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Time to end virtual legal immunity for DDS nonprofit providers
Under a state law that is now a half century old, corporate providers to the Department of Developmental Services (DDS) can’t be sued for more than a nominal amount of money even if they are found to be responsible for serious instances of abuse or neglect of their clients.
We think it’s time to change or end the Charitable Immunity Law (M.G.L. c. 231 Section 85K), under which the legal liability of nonprofit organizations in Massachusetts is limited to a maximum of $20,000 in most cases. Very few attorneys will even consider representing clients in cases in which such a low level of allowable damages is allowed.
This situation has contributed to the overall poor quality of care and conditions that is frequently found in group homes in the DDS system.
By way of disclosure, Thomas Frain, COFAR’s president, is an attorney who represents DDS clients. He maintains that raising or eliminating the $20,000 cap would provide an avenue of redress for those clients and their families that isn’t currently available.
“The 300 companies contracting with DDS to care for people with developmental disabilities should be held accountable just like everybody else,” Frain said. “There was a time that these charities got by with bake sales, can drives and private benevolence; but no more. The executives are handsomely paid and should be called to task when they inflict or ignore suffering.”
While states have different standards regarding charitable immunity, Massachusetts is one of the few states left with a charitable immunity statute that imposes such a low cap on liability, Frain said.
We think the $20,000 cap needs either to be significantly raised or eliminated entirely. We support the intent of H.1599, a bill which would eliminate the cap.
Legislation similar to H.1599 has been proposed for many years in the state Legislature. The bill is currently in the Judiciary Committee.
In testimony that we submitted last week to the Judiciary Committee, we noted that unless the chariable immunity cap is raised or eliminated, egregious cases of neglect by nonprofits in the DDS system will continue to go virtually unpunished, creating an enormous accountability problem.
Tommy Shea case
In one case we have blogged about, Maureen Shea’s son, Tommy, who was 33, had an intellectual disability and was subject to epileptic seizures while asleep.
Tommy’s bedroom in his staffed apartment was equipped with an audio and visual monitor that could alert the staff so that the staff could make sure that during a seizure he didn’t roll over face-down — a position that can prevent breathing.
Maureen and her daughters were nevertheless concerned that the residential staff did not regularly check the monitor’s batteries, and that they had not been adequately trained in how to position the device. But the nonprofit provider that employed the staff had repeatedly assured Maureen that the staff were trained and were knowledgeable about Tommy’s medical equipment.
In June, 2017, Tommy was found dead, face-down on his bed. The batteries in the monitor were later found to be dead.
We think Maureen should have the right to sue the provider that failed to take promised measues that would have kept her son alive.
Nick Alemesis case
In another case we wrote about late last year, staff in a DDS corporate provider-run group home in Dracut failed to take Nick Alemesis, a resident of the home, for a scheduled morning ultrasound appointment, which would have shown that his brain shunt was leaking spinal fluid.
Just hours after the scheduled time for the appointment, Nick’s mother, Cindy, first noticed how ill Nick appeared. She had him taken to a hospital where doctors found that the shunt was leaking spinal fluid into his body.
Nick got sepsis from the leaked fluid, and was in Massachusetts General for eight months, during which he underwent multiple brain operations and other procedures. Cindy was at his bedside for much of that time.
There has been zero accountability in that case. DDS and the Disabled Persons Protection Commission (DPPC) declined even to undertake an investigation in that case. Not only does Cindy not have the ability to sue the provider for an amount over $20,000, but DDS has subsequently moved in probate court for unclear reasons to remove Cindy as co-guardian of her son.
The cap history and its aftermath
The charitable immunity law in Massachusetts goes back to the 1870s when the state Supreme Judicial Court ruled that a public hospital could not be held liable for an injury to an individual in the hospital’s care.
The SJC reversed its position in the 1969 case of Colby v. Carney Hospital, leading to the enactment by the Legislature of the current Charitable Immunity statute in 1971. Despite the specification of a $20,000 cap under the law, most nonprofit organizations today carry insurance that could cover them for much higher damages.
As Attorney Jeffrey Beeler said to the Judiciary Committee, in testifying in favor of a bill to eliminate the Charitable Immunity Law in 2006, the $20,000 cap has resulted in a financial windfall for insurance companies. The statute has, at the same time, forced many injured plaintiffs to depend on Medicaid and other taxpayer-funded programs to pay for the treatment of their injuries.
Providers that purchase insurance are capable of paying much larger claims than the $20,000 stipulated by the cap without being harmed financially. As Tom Frain noted, these providers are often able to pay hundreds of thousands of dollars per year to their executives.
In sum, we believe raising or eliminating the charitable immunity cap entirely is a necessary step in restoring accountability and equity to the system of care of persons with developmental disabilities in Massachusetts.
Baker administration leaves DDS staff out of COVID vaccination requirement
[UPDATE: We have received unofficial information that staff of DDS state-operated group homes and at the Wrentham and Hogan Developmental Centers are subject to the vaccine mandate. It appears those staff fall under an executive order last month applying to executive branch employees.
However, the much larger corporate provider-operated group home system does not appear to be subject to the vaccine mandate.
This new information contradicts what an EOHHS spokesperson told us (see post below), which was that no congregate care staff are subject to the vaccine mandate.]
Despite a recent uptick in the number of residents in the Department of Developmental Services (DDS) system who have tested positive for COVID, the Baker administration is not including DDS system staff in a new requirement that health care workers in Massachusetts be vaccinated.
Once again, it appears, people with intellectual and developmental disabilities are subject to looser COVID protections than are the elderly or people with other types of disabilities.
According to the State House New Service, the Baker administration this month announced plans to require COVID-19 vaccinations for all staff at rest homes, assisted living residences, hospice programs, and for home care workers providing in-home, direct care services.
The administration first imposed a vaccine requirement in August on employees of skilled nursing facilities.
Last week, a spokesperson for the Executive Office of Health and Human Services (EOHHS) told COFAR that the latest vaccine mandate does not include “congregate care” staff. We had specifically asked whether the mandate includes DDS-funded group homes, developmental centers, and day programs for persons with intellectual and developmental disabilities.
Although the EOHHS spokesperson didn’t directly answer our question, DDS congregate care facilities would appear to consist of both provider-run and state-operated group homes, which together serve some 9,000 residents and employ tens of thousands of staff. [See updated information above pertaining to state-operated group homes and the developmental centers.]
The EOHHS spokesperson also did not respond to our follow-up question why DDS staff have not been included included in the vaccine mandate. DDS Commissioner Jane Ryder did not respond to an initial inquiry on the matter that we sent her on September 8.
We have raised concerns for several months about unvaccinated staff in the DDS system. It is not clear how many DDS system staff remain unvaccinated.
As of last April, the last time EOHHS apparently tracked staff vaccinations, less than 50% of staff in state-operated DDS group homes were fully vaccinated, and only 51% of staff in provider-run grop homes were fully vaccinated.
Apparent concern over staffing shortage in the DDS system
Given the lack of information or comment from the administration, we are guessing the lack of a vaccine mandate for DDS is due to a staffing shortage, which may be more acute in the DDS system than in nursing homes. It would appear the administration is concerned that requring those staff to be vaccinated would make the shortage worse.
Home care providers in Massachusetts, in fact, are already predicting the vaccine mandate will drive many of those workers to other fields.
One solution, of course, would be to pay direct care workers on the DDS system enough to retain the current workforce and recruit new caregivers. As we’ve reported, federal and state funding exists to do this. But there appears to be no sense of urgency in the state Legislature to distribute the funding, and no effort there to ensure the money will go toward those workers.
Rising number of infected residents
As the State House News Service reported last week, despite the fact that more than 4.54 million people in Massachusetts are now fully vaccinated, COVID continues to spread, apparently driven by the more infectious Delta variant.
The last two online COVID testing reports from EOHHS for congregate care facilities show an increase in residents testing positive in DDS provider-run group homes.
After declining dramatically from a high of almost 250 positive residents in January of this year to virtually zero in June and early July, there were 31 residents listed as positive in provider-run group homes as of this past week’s report (Sept. 7).
The positive COVID rate among provider-run group home residents in the DDS system had started to rise as of the August 10 EOHHS report.
EOHHS reports on COVID rates in DDS and other congregate care facilities are now provided once a month. EOHHS does not report specifically on the number of COVID-positive staff in provider-run group homes.
Importance of vaccinations of staff emphasized
The State House News Service quoted Tara Gregorio, president of the Massachusetts Senior Care Association, as stating that the administration’s vaccine mandates “will create parity, transparency, and accountability within the entire health care system, which is ultimately to the benefit of consumers and their caregivers.”
But parity, in particular, will not fully be achieved throughout the entire health and human services system if DDS staff are left out of the vaccine mandates. DDS manages a budget of more than $2 billion — the largest budget of any line agency in the EOHHS system.
We hope it finally begins to dawn on both legislators and the administration that DDS needs to be included in the staff vaccination mandates, and that those workers need to be paid enough to keep them from leaving the system.
The Britney Spears case is wrongly being used to attack guardianships of persons with developmental disabilities
In a recent article published in CommonWealth magazine, we discuss the misguided use by many activists of Britney Spears’ controversial guardianship case to discredit guardianship arrangements in general.
As we point out in our article, guardianship is under attack, and the Britney Spears case is wrongly being used to imply that all guardianship arrangements are abusive or exploitative.
We think Spears’ experience is also being used to advocate for legislation that could make it more difficult for family members to become or remain as guardians of persons with intellectual and developmental disabilities (I/DD). In our experience, family members need to have guardianship to ensure they are consulted in the delivery of care and services to their loved ones.
But former Massachusetts Attorney General Scott Harshbarger and former Secretary of Elder Affairs Paul Lanzikos appear to be using the Spears case to push for bills that might limit those family guardianship rights. Citing Spears’ case, Harshbarger and Lanzikos have proposed legislation to create a Massachusetts Office of Adult Decisional Support Services (H.1898 and S.974).
The functions of the Office, as listed in the legislation, are vague; but Harshbarger’s and Lanzikos’s own statements in a separate piece in CommonWealth raise concerns for us about what their proposed Office might be tasked to do.
Harshbarger and Lanzikos wrote that the Office would “improve oversight and best-practices in guardianship and conservatorship, as well as support alternatives to guardianship—such as supported decision-making—statewide” (my emphasis). More about Supported Decision-Making in a moment.
We certainly agree that there are compelling questions as to why someone like Britney Spears remains under guardianship, also known in some states as conservatorship. She is a multi-talented singer, songwriter, dancer, and actress who appears to be involuntarily trapped under the guardianship of her father. She appears to be cognitively normal and capable of making her own life choices.
But not all guardianship arrangements are like Spears’ relationship with her father, and not all persons under guardianship are capable of making their own life choices. Yet that is one of a number of distinctions that appear to be lost or glossed over in Harshbarger’s and Lanzikos’s piece.
Harshbarger and Lanzikos aren’t the only ones using the Spears case in this manner. Activitists around the country and even some members of Congress are using Spears’ experience to attack guardianship.
Supported Decision-Making needs safeguards
Supported Decision-Making (SDM) is an arrangement in which individual guardians are replaced by teams or “network supporters,” who enter into written agreements with disabled individuals to help them make decisions about their care, finances, and living arrangements, and in other areas. SDM proponents maintain that guardianship unduly restricts the rights of disabled individuals to make those decisions.
We think SDM can hold promise for some high-functioning individuals; and we would support its adoption with adequate safeguards, particularly safeguards against the potential marginalization of family members.
The problem with proposed legislation to implement SDM in Massachusetts (H.272 and S.124) is that, as with earlier versions of the legislation, there appear to be few, if any, such safeguards in it. The bills still provide no standard for determining who might be eligible for SDM.
The SDM legislation continues to avoid the question whether everyone is really capable of making their own decisions in those very important areas. SDM proponents need to recognize that there are some individuals who do not have the cognitive skills necessary to make reasonable decisions. Those people need guardians – preferably guardians who are family members.
We are concerned that the creation of the Office of Adult Decisional Support Services may be a backdoor means of instituting SDM in Massachusetts as an “alternative” to guardianship.
As noted, the duties of the proposed Office of Adult Decisional Support Services are vague, and “decisional support services” are not even defined in the legislation. The Office would be tasked with “developing oversight and accountability procedures to prevent potential errors or abuses by decisional fiduciaries.” We think better oversight and more accountability are needed in the probate system; but it is unclear what the proposed Office would consider to be abuses.
We have identified what we think are abuses, including the incentives the probate court system in Massachusetts gives to professional guardians to acquire as many wards as possible while doing little to represent them. This raises another distinction that Harshbarger and Lanzikos appear to have failed to make.
Abuses primarily appear to lie with professional guardians
Harshbarger’s and Lanzikos wrote that they are trying “to raise public awareness around guardianship and conservatorship practices that were brought to light by the Spears case, and to provide systems to protect the rights of individuals from the risks of overreaching, or in isolated cases, outright abuse (by) guardians or conservators.”
In our experience, the overreaching that they refer to applies much more commonly to professionals hired to serve as guardians than it does to family members.
Professional guardians of persons with development disabilities are paid by the state Department of Developmental Services (DDS) — a situation that appears to interfere with the guardians’ legal obligation to act in the best interest of their disabled clients. Family members are not paid for serving as guardians of their loved ones.
We have found that professional guardians of disabled clients often have relatively few interactions with their clients, and frequently side with DDS when family members have gotten into disputes with the agency over the care of those clients.
Need for family rights bill
We think reform of the probate system in Massachusetts is needed, and a first step would be passage of H.1733, a bill which would require that probate court judges consider parents of individuals in the DDS system to be suitable guardians for them. In too many instances, DDS officials, clinicians, providers, and probate judges dismiss families as uninformed or meddlesome.
But we have seen time after time that it is family members who have their loved ones’ best interest at heart. Family members are often the ones most intimately knowledgeable about their physical and emotional conditions.
A serious discussion of guardianship reform is sorely needed. But, as we noted in our article, the proposal from Harshbarger and Lanzikos appears to be one-sided. Basing their proposal on the Britney Spears case is a key indication of that.
COFAR blog 