COFAR blog

As day programs for persons with intellectual and developmental disabilities open as scheduled in coming weeks, guardians are being asked to sign a release form that would absolve day program providers of legal liability if a client contracts COVID-19.

The release form has been issued by the Executive Office of Health and Human Services (EOHHS), according to the Justice Resource Institute (JRI), a provider contacted by COFAR.

COFAR reviewed the form, which was provided by a guardian of a JRI client, and contacted Department of Developmental Services Commissioner Jane Ryder with questions about the form on Thursday. Ryder has not responded to our query.

According to Andy Pond, JRI president and CEO, guardians can opt not to sign the form. In that case, day program services will be provided remotely, Pond said. He said that while the form was issued by EOHHS, it was actually drafted by a provider trade association.

COFAR President Thomas J. Frain, an attorney, said he would advise guardians not to sign the form. He also maintained that he does not believe on-site day program services can be denied even if a guardian declines to sign the form.

The release form appears to be part of a trend among government agencies and  providers of all types to gain immunity from lawsuits stemming from the pandemic.

But as one advocate put it, “How can we give all providers an incentive to oversee staff and provide adequate staffing when there is no potential liability for simple negligence or even gross negligence? Some will do the right thing regardless, and some may not.”

And as one guardian stated, the form is “a legal protection document for the providers, not the clients. It forces clients and families to take unneeded risks for services.” The guardian added that he knows of no services “that can be performed remotely, as they are all group centered.”

Among other things, the release form states that:

(The day program provider) cannot guarantee that an Individual will not be exposed to, contract, or spread COVID-19. Further, attending a Program for in-person services increases an Individual’s risk of contracting COVID-19.

In addition, guardians or clients are asked to sign the form and to assert that they:

 …acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that you or your loved one may be exposed to or infected by COVID-19 by attending a (provider-run day) Program, and that such exposure or infection may result in personal injury, illness, permanent disability, and possibly even death. You understand that this risk may result from the actions, omissions or negligence by you or your loved one, any employee, and/or other clients at the program.

Finally, in signing the form, the guardian or client states that they “…freely and knowingly assume the risk as described above.”

The following are some of the answers to COFAR’s questions that were provided by Pond, the CEO of JRI.  We asked these same questions of DDS Commissioner Ryder, who, as noted, hasn’t responded:

Is the release form a de facto admission that day programs are unsafe right now?

JRI is following all requirements to minimize the risk of COVID transmission at the program, although it is of course true that until there is widespread access to a vaccine, no  environment (other than isolation) is 100% “safe.”

Will all provider staff be tested weekly?

Staff will receive temperature and symptom checks prior to the start of each shift. Staff will be tested if they have symptoms or if they have reason to believe that they may have been exposed. As an agency, we recently hired a full time “covid nurse” who helps coordinate testing and consults on contact tracing, etc.

We understand that EOHHS is currently considering policies which may require periodic (sometimes called “survelliance”) testing of staff.

Will JRI report all infections to clients and representatives?

Yes.

What specific transportation plans will be implemented to protect the clients?

Transportation to and from dayhab services is not provided by JRI.  We understand that transportation vendors will be following EOHHS Guidance when they resume services, including: screening  and hand-washing for drivers and passengers before and after each trip ; distancing rules on vehicles; use of masks by drivers and preferably also by riders; and cleaning and sanitizing procedures.

We expect JRI to offer very limited transportation as part of dayhab services, such as community outings, but will be following that same Guidance.   We have procedures to screen drivers and riders, for hand-washing, for mask wearing, and for enhanced cleaning and sanitizing.

The capacity of each van is limited, with a protective barrier in place between the driver and passengers, and passenger seats limited to one person in every other row.

Will masks be mandatory in day programs? The agreement states only that masks are recommended.

Masks will be mandatory for staff and recommended for clients.  Some clients are not able to wear masks because of health conditions not related to COVID.

How will clients without guardianship or representatives be responsible for signing a legal document?

Under the EOHHS Guidance, they are required to sign or verbally acknowledge their acceptance.

Why is there an apparent rush to open day programs when clients are still largely being quarantined in their group homes?

Our process has been careful and deliberative, and we have proceeded according to the best information we have access to. EOHHS permitted opening sites in early July. We will be reopening in August at reduced capacity and all clients have the option to continue to receive services remotely.

Pond added that he wanted family members with questions to “reach out to the program directly.”

The fact that the Baker administration is issuing this form to guardians says some good and bad things about the administration’s continuing response to the pandemic. It’s a good thing that the administration recognizes the continuing threat that the virus poses in the DDS system even as they assert that infection levels are falling.

It continues to be troubling, however, that the administration is not taking basic precautions such as requiring mandatory testing of staff in day programs and group homes. Instead, the strategy appears to be to protect providers from liability even if infected staff are negligently admitted into DDS facilities where they then infect clients.

As usual, the process lacks accountability and transparency. The administration wants to protect itself and its providers from responsibility if clients get sick, and the administration continues to ignore basic questions from advocates and families about their policies.