COFAR blog

Top administrators in the Baker administration appeared to strongly disagree last summer over whether to require testing of staff for COVID-19 in group homes and other residential facilities for persons with developmental disabilities, according to emails received under a state Public Records Law request.

The emails, provided earlier this month to COFAR by the Department of Public Health (DPH), appear to imply that as late as last July, both Health and Human Services Secretary Marylou Sudders and Assistant Secretary for MassHealth Daniel Tsai strongly opposed mandatory testing of staff in residential facilities in the Department of Developmental Services (DDS) system.

At the same time, the emails indicated that DPH Commissioner Monica Bharel and members of her office supported mandatory testing.

Sudders has not responded to a request for comment on the matter. In an email to COFAR sent today (February 25), Jennifer Barrelle, Bharel’s chief of staff, said Sudders “was supportive of mandatory testing…”  However, Barrelle’s email was unclear as to when Sudders’ support began.

Sudders’ agency, the Executive Office of Health and Human Services (EOHHS), oversees departments such as DDS and DPH. By mid-August, EOHHS finally issued a directive requiring testing of staff throughout the human services system. However, this was some five months after the pandemic became a full-blown crisis in the state.

The apparent opposition by Sudders and Tsai at the top of the human services secretariat as late as July could help explain the lengthy delay in implementing the mandatory testing of residential staff.

COFAR and other advocacy organizations had urged mandatory testing as early as April 2020, arguing that staff were potentially a major source of the introduction of the virus in group homes and other residential facilities. Sudders and other administration officials have never explained why it took so long to finally require staff to be tested.

I sent emails on Sunday (February 21) to both Sudders and Bharel, asking for their comment on the newly provided emails. As noted, Sudders has not responded.

In one internal DPH email, dated July 8, 2020, Bharel stated to several members of her office that she had just spoken with Assistant EOHHS Secretary Tsai:

 …and he feels strongly and say (sic) the Secretary (Sudders) does too — around mandatory testing for staff. But he is willing to think it through and learn more. We can discuss at our 10 am call Friday- I know folks on this email have strong beliefs.

Bharel didn’t say in the email what those beliefs were — just that Sudders, Tsai, and “folks on this email” had “strong beliefs” about mandatory testing of staff. The implication, however, was that Sudders and Tsai had different beliefs than did Bharel and her team.

Meanwhile, an internal DPH discussion document in July recommended mandatory testing of congregate care staff.

In her July 8 email, Bharel asked a member of her office to find other instances around the country in which staff testing was mandatory, apparently in order to help make the case to Sudders and Tsai for mandatory testing in Massachusetts.

Bharel further asked in the email whether there was “a model for how many staff need to be tested to feel the surveillance (ongoing testing of staff) is enough? 50%? 60%? How do you decide?”

In her email to COFAR today, Barrelle said that in implementing the mandatory testing program, the administration was involved in negotiations with state employee unions. At least one union filed unfair labor charges against the state for the mandatory testing program, she said.

“You are incorrectly interpreting that Secretary Sudders was opposed to mandatory staff testing,” Barrelle’s email to COFAR stated. “Secretary Sudders was supportive of mandatory testing and rolled it out across all congregate care programs within health and human services within weeks of these (July internal DPH) emails.”

Barrelle’s email to COFAR was not clear, however, as to whether Sudders’ support for mandatory testing may have only begun after July.

DPH office found examples of mandatory staff testing

In a July 9, 2020, email in response to Bharel’s query to her office about other jurisdictions that had implemented mandatory staff testing, the office member provided links to online media accounts in July of testing requirements for staff in colleges and private sector settings.

The office member then noted that in June, the State of Connecticut had begun requiring staff in nursing homes and congregate care settings in that state to be tested for the virus. That was some two months before the Baker administration in Massachusetts issued its mandatory testing directive.

DPH July discussion document recommended staff testing

In addition to the July emails within DPH, a document slated for discussion in Bharel’s office in July included, as a “key question for discussion,” whether COVID testing should be a “mandatory requirement” of staff in state-operated facilities, including hospitals and congregate care facilities.

Option A, which was recommended in the discussion document, was “Yes, testing is a mandatory requirement in state-operated facilities with a goal of achieving full (~90%) compliance.” It wasn’t clear whether this option did or did not include provider-operated facilities.

Under Option A, staff would be given three chances to comply with testing, with a first refusal resulting in a 5-day leave; a second refusal resulting in a 14-day leave; and a third refusal resulting in termination of employment.

Option B was “No, staff are able to refuse testing.”

This second option stated that without mandatory testing, “experience demonstrates that to-date, state-operated facilities are able to achieve 50-65% compliance when access barriers (e.g., shift timing) are limited to the extent possible.”

EOHHS guidance on staff testing, which, as noted, was issued in August by the administration, does not appear to refer to any penalties for staff testing refusals.

Records came from DPH, but not from EOHHS 

We initially filed Public Records Law requests last May with EOHHS, DPH, and DDS for internal emails regarding the mandatory testing issue. In June, after EOHHS indicated their responsive records would be voluminous, we modified our request to limit it to emails between Sudders and her executive team.

We received the emails noted above from DPH on February 1. We never received any records from DDS.

On September 30, after two appeals, EOHHS provided us with just one internal email, dated May 22, which consisted solely of a reprint of a blog post that we had published about mandatory testing a few days previously (COFAR Blog: DDS may be flouting state and federal guidelines in failing to make testing of group home staff mandatory).

That sole EOHHS email did not include Sudders on the thread and contained no comment on the subject of mandatory testing or our blog post. Given EOHHS’s initial claim that they had a large number of responsive emails, we again appealed to the Public Records Division, contending it was unlikely there was only one email in existence in the agency on the issue.

On October 15, 2020, the Public Records Supervisor ordered EOHHS to identify other potentially responsive records within 10 days to our original public records request. But EOHHS never acted in compliance with the Supervisor’s order. We received no further communications from EOHHS.

In our email to Sudders on Sunday, we asked why EOHHS still had not complied with the Public Records Supervisor’s October 15 order regarding our records request, and whether the agency intends to comply with it.

Administration still does not report COVID testing results for provider-based staff

In addition to being slow to require testing of staff in the DDS system, the administration has had a spotty record of reporting the results of that testing.

It was not until May that EOHHS began publicly reporting testing data in the DDS system; but the reporting system has continued to have major gaps in it. Those reports contain no information, for instance, on the number of infected staff in DDS provider-run residences, which constitute, by far, the largest network of DDS group homes.

Starting in November, weekly state facility reports had begun showing results of testing on provider staff in all EOHHS human services group homes. But not only were those reports not broken down by individual agency, such as DDS, the reports started combining provider-run group home results with state-run group homes as of February 16 of this year (see final page).

We previously reported that eight emails we did receive from EOHHS in August, based on a separate Public Records Request, showed a consensus in that agency to reduce public reporting of testing data in the human services system.

EOHHS’s lack of commitment to keeping the public informed about the impact of COVID-19 on the DDS system is disturbing. It is also concerning that EOHHS was apparently not in favor for five months of mandatory testing of staff for the virus.

The lack of such testing potentially exposed thousands of residents of DDS facilities to infection. Had mandatory staff testing occurred earlier, an untold number of COVID cases among residents and staff in the system may have been prevented.