled Persons Protection Commission (DPPC). As we have reported, the DPPC’s regulations seem to go well beyond the agency’s enabling statute in stating that “the records of the Commission shall not be considered ‘public records’…” (my emphasis).
The DPPC regulations exempt from disclosure all “investigative materials” compiled by the agency. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”
We maintain that the DPPC’s enabling statute does not state that DPPC records are not public or that all investigative materials are exempt. Additional legislation may be needed clarifying this.
Finally, we would argue that DDS itself should not be involved either in investigating abuse or neglect within its own system, or even in licensing provider-run facilities. Both of those ongoing practices lead to conflicts of interest for DDS and to reduced transparency.
That’s why we will support legislation in the new session along the lines of a bill proposed by Representative Angelo Scaccia,which would take the group home licensing function out of DDS and make it an independent function. That legislation could be combined or paired with legislation to take abuse and neglect investigative functions away from DDS and put them into the DPPC.
Ultimately, we want to see a system of care for persons with developmental disabilities in Massachusetts that is both transparent and free of serious conflicts of interest. We hope the media and the Legislature are truly interested in those goals as well.
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