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DDS client removed against her will from shared-living home in alleged retaliation for reporting abuse

July 26, 2022 2 comments

It was on a Monday in May that Mercy Mezzanotti, a client of the Department of Developmental Services (DDS), was taken against her will from the home of Karen Faiola, with whom Mercy had been living for four years.

The person who came to take her worked for Venture Community Services, a nonprofit contractor to DDS. Up to that time, Venture had been paying Karen to provide shared-living services in her home to Mercy.

“I told them (the Venture employee and later other managers of the corporation) this is against my human rights,” Mercy said in a phone interview. “I’m my own guardian. I’m not going along with this. But they wouldn’t tell me anything. This should be under investigation.”

Both Mercy and Karen contend that Venture was retaliating against them because they had complained to managers of the organization in April that two of its employees had been verbally abusive toward Mercy.

Karen Faiola (left) and Mercy Mezzanotti

Mercy, 47, has a mild intellectual disability. As she put it, she has “trouble processing certain things.” But while she attended special needs classes in her school district as a child, she took mainstream classes in English and consistently made the honor roll. “I constantly studied,” she said. “I loved school.”

As her own guardian, Mercy has full legal authority to decide where to live, as well as to make other major life decisions. In our view, Venture’s alleged action to remove her from her home against her will was arbitrary if not unlawful.

Mercy and Karen said that the Venture employee drove Mercy on May 23 from Karen’s home in Sutton to the home of a family in Worcester that Mercy didn’t know. She said none of the people in the home spoke English. The next two days and nights were filled with anxiety and emotional trauma for her, Mercy said.

“I thought I would never see my home and Karen and my two cats that I love again,” she said.

Karen said that she conferred with Mercy’s private therapist after getting calls from Mercy saying she wanted to come home. She said the therapist maintained that Mercy had the right to make that decision; so Karen picked Mercy up on May 25, and drove her back to her home.  She said Mercy told her that she no longer wanted to have anything to do with Venture or its employees.

Venture stops payments

On May 23, the same day that Mercy was removed from Karen’s home, Venture notified Karen that they were terminating her shared-living contract to care for Mercy in her home. Karen said DDS officials have subsequently refused to act on her request that her contract be referred to another shared-living manager. She said the organization she suggested to DDS is located near her house and is one that she has experience with.

As a result of the contract termination, Karen said, she has not been paid since May for caring for Mercy in her home. She said that she nevertheless intends to keep Mercy there as long as Mercy wants. “I’m not going to allow anyone to take Mercy to any place she doesn’t want to be,” Karen said.

Under Mercy’s shared living arrangement, DDS had paid Venture to contract directly with Karen for providing residential services to Mercy. Karen said Venture paid her $2,882 a month under the contract.

“Karen has helpd me grow and see my potential and find a voice,” Mercy said. “I feel confident speaking to people.” She said Karen regularly takes her to doctors’ appointments, for pedicures, and to visit her father and a friend of hers.

Mercy added that she and Karen have gone hiking together and go shopping together. She said Karen makes her meals and helps here take care of her cats, while she takes the trash out. “I love Karen,” she said. “She’s  such a dream, such a great person.”

No written reason given in shared-living contract termination notice

Karen said a Venture employee alleged in a Zoom meeting with her and other provider personnel on May 19 that Mercy was going to be removed from her home because she had neglected to take Mercy to doctors’ appointments for the previous three years. Karen said this charge was untrue; and she provided COFAR with a doctor’s summary indicating that Mercy’s doctors’ visits and medications were up to date as of March of this year.

In a May 23 letter to Karen, Dorothy Cote, executive vice president and CFO of Venture, gave notice of the termination of Karen’s shared-living contract, but did not include a reason in the letter for the termination.

Cote’s termination letter cited a provision of the contract, which stated that Venture “may terminate (Mercy’s) placement upon due cause, a suspicion of due cause, abuse or neglect.”  The letter also said Mercy could be removed from the home  “pending the outcome of an investigation.” The letter, however, did not allege due cause, abuse or neglect against Karen. Cote’s letter also did not indicate that an investigation of any kind was pending.

If Venture officials did believe Karen had been neglectful in her role as a caregiver, there appears to be no indication that anyone reported an allegation against Karen of omission of care to the Disabled Persons Protection Commission (DPPC), as they would have been required to do.

Retaliation alleged for reporting abuse

Both Mercy and Karen contend that the sudden removal of Mercy from Karen’s home and termination of Karen’s contract were acts of retaliation by Venture against the two of them.

Karen said Mercy had been living with her for the past four years without incident. But she said that a number of months ago, there were changes in management at Venture, and problems began to develop with the new personnel. One of those new employees, she said, was assigned as a job coach to Mercy.

Mercy maintained that the job coach often harassed her at her job at a Papa Gino’s restaurant by mocking her work ethic. In one instance, in April, she said, the job coach suggested to the Papa Gino’s manager that she should fire Mercy. In another instance, she said, the job coach threatened not to drive Mercy home from work.

Karen said that in addition, a Venture service coordinator assigned to Mercy further abused her emotionally by threatening to remove her from Karen’s home.

Karen said she reported the incidents to a supervisor at Venture, and that led to the removal of Mercy from her home.

Therapist corroborates claims of emotional abuse

Grishelda Hogan, a licensed clinical social worker, has been Mercy’s therapist since 2019. In a July 21 email to Mercy and Karen, Hogan wrote that Mercy had “expressed consistently that she was happy in her home (with Karen)…It was clear in therapy,” Hogan stated, “that (Mercy) was making great strides in her life and I was able to see her self-esteem and self-worth develop as she finally felt seen and heard.“

Hogan stated that Mercy “had been reporting ongoing concerns with her Venture job coach. She reported feeling trapped and unsupported…” Hogan added that Mercy felt she had been lied to, and that the job coach had violated her privacy by talking to another individual on the phone about Mercy’s personal information. She said she passed her concerns on to DDS.

Hogan stated that she contacted Mercy’s DDS service coordinator after she learned that Mercy had been “abruptly moved from her home without warning or discussion despite being her own guardian.

“I shared that Mercy was reporting intense anxiety, difficulty sleeping, feeling sad and defeated, missing her home and her cat and her shared living monitor (Karen),” Hogan stated in her email to Karen and Mercy. “She was reaching out to me consistently asking for help and advocacy to get home.”

Hogan said the service coordinator told her she didn’t know the reason Mercy had been removed from her and Karen’s home. Hogan said Mercy had told her neither Venture nor DDS had ever asked her about concerns in the home prior to the move.

In her email, Hogan wrote that she personally reported to the DPPC that Mercy had been improperly moved from Karen’s home. “Mercy has consistently stated she believes her rights were violated,” Hogan wrote, “and DDS should be held accountable. And she fully believes the move was retaliation due to herself and her shared living monitor (Karen) speaking up.”

DPPC decides against full investigations of emotional abuse allegations 

Karen said she also reported three allegations of emotional abuse against Mercy to the DPPC in May, just before Mercy was removed from her home. Those allegations include instances involving the job coach and the service coordinator, and the then pending removal of Mercy from her home.

Subsequent letters addressed to Mercy from DDS Area Director Denise Haley, dated May 27, indicate that Karen’s allegations were referred to DDS for an Administrative Review.

According to DDS regulations, an Administrative Review is undertaken when the DPPC “screens out” abuse and other allegations for full investigations by either the DPPC itself or DDS (115 CMR 9.11). It’s not clear to us why DPPC would have screened out Karen’s and Hogan’s allegations, as both Karen and Mercy stated that Mercy had suffered emotional injury as a result of the alleged abuse.

No response to COFAR query sent to DDS area director and Venture CFO

On July 19, I sent an email query to DDS Area Director Haley and to Cote, the Venture executive vice president and CFO, raising our concerns about the removal of Mercy from Karen’s home and the termination of Karen’s shared-living contract, apparently without written cause. I cc’d Anthony Keane, the DDS Worcester regional director.

In the email, I discussed Karen’s and Mercy’s allegations of retaliation by Venture against them for having alleged abuse by Venture employees. I asked for any comment Cote or Haley might have. To date, I have not received a response from any of those persons to my email.

DDS removes client’s eligibility for Medicaid funding for shared living services

In my email to Haley, Cote, and Keane, I said we were also seeking an explanation for the apparent disqualification by DDS of Mercy from eligibility for Medicaid Intensive Support Waiver Services. A July 6 legal notice from DDS stated that Mercy was being denied eligibility for the Intensive Support Waiver. No reason was given for that denial in the notice, other than an unsupported and unexplained statement that there were “no waiver services” available.

We agree with Mercy that a full investigation is warranted of Venture’s apparently unlawful removal of her from her home, and of the other alleged instances of emotional abuse against her. We also would urge DDS to immediately refer Karen to another shared-living contracting agency, and that she be reimbursed retroactively for having provided shared-living services to Mercy since May.

This case appears to fit a pattern in which family members or other individuals who report abuse or poor care of DDS clients are dismissed or find themselves subject to retaliation by corporate providers or by the Department itself. We are hoping that in continuing to shine a light on these cases that we can help one day break this pattern.

Fiscal 2023 state budget will finally require DDS providers to boost direct-care wages

July 21, 2022 3 comments

Corporate providers to the Department of Developmental Services (DDS) and other human services agencies will be required to direct up to $173 million in state funding to boost wages of their direct-care workers, under the Fiscal Year 2023 state budget.

This past Sunday, 17 days into the new fiscal year, a state legslative House-Senate conference committee approved a budget plan that includes mixed results for our budget priorities. But it appears the approval of the direct-care wage provision is a big win.

On Monday, the Legislature gave formal approval to the overall $52.7 billion state budget, and sent it to Governor Baker for his signature.

Assuming that the governor does not veto it, the direct-care wage provision will require any corporate human services provider receiving state funding under a special reserve account to direct at least 75% of that funding to compensation for direct-care and front-line staff.

The problems of inadequate direct-care wages and resulting staffing shortages have reached critical levels in the state’s human services system; and, up to now, the administration and Legislature appear to have done little to address them.

The conference committee approved $230 million in funding for the provider reserve account for Fiscal 2023 — the same amount proposed by Governor Baker. 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.

The passage of the funding provision was hailed by SEIU Local 509, a human services employee union that had been pushing for it, along with COFAR. But it remains unclear how much the requirement will raise direct-care wages, and how the 75% fundng provision will be tracked and enforced. We have called for a mnimum direct-care wage of $25 per hour.

On Twitter, Peter MacKinnon, president of Local 509, termed the enactment of the 75% wage provsion “a powerful statement of support for these essential workers and a significant first step in repairng the workforce crisis plaguing the human services industry.”

Additional reserve account funding proposed

The House earlier this week approved a separate bill (H.5034) that would establish a separate $100 million reserve fund based on federal COVID relief funding for the corporate providers, and would require that 90% of that reserve account be directed to direct-care staff.

The Senate has proposed funding that reserve account at $250 million, but has not yet acted on the legislation.

Conference committee approves flawed state commission budget language

The Fiscal 2023 budget also includes what we consider a flawed proposal to establish a state commission to study the history of institutional care in Massachusetts of persons with developmental disabilities and mental illness.

We had urged the conference committee not to approve what appeared to be a last-minute Senate budget amendment to establish the commission because it is not clear to us that the proposed commission will acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs).

We support the establishment of a commission to study the full history of the state facilities. But our concern is that proponents of further deinstitutionalizaton and privatization in the DDS system could use the commission, as established in the budget, to call for the closures of the Wrentham Developmental Center and Hogan Regional Center, and potentally other state-run residential facilities.

Nominal increases approved in funding for ICFs and state-operated group homes

The budget conference committee also approved nominal funding increases for state-operated group homes and the Wrentham and Hogan ICFs.

Both the House and Sente essentially adopted the governor’s budget numbers for those line items. The ICFs and state-operated group homes will receive increases in the current year of between 5% and 6% from the just-completed fiscal year.

However, in inflation-adjusted terms, these budget increases amount to cuts in funding for both the ICFs and state-operated group homes. According to the Bureau of Labor Statistics, the inflation rate in New England was 7.9% as of June.

We will keep fighting for adequate funding for state-run services in Massachusetts. And we will continue to bring you news of the efforts at long last to address the direct-care wage problem in the state.

 

Our state budget priorities for Fiscal Year 2023

July 6, 2022 3 comments

Fiscal Year 2023 in Massachusetts actually started this past Friday — on July 1 — but, as has become inceasingly the case in recent years, the state Legislature has gone past the fiscal year deadline wthout enacting a state budget.

For nearly a month, the Fiscal 2023 budget has been subject to closed-door deliberations in a conference committtee whose job is to iron out differences between the budget positions adopted this spring by the full House and Senate.

As a result, our budget priorities remain up in the air — dependent on the decisions being made by the six-member conference committee. Until the committee submits its report to the full Legislature, we won’t know the outcomes of the following priorities (not necessarily in order of importance to us):

1. More funding for direct-care wages

In early June, the Senate approved a budget provision requiring that any corporate human services provider receiving state funding under a special reserve account direct at least 75% of that funding to compensation for direct-care and front-line staff.

There was no such requirement in the House version of the budget. As a result, the House-Senate conference committee will decide whether the 75% provision stays in the final budget.

Earlier this year, both the House and Senate approved $230 million in funding for the reserve account for Fiscal 2023 — the same amount proposed by Governor Baker. 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.

We are supporting the 75% funding requirement although it is unclear how much the requirement would raise direct care wages. We have called for a mnimum direct care wage of $25 per hour.

2. Higher funding for state-operated group homes and Intermediate Care Facilities

State-operated group homes and the Wrentham Developmental Center and Hogan Regional Center would receive nominal dollar increases in the Fiscal 2023 budet.

But while the increase for the state-operated homes would have been roughly equal to the inflation rate when the governor proposed his budget in January, the proposed funding increase both for those residences and the Hogan and Wrentham centers would be lower than the inflation rate today.

Both the House and Sente have adopted the governor’s budget numbers for those line items. In inflation-adjusted terms, these budget numbers amount to cuts in funding for both the ICFs and state-operated group homes.

While we don’t expect the conference committee to increase funding for either line item, we hope it doesn’t cut either one.

State-operated group homes and the Hogan and Wrentham centers are the backbone of the Department of Developmental Services (DDS) system because they care humanely and efficiently for even the most profoundly intellectually disabled and medically involved people. They also provide jobs.

The developmental center or Intermediate Care Facility (ICF) line item has been cut by $68.4 million, or 39%, over the past decade, when adjusted for inflation.

That decrease in funding when adjusted for inflation stands in contrast to funding for the DDS corporate residential line item (5920-2000), which has skyrocketed over the past decade to over $1.4 billion. That is an amount that dwarfs the funding for state-operated group homes and the two remaining ICFs in Massachusetts.

3. Rectifying problems with state commission on the history of state facilities

We have urged members of the budget conference committee not to approve what appears to be a last-minute Senate budget amendment that would establish a state commission to study the history of institutional care of persons with developmental and other cognitive disabilities.

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 ICFs.

Given that the House did not adopt a similar budget provision to establish the commission, the commission proposal is subject to the House-Senate conference committee.

We think it is unwise for the 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.

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.

4. Correcting misleading language that the U.S. Supreme Court ordered the elimination of institutional care

We have asked legislative leaders to correct language in the budget that mistakenly implies that the U.S. Supreme Court ordered the closures of institutions for persons with developmental disabilities.

The budget language 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. The decision, however, explicitly states that federal law — specifically the Americans with Disabilities Act (ADA) — does not require deinstitutionalization for those who don’t desire it.

In one of three instances in which we are seeking changes or corrections, the budget language states that 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)

In letters sent in May to the chairs of the House and Senate Ways and Means Committtees, we noted that closing institutions was not the intent of the Olmstead decision, which was written by the late Justice Ruth Bader Ginsburg.

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 the Wrentham and Hogan centers.

Once again, given that this language is in both the House and Senate versions of the budget, it isn’t clear that the conference committee will make any changes in this particular budget. But whatever the short-term outcomes, we will continue to fight for these priorities.

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