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We’ve been in a nine month battle with DDS to view 8 emails about closures of state-operated group homes
Last week, we filed the second of two appeals with the state Public Records Division for eight internal emails from the Department of Developmental Services (DDS) that may concern plans to close or consolidate state-operated group homes.
After two months of negotiations with DDS last fall, we had narrowed our Public Records request to just those eight emails. But following the negotiations, DDS simply declined in December to provide them, contending they are exempt from disclosure under the state’s Public Records Law.
As of the filing of our second appeal last week, our battle with the Department for records concerning its state-operated group home policies had stretched to nearly nine months.
In denying our request for the eight emails in December, DDS cited what is known as “Exemption d” to the Public Records Law, which says that a state agency can decline to disclose internal records “relating to policy positions being developed by the agency.”
As I’ll explain further below, we have countered that Exemption d does not apply in this case because the policy in question was adopted by the administration last August, and was no longer being developed when we requested the emails. We have suggested that the state Public Records Supervisor Rebecca Murray inspect the emails herself to determine whether Exemption d does or does not apply to them.
We’ve been concerned about the future of the state-operated group home network for years. While those homes are likely to recieve a nominal increase in state funding in the coming fiscal year, it is clear that DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years. Yet the Department has not provided any public information about its intentions regarding the future of the state-run residental system.
State-operated group home network facing unique pressures
We view the state-run group home system as as a crucial backstop for care in the DDS system as a whole. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the corporate provider system.
Yet the state-operated system has been facing unique pressures, particularly since the start of the COVID crisis. Last 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 for COVID.
Just weeks prior to that – in August — Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated. That vaccination mandate applies only to staff of state-run residential facilities. It does not apply to the much larger network of DDS-funded group homes that are run by corporate providers.
Baker administration would not provide information
We 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.
Ryder never 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.
Records request narrowed from more than 1,000 emails to just 8
Based on the EOHHS response, we filed a Public Records request with DDS on October 15 for internal records that concerned closures or consolidations of DDS state-operated group homes due to unvaccinated staff or for other reasons.
In an initial response to our request on October 29, DDS stated that there were potentially 1,600 emails responsive to our request, and that producing the documents would require us to pay a $1,000 fee.
We agreed to narrow our request. And in a December 13 written response to us, a DDS attorney said the narrowed search had turned up a total of eight emails that were determined to be responsive to our request.
DDS cites “implementation of” the governor’s executive vaccination order as an “ongoing and evolving” policy
But despite identifying the eight emails as responsive, the DDS attorney stated in the December response that all eight of those emails were being withheld because they fell under Exemption d to the Public Records Law.
The attorney described the “implementation” of the governor’s vaccination order as “an ongoing and evolving policy matter.”
Renewed request for the 8 emails
In May of this year, after an initial appeal that did not result in the production of any additional documents by DDS, we tried again. We renewed our request for just the eight emails with the intention of appealing for a second time if DDS once again cited Exemption d. That is, in fact, what happened.
In a June 13 response, the DDS attorney stated that the “implementation” of the governor’s executive order was “still an ongoing and evolving policy matter which is still subject to the deliberative exemption.”
This time, the DDS attorney stated that:
While the governor’s executive order was implemented on August 19, 2021, ongoing and evolving policy matters continue related to the Agency’s implementation of the Executive Order, and the deliberative exemption applies to those policy decisions.
The DDS attorney added that the governor’s executive order had:
…impacted the discussion about and process of handling staffing shortages at DDS. The vaccine policy is still impacting the Department’s staffing shortage. Therefore, the records are still exempt under (Exemption d). (My emphasis)
DDS conflates policy implementation with policy development
In our second appeal of DDS’s response — which we filed on June 23 — we argued that the Department was “conflating the separate steps of policy development and policy implementation.” We noted that Exemption d refers to policy positions “being developed” by an agency. The exemption does not say that records relating to policy positions that are “being implemented” are exempt from disclosure.
We pointed out that public policies or policy positions are normally implemented after they have been developed or formulated. The implementation of policies can go on for years or decades or more. As we put it:
Certainly, the intent of “Exemption d” was not to allow agencies to assert that so long as policies are continuing to be implemented, all records concerning those policies remain exempt from disclosure.
We added:
As of June 23, now more than 10 months after the governor signed Executive Order 595, (DDS) says the policy is “still impacting the Department’s staffing shortage,” and has “impacted the discussion about and process of handling staffing shortages at DDS.” Here again, (DDS) appears to be talking about problems or issues the Department is having in implementing the executive order.
Finally, we suggested that the Public Records Supervisor review the eight emails in-camera to determine whether or not Exemption d does or does not apply to them.
In sum, we don’t know what is in the eight emails or whether the emails might shed any light on DDS’s plans for the future of the state-operated group home network. But given the administration’s unwillingness to provide any public information about those plans, all we can do is to fight for documents that are legally available and that might disclose the administraton’s intentions.
The fact that DDS is fighting back so hard to prevent the release of just those eight emails leads us to believe we may be onto something in seeking their release.
Senate budget amendment for commission on history of state schools continues to raise concerns of bias against state care
In what appears to be an end run around the legislative committee process, the state Senate last month approved an amendment to state budget legislation that would establish a state commission to study the history of institutional care of persons with developmental and other cognitive disabilities.
But as is the case with proposed legislation still in committee to establish the commission, the Senate amendment does not make it clear that the proposed commission would acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs).
We have previously raised concerns about the legislation to establish the commission (S.1257, H.2090), which has been in the committee process for more than a year.
Given that the House did not adopt a similar budget provision to establish the commission, the proposal will be subject to a House-Senate conference committee that is currently meeting on the Fiscal Year 2023 state budget.
The Senate budget amendment addresses some concerns we previously raised about the proposed commission legislation, including language that indicates a bias against the state’s two remaining developmental centers – the Wrentham Developmental Center and the Hogan Regional Center in Danvers.
We do support efforts to study the history of the former state schools in Massachusetts for persons with developmental disabilities. Toward that end, we support proposed legislation to open up all historical state records to public inspection (S.2009, H.3150). But we want to ensure that the proposed commission considers the full history of these institutions, not just the darkest parts of that history prior to the 1980s.
Our concern is that proponents of further deinstitutionalizaton and privatization in the Department of Developmental Services (DDS) system could use the commission to call for the closures of the Wrentham and Hogan centers, and potentally other state-run residential facilities.
As we have pointed out many times, Wrentham and Hogan today provide state-of-the-art care, and are closely tied to their surrounding communities.
Budget amendment would provide four seats for residents and family members at Wrentham and Hogan
In one major improvement over the proposed legislation in committee, the Senate budget amendment would give residents and family members of the Hogan and Wrentham centers four out of what appear to be 16 seats on the commission.
But even in the Senate amendment, the makeup of the commission appears to still be largely dominated by opponents of the ICFs.
Also troubling is that pro-deinstitutionalization organizations such as the Arc of Massachusetts would specifically appoint at least three members of the commission. Meanwhile, the Hogan and Wrentham members would be appointed by the governor, who has also been a supporter of deinstitutionalization and the privatization of public services.
Commission proponent’s op-ed focuses on dark and early period of Fernald Center’s history
It is also troubling that some key proponents of the commission have continued to publicly express largely negative views of the history of the state schools without mentioning the significant upgrades that occurred starting in the 1980s in those institutions.
In discussing the Senate budget amendment in an op-ed in The Boston Globe on June 7, Alex Green, a major proponent of the commission, focused on the darkest years in the history of the state facilities in Massachusetts. Green specifically noted the connection of the former Fernald Center, in particular, to the eugenics movement in the late 19th and early 20th centuries.
Eugenics has been correctly characterized as a “scientifically erroneous and immoral theory of ‘racial improvement’ and ‘planned breeding.'” It gained popularity during the early 20th century.
In protests Green has organized against Fernald, and in petitions to Waltham Mayor Jeanette McCarthy, Green has similarly focused exclusively on human rights abuses at Fernald in the first half of the 20th century. The Arc and other advocacy organizations have signed on to those petitions.
The early history of Fernald and the other state schools in Massachusetts is certainly a deeply troubling one. And the man for whom the institution was later named — Walter E. Fernald — was initially an active proponent of eugenics laws that were being adopted in the late 19th and early 20th centuries in the U.S.
But by the 1920s, even Walter Fernald had come to reject the principles of eugenics, and “became a supporter of community placement…” for persons with developmental disabilities, according to the Encyclopedia Britannica.
The commission legislation does not specify that the commission would examine the history of Fernald subsequent to Judge Tauro’s involvement
We have repeatedly objected to the commission legislation on the grounds that it doesn’t specify that the commission would consider the full history of the state schools.
The improvements at Fernald and the other institutions were undertaken as a result of the intervention of the late U.S. District Court Judge Joseph L. Tauro. Tauro noted those improvements when he disengaged from his oversight of a landmark consent decree case in 1993. He wrote that the improvements had “taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.”
The Senate budget amendment provides little specificity as to the historical focus of the commission. It does, however, contain this fairly convoluted sentence, which raises a number of questions about the commission’s focus. The sentence states that the commission will:
…design a framework for public recognition of the commonwealth’s guardianship of residents with disabilities throughout history, which may include, but shall not be limited to, recommendations for memorialization and public education on the history and current state of the independent living movement, deinstitutionalization and the inclusion of people with disabilities. (my emphasis)
Given the commission will be largely dominated by organizations in favor of deinstitutionalization, we are concerned any such study of that issue may be biased.
It is also curious that the history and current state of the independent living movement and deinstitutionalization would be included in the commission’s charge, given the subject of the commission is the history of state institutions.
The Senate amendment doesn’t define the “independent living movement.” Also, a complete study of just deinstitutionalization would take the effort of a separate commission in itself.
In addition, we think it is unwise for the budget conference committee to adopt the commission idea as a budget provision. This is an idea that needs to work its way through the checks and balances of the committee process.
As part of that committee process, the concerns we’ve raised about the makeup and possible bias of the commission still need to be addressed. At the least, we think language should be added to the proposed legislation stating that the commission will examine the complete history of the state’s institutional facilities.
The full history of the state institutions for persons with cognitve disabilities in Massachusetts starts with the founding of those facilities, and it continues to the present day.
COFAR blog 