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UPDATE: Ban on mother’s contact with son at least temporarily lifted

August 30, 2022 13 comments

[UPDATE TO YESTERDAY’S POST (BELOW): Cindy Alemesis was informed yesterday (August 30) that the ban on family contact with her intellectually disabled son Nick would be lifted as of today, at the end of a 14-day period specified by Nick’s group home provider and DDS co-guardian (see post below).

However, Cindy also said that in a phone call yesterday, the Incompass group home manager told her the ban on all contact could be re-imposed if Nick continues to display aggressive behaviors. Cindy believes Nick has been acting out because he may have been abused in the group home, and that he wants to leave it.

Cindy said she asked the group home manager whether the ban on family contact was actually a form of punishment of Nick. “I said to him, ‘so, as punishment, Nick loses his mom?’” Cindy said. “And he said, ‘well Nick has to learn.’”

In a text message to Cindy yesterday, the Incompass director of residential services, said Cindy will be allowed to visit Nick at the group home this Saturday. She will also be allowed one 10-minute phone call a day with Nick. But the Incompass director stated that the phone call would be terminated by staff, “if Nick begins displaying unsafe/inappropriate behaviors during the call.”]

 

Cindy Alemesis, who saved her intellectually disabled son Nick’s life in 2018, was subject to a ban on all contact with him for the past two weeks because Nick allegedly began behaving aggressively after her visits and phone calls.

The ban was imposed on August 17 by Incompass Human Services, a Department of Developmental Services (DDS) group home provider, and by a co-guardian of Nick, who is paid by DDS. The Department is, meanwhile, continuing an effort in probate court to remove Cindy as her son’s other co-guardian for reasons that have never been made clear.

Nick Alemesis and his mother Cindy

Cindy believes Nick acts aggressively because he doesn’t want to remain in his group home in Dracut, and may have been abused there. Cindy has reported at least two incidents of injury suffered by Nick in the Incompass residence.

Both Incompass staff and DDS have failed to report those injuries to the Disabled Persons Protection Commission (DPPC), as required by law.

Neither DDS Commissioner Jane Ryder nor Jean Phelps, the Incompass CEO, have responded to an email last week from COFAR raising concerns about the ban on contact and the alleged failure to report the injuries.

Similar to past bans on contact

The ban on family contact with Nick is similar to bans imposed in at least two other cases, which led to emotional pain and suffering for DDS clients and their families (see here and here).

As we noted in our email to Ryder and Phelps, cutting off family and social contact with DDS clients is an extreme measure that runs counter to their well being and rights under DDS regulations to support human dignity. Among those fundamental rights is the right to visit and be visited (115 CMR 5.04).

In Nick’s case, the ban on contact also follows from previous restrictions imposed by Donna Nolan, the DDS co-guardian, on Nick’s visits to his church and community.

Reason for latest ban on contact disputed

Records sent to us by Cindy show that Incompass has charged that Nick has engaged in “unsafe and self-injurious behaviors” after visits or phone calls from her and other family members.

In an Incompass document titled, “Human Rights Request for Approval of Restriction,” both Phelps and Nolan signed their approval on August 17 of a 14-day ban on all family communication and visitation with Nick as well as “access to social situations” for Nick. The document, which concerned both family visits to the group home and visits by Nick to Cindy’s home, left open the possibility of extending the ban indefinitely.

The document stated that after speaking with his mother by phone on August 9, Nick threw a phone and later a stone from his bedroom at staff, and refused to take his medications.The document alleged that Nick was taken that day to Lowell General Hospital where he exhibited similar aggressive behaviors after Cindy called him and then visited him there.

The Incompass restriction document, however, did not identify any statements or actions by Cindy or any family members that might have incited Nck to act out. Cindy contends Nick acts out because he does not want to live in the group home, or return to it when he is taken elsewhere.

We would echo Cindy’s concern that conditions in the residence itself may be causing his behaviors and injuries. We think the solution to the problem is to change his residential setting.

Text messages and statements from Nick indicate that he may be afraid of being hurt or injured by staff in the group home. Cindy said Nick has told her that staff have “hurt his head.” Cindy also forwarded a July 28 text message from Caitlyn Alekshun of Bridgewell Counseling Services indicating that there is uncertainty as to why Nick has been agitated and engaging in possibly self-injurious behaviors.

As discussed below, an earlier message from Alekshun to Nick’s service coordinator indicated that the group home staff were not providing timely information to her about the possible cause or causes of Nick’s behavior.

We haven’t seen any records that indicate that either Cindy or other family members have done or said anything to incite Nick to act out or injure himself. In a July 21 email, Nick’s DDS service coordinator wrote that he had “observed Nick become dysregulated. Staff report that it is like this every day.” That would appear to rule out Cindy as the sole, or even main cause of Nick’s behaviors.

However, the August 17 restriction document, signed by Phelps and Nolan, concluded that:

Due to these recent events and to Nicholas’ increasingly unsafe behavioral response to interactions with Cindy, both in person and by phone, it is proposed that Nicholas does not have any communication or contact with family members (including, but not limited to Cindy…) for a period of 14 days. This period of time will allow the program to work more effectively with Nicholas to keep him safe, unencumbered by external stimuli that may significantly impact his ability to regulate his emotions and subsequent behavior.

At the end of this initial 14-day period of no-family contact, the treatment team will revisit this restriction and assess whether continuing the practice is warranted for an additional 14-day period(s).

Staff not providing information to clinician

The restriction document did not make it clear how or why contact with Cindy or other family members would incite Nick to engage in aggressive behaviors. We think that without establishing a clear cause of those behaviors, Incompass has not made a case for restricting family contact.

Nick (right) and his pastor, the Rev. Keith Phemister, and Keith’s wife Gloria. Nick has been restricted at least twice this year from visiting his church.

In fact, records indicate that the group home staff have been uncooperative with at least one clinician seeking to determine the cause of Nick’s aggressive outbursts.

In response to the service coordinator’s July 21 email, Alekshun of Bridgewell wrote that she had requested “recent behavioral data from the residence a few times, but haven’t received anything more recent than May.” Such data, she wrote, might “help justify the need for an inpatient placement” for Nick at a hospital setting.

Failure to report injuries

We are also concerned that DDS and provider staff have failed to report potentially serious injuries that Nick suffered in the group home, as required by law. In the most recent case, Cindy said she was forced to report a head injury that Nick suffered on March 16 to the DPPC because the injury had not been reported by the staff.

Both the DDS Decision Letter and subsequent Action Plan resulting from the March 16 incident stated that the alleged abuser didn’t report the injury.

Cindy said the incident resulted in bleeding from Nick’s ear, which would classify the injury as a serious physical injury under DPPC regulations. Nick received emergency room treatment for the injury.

DDS declines full investigation

After Cindy reported Nick’s March 16 head injury, DDS apparently conducted a limited Administrative Review of the incident. Administrative Reviews do not meet DPPC standards for full investigations. The DDS Decision Letter, issued after the review was completed, acknowledged that a “regulatory investigation” had not been conducted.

Given, in particular, that the bleeding Nick suffered from his ear would classify the injury as serious under DPPC regulations, it would appear that either DPPC or DDS should have conducted a full investigation of the matter, and not an Administrative Review. The DDS Decision Letter did not explain why a full “regulatory investigation” was not done.

The DDS Decision Letter concluded that as a result of the limited review, there was insufficient evidence to conclude that Nick had been abused by a staff member, and that Nick had “acknowledged” his injury had been self-inflicted. However, the Decision Letter did not disclose who was interviewed by the investigator. Cindy said she was not interviewed, and it is not clear whether even Nick was interviewed, based on accounts in the Decision Letter and subsequent DDS Action Plan.

The Action Plan, in fact, stated that, “It was reported by the provider that (Nick) exhibited self-injurious behaviors (SIB) causing injury to himself and was restrained.” (my emphasis). This statement appears to imply that the DDS investigator may have relied on an account from the provider, possibly even from the alleged abuser, in concluding that Nick had injured himself.

Both the Decision Letter and Action Plan said only that “during the course of the investigation witness(es) were interviewed and relevant documents were reviewed.” There was no specificity as to which documents were reviewed, or which witness or witnesses were interviewed. In fact, it isn’t clear, based on the word “witness(es),” whether more than one person was actually interviewed.

DPPC regulations (118 CMR 5.02) require that in full investigations, the investigator interview the reporter of the injury — in this case, Cindy. Cindy said that never happened.

The regulations also require that the investigator provide an assessment of the “immediate protective services needs” of the alleged victim to prevent the risk of further harm. There was no indication in the Decision Letter or Action Plan that such an assessment was done in this case.

The Action Plan recommended only that Nick’s residential and day provider staff “create a communication log that documents such incidents so everyone is informed.”  There was no recommendation in the Action Plan relating to failure of the provider or DDS to report the injury to DPPC.

Similarly, DDS and DPPC declined to undertake an investigation of an incident in 2018 in which Nick contracted sepsis and spent eight months in a hospital because of the apparent negligence of staff in his group home. That incident was also not reported by the provider staff or by DDS to DPPC.

No response from DDS or Incompass

As noted, on August 25, I sent an email to both DDS Commissioner Ryder and to Phelps, the Incompass CEO, noting our concerns about the restriction on family contact and about reports of poor conditions and staff treatment of Nick that led him to state and text to his mother that he did not want to remain there. As such, I wrote, we are concerned the residence is potentially unsafe for Nick. To date, I haven’t received a response to my email.

We urge DDS and Incompass to reconsider the restrictions placed on family contact with Nick. We also urge DDS to conduct a full investigation of the injury that occurred to Nick on March 16, and to investigate the care and conditions in the residence.

Finally, we urge DDS to work with Cindy to identify another residential setting for Nick or a placement in an Intermediate Care Facility such as the Hogan Regional Center.

Our updated DDS corporate provider survey: Total number of providers in MA has dropped, but total executive comp. rises to $126 million

August 11, 2022 4 comments

(Research contributed by COFAR Intern Joseph Sziabowski)

Seven years after we published our first survey of the financial compensation of executives employed by corporate providers to the Department of Developmental Services (DDS), our updated survey shows some surprising and not-so-surprising changes.

What might not be surprising is that between Fiscal Years 2012 and 2020, total compensation of CEOs, executive directors, and other DDS provider executives doing business in Massachusetts rose from $102.4 million to $125.5 million. That is a 23% increase.

Also, the average compensation paid per executive rose from approximately $161,000 to $184,000 — a 14% increase.

This trend remained constant across almost all executive categories. Nominal and inflation-adjusted average compensation rose for virtually all executive positions.

(Click to enlarge the summary chart below of total and average compensation of DDS corporate provider executives in Fiscal 2020.)

(You can find our full survey results at DDS Corporate Provider Compensation Survey)

What seems surprising in our updated survey is that despite the increase in total executive compensation between Fiscal 2012 and 2020, the total number of corporate providers actually declined by almost half in those years. Lists of all DDS providers were obtained from DDS in 2014 and again this year under Public Records requests.

Our surveys involved examining the federal nonprofit tax returns (IRS Form 990) of the listed providers for the 2012 and 2020 fiscal years. (Form 990 tax returns for all nonprofits are available at ProPublica and on other sites).

In our latest survey, we also cross-checked data with Massachusetts online Uniform Financial Reports (UFRs) for 149 DDS-funded, corporate providers.

In filling out the IRS Form 990, nonprofit organizations are required to list total compensation of “officers, directors, trustees, key employees, and highest compensated employees.” Key employees must earn over $150,000 and meet a responsibility test, while highest compensated employees are employees other than key employees who earn over $100,000.

The primarily nonprofit corporate providers funded by DDS in Massachusetts provide a range of residential, day program, and other services in the DDS system. While some of these providers do business in other states as well as in Massachusetts, DDS pays more than $1.4 billion per year to the providers to run a network of hundreds of group homes in this state alone.

State responsible for paying approximately 70% of executive compensation

By COFAR’s estimates, the State of Massachusetts was responsible for paying up to $87.8 million of the total $125.5 million in compensation received by the provider executives in Fiscal 2020. (An explanation of our methodology for calculating state reimbursement of executive compensation is below.)

Transfer of assets from public to private ownership

We also found that as of the end of Fiscal Year 2020, the providers held more than $3.82 billion in total assets. During that year, those providers received $5.64 billion in total revenues from public and private sources in Massachusetts and other states.

Assets range from buildings to vehicles to cash reserves, which have largely been acquired by the providers through their use of taxpayer revenues. As such, the assets held by the providers represent a “troubling transfer of that wealth from public to private ownership,” said COFAR President Thomas J. Frain. “We as taxpayers largely paid for those assets, but we’re never getting them back.”

Executive compensation vastly outpaces direct-care wages

The continuing increases in compensation of the provider executives stand in sharp contrast to largely stagnant wages that have been paid to direct-care personnel employed by the providers over the past several years.

It was only on July 28 that Governor Baker signed the state’s Fiscal 2023 budget, which contains a first-ever provision requiring all corporate human services providers 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.

There has been scarce information available, however, as to how much the budget provision will raise direct-care wages, and when the additional funding for those increases will be made available.

Frain said he is not persuaded that the new funding will do much to decrease the size of the gap between executive and direct-care wages. Direct-care wages have averaged around $16 an hour in Massachusetts. “The corporate provider service model allows the executives to siphon off large amounts of money that never make it to the direct-care workers,” he said.

Number of providers declined, but total compensation increased

Apparently due to consolidations and mergers, the total number of providers contracting with DDS to provide residential and day program services dropped from 298 to 160 — a drop of 46% — between Fiscal 2012 and the present. (Our numbers are based on the sizes of the two provider lists obtained from DDS in 2014 and this year.)

The apparent reason for the total increase in executive compensation in the period from Fiscal 2012 to 2020 is that there are actually more executives working for fewer providers today than in 2012. The number of vice presidents, in particular, rose from 100 to 162, between Fiscal 2012 and 2020.

As a result, the total number of executives rose to 682 in Fiscal 2020, compared to 635 in Fiscal 2012, according to information contained in the IRS 990 forms we examined.

In other words, the mergers and consolidations among the provider organizations do not appear to have reduced the layer of executive bureaucracy that existed in the provider system in Fiscal 2012. That layer has only grown thicker.

This may be one of the reasons that the promise of taxpayer savings in privatizing DDS services has not been realized.

The latest COFAR survey examined the compensation of 98 CEOs and presidents, 71 executive directors, 79 CFOs, 40 COOs, 162 vice presidents, and 232 other executivess, all earning average salaries of over $100,000.

Other updated survey findings include the following:

  • The average CEO compensation was $263,189 in Fiscal 2020, up from $210,227 in 2012. The average executive director compensation was $163,375, up from $130,835 in 2012.
  • The highest paid president received $903,135 in compensation from The Seven Hills Foundation in Fiscal 2020. In addition, the president’s spouse, listed as the executive VP/CEO, received $391,798 from that organization in Fiscal 2020. Together, the couple received $1.3 million in compensation from Seven Hills.
  • The former CEO of the Devereux Foundation stepped down from that position effective January 1, 2018, but continued to work for the organization. That official received $913,124 in Fiscal 2019 and $683,159 in Fiscal 2020 while averaging only 20 hours per week in the latter year, according to the organization’s IRS tax forms. In Fiscal 2020, the former and current CEO of Devereux received a combined $1.4 million in compensation.

(Click on chart below to enlarge.)

Our methodology for calculating state reimbursement of provider executives

State regulations (808 CMR 1.05 (24) Salaries of Officers and Managers) limit state reimbursements to providers for the cost of compensating their executives. Limited executive compensation data for each provider and allowable reimbursement by the state are included in online UFRs.

For fiscal Year 2020, the UFR Auditor’s Compliance Supplement established a cap on state reimbursement for executive compensation at $187,112. For any executive receiving compensation greater than the cap, that excess amount must come from sources other than the State of Massachusetts, according to the regulations.

The Compliance Supplement also states that state reimbursements of executive compensation must be prorated if human service executives devote less than full time to state programs.

The UFRs submitted by the providers, however, do not appear to clearly show the total amounts of compensation received by all executives working for those providers, or how much of that compensation is actually subject to reimbursement by the state.

OSD did not respond to a request from COFAR to clarify the Compliance Supplement methodology for calculating and prorating state reimbursements of executive compensation.

Based on the guidelines, we did our own calculations of the total state reimbursement due for each provider executive. Operating under an assumption that providers receiving a portion of their funding from out-of-state governments were not devoting full time to Massachusetts programs, we also calculated a prorated reimbursement for those providers. (See the Proration Rates tab in our full spreadsheet for our proration calculations).

We hope that by continuing to bring the issue of executive compensation to light via our periodic surveys, we can persuade the administration and Legislature to take steps to better oversee and limit that compensation.

We think the fact that total compensation paid to DDS provider executives has continued to rise even though the number of providers has dropped is one sign that the provider system is not subject to adequate financial management and oversight.

DDS emails show concern that governor’s COVID vaccination mandate could worsen staffing shortage in state-op group homes

August 8, 2022 1 comment

Department of Developmental Services (DDS) Commissioner Jane Ryder and at least one other top DDS official were concerned last September that Governor Baker’s COVID vaccination mandate for state employees could worsen an already existing staffing shortage in the Department’s state-operated group homes.

Those concerns were expressed in a handful of emails, which COFAR received from DDS late last month after a nine-month battle for internal records relating to closures and consolidations of the homes.

On July 8, the state’s Public Records Supervisor ruled that DDS must produce the records because the Department had not met its burden of proof that the emails were exempt from public disclosure. DDS provided the emails to us on July 29.

The internal emails confirm that there had been closures of some state-operated group homes in Massachusetts due to an executive order issued last August by Governor Baker requiring all state employees to be vaccinated by October 17 or face termnation.

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.

As of October 21, we had received unconfirmed reports 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.

In an email, dated September 24, Gall Gillespie, the DDS Metro Region director, stated that she wasn’t sure whether Baker was aware of the impact his vaccination mandate might have on the state-operated group home system.  Her email, which was sent to a DDS consultant, stated:

I am not sure the governor knows about the impact (of his vaccination mandate). Jane (Ryder) is briefing the secretary (Health and Human Services Secretary Marylou Sudders).

We have had homes consolidate and close, staff taking individuals home with them, and administrative staff working shifts. Some agencies are asking about the National Guard… We may be asking area and regional staff to fill in shifts if staff get terminated around the vaccine mandate. We cannot ask staff if they are vaccinated; so only know a percentage based on a cross check with DPH.

In an email earlier that same day to the same consultant, Gillespie described “a major crisis looming with the staff shortage…I think it is a problem that is almost too scary to address and it seems not in our control. It also does not directly affect some of our senior staff. Some of us are meeting and trying to come up with plans if we lose 20-40% of our direct care staff on October 17.”

But while those emails show a concern within DDS over the staffing shortages in the group home system and the potential impact of the vaccine mandate, no concerns were expressed in the emails about other potential causes of the staffing shortages such as the problem of low direct-care wages. One email from Gillespie said only that DDS would pay overtime to staff willing to work shifts in state-operated group homes after their regular work week was completed.

We have reported that a key cause of the staffing shortages has been low direct-care wages that have plagued the entire DDS system.

No discussion about future of state-run group homes

Administration officials have declined to comment to us on the staffing shortages or closure reports regarding either state-operated or provider-operated homes. The emails provided to us on July 29 confirm the Department’s concerns about those issues, at least regarding the state-run homes.

But the emails don’t contain any discussions about any plans or concerns DDS might have had regarding the future of the state-run group home system, which was one of the reasons we sought the internal documents.

We view the state-operated group home system to be a crucial backstop for care in the DDS system as a whole. Yet DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years.

Overtime offered to staff willing to work in state-ops

In an email on October 13 to DDS state-operated group home personnel, four days before the October 17 vaccination deadline, Gillespie again referred to the staffing shortage that DDS anticipated “will get worse after the deadline for the vaccine mandate passes.”

Gillespie said that while some staff had volunteered to work in Metro Region homes the previous week, DDS was now offering to pay overtime for staff willing to work shifts in those homes beyond their regular work week. She added that the Central West Region was also looking for volunteers to staff group homes.

In an October 12 email to all of the DDS regional directors, a DDS official listed clinics around the state at which state employees could get vaccinated.

As noted, none of the emails addressed the issue of long-term DDS policies concerning closing or consolidating state-operated group homes. As a result, it’s not clear why DDS fought so hard against releasing these emails to us.

No clear plan for addressing the staffing shortage or direct-care wages

It’s also not clear from the records that DDS has a systematic plan to address the staffing shortage or direct-care wage problems in either the state or provider-run group home networks.

The one thing that the internal DDS documents appears to show is that DDS offcials were, and potentially still are, concerned about staffing shortage in state-run group homes.

But it doesn’t appear DDS has done more to address that issue than to issue appeals for volunteers and offer to pay overtime to staff willing to work beyond their regular work week.

Late last month, Governor Baker signed the Fiscal Year 2023 budget, which includes a provision requiring DDS and other human services agencies to direct up to $173 million in state funding to boost wages of their direct-care workers, But to date, there has been little or no information available as to when that money will start flowing, or even what the impact will be on worker wages.

We think a plan is urgently needed from the administration that includes details on how the administration intends to deal with these issues.

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