Archive for December, 2021

DDS corporate providers and their allies once again attack the former Fernald Center with a selective account of its history

December 21, 2021 4 comments

Yet again, the former Fernald Developmental Center in Waltham is being targeted politically by corporate human services providers that are selectively focusing on the Center’s dark history prior to the 1980s.

Fernald may have been closed for the past seven years, but it is still proving to be as potent a target as ever for proponents of the privatization of care in the Department of Developmental Services (DDS) system.

As was the case last year, the Arc of Massachusetts and other provider-based groups have signed a petition and letter to Waltham Mayor Jeanette McCarthy, protesting an annual holiday light show currently underway on the Fernald campus.

This year, the providers have been joined by the Mental Health Legal Advisors Committee (MHLAC), a legal advocacy entity located within the state Supreme Judicial Court.

Philip Kassel (no relation to this blog post writer), executive director of the MHLAC, wrote a letter on December 10 to a legislative commission on the status of persons with disabilities in which Kassel joined in the criticism of the light show as “disturbing and inappropriate.” Kassel described Fernald as as a place of “horrors” and “virulent dehumanization.”

Kassel’s letter further stated:

…residents with disabilities (at Fernald) were subjected to “scientific” experiments and other forms of physical and psychological abuse. Walter Fernald himself was a proponent of eugenics and forced sterilizations, which occurred at the institution. Students were fed radioactive oatmeal by esteemed Harvard and MIT professors in what they called research. And innocents were imprisoned in squalid conditions for much of their unhappy lives.

These things either occurred or were true of Fernald prior to the 1980s. But, as I stated in an emailed response to Kassel on December 16, significant changes were brought about at Fernald and in other institutions for persons with developmental disabilities from the 1980s onward. Those changes occurred as a result of class action litigation in the 1970s, which was overseen by the late U.S. District Court Judge Joseph L. Tauro.

Judge Tauro enabled the creation of a new model of care in both the institutions and the community system in Massachusetts that required the investment of hundreds of millions of dollars.  After years of improvements, Tauro concluded in 1993 that this state now had “a system of care and habilitation that is probably second to none anywhere in the world.”

There is no mention in Kassel’s letter of Judge Tauro or of the changes he oversaw at Fernald and at other institutions for persons with developmental disabilities. There is similarly no mention of Tauro or those changes in the petition or letter to Mayor McCarthy.

I also noted in my message to Kassel that the experiments at Fernald on children that he referred to took place between 1946 and 1953. It is, of course, necessary to know and understand that awful period in the history of institutional care of the developmentally disabled in this country.

But, as I stated to Kassel, “focusing public attention solely on the history of Fernald from the 1940s through the 1960s, and even before that, overlooks the full history of Fernald.”

That selective focus, I noted, also overlooks the human price paid for deinstitutionalization from the 1980s onward of both persons with developmental disabilities and mental illness. That is because such a selective focus diverts discussion and inquiry from events that happened subsequent to the 1980s and from current matters affecting people with disabilities.

That is an erasure of history, I said in my message, and its effect has been the facilitation of the ongoing and unchecked privatization of care in the DDS system, in particular.

In a response to my message, Kassel said he disagreed that the reforms at Fernald from the 1908s onward should necessarily be considered in discussing “the sordid history” of the institution.

Kassel said he also disagrees with our assessment of the history of deinstitutionalization. “If there are failures (with  deinstitutionalization),” he stated, “they may be attributed to inadequate efforts to replace places like Fernald with community-based alternatives.”

In a response to Kassel’s response, I said we agree that the efforts to replace Fernald and other institutions with community-based alternatives have been inadequate. I noted that in testimony in 2018 to a legislative committee, Nancy Alterio, executive director of the Massachusetts Disabled Persons Protection Commission (DPPC), stated that abuse and neglect of persons in the DDS system had increased 30 percent in the previous five years, and had reached epidemic proportions.

Alterio’s testimony came long after the state had begun to rely primarily on privatized, community-based group homes for residential care of persons with developmental disabilities, and long after the state had phased out and closed all but two state-run developmental centers comparable to Fernald.

So, in our view, I said, deinstitutionalization of people with developmental disabilities has been far from a success. And that failure hasn’t been due to a lack of funding. DDS’s corporate provider-run group home line item in the state budget (5920-2000) is now well over $1.3 billion — an amount that is 90 percent higher than what it was a decade earlier.

I added in my second response to Kassel that rather than investing that increased funding over the years in adequate wages and training of direct-care workers in the community-based system, the providers have enriched their own executives. In a survey we conducted in 2015, we found that more than 600 executives of providers in the DDS system in the state were receiving some $100 million a year in salaries and other compensation.

In fact, decades after closures have occurred of a significant portion of the institutional system for people with developmental disabilities around the country, it is now in community-based group home settings that abuse, neglect, and warehouse-like conditions appear to have become a problem of epidemic proportions. (See these multi-part exposes starting in 2011 by The New York Times, in 2013 by The Hartford Courant, and in 2016 by The Chicago Tribune.)

Our concerns remain over proposed commission on history of Fernald and other state facilities

Meanwhile, as the debate continues over the Fernald light show, legislation is pending in the Legislature that would establish a state commission (S.1257and H. 2090) to study the history of Fernald and other similar institutions. We are seeking changes in the language of the bill to ensure that the commission tells the accurate and complete story of those places.

I said to Kassel that we assume that the Mental Health Legal Advisors Committee supports this legislation, and we would hope the organization similarly desires that the story of Fernald be told accurately and completely.

In our view, the effort to revoke the permit for the light show at Fernald simply serves the purpose of those who have a vested interest in overlooking Fernald’s complete history.

DDS denial of our request for records could indicate plans exist to close state-operated group homes

December 17, 2021 5 comments

In a move that may indicate plans are in the works to consolidate or close state-operated group homes in Massachusetts, the Department of Developmental Services (DDS) has denied our request for internal records concerning such plans.

In a December 13 response to our request for the records, DDS said the documents are exempt from disclosure under the state’s Public Records Law because the records relate to an “ongoing or evolving policy matter.”

At issue are eight internal emails that DDS said are responsive to our records request.

We think the fact that DDS cited that Public Records Law exemption for evolving policy matters could be an indication that the Department is developing a new policy regarding the future of its state-operated group home network. We are concerned such a policy might not be good news for those facilities; however, any documentation that might shed light on that is now being withheld.

We first asked DDS on October 15 for any and all internal records, generated since September, that concern closures or consolidations of DDS state-operated group homes due to unvaccinated staff for COVID or for other reasons.

In mid-October, we received a report from a COFAR member that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated. Later that month, we heard that a state-run group home in western Massachusetts was being closed and that at least one of the residents there was moved without written notice to a location in another town.

In August, Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated.

In October, we reported that we were growing increasingly concerned that the critically important state-run DDS group home network could be facing a crisis that could threaten its long-term existence.

We often advise families whose loved ones are experiencing poor care in provider-run residences to ask for placements in available state-run group homes. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the provider system.

DDS initially was going to charge $1,000 fee for the records

In an initial response to our public records request on October 29, DDS stated that there were potentially 1,600 responsive emails, and that producing the documents would require us to pay a $1,000 fee.

In a Nov. 9 phone call, I talked with Brian Fleming, the DDS associate general counsel and records access officer, about narrowing our request.

In his December 13 written response to us, Fleming said the narrowed search had turned up a total of 190 emails, and that eight of those were determined to be responsive to our request. However, he said that all eight of those emails were being withheld because they relate to the Public Records exemption for “interagency or intra-agency memoranda or letters relating to policy positions being developed by the agency.”

Fleming said the Governor’s Executive Order requiring all executive branch employees to be vaccinated “is an ongoing and evolving policy matter which is subject to the deliberative exemption.”

Fleming said that in addition, an unspecified number of emails were being withheld on the basis of attorney-client privilege. He provided a log of 10 emails that he said were subject to that latter exemption.

Appeal unlikely to be successful

Unfortunately, it has been our experience that if DDS cites the evolving policy exemption or the attorney-client exemption, we would probably lose any appeal for the records that we might file with the state Supervisor of Public Records. We believe the Supervisor would claim an inability to determine whether an internal departmental policy is settled or evolving. Similarly, it is unlikely that the Supervisor would dispute a departmental claim of attorney-client privilege.

A pattern of withholding information

With this latest denial of our Public Records Request, we once agan find ourselves in the position of having to speculate as to what DDS’s plans are regarding the immediate and long-term future of care in the system.

In this case, we had initially emailed DDS Commissioner Jane Ryder and the press office at the Executive Office of Health and Human Services (EOHHS) on October 14 with questions about the reports of closures and consolidations in the state-operated group home network.

To date, Ryder has not responded to our query. A spokesperson for EOHHS said in a response to our email that we would have to file a Public Records Request for that information.

On October 15, we filed that Public Records Request with both DDS and EOHHS. EOHHS responded that same day that that agency did not have any records relevant to our query. And on December 13, DDS responded, as noted, that the records it has are exempt from disclosure.

As we’ve said many times, we think the secrecy practiced by the administration over DDS matters, in particular, is unnecessary and does not foster trust in government by the public. The administration has the discretion to be transparent about its plans and policies. It should consider doing so.

Governor signs bill to distribute federal money for direct-care worker pay, but there is still no distribution timeline set

December 14, 2021 Leave a comment

Gov. Charlie Baker on Monday signed legislation that would target hundreds of millions of dollars for human services workforce retention and recruitment as part of a $4 billion federal and state spending package.

According to the State House News Service, the governor signed the bill (H. 4269), which earmarks both federal American Rescue Plan Act (ARPA) money and surplus state revenues for immediate needs. The bill also preserves some $2.3 billion in federal ARPA funds for future use.

There is still, however, apparently no clear timeline for distributing the funding to boost wages of direct-care and other staff in the Department of Developmental Services (DDS) system.

As of November 29, Shannon Guenette, executive director of Almadan, Inc., a DDS provider, told COFAR she still hadn’t seen any of the federal stimulus money even though Congress and the Biden administration had released $8.7 billion in federal stimulus funds to Massachusetts last March.

Guenette first told us in August that her agency and other DDS providers throughout the state desperately needed the additional federal funding to retain workers in light of a worsening shortage of direct-care and clinical staff.

The state Legislature finally voted on December 3 to enact the $4 billion bill and send it to Baker’s desk. The vote came after the House and Senate had failed to reach agreement on the legislation before starting their legislative winter break.

Baker echoes our concern about advisory panel

In signing the legislation, Baker vetoed a section of the bill that would require that an advisory panel be formed and consulted before premium pay could be awarded to frontline employees.

Accordng to the State House News Service, Baker said he was concerned the advisory panel would create “red tape” that could delay distribution of the funding. “We would rather just put a premium pay program together and get the dollars out the door to people,” Baker reportedly said.

We previously raised this same point, noting that the advisory panel sounded like a potential recipe for further delay without necessarily providing a structure for ensuring that the funding goes to the workers.

Timeline still uncertain

But Baker’s veto also apparently has had the effect of eliminating a deadline of March 31, 2022, for the advisory panel to make its recommendations on the funding distribution.

According to the News Service, House Speaker Ron Mariano said Monday he had “requested a timeline from the administration on when they would be able to get the money out to essential workers so we can make an informed decision.” That decision apparently concerns whether and when to attempt to override the governor’s veto.

The News Service stated that in his veto, Baker wrote to lawmakers that he supports the premium pay program, but said the advisory panel was “virtually guaranteed to significantly hinder disbursement of the funds.”

The governor said his veto would allow his administration to “immediately begin the process of distributing these funds.”

“We could send out $500 checks to almost 1 million Massachusetts residents as soon as possible,” Baker wrote, according to the News Service. “Reinstituting the panel-driven process envisioned by the Legislature will simply disrupt the rollout midstream. We urge you to let our administration proceed with this important program today.”

We have raised other concerns about the state’s planned distribution of the federal funding as well.

Even when the ARPA money is finally distributed, we are concerned about a potentially low $2,000 ceiling set on the amount of funding per worker under the legislation. Also of concern is a lack of clear oversight of the distribution of the funding.

And it appears at least some of the funding is intended to be used to move residents out of the state’s two remaining developmental centers and into the already overburdened privatized group home system.

In sum, we’re happy that the bill to distribute the funding has finally been signed. But a half year after the federal money was sent to Massachusetts, it seems far from certain if and when those funds will get to the people the money is supposed to help.

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