COFAR blog

While it’s very good news, as we reported last week, that the Baker administration is finally requiring testing of staff for COVID-19 in group homes for people with intellectual and developmental disabilities, it appears the administration’s directive does not apply to staff working in day programs.

We have expressed our concern to Department of Developmental Services (DDS) Commissioner Jane Ryder that a failure to include day program staff in the directive appears to leave a major hole in the testing program in the DDS system as a whole.

Community-based and other types of provider-run day programs were reopened in early August in the wake of data showing declining rates of the viral infection in the state. But the administration acknowledges that a risk of infection remains in the day programs.

In July, the administration ordered day program providers to require guardians to sign a form releasing the providers from legal liability if persons with developmental disabilities contract COVID-19 in the reopened programs. In early August, Ryder implied that the state would change or eliminate the form. 

However, it is still not clear whether the form has been eliminated or changed, or whether forms that guardians have already signed remain in effect. Ryder hasn’t responded to questions we emailed to her on August 12, seeking clarification of her statements about the release form.

Day program staff not included in testing directive

As we reported last week, the Executive Office of Health and Human Services (EOHHS) issued a directive on August 14 that requires “baseline testing” and potentially biweekly retesting of all staff in the DDS residential system for COVID-19. The baseline testing must be done by September 15.

The directive was issued after months of criticism from COFAR and other advocates that the lack of mandatory staff testing was potentially putting thousands of residents of DDS group homes at risk. The directive defines staff as including all direct-care personnel and physicians, nurses, therapists, technicians, and all others who can potentially transmit the virus to residents.

The staff-testing directive, however, specifically applies to “group homes and residential treatment programs funded, operated, licensed” by DDS and other EOHHS departments. It does not refer to day programs to which thousands of group home residents are taken on a daily basis in normal times for skill-development, recreational and other social activities. At this time, we don’t actually know how many day programs are operating or how many people are attending them.

In an email sent on Friday (August 28) to Ryder, I asked whether mandatory testing of day program staff was being considered, and why day program staff were not included in the testing directive. Ryder has not yet responded to that query.

Administration recognizes a COVID risk in day programs

In the wake of data showing declining rates of COVID-19 infection in the DDS system, the administration gave the go-ahead in July to providers to reopen the day programs, which had been shut since March. At the same time, however, EOHHS 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…

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

In an 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),” and that it was “not (intended to) operate as an assumption of risk or release from liability.”

Ryder said the administration would revise “guidance on reopening the day programs” in order “to eliminate the reference to the acknowledgment of risk form.” She didn’t explain the change further. But as of today (August 31), the guidance, which is dated July 2, had not been updated.

As noted, we’re happy to see that the administration has taken a major step to address the risks of infection in group homes by issuing a directive regarding staff testing in those facilities. But in not including day programs in that directive, the administration has failed to address a major source of that infection risk.

It’s akin to locking the front door against intruders who mean to do you harm, but leaving the back door wide open.

We hope this isn’t a case of a reluctance to spend the money. But even if it is, whatever the cost of implementing a staff testing requirement in day programs might be, it would likely be far less than the cost of implementing that requirement in the residential system. More importantly, it will potentially save lives.