Home > Uncategorized > Baker administration backtracking on COVID liability release forms for DDS-funded day programs

Baker administration backtracking on COVID liability release forms for DDS-funded day programs

Facing criticism, the Baker administration appears to be backtracking on a requirement that guardians sign a form releasing providers from legal liability if persons with developmental disabilities contract COVID-19 in newly reopening, state-funded day programs.

It is not clear whether the forms will be eliminated entirely, however, or just changed; or whether forms that guardians have already signed will remain in effect.

Department of Developmental Services Commissioner Jane Ryder emailed COFAR last week, saying the administration will “revise guidance” on reopening the day programs “to eliminate the reference to the acknowledgment of risk form.” She added that the Department “will communicate this to its provider community.”

Ryder didn’t explain the change further.

Executive Office of Health and Human Services (EOHHS) guidance on reopening the day programs, dated July 2, does not actually appear to refer to an “acknowledgment of risk form.” As a result, it isn’t clear whether EOHHS and DDS are actually eliminating the form or revising it in some way.

In her August 10 email to COFAR, Ryder maintained that the release form was “was intended to prompt a discussion of individual risk factors (in reopening the day programs), not operate as an assumption of risk or release from liability” (emphasis in the original).

On August 12, I emailed Ryder, seeking clarification of her statements, but she has not responded.

In the wake of data showing declining rates of COVID-19 infection in the DDS system, the administration gave the go-ahead last month to providers to reopen day programs that had been shut since March. At the same time, however, EOHHS has required guardians to sign the release form, which states that those guardians:

 …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…

The form adds that the guardian “understands…that this risk may result from the actions, omissions or negligence by you or your loved one, any (provider) employee, and/or other clients at the program.”

COFAR and a number of guardians raised concerns over the release form, maintaining that it appears intended to shield providers from liability claims even when negligence is involved. At least two residential group home providers told COFAR last month they were either declining to send residents to the day programs or recommending that they not go until a COVID-19 vaccine is found.

EOHHS guidance doesn’t appear to refer to a release form

Although Ryder stated that EOHHS plans to eliminate a reference in its day program reopening guidance to the “acknowledgement of risk form,” the guidance appears to refer instead to a “Risk/Benefit Discussion Tool,” and does not appear to state that guardians must sign it.

The guidance states that day program providers must:

Provide all participants/caregivers/guardians with the Risk/Benefit Discussion Tool. After identifying participants who wish to return to the program in-person, providers should discuss the Tool with all participants/caregivers/guardians prior to their in-person return to the program. The provider must consult with them to determine if the benefits of the participant returning to the program outweigh the risks (my emphasis).

Among the additional questions that we and other advocacy organizations have are what the impact has been on clients whose guardians have declined to sign the release form. In an interview with COFAR when the release forms were first issued in late July, one day program provider said that in those cases, day program services would be “provided remotely.”

However, a number of family members and guardians maintain that it is not possible to provide day program services remotely or online. They contend that families are being forced to choose between waiving their right to sue providers that fail to protect their loved ones from COVID-19 or depriving their loved ones of all day program activities.

Is the administration now saying that families and guardians will be able to send loved ones to day programs without signing away those rights?  As is so often the case with this administration when it comes to COVID-19, we’re left with more questions than answers.

  1. Gloria J Medeiros
    August 18, 2020 at 6:02 pm

    I am devastated. I received an email today that Eliot is suspending the Kelliher DayHab and ABI programs due to recent changes in funding requirements, as well as on-going health and safety concerns during the pandemic. My daughter has been in their program for 28 years and has received tremendous help, care, socialization, and especially love with clients and staff. As my daughter Kris would say, “My heart is broken”.

    Like

    • Anonymous
      August 18, 2020 at 6:10 pm

      Added to my comment above. I can see that, until it is safe, it would not be good to open the programs–but when (I am thinking positive) they reopen, that they will be able to reopen safely.

      Like

  2. Peter Gramenelles
    August 18, 2020 at 10:06 pm

    I am a senior citizen who is also a caretaker of my disabled daughter. She has had pneumonia twice. She is considered high risk,however that is not my only reason. If something happens to me what happens to her, a high functioning adult with down syndrome. Does she regress both intellectually and emotionally without me there? Is she prepared for a group home? Will I be sending her to a day program where staff is not tested? Am I sending her to the gallows and myself? Too many caretakers like myself are elderly and social security doesn’t help enough even with a 401k.

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  3. itanzman
    August 19, 2020 at 1:44 pm

    The claim that the form was not operating as an assumption of risk or release from liability is laughable. According to David’s previous blog post, a provider admitted that the ADDP( Association of Developmental Disabilities Providers), the lobbying group for providers, was the author of the form. Of course, the ADDP wanted total release from liability no matter what providers did. The EOHHS and the DDS are supposed to be protecting the individuals they serve. They are not supposed to be in the business of protecting the providers they are supposed to oversee. The pandemic has clearly revealed that the state agencies serve as providers’ advocates rather than an oversight entity for the individuals they serve.

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    • August 19, 2020 at 2:52 pm

      You’re absolutely right that Commissioner Ryder’s claim that the form is not intended as an assumption of risk is laughable, especially since the form states that the signer is “voluntarily assuming the risk…” Making statements that are so obviously untrue throws every other claim Ryder makes into question, especially any claims that the Department is acting in the interest of people with developmental disabilities.

      Liked by 1 person

  4. Anonymous
    August 19, 2020 at 4:33 pm

    Are they saying that this “release” form was provided to all day habilitation participants? Because that did not happen. How can people who have not seen the form do just that?

    Like

    • itanzman
      August 19, 2020 at 5:31 pm

      I’m not sure whether all day habs required guardians to sign the form, but I will say that the problematic language was hidden among a reasonable plan for Covid 19 reopening. In other words, if you didn’t read it very carefully, you could have missed it.

      Like

  5. Anonymous
    August 19, 2020 at 5:03 pm

    Are they saying that this “release” form was provided to all day habilitation participants? Because that did not happen. How can people who have not seen the form do just that?

    Like

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