Archive for March, 2022

Questionable effectiveness and little progress appear to characterize state’s efforts and proposals to raise direct care wages

March 23, 2022 1 comment

With low pay a recognized cause of staffing shortages now endemic to the the state’s human services system, we are concerned about an apparent lack of urgency and effort by the administration and the Legislature in raising direct care worker pay.

We have called for a minimum wage for direct care workers in the Department of Developmental Services (DDS) system of $25 per hour.

Thus far, we haven’t been able to get key lawmakers or administration officials even to comment on our proposal. Those officials are similarly mum regarding the potential impact of their own proposals.

Meanwhile, as the staffing shortage problem drags on month after month, a lack of timely action by lawmakers and the administration to address it is especially frustrating given the state’s strong financial condition and projected surplus revenues.

Over the past several months, the Baker administration has distributed federal funding for only a one-time, 10% increase in wages under last year’s American Rescue Plan Act (ARPA). But those wage increases, which have been paid by at least some providers to workers in the form of bonuses, are not the basis of a permanent increase in their pay.

Questions about current bill to raise wages

A key bill in Massachusetts that is intended to boost direct care worker wages permanently is S.105, which was filed by state Senator Cindy Friedman. As Senate chair of the Health Care Financing Committee and vice chair of the Senate Ways and Means Committee, Friedman is one of the most influential and powerful members of the Legislature.

The intent of Senator Friedman’s bill appears to be good in that it would potentially boost the wages specifically of direct care workers in provider-run group homes and other facilities in the human services system.

But the bill doesn’t specify a minimum wage for those workers. Rather, it calls for an unspecified amount of state funding to close an apparently as-yet unquantified “disparity” in wages between provider-based workers and state workers.

I first contacted Friedman’s staff in early February to ask if they had an estimate of the amount to which her bill would raise direct care wages. I haven’t gotten an answer from her office on that.

Last week, after I renewed my query, Friedman’s communications director emailed me to say that Friedman “will be holding off on any official comment (regarding her bill) until the bill is finalized through committee.”

Friedman’s  bill was reported favorably by the Children, Families, and Persons with Disabilities Committee in February, and sent to the Senate Ways and Means Committee. Prior to that, the Children and Families Committee had sat on the bill for almost a year.

I’m not sure what “finalized through committee” means, but I assume it means that Friedman won’t comment on her bill unless and until it is reported favorably by the Senate Ways and Means Committee.

It’s not clear why Friedman won’t publicly comment on her bill while the Senate Ways and Means Committee is still considering it. Legislators are generally eager to comment on bills they have proposed unless they either don’t fully support the measures or possibly don’t have answers to questions about them.

I wrote back to Friedman’s communications director, Stephen Acosta, last week, listing what I think are potential problems with the bill, or at least unanswered questions about it. We think a bill that specifies and requires a minimum wage for direct care workers would be a potentially more effective piece of legislation.

Among the problems or questions we have about Friedman’s bill are the following:

“Disparity” apparently hasn’t been quantified                       

The “disparity amount” is defined in the bill as “the monetary calculation of the average difference in salary” between direct care workers in provider organizations that contract with the state, and workers who are employed directly by the state.

Friedman’s bill would require the Executive Office of Health and Human Services (EOHHS) and other agencies, in collaboration with the Council of Human Service Providers, Inc., to calculate the amount of the disparity, and report back to the Legislature as of July 1.

Those entities would also be required to calculate the amount of state funding that must be appropriated to the providers to reduce the disparity over a five-year period ending in July 2027.

Friedman’s bill is a tacit admission that state workers are paid more for direct care work than are workers in provider agencies. But it appears that no one in the administration or Legislature currently knows what the difference in pay is.

As we have previously reported, the amount of that disparity has apparently only been “guesstimated,” and the guesstimate is that the disparity is roughly 20 percent. That guesstimate came from a staff member of the Children and Families Committee.

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.

If the Children and Families 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.

Disparity would take five years to eliminate

We’ve written frequently about the need to raise direct care wages in order to address the ongoing staffing shortage affecting the entire DDS system.

Under S.105, state agencies, including EOHHS, would be required to raise funding for human services providers to reduce the wage disparity amount to 50 percent by July 1, 2023, and to zero by July 1, 2027.

Given the state’s current surplus in revenues, it seems to make little sense to wait for five years to fully fund the solution to a problem that is affecting the system and people’s lives right now.

No method of ensuring the money would go to direct care workers

Friedman’s bill states that, “ All increases in the rate of reimbursement provided (to human services providers) shall be used to increase the compensation of human services workers.”

But there are no specifications in the bill of any amounts that individual providers would be required to pay those workers. There is also no requirement that the providers show that the additional funding they receive under the legislation has, in fact, gone to direct care workers.

Approach has been unsuccessful in the past

In 2019, State Auditor Suzanne Bump found that a major boost in state funding in previous years had resulted in surplus revenues for providers, but had led to only minimal increases in wages for direct care workers.

Bump’s audit concluded that the increased funding, which was at least partly intended to boost direct care wages, “likely did not have any material effect on improving the financial wellbeing of these direct care workers.”

Bill based on average wages, not a minimum wage.

S.105 refers to eliminating an “average difference in salary” between provider-based and state workers. That could allow some providers to pay less than the average if others pay more.

We are calling for a minimum wage for direct care workers of $25 per hour. So, even if S.105 were to achieve an average wage of $19 an hour after five years, it would still imply a minimum wage of less than $19. That is another reason why it doesn’t appear that Senator Friedman’s bill would raise the minimum direct care wage to the neighborhood of $25 an hour.

Sudders has suggested a different approach to raising direct care wages

According to a March 7 State House News Service article, Health and Human Services Secretary Marylou Sudders testified that, “it might be time for the state to consider mandating a percentage of rates paid to private providers be used for salary enhancements.”

The News Service then quoted Sudders as saying, “Maybe we need to say 75 percent of our rates have to go to direct care salaries.”

Sudders was testifying at a hearing before the Joint Ways and Means Committee, which Friedman was co-chairing, according to the News Service. During the hearing, Sudders acknowledged workforce shortages in the human services sector.

The 75-percent idea has also been proposed before. In 2020, a bill  would have required providers to use up to 75 percent of their total state funding to boost direct care worker salaries to at least $20 per hour.  State Sen. Jamie Eldridge proposed a similar measure in 2017.  Neither of those measures was enacted by the Legislature.

On Monday (March 21), I emailed EOHHS’s media relations manager, asking whether the agency had an estimate or projection of the amount to which such a 75-percent requirement would raise direct care wages. I also asked whether EOHHS had a figure regarding the current percentage of funding to providers that goes toward direct care wages.

Finally, I asked whether Secretary Sudders would support legislation to require a minimum wage for direct care workers of $25 per hour. I have also previously posed that question to Senator Friedman and the co-chairs of the Children and Families Committee.

So far, we haven’t gotten any responses to these questions. We urge people to call their state legislators and ask them to act on a $25 minimum wage for workers in the DDS system.

You can find your local legislators here.

Lawsuit filed after Suffolk DA apparently declines to bring criminal charges in alleged rape of a woman with an intellectual disability

March 7, 2022 4 comments

Although the Department of Developmental Services (DDS) substantiated a sexual abuse charge in 2018 against the supervisor of a day program for allegedly raping a client of the program, the Suffolk County District Attorney’s Office has apparently not brought criminal charges against the supervisor.

The case has resulted in a lawsuit brought by the victim’s mother against the supervisor and the day program provider, Work, Inc.

The case offers insights into why sexual abuse of disabled individuals happens so often in day and residential programs and why it is so difficult for victims of the crimes to obtain justice.

The lawsuit states that on September 5, 2018, a supervisor at the Dorchester-based day program allegedly “coerced and intimidated (the victim) to follow him into a separate room on the premises. He then physically forced her into the bathroom and raped her.”

The Boston Globe reported last month that DDS investigated and substantiated the sexual abuse allegation against the supervisor, based primarily on a medical examination that revealed physical evidence of rape.

According to the lawsuit, the victim, who is deaf, was unable, due to her disability, to call out for help during the alleged assault. The following day, September 6, the victim disclosed to a staff member at WORK, Inc. that she had been sexually assaulted by the supervisor, the complaint stated.

Both the Globe and an attorney for the victim stated, however, that no criminal charges have been brought against the supervisor.

John Martin, an attorney representing the victim, said that the alleged assailant’s employment was terminated after the complaint was substantiated by DDS. He said, however, that no disciplinary action was taken against the assailant’s supervisors or the program manager.

COFAR has asked the Suffolk County District Attorney’s Office why criminal charges have not been filed in the case. Thus far, the office has not responded.

“We do not know why they (the Suffolk County DA) did not prosecute or arrest the assailant,” Martin told COFAR. “The fact that he was not arrested is unfathomable to me.”

The name of the victim is being withheld. The supervisor is referred to in the lawsuit as “John Doe.” The lawsuit is seeking $1 million in damages.

Lawsuit reveals problems with safety of DDS system

The lawsuit alleges several lapses or omissions  in Work, Inc.’s safety procedures in its day program. Among them are that Work, Inc. “failed to maintain proper policies and procedures to protect (clients’) safety… failed to properly supervise and monitor their staff and their (clients) while on the premises, and … failed to maintain any type of surveillance on certain areas of the premises.”

The complaint specifically alleges that Work, Inc. had no security measures in place in separate parts of the facility, such as surveillance cameras, and had no policies regarding monitoring or safety checks on clients when they “stepped away from the main area where the program was conducted.”

Also, Work, Inc. didn’t have any formal policies or procedures “regarding instructors and staff being alone with disabled clients in the program,” and didn’t have any policies in place “specific to female disabled (clients).”

According to the lawsuit, Work, Inc. was also negligent in waiting several hours after the victim disclosed to a staff member that she had been sexually assaulted by the supervisor before sending her to the South Shore Hospital ER to undergo a Sexual Assault Nurse Exam (SANE).

And Work, Inc. failed to send a sign language interpreter with the victim to the hospital. No interpreters were available at the hospital either, so the victim was forced to wait until the next day to undergo the exam, the complaint stated.

In addition, the complaint alleges that Work, Inc. “failed to exercise reasonable care in hiring, training, and supervising (the supervisor),” who the complaint alleged was “unfit and/or incompetent to perform the work for which he was hired.”

We are concerned that Work, Inc. is not alone in failing to maintain proper policies and procedures to protect clients in both day and residential programs. Some of these measures can be costly, and it has become apparent that many corporate providers that dominate the DDS system are more focused on keeping their costs down rather than keeping clients safe. (See here and here.)

Case was referred to the Suffolk County DA, which apparently has not brought charges

It is our understanding that under state regulations, this incident should have been reported to the Disabled Persons Protection Commission (DPPC). Also, under DPPC regulations, the DPPC should have referred it to the Suffolk County District Attorney for a crminal investigation. I first checked February 23 with the DA’s office, and was told there was no record of the case having been referred to them.

Martin contended, however, that he has emails indicating that the rape allegation had been referred to the Suffolk County DA, which” allegedly conducted an investigation, including an interview of the assailant.”

On March 1, after talking with Martin, I called the DA’s office back and reached a supervisor who said she would  ask the DA’s High Risk Crimes Unit about the matter. She said it is possible that the DA’s office concluded that there was not enough evidence to bring charges, but that she didn’t know if that was the case here.

The supervisor also said that since we are not directly involved in the case, she might not be able to give me any information about it, but that she would get back either way. To date, we have not heard back.

It is hard for us to believe that the DA would not have sufficient evidence to bring charges in a case like this in which the victim had not only reported the assault and identified the alleged assailant, but DDS had substantiated her allegation.

Alleged assailant’s name will apparently not go into Nicky’s Law registry

Given that DDS substantiated the alleged rape in 2018, it does not appear that the alleged assailant’s name would be placed in a new state registry of names of substantiated abusers of persons with developmental disabilities in Massachusetts.

Under Nicky’s Law, persons whose names are placed in the registry are banned from further employment in DDS-funded facilities. Nicky’s Law, however, went into effect in July 2021.

In this case, it would appear the Work, Inc. supervisor, whose alleged assault was substantiated in 2018, could be continuing to work in another day or residential program in the system.

Criminal charges are rare in assaults of people with developmental disabilities

If the Suffolk County DA is reluctant to bring charges in a sexual assault case involving a developmentally disabled victim, the office would not be alone. Prosecutions of assaults against disabled persons are apparently rare.

Perpetrators, in fact, are aware that women, in particular, with developmental disabilities ”are less likely to be believed by police, judges and juries” when they say they have been sexually assaulted, according to researchers at the University of British Columbia.

The researchers, Janine Benedet and Isabel Grant, noted that experts in criminal court proceedings often portray  women with developmental disabilities as “having childlike levels of intelligence” in order to undermine their credibility  as witnesses “in ways that would be impermissible for other women.”

In addition, the researchers contend that while women with developmental disabilities are often “infantilized,” their  ”vulnerability disappears” when considering whether they actually gave consent,  and instead they are “portrayed as desperate for male attention or as overly friendly.” (Links in the orignal.)

Martin said, in fact, that recent correspondence from Work, Inc.’s defense counsel suggests they are intending to pursue a “blame the victim defense” and have instructed him to “preserve all evidence of the ‘relationship’ between our client and her rapist.”

This would be a particularly disturbing legal strategy by Work, Inc., in our view.  We don’t understand how it is possible that someone could argue that a sexual relationship between a developmentally disabled client of a day program and a supervisor of that program could be consensual.

In discussing when an individual can be considered to have given sexual consent,  Alexander A. Boni-Saenz  wrote in Psychiatric Times that the individual “must be willing to express volition, have the ability to control one’s choices, and not be overly susceptible to outside influence.”

DDS reportedly discounts second alleged assault of victim by another staff

Martin said that the victim in this case was recently assaulted again at the same Work, Inc. facility when an employee “flirted with her and slapped her on the buttocks.” He said DDS has opened another investigation, but that their opening letter “included some very disappointing and alarming language that indicates they are treating the complaint with a great deal of skepticism.”

Specifically, Martin said, the DDS investigator “took pains to point out that the assault was not witnessed by other employees, a fact that should be irrelevant given that no one witnessed an anal rape that was medically confirmed.”

Charitable Immunity cap

Adding to the difficulties that developmentally disabled victims, such the victim in this case, face in seeking justice is a state law limiting legal liability for nonprofit organizations in Massachusetts in abuse and neglect cases.

Under the the Charitable Immunity Law (M.G.L. c. 231, s. 85K), any damages assessed against Work, Inc. would apparently have to be whittled down to $20,000. We are advocating on Beacon Hill for ending or changing the law to eliminate the $20,000 cap.

Martin maintained that,“ There are ways around the cap and we intend to pursue all of them in this case.”

It is likely, however, that the Charitable Immunity Law will present one more difficulty in a long series of difficulties that the victim and her family in this case will face in order to realize a measure of redress for what happened to her more than three years ago.

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