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DPPC rescinds abuse charge against mother who gave her son prescribed Tylenol and cough syrup

February 28, 2022 9 comments

In what appears to be a rare reversal, the state has rescinded an abuse charge against Christine Davidson for giving her son John an “undetermined” amount of cough syrup and Tylenol last June.

Robert A. Reed, an assistant general counsel with the Disabled Persons Protection Commission (DPPC), stated in a February 17 letter that he was changing the agency’s conclusion regarding the abuse allegation against Christine from “substantiated” to “unsubstantiated.” The letter was addressed to Thomas Frain, an attorney who is representing Christine and who is also COFAR’s president.

Reed’s letter stated that his decision was the final decision of the DPPC, which is a state agency that is charged with investigating abuse and neglect of adults under 60 with disabilities.

“I’m so relieved,” Christine told us. “I’m so glad they understand that I love my son and have never done anything to harm him. The truth has finally won out.”

Christine and John Davidson

Frain had filed an appeal of the original abuse charge with the DPPC in November. COFAR has maintained that the Tylenol and cough syrup with codeine that Christine provided her son had been prescribed by his primary care doctor, and that there was no evidence presented by the DPPC that she did not follow the prescriptions.

In accusing Christine in October of abuse, the DPPC alleged that in addition to giving him an “undetermined amount of cough syrup and Tylenol,” she had failed to provide him with prescribed breathing therapy support “causing (John) to lose consciousness” while he was home with her on the morning of June 21. The prescribed therapy was the use of a Bi-PAP breathing assistance machine at night.

Christine maintains that the Bi-PAP machine was not delivered to her until June 22, the day after John’s episode of low oxygen or hypoxemia. She also said she did not receive necessary training in how to use the machine.

Christine was unable to wake John up on the morning of June 21, while he was home for a weekend visit, and called 911. John was brought to the Newton Wellesley Hospital ER. He quickly recovered after being given oxygen.

Reed’s February 17 decision acknowledged that an October DPPC report, wich had substantiated the abuse charge, had based its conclusions on an uncertain opinion about the cause of John’s hypoxemia rather than on conclusive evidence of the cause.

Reed further acknowledged that the DPPC had blamed what it alleged to be excessive Tylenol use and the lack of use of breathing machine solely on Christine, when in fact Tylenol had also been given to John in the group home. Reed further noted that the breathing machine had apparently not been used in the group home either.

“Given these unresolved factual disputes which bear directly on the causation analysis of (John’s) injury, including the confusion about the type and use of (John’s) prescribed and unprescribed cough medicines … I do not find that the conclusions of the Report were supported by the weight of the evidence,” Reed’s decision stated. “As such, I amend the Report to unsubstantiated.”

In the wake of the original abuse charge, John has been subject to a prohibition on visits home to his mother. Earlier this month, two medical specialsists stated that John has been declining physically in his group home where he is currently receiving no physical therapy and few, if any, other activities.

The group home is run by WCI, Inc., a corporate provider to the Department of Developmental Services (DDS).

Final DPPC decision said cause was uncertain

As we reported in January, doctors at Newton Wellesley Hospital, who were interviewed by DPPC, did not appear to have provided the investigator with a conclusive cause of John’s episode of hypoxemia on June 21.

One Newton Wellesley hospital official told the DPPC investigator that Christine’s son had an enlarged liver, which was likely caused by a drug toxicity. The official said, however, that John’s Tylenol levels were not elevated when he was examined at the hospital. Nevertheless, the hospital official said that toxicity in John’s liver could be due to small amounts of Tyleol built up over time.

Christine maintained, however, that since her son had only been with her over the weekend of June 18 to June 21, when he was hospitalized, she believed it was possible that any toxicity buildup in his liver from Tylenol use could have happened previously at the group home. The DPPC report did not mention that possibility.

In his February 17 decision overturning the abuse charge, Reed appeared to accept Christine’s argument. He noted that the Newton Wellesley Hospital official, who he identified as John’s treating physician, “did not wholeheartedly endorse (the) theory” that Tylenol use was the cause of John’s liver enlargement.

Reed added that:

Even if (the hospital physician’s) couched opinion about the cause of (John’s) enlarged liver is accepted, it begs the question of why (Christine) would be more accountable for a long-term overdosing of (John’s) acetaminophen (Tylenol) —when (John) spent limited time under her care.

Decision stated that Bi-PAP machine not used in group home either

Even though the DPPC’s October report had accused Christine of failing to use the prescribed Bi-PAP machine on John, the report acknowledged that it appeared the group home staff rarely if ever used the machne either.

In his final decision, Reed stated that John’s attending doctor at Newton Wellesley Hospital had “partially attributed (John’s) unresponsive state to the failure to use (John’s) Bi-PAP, and again assigned this omission to (Christine), when there were conflicting accounts from medical professionals about the use of this device generally.”

Like Christine, we are relieved that the DPPC recognized that it’s standard for substantiating abuse based on the proponderance of the evidence was not met in this case. We hope, among other things, that this case prompts DPPC to reassess its investigative policies and practices. All too often, both DPPC and DDS do not appear to reach the right decisions in these cases. (See examples of that here, here, here, and here.)

Two medical specialists say physical therapy needed for man allegedly isolated in group home

February 17, 2022 5 comments

John Davidson, a man with an intellectual disability, is declining physically in his group home and has not received needed physical therapy there after an extended stay last year at Tewksbury State Hospital, according to two medical specialists.

One of the physicians, Adam Harris, a specialist in spinal disorders at New England Baptist Hospital, on Wednesday (February 16) recommended an eight-week regimen of physical therapy for John at Spaulding Wellesley rehabilitation center.

In a summary of an examination of John on Wednesday, Dr. Harris wrote that John had “deconditioned” after his stay at Tewksbury. Harris’s summary stated that following that hospitalization, John was “never transferred to outpatient therapy.”

A second specialist, Steven Cohen, a gastroenterologist with Beth Israel Deaconess Medical Center, wrote in a medical progress note, dated February 3, that John was declining physically due to a lack of physical therapy and other stimulative activities.

John has been confined to a wheelchair following the stay at Tewksbury, which reportedly stemmed from a broken leg that he suffered from a fall outside his group home in 2019.

The two medical assessments corroborate a contention by John’s mother, Christine Davidson, that John has not been provided with stimulative activities at the residence, which is operated by WCI, Inc., a corporate provider to the Department of Developmental Services (DDS). She said he was not receiving physical therapy and has had no functioning day program. She also said he is depressed and wants to be allowed to visit her at her home.

Cohen also wrote in the progress note that he believes John should be living with his mother rather than in the group home.

“Overall, I’m very concerned about prognosis due to poor conditioning,” Cohen’s progress note stated. “Aggressive PT is best hope. Would be best served if living with his mother whose excellent care I have witnessed for over 20 years.”

Cohen added that, “John is terribly deconditioned and needs PT and aquatherapy.”

Cohen also stated that John was “clearly deteriorating” in terms of his mobility, and was “too weak” to be safely examined on a table in Cohen’s office.  He further wrote that John was “upset over not being home.”

Breathing mask unhygienic

In addition to his concerns over John’s physical condition, Cohen stated in his February 3 progress note that a breathing mask that is apparently being used on John at the group home to treat sleep apnea was “apparently not hygienic.”  Christine sent us the photographs below that her partner, Carmine Tocco, took on February 2 of John’s breathing mask, which is attached to a Bi-PAP machine at the WCI residence.

Christine Davidson said she has spoken to the group home staff about the breathing mask and about what she said were other poor hygienic conditions in the residence.

Photographs taken February 2 of a reportedly dirty breathing mask apparently being used on John in his group home.

Questionable abuse charge appealed

In a recent blog post, we reported that we have raised numerous questions about the accuracy of a report written by the Disabled Persons Protection Commission (DPPC), which concluded last October that Christine abused John after she gave him an “undetermined” amount of cough syrup and Tylenol last June. Since then, John has been subject to a prohibition on visits home.

Christine’s attorney, Thomas Frain, who is also COFAR’s president, filed an appeal with DPPC of the abuse finding. The appeal notes that the cough syrup and Tylenol that Christine provided her son had been prescribed by his primary care doctor, and that there was no evidence presented by the DPPC that Christine did not follow the prescriptions.

Christine is a co-guardian of her son. The other co-guardian, George Papastrat, is Christine’s nephew and lives in North Carolina. Under the co-guardianship agreement, Papastrat has the authority to make medical and other decisions about John’s care. Papastrat has not responded to emails I have sent him raising concerns about John’s care.

Numerous medical issues

John has Down Syndrome, “multiple gastrointestinal issues,” Celiac disease, obesity, severe osteoporosis, and several other medical conditions. He is also continuing to experience pain from the leg fracture in 2019.

In addition to the lack of physical therapy, Cohen said John was not being taken out of the residence for aquatherapy, an activity he previously enjoyed.

DPPC placed blame on mother regarding breathing mask

In accusing Christine in October of abuse, the DPPC alleged that in addition to giving him an “undetermined amount of cough syrup and Tylenol,” she had failed to provide prescribed breathing therapy support “causing (John) to lose consciousness” in the morning of June 21. The prescribed therapy was the use of the breathing mask and Bi-PAP breathing assistance machine at night.

Christine was unable to wake John up in the morning of June 21, and called 911. John was brought to the Newton Wellesley Hospital ER. He quickly recovered after being given oxygen.

Christine maintains that the Bi-PAP machine and mask were not delivered to her until June 22, the day after John’s episode of hypoxemia or low oxygen level. She also said she did not receive necessary training in how to use the machine. When she inquired of a group home staff member about receiving training, she said she was told there would be no opportunity for that.

Christine said the breathing machine was later removed from her home by a group home staff member, and that she later saw the machine’s breathing mask on the floor of John’s room and noticed that it looked dirty. She said when she brought that to the attention of the staff, they did not respond to her.

Following the DPPC’s decsion to level the abuse charge against Christine, DDS issued an “action plan” in October that recommended sharply curtailing contact between Christine and John. The DDS action plan also stated that the Bi-PAP machine “should be operated by trained residential staff.”

Attempts to contact DDS commissioner and other officials

On February 14, I sent an email to DDS Commissioner Jane Ryder, asking whether she would inform either us or Christine of what measures, if any, DDS may be taking to address the concerns raised by Dr. Cohen and Christine about John’s care.

I sent a similar email the same day to Nancy Silver Hargreaves, president and CEO of WCI. To date, I haven’t received a response from either Ryder or Hargreaves.

On January 10, I wrote to Gail Gillespie, DDS Metro Region director, and Joan Thompson, DDS area director, about John’s situation. I have not received a response from Gillespie.

On January 11, Thompson responded with a two-sentence email stating that I would need written authorization from both co-guardians in order for her to release any information about the matter.

As we have previously stated, we think DDS should conduct an investigation of the conditions under which John is living, and should take immediate steps to provide him with physical therapy and other activities – particularly those activities recommended by Drs. Cohen and Harris.

We have also urged DDS to take both John’s and Christine’s often-stated wishes into account and begin by arranging for visits home for John. We concur with the assessment that the best hope for John is to return home to live with his mother.

Judi Lydon-Ruby receives the Manuel Carballo Award for public service

February 14, 2022 4 comments

By Joe Corrigan

COFAR would like to congratulate Judi Lydon-Ruby, recipient of the Manuel Carballo Governor’s Award for Excellence in Public Service.

Judi is director of the Wrentham Developmental Center (WDC). She has had a long history with WDC, starting at the age of 16 in their kitchen until becoming director in 2018.

Roughly two years ago, we all woke up to learn of a growing pandemic the likes of which haven’t been seen in 100+ years. Most of us began to take precautions in our own immediate families by masking, distancing, etc.

Judi Lydon-Ruby

Now imagine also having responsibility for an additional approximately 1,000 staff and nearly 200 very vulnerable residents with intellectual and other developmental disabilities (I/DD) and medical frailties in a campus setting. This describes the daunting task Judi was facing.

Beyond creating difficulties for staff in continuing to provide great everyday care for the residents, the pandemic created challenges that nobody was prepared for.

Throughout the pandemic, Judi has adapted to the challenges requiring masking, distancing, quarantining, isolation, testing, innoculations, vaccination mandates, resource balancing, hiring and training for infectious disease and more. She created a plan where there was none and no doubt helped people survive.

Given all that and more, the WDC Board of Trustees, along with support from the Wrentham Families Association, nominated Judi for the Manuel Carballo Governor’s Award in September 2021. The nomination was well received by the administration, and on January 10, 2022, Judi received the award.

Congratulations to Judi and her staff for a continuing job well done.

(Joe Corrigan is a COFAR Board member. His sister Patricia is a resident at WDC.)

We need a $25-per-hour minimum wage for direct care workers in the DDS system

February 9, 2022 4 comments

We think it’s time for a meaningful boost in the minimum wage paid to direct-care workers in the Department of Developmental Services (DDS) system, particularly for those caregivers who are employed by corporate providers to DDS.

We’re suggesting a minimum wage rate for direct care workers of $25 per hour. Right now, the average hourly rate for these workers appears to be $16 or possibly even less. The situation is contributing to staffing shortages throughout the system and a resulting decline in the quality of care in group homes.

We think increasing the minimum wage to $25 is affordable, given that the state has a large projected budget surplus this year. Also, Gov. Baker is proposing a tax cut on capital gains and on inherited estates. We think that money could be used instead to boost direct care worker wages, which are unconscionably low.

At least some of the funding needed for a $25 minimum wage could potentially come from the providers themselves.

In 2019, Sate Auditor Suzanne Bump recognized that at least some of the continually increasing state funding to human services providers could be used to boost direct-care wages, but said that was not happening.

In her 2019 audit , Bump found that the average hourly direct-care wage was $11.92 in Fiscal 2010, and that it had risen only to $14.76 as of Fiscal 2017. That was an increase of only 24% over that eight-year period, an amount that only barely exceeded the yearly inflation rate.

According to Bump’s audit, the increased state funding to the providers provided them with a 237% increase in surplus operating revenues (total operating revenues over total operating expenses) during that same eight-year period.

Residential DDS provider revenues have grown to more than $1.4 billion

DDS corporate residential providers would receive $1.44 billion under Governor Baker’s  proposed state budget for Fiscal Year 2023, which begins in July. If that amount is approved by the Legislature, the provider group homes will have gotten an increase of $563 million, or 64%, since FY 2012, when adjusted for inflation.

That increase doesn’t even appear to include appropriations to a reserve fund (line item 1599-6903) intended to further boost contractual payments by the state to the residential providers. Baker’s Fiscal 2023 budget would increase the size of the provider reserve fund from $79 million to $230 million in the coming fiscal year.

On Jan. 31, I asked the staff of the Legislature’s Children, Families, and Persons with Disabilities Committee whether Senator Adam Gomez or Representative Michael Finn, the committee co-chairs, might comment on a $25 minimum wage for direct care workers. To date, I haven’t received an answer.

Pending bill would eliminate a disparity between state and provider wages

On February 8, I called and emailed Senator Cindy Friedman, Senate Chair of the Health Care Financing Committee, for comment on our proposal.

Friedman has proposed a bill (S.105), which would eliminate a “disparity” in wages between direct care workers working for human service providers and those working in state agencies over a five-year period. The amount of that disparity has apparently only been “guesstimated,” however, and the guesstimate is that the disparity is roughly 20%.

That guesstimate came from a staff member of the Children and Families Committee. If the guesstimate is correct, it appears that even after five years, Friedman’s bill would raise the wage of a worker making $16 an hour to roughly only $19 – a level nowhere near $25.

I haven’t yet heard back from Senator Friedman or her staff.

Friedman’s bill and a companion House bill (H.237) apply to caregivers working in residences overseen by the Executive Offices of Health and Human Services and Elder Affairs, and the Department of Housing and Community Development. The bills would require that the disparity be reduced to 50% as of July 2023, and to zero by July 2027.

Average pay is about $16 per hour

Data on the average wage earned by direct care workers in the DDS system is not easy to find. The federal Bureau of Labor Statistics lists an average hourly wage for “personal care aides” in Massachusetts of $16.29.

Personal care aides, according to the BLS, include workers in both group homes and private homes, and include persons who care for individuals with all types of disabilities, not just intellectual or developmental disabilities.

The BLS does publish data on personal care aides in residential facilities for persons with intellectual and developmental disabilities; but that data is for workers throughout the country, not just in Massachusetts. The average hourly wage in that catetory is $13.49.

Wage disparity amount has not been officially projected

The BLS wage data also do not differentiate between caregivers in state-run versus provider-run facilities.

The amount or amounts of the wage disparity are not specified in Senator Friedman’s legislation either. Her bill requires the agencies involved to provide a report to the Legislature as of next July 1 listing the disparity amount. The agencies must also project the amount of the appropriation needed to achieve those disparity reductions.

No one in a hurry to pass legislation to raise wages

Despite their potentially modest impact, S. 105 and H.237 have failed to make much headway over the past year in the Legislature. Friendman’s bill was referred to the Children and Families Committee in March 2021. It was reported favorably by the committee and sent to the House and Senate Ways and Means Committee only this week (February 7.)

In 2018, Governor Baker did sign legislation to raise the minimum wage of direct-care and other workers to $15 an hour; but it won’t reach that amount until 2023.

Some federal funding to raise wages is due to be distributed next month

Gov. Baker signed legislation in December that would target hundreds of millions of federal economic stimulus dollars for human services workforce retention and recruitment as part of a $4 billion federal and state spending package. But it doesn’t appear that that money would provide for a permanent increase in direct care wages.

Some of the federal money will finally be distributed in the form of $500 checks to an estimated 500,000 low-income, direct-care workers starting in March, the State House News Service reported Tuesday (February 8).

But even when the full amount of the American Rescue Plan Act money is finally distributed, the legislation signed by Baker would set a ceiling of $2,000 on the total amount of funding per worker. A one-time payment of $2,000 will not substitute for a higher minimum wage.

Even so, Shannon Guenette, the executive director of Almadan, Inc., a DDS provider in western Massachusetts, first told us in August 2021 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.

But Guenette said on February 1 that her agency’s wage rates would need to be at least $20 to $25 per hour “to hire the staff we need and compete with gas stations and fast-food restaurants. Many of our employees are really struggling with higher rents, higher grocery bills, higher utility costs, and increasing transportation costs,”  she said.

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