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State budget language mistakenly implies Supreme Court ordered closures of institutions for persons with developmental disabilities
COFAR is urging state legislative leaders to correct language in state budget legislation that mistakenly implies that the U.S. Supreme Court ordered the closures of institutions for persons with developmental disabilities.
The language in a budget line item cites Olmstead v. L.C., the Supreme Court’s landmark 1999 decision, which considered a petition by two residents of an institution in Georgia to be moved to community-based care. The Olmstead decision has been frequently mischaracterized as requiring the closure of all remaining state-run congregate care facilities in the country.
According to this characterization, Olmstead further required that all residents of those facilities, which include Intermediate Care Facilities (ICFs), be transferred to community-based group homes.
In one of three instances in which COFAR is seeking changes or corrections, the Massachusetts budget line item language states that the Department of Developmental Services (DDS) must report as of December 15 to the House and Senate Ways and Means Committees on “all efforts to comply with …Olmstead…and… the steps taken to consolidate or close an ICF…” (my emphasis)
However, in letters sent last week to the chairs of the House and Senate Ways and Means Committtees, COFAR noted that closing institutions was not the intent of the Olmstead decision, which was written by the late Justice Ruth Bader Ginsburg.
As our national affiliate, the VOR, has pointed out, “the Court’s determination in Olmstead supports both the right to an inclusive environment and the right to institutional care, based on the need and desires of the individual.” (my emphasis)
We are concerned that the misstatements in the ICF line item in the state budget each year could allow the administration and Legislature to justify continuing to underfund the line item, and possibly to seek the eventual closures of all remaining ICFs in Massachusetts. Those ICFs consist of the Wrentham and Hogan Developmental Centers, and three state-run group homes on the campus of the former Templeton Developmental Center.
The problematic language in line item 5930-1000 is included in both the House and Senate Ways and Means Committee versions of the budget for Fiscal Year 2023, which begins on July 1.
Declining funding in line item tracks budget language history
COFAR first identified the budget line item language last year, and reported that the language appears to have been included in the line item in state budgets going back as far as Fiscal Year 2012.
It is perhaps not coincidental that since Fiscal Year 2012, four of six remaining developmental centers in the state have been closed. And when the Fiscal Year 2023 budget is adopted, the ICF line item will have been cut since Fiscal 2012 by $78.2 million, or 42%, when adjusted for inflation. (Those numbers are based on the Massachusetts Budget and Policy Center’s Budget Browser app.)
Three of the DDS reports required by the line item language — for calendar years 2018, 2019, and 2020 — discussed a steadily dropping population or census at the Wrentham and Hogan centers, and practically zero admissions to those facilities after 2019 as well.
We have noted that the lack of admissions to Wrentham and Hogan indicate that the administration is unlawfully failing to offer those settings as residential options to indivdiuals with developmental disabilities who are seeking residential placements in the state.
Three mistaken or misleading statements
There are what appear to be at least three mistaken or misleading statements in the language in line item 5930-1000: (The first item below is simply a case of wrong terminology.)
1. The budgetary line item language mistakenly identifies ICFs as “intermittent care facilities.” The correct term is “intermediate care facilities.”
2. As noted, language in the line item mistakenly implies that the Olmstead decision was intended to close ICFs. In fact, Olmstead held that:
We emphasize that nothing in the ADA (Americans with Disabilities Act) or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. (my emphasis)
3. A statement in the line item, which lists three conditions for discharging clients from ICFs to the community, leaves out one of the key conditions in Olmstead, which is that the client or their guardian does not oppose the discharge.
The House and Senate line item language states that in order to comply with Olmstead, DDS:
…shall discharge clients residing in intermittent care facilities for individuals with intellectual disabilities…to residential services in the community if:
(i) the client is deemed clinically suited for a more integrated setting;
(ii) community residential service capacity and resources available are sufficient to provide each client with an equal or improved level of service; and
(iii) the cost to the commonwealth of serving the client in the community is less than or equal to the cost of serving the client in an ICF/IID…” (my emphasis)
The first two of those conditions in the line item language are contained in the Olmstead ruling. The third condition about cost being less in the community actually isn’t contained in Olmstead.
The third condition in Olmstead for discharging clients from ICFs is that such a discharge is “not opposed” by the client and/or their guardian. That condition is not included in the House or Senate budget line item.
Here is the actual language from the Olmstead decision:
…we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. (my emphasis)
We have asked Senator Michael Rodrigues and Representative Aaron Michlewitz, the chairs of the Senate and House Ways and Means Committees respectively, to consider redrafting this line item language to correct these mistakes.
UPDATE: Senate budget amendment is redrafted to require that provider funding go to direct care workers
After COFAR questioned a state Senate budget amendment earlier this week that would provide almost $600 million in funding to corporate human services providers without requiring that any of that funding be spent to boost wages for direct care workers, we’ve learned that the amendment was redrafted yesterday to include that requirement.
According to the redraft of Amendment 466, any human services provider receiving funding under a budgetary provider reserve account must direct at least 75% of that funding to compensation for “direct care, front-line and medical and clinical staff.”
Amendment 466, which has been filed by Senator Adam Gomez, Senate chair of the Children, Families, and Persons with Disabilites Committee, would also increase the provider reserve account from $79 million to $581.6 million in Fiscal Year 2023.
The direct care compensation requirement in Senator Gomez’s redrafted amendment is now identical to language adopted by the Senate Ways and Means Commitee last week with regard to the reserve account, known as the Chapter 257 account.
In a blog post on Tuesday, COFAR reported that the original draft of Gomez’s amendment would significantly raise the reserve account level while eliminating the 75% direct care wage funding requirement. The redrafted amendment both raises the reserve account level and includes the 75% requirement.
On Monday, I had sent an email to Senator Gomez and his staff, which was based on the original language in Amendment 466. In my message, I said we were concerned that without specific language requiring that funding in the reserve account be used for direct care wages, there is little or no assurance that adoption of his amendment would lead to higher wages for those workers.
No one from Gomez’s office has yet responded to my email. But we were informed yesterday that the senator’s office had redrafted the amendment to include the 75% funding requirement, and that the requirement had reportedly been left out of the orignal draft “by mistake.”
The redraft of Amendment 466 is available on the budget page of the Legislature’s website.
Senator Gomez’s redrafted amendment would still add more than $350 million to the amount approved for the provider reserve account by the Senate Ways and Means Committee. The Ways and Means Commmittee approved $230 million in funding for the account for the coming fiscal year — the same amount proposed by Governor Baker and approved by the House last month.
Based on a request by a coalition of provider organizations, Senator Gomez’s amendment would bring the total reserve account funding to $581.6 million.
The Senate is scheduled to vote next week on the budget for Fiscal Year 2023 and on amendments filed to it.
Under the Senate Ways and Means budget plan, the 75% funding provision would appear to require that $173 million in the reserve account be directed by human services providers to boost direct care wages.
Based on the much larger funding total in Senator Gomez’s amendment, the amount directed to direct care wages would appear to be $436 million.
All of this still leaves a number of questions. For instance, how much would the $436 million funding requrement actually boost direct care, front-line, and medical and clinical staff wages? Is the 75% language sufficient to ensure that the money would indeed go to those workers?
As we reported earlier this week, both the state inspector general and the state auditor have found that controls are needed over spending by the providers to ensure that the funding goes to direct care workers.
In the House, a budget amendment, which was rejected last month, would have required that the providers sign a form attesting to a plan for spending the reserve account funding. Neither the Senate Ways and Means language nor Senator Gomez’s amendment contain that attestation requirement.
It’s also the case that while the Senate now will approve a 75% funding requirement regarding the reserve account, there is no such requirement in the House version of the budget. So a House-Senate conference committee will have to decide whether the 75% provision stays in the final budget.
But even with those questions surrounding it, we still support the 75% funding provision, and hope it stays in the final budget.
Senate budget committee revives measure targeting state funding for direct care wages; but provider amendment would undo it
The state Senate’s Ways and Means Committee has revived a state budget provision for the coming fiscal year that would require that hundreds of millions of dollars be spent to boost direct care wages in the human services system.
A similar provision was rejected last month in the House.
But an amendment filed this past week in the Senate on behalf of the corporate human services providers would override the Senate Ways and Means provision requiring that 75% of funding in a reserve account for the providers go toward boosting wages for their direct care workers.
The Senate budget amendment, which was filed by Senator Adam Gomez, would significantly raise the reserve account level while eliminating the 75% direct care wage funding requirement. Gomez is Senate chair of the Children, Families, and Persons with Disabilities Committee.
The Senate is scheduled to vote next week on the budget for Fiscal Year 2023 and on amendments filed to it.
Last month, a budget amendment filed in the House to impose the 75% funding requirement was killed by the House leadership even though it had garnered 107 cosponsors, an amount comprising more than two thirds of the House membership.
Last week, the Senate Ways and Means Committee approved an overall state budget bill that revives the 75% requirement. The Ways and Means Committee also approved an increase in the provider reserve account, known as the Chapter 257 reserve account, from $79 million to $230 million.
Senator Gomez’s amendment (Amendment No. 466) would add $350 million to the $230 million approved for the reserve account by the Senate Ways and Means Committee and previously by the House. The amendment’s total proposed funding of $581 million in the reserve account has been sought by a coalition of corporate human services providers.
However, Gomez’s amendment no longer contains any language that requires that the additional $350 million go toward direct care wages.
Like the previous House amendment, the Senate Ways and Means language requires that 75% of the reserve account funding amount be used for “compensation for direct care, front-line and medical and clinical staff,” and states that the funding may include “hourly rate increases, wraparound benefits, shift differentials, overtime, hiring and retention bonuses or recruitment.”
Under the Senate Ways and Means plan, the 75% funding provision would require that more than $170 million be earmarked by corporate human services providers for direct care wages.
The House amendment went a step further than the Senate Ways and Means Committee provision by requiring that the providers sign a form attesting to a plan for spending the $170 million. The Senate Ways and Means provision doesn’t have that attestation requirement.
COFAR is strongly supporting the 75% funding requirement because it would address a key reason for staffing shortages in the state’s human services system. COFAR has called for a minimum wage for direct care workers in the DDS system of $25 per hour. Right now, the average hourly rate for these workers appears to be $16 or possibly even less.
In an email I sent to Senator Gomez and his staff yesterday, I noted that we are concerned that without specific language requiring that funding in the reserve account be used for direct care wages, there is little or no assurance that adoption of his amendment would lead to higher wages for those workers. I haven’t yet received a response to my message.
IG and state auditor have both found a lack of controls over promised funding for direct care wages
I also noted in my email to Gomez that the Massachusetts Inspector General’s 2021 Annual Report stated that the IG had examined how human services providers spent $139 million in federal COVID relief funds that the adminiistration disbursed in April 2020.
The IG report said the $139 million was supposed to be spent on “staffing, PPE, and infection control activities.” However, the Bureau received several hotline complaints “that the vendors received excessive funding and misspent it on executive compensation.” (my emphasis)
The Annual Report stated that the IG investigated the complaints and “found evidence that some vendors may have used the funds for unauthorized expenditures.”
The IG Annual Report added that the IG recommended that providers provide detailed expenditure reports, and that the Executive Office of Health and Human Services “coordinate and share information with DDS and other agencies.” However, the report said that EOHHS did not fully implement these recommendations.
Also, in a 2019 report, State Auditor Suzanne Bump’s office reported that Chapter 257 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.”
The bottom line is that additional funding is needed to ensure that direct care wages in the human service sector are boosted to competitive levels. But controls are clearly needed to ensure that the money gets where it’s supposed to go, and doesn’t go instead into executives’ pockets.
Unfortunately, Senator Gomez’s amendment doesn’t provide for needed controls or even a spending reqirement with regard to the provider reserve account. The Senate Ways and Means language does at least establish a requirement that the increased funding go to direct care workers.
Mother says she is being ‘railroaded’ out of her guardianship by unfair court report
The mother of an intellectually disabled man says she is being unfairly accused in probate court of having a conflict of interest in caring for her son, and that the conflict charge is being used to limit and possibly eliminate her co-guardianship rights.
Valerie Loveland said that in an April 19 Barnstable County Probate Court hearing on Zoom, an investigative attorney appointed by the judge presented a report concluding that Valerie had a conflict because she both sells natural medicinal products to customers and provides those products to her son.
Valerie maintains, however, that she derives no material benefit from the arrangement involving her son. She said her son buys the products directly from the company, Young Living Brand. She said his primary medical care provider approves all of his alternative medicines in accordance with his group home’s policy.
Valerie’s 24-year-old son is a resident of a group home on Cape Cod run by the May Institute, a corporate provider to the Department of Developmental Services (DDS). Valerie has asked that her son’s name be kept private.
We have previously reported that Valerie has been fighting both a motion to limit her co-guardianship of her son and a move to evict her from her subsidized apartment due to an alleged technical violation of her lease.
The motion to limit Valerie’s co-guardianship was filed in March by John Cartwright, an attorney who is paid by DDS to serve as Valerie’s son’s other co-guardian. Cartwright’s motion seeks to remove Valerie’s authority to make medical decisions for her son and to transfer her authority as representative payee for her son’s Social Security funds to the May Institute.
(Valerie said yesterday that her housing situation was being resolved favorably for her after discussions with housing officials.)
Health clinic program director approves natural medicines
In an April 27 letter, Gretchen Eckel, a certified physician assistant and a program medical director at Outer Cape Health Services, said Valerie’s son’s natural medicines have been subject to “shared decision making to permit these treatment plans.”
Eckel said she has seen “no harm or risks” to Valerie’s son caused by the use of the alternative medicines. She described Valerie as “a tremendous advocate for (Valerie’s son’s) needs, and I believe she has always had his best interests in mind.”
Valerie says she was not interviewed by guardian ad litem
Valerie contends she is being “railroaded” by Cartwright’s motion and by the report alleging that she has a conflict of interest in providing the natural medicines to her son. The report was writtten by Christopher Lebherz, who was appointed by the court in the case as a guardian ad litem (GAL). In Massachusetts, a GAL is an independent investigative official, often an attorney, who assists the court in guardianship cases.
Valerie said she was neither interviewed by Lebherz for his report, nor was she provided with a copy of the report either before the hearing or since. She was allowed by the judge in the case, Susan Sard Tierney, only to view the report and take notes on it in the courthouse, following the hearing. She was not allowed to make a copy of it.
The GAL’s report has been made available, however, to both Cartwright and to Carol Coyne, a DDS attorney in the case, according to an April 19 order issued by Tierney.
Valerie said the GAL’s report indicates support for the motion by Cartwright to limit her co-guardianship. Due to the GAL report’s confidential nature, COFAR has not been able to obtain a copy of it.
Valerie termed “caring and concerned mother”
In an email in response to a query I sent, Lebherz said he was “concerned about a conflict of interest or the appearance of a conflict of interest (on Valerie’s part) regarding rep payee.”
Lebherz also said he “spoke with Valerie and all other interested parties” in the case. He said he “asked her (Valerie) and others to summarize all of their positions and send it all along to me.”
Lebherz also said he did not recommend that Valerie lose her medical decision making authority. He added that he “reviewed the case history and all filings,” and that he visited the May institute.
Lebherz declined to respond to my follow-up question whether he had found or presented any evidence in his report that Valerie had derived any material financial benefit from providing natural medicines to her son.
He also declined to respond to my follow-up question whether “speaking” with Valerie and asking her to “summarize her positions” constituted an interview, or whether he had specifically asked her about the alleged conflict of interest.
Lebherz, nevertheless, said, “All parties agree Valerie is a caring concerned mother. These are difficult issues and situations and we all try to do our best.”
While Lebherz said he didn’t recommend that Valerie lose her medical decision making authority, Valerie said that Lebherz stated in his report that he agreed with Cartwright’s motion that her medical decision making be limited to consenting to medical treatments directed by others.
“I raised (her son) completely alone,” Valerie said. “I worked where I could, managed his money and medical appointments, all of it for 18 years, below the poverty line. Now they’re trying to take everything away. What have I done? I’ve never heard of anyone doing everything right and being treated so badly.”
Guardian ad litem standards require an interview and detailed fact finding
Under Massachusetts standards for guardians ad litem, the GAL must “provide each party with a separate interview so that each party may speak with candor.” (Section 4.4)
The GAL must also “conduct the investigation in a fair and balanced manner”(6), and the GAL’s report “should provide accurate, detailed and balanced information about the parties and their children.”(8)
In addition, the GAL report should include “all relevant facts collected from all sources, including facts that are consistent and inconsistent with other reported facts.”(8.2). Further, the report must “set forth the connection between the facts and the conclusions or recommendations.”(8.5)
If Lebherz’s report concluded that Valerie has a conflict of interest, the GAL standards would appear to require that the report include relevant facts that support that conclusion, such as the extent of any financial benefit that Valerie received as a result of the alleged conflict.
No material benefit from providing natural medicines to son
Valerie said the GAL’s report alleged that she has a conflict of interest because she has provided natural medicines and other products to her son, and that she has a business in which she sells those products. She said that appears to be the primary reason that Lebherz recommended that she be removed as rep payee and that all medical decisions be made solely by Cartwright.
In fact, Valerie said, she has not derived a material financial benefit from her son’s use of the medicines. She said her son purchases the products directly from the company with his own money. She and her son both have accounts with the company and receive points for their purchases.
Valerie said she receives an average of $5 a month in “commissions” from her son’s purchases. “I set it up so that when I died whoever handles his account could continue ordering his supplies for him,” she said.
It doesn’t appear that the fact that Valerie sells natural medicines and has established an account for her son for those products would be a conflict unless she received a material financial benefit from that. As a user and seller of natural medicines, she might naturally be inclined to encourage her son to use them.
Valerie says Cartwright, the DDS co-guardian, has long opposed her efforts to provide natural medicines and essential oils to her son.
In her April 27 letter in support of Valerie, Eckel, the certified physician assistant, said Valerie’s son has been her primary care patient since 2014, and that she last examined him on April 27.
Eckel said Valerie raised her son since birth, and raised him independently since the age of three when his biological father left them. She said that since Valerie was appointed as her son’s co-guardian in 2016, Valerie has attended most of his medical visits “with the exception of a very few visits” when he was attended by staff of the May Institute.
Eckel added that “Valerie has opted for natural treatment options when available and safe for (Valerie’s son’s) ailments over the years, and we have used shared decision making to permit these treatment plans as I have seen no harm or risks to these strategies.”
Valerie said natural or alternative medicines are considered complementary to, and not a replacement for, western or modern medicines. She said the natural supplements and treatments provided to her son are in addition to his modern medications, and that he is fully vaccinated for COVID and for childhood diseases.
“I had an informed conversation with Gretchen (Eckel) regarding the vaccinations and their effectiveness, side effects, etc., before giving consent to the May to proceed with their vaccination clinics,” she said. She added that “May staff also reports he’s doing great since these changes (use of natural medicines) have been made.”
This is one of several cases on which we’ve reported, which raise questions about the fairness of the DDS and probate court systems, particularly when it comes to family members who lack financial resources or attorneys to represent them.
Our justice system isn’t supposed to function differently for people who lack those resources; but we’ve seen a number of instances (see here and here) in which that has unfortunately been the case.
COFAR blog 