Home > Uncategorized > DDS placing client in a ‘Catch-22’ position to force her to leave her shared living caregiver

DDS placing client in a ‘Catch-22’ position to force her to leave her shared living caregiver

The Department of Developmental Services is arguing in a legal brief that Mercy Mezzanotti, a departmental client, should be disenrolled from a program that provides her with shared living services unless she agrees to move away from her long-time caregiver, Karen Faiola.

But Mercy maintains that she wants to stay with Karen with whom she and her therapist say she has thrived emotionally over the past four years.

In May, Karen’s previous payment agency, Venture Community Services, suddenly canceled her shared living contract without stating a reason in its termination notice. As a result of the contract termination, DDS maintains in the legal brief that Karen is no longer a “qualified shared living provider.”

The DDS brief further argues that because Mercy has refused to move in with a new caregiver, she has “voluntarily declined” shared living services and should be disenrolled from the program.

For reasons that DDS has not revealed publicly, the Department has declined to refer Karen to a new shared living payment agency. DDS does not contract directly with shared living caregivers, but does refer them to shared living payment agencies such as Venture. Were DDS to refer Karen to a new agency, Karen would presumably become a qualfied caregiver once again.

Karen Faiola and Mercy Mezzanotti

Karen and Mercy both maintain that Karen’s contract was terminated after both of them accused Venture employees of emotionally abusing Mercy. They claim DDS is siding with Venture in the matter, and that the Department has refused to fully investigate their charges.

Because DDS has declined to refer Karen to a new corporate payment agency, Karen has not been paid since May for caring for Mercy even though Mercy has continued to reside in her home. In Karen’s and Mercy’s view, DDS’s legal argument has placed both of them in impossible, Catch-22 positions in order to deny what Mercy has expressly stated what she wants – services from Karen.

Mercy’s appeal of DDS’s disenrollment notice is now before a state hearing officer who held a hearing on it last month. By way of disclosure, I attended the November 10 hearing via Zoom and testified in support of Mercy and Karen. I agreed, at the request of hearing officer and Erin Brown, a DDS assistant general counsel, not to publish details of the actual hearing on this blogsite until the hearing officer renders her decision, which is expected sometime later this month.

As a result of that agreement, I am confining this post to a discussion of the legal brief filed by Brown with the hearing officer on December 7, after the hearing concluded. In her brief, Brown laid out the Department’s argument for disenrolling Mercy from services under the Home and Community Based Services (HCBS) federal waiver program.

In May, as we also reported, Venture employees removed Mercy, against her will, from Karen’s home and placed her for two days in the home of another caregiver whom she didn’t know. After objecting to the move, Mercy was able to return to Karen’s home. We have joined Mercy and Karen in asking the Disabled Persons Protection Commission (DPPC) to fully investigate both the removal of Mercy from Karen’s home and allegations made by Mercy that she had been previously emotionally abused by Venture employees.

Catch-22 positions for Mercy and Karen

The key point Brown makes in her brief is that Mercy became ineligible for the HCBS Waiver, which supports shared living, when Mercy came back to live with Karen after her involuntary removal from Karen’s home. Brown’s brief stated that Mercy:

…voluntarily declined shared living supports from a Qualified Provider, and instead choose to live with Ms. Faiola (Karen). This choice, which is her right, resulted in (Mercy) being ineligible for the (HCBS) Waiver because she was not receiving a Waiver program service: Ms. Faiola is not a qualified and licensed provider, nor is Ms. Faiola employed by a Qualified Provider to provide Waiver services.” (my emphasis)

However, as noted above, the reason Karen is not employed by a Qualified Provider is that Venture terminated her contract without stating a cause, and DDS will not refer her to a new Qualified Provider.

Also, while Brown stated that Karen herself is not a licensed or qualified shared living provider, Brown later stated in the same brief that in this case, the licensed and qualified provider was Venture, a DDS-funded corporate agency, that contracts directly with shared living caregivers. Shared living caregivers themselves, such as Karen, are not licensed by DDS.

DDS says psychotherapist’s testimony that Mercy has reportedly thrived under Karen’s care was irrelevant

In her brief, Brown acknowledged that Grishelda Hogan, an outpatient psychotherapist, who has treated Mercy since  2018, testified during the hearing that she has “not had any concerns about (Mercy) in the care of Ms. Faiola.”

As we reported, Hogan actually sent a written statement to the hearing officer prior to the hearing in which she stated that Mercy had “expressed consistently that she was happy in her home (with Karen)…It was clear in therapy 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.“

Brown stated in her brief, however, that “the entirety of Ms. Hogan’s testimony was irrelevant. She did not testify about the (HCBS) Waiver or Waiver rules. There were no clinical matters at issue in the fair hearing, nor was Ms. Hogan qualified as an expert to speak on clinical matters.”

It appears that Brown is admitting in her brief that Mercy’s emotional state, and her wishes, are irrelevant to DDS. Also, Hogan is a psychotherapist who has worked with Mercy for four years. Brown’s brief offers no reason why she would not be qualified to speak on clinical matters.

Brown similarly contended in her brief that testimony by Mercy’s sister Tami Baxter that Mercy was doing well in Karen’s care was irrelevant. And Brown maintained that Karen’s testimony that DDS has refused to refer her to another qualified provider was “outside the scope of the fair hearing and irrelevant.”

In our view, Karen’s employment relationship with Venture is of central relevance to the case. Venture’s termination of the contract with Karen is the basis of DDS’s argument that Mercy is not receiving services from a Qualified Provider.

As I noted in a written statement that I sent on November 17 to the hearing officer, Mercy had been in several shared living arrangements before she met Karen that were not successful and that left her in a depressed and dysfunctional emotional state. We think placing Mercy with a different shared living provider than Karen would risk a return to the unsuccessful placements of the past for her and would risk undoing the emotional and psychological progress she has made with Karen. Those are risks that we think may be quite high.

We are urging the hearing officer to decide in favor of Mercy Mezzanotti’s appeal to retain her eligibility for services from DDS.

We are also requesting that the hearing officer either order or advise DDS to refer Karen to a new payment agency in order to allow Mercy to continue to receive shared living services from her.

  1. Mj
    December 13, 2022 at 2:24 pm

    This isn’t for one particular action. Just overall questions I hope someone could answer. So we all may have a better understanding of how things work or what possibly should be reviewed.

    Does anyone know who employs the state hearing officers, what agency? Does the DDS Commissioner have any direct or indirect part in hiring or deciding who sees over DDS cases? If agencies/personnel were intertwined that would appear to have a possible impact on impartiality of the hearing officer, would it not?
    Is there anyway to find out decisions hearing officers make to see if there is bias?

    One individual/family vs a whole state agency, their staff, and their attorneys, private providers, their staff and attorneys(through DDS contract monies). Our taxes pay for those attorneys so families/individuals should be provided the same representation funded as state and providers are, doesn’t that seem fair?

    I thank God I have not been in the position of some of the people I read about, and pray I never will

    I admit I don’t have in-depth knowledge off the DDS system when they challenge families and I understand there is more than I hear/read but it does appear a lopsided system.

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  2. Karen Faiola
    December 13, 2022 at 3:44 pm

    I never thought that advocating for a special needs person would cause such an uproar. The reaction by both Venture and DDS to terminate me for doing what I am supposed to do; which is to advocate and protect the individual from abuse. To this day no investigation has been done by any agency. The people who have been abusive towards Mercy from Venture still have jobs and the complaints of mental and emotional abuse towards her has been ignored. The knee jerk reaction to remove Mercy from my home immediately against her will is abuse also. It violates her human rights as she is her own guardian. With all the paid organizations in Massachusetts that are to protect special needs, not a one stepped to the plate. The system is broken. Even with laws on the books that protect Mercy weren’t followed. DDS’s attorney, Ms. Brown’s final brief after the hearing is indicative of who DDS is today. It is an organization that forgot who they serve, they don’t listen to the individual’s wants and needs as well as acting in their best interest, it’s about their power unchecked. This is personal for Venture and DDS, they don’t like me, I am a fighter and I ruffle feathers when something is wrong, especially for the people who have challenges. I am a whistle blower, but even the laws on the books didn’t protect me, they were ignored. DDS holds the purse strings and with that unfettered power they punish anyone who doesn’t follow what DDS wants. It’s no longer about the individual.

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  3. MJ
    December 13, 2022 at 3:56 pm

    Excellent point where are all the so called agencies that are suppose to advocate for individuals? Also where are DDS Human Rights folks employed by DDS? Should they not advocate with/for Mercy? Seems that is a conflict for human rights employees. Just questions as I have no answers to these questions and more.

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    • Karen Faiola
      December 14, 2022 at 12:07 pm

      Excellent point, it’s really not a fair hearing. This is the problem, all these agencies are paid by the state and they won’t go up against DDS, another state funded agency. They all protect each other. We contacted Joseph Weru, Director of Human Rights for DDS in their Boston Office and never got any response. Once COFAR wrote the first story about our case, I forwarded it to Weru. Within hours he sent an email to me asking who we were dealing with over at DDS Worcester, I gave him the name, Patricia Lee. I never heard a word back from him. It’s unbelievable! Even Disability Law Center declined the case; they said it wasn’t the kind of case they typically handle. I even sent that same blog to Jane Ryder, the commissioner of DDS, nothing. I contacted Anthony Keane, Regional Director and explained the situation, nothing was done, I sent him the blog too. I contacted the Governor’s office, the Attorney General’s office, nothing. There are no checks and balances here. There were 3 complaints filed to DPPC, one by me. They sent them over to DDS to investigate themselves and they down graded it to an administrative review. I contacted the Senior Investigator, Michael Fors from DDS and he told me; “there was no investigation and it was an administrative review and he doesn’t have the power to make them do anything.” What are all these agencies paid for? Isn’t their job to protect people with disabilities?

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  4. Anonymous
    December 13, 2022 at 11:40 pm

    Agencies should serve the needs of the “service recipient,” not the other way around. There are steps that can be taken, though I hesitate to offer them- not knowing why Venture terminated Mercy’s primary care provider. It would be important to ensure that the reasons for the termination were not “service-related” before going forward. However, if they are not service-related, Mercy’s wishes are being ignored, and the reasons stated in your detailed account are accurate, here are some ideas on how you might proceed:

    State agencies are political entities. As political entities, they respond to political pressure. Given this, pressure can be put on the department in a number of ways:

    (1) Marylou Sudders, the current Secretary of Health & Human Services is a staunch consumer advocate. Contact her office and ask her to get involved;

    (2) Contact your/Mercy’s state representative. Explain the issue, as you have so thoughtfully done and ask him/her to look into this issue; (

    3) Contact citizen advocacy groups in this state and explain the issue. Advocacy groups include, but are not limited to: The ARC of Massachusetts, https://thearcofmass.org/; and, the Association of Developmental Disability Providers, https://www.addp.org/committee/residential;

    (4) Send an oped column to the Globe. If you do, change/hide the name of the service recipient and primary care provider;

    (5) Let the Commissioner of the department know that you are circulating a petition- relative to this matter; and,

    (6) Contact Steven J. Schwartz’s (legal advocate) office and ask for guidance, https://www.narpa.org/bios/schwartz.

    If Mercy is returned to her care provider’s home, it will be important that the home be monitored proactively- to ensure that Mercy is happy, healthy and thriving. Hopefully, this will be a condition, if this advocacy effort is successful. I hope this helps.

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    • Karen Faiola
      December 15, 2022 at 12:23 pm

      Thank you for the information. I assure you the termination of my contract between Venture and I was not service related. I have gone above and beyond any of Mercy’s prior providers and she knows that. However, DDS and Venture do not know this because the monthly visit Venture is supposed to do with both of us at home hasn’t been done since the new coordinator took over about 1 1/2 year ago, not even in a zoom meeting. In the 4 years Mercy’s been with me no one came from DDS to visit. Neither agency was doing their job, therefore they don’t know reality. Before all this happened when we did have meetings everyone from DDS and Venture all were amazed with the transformation of Mercy since living with me. She was happy, speaking up and showed new self-esteem. Suddenly, they need to get rid of me and risk Mercy’s mental state or her happiness and what she wants. We did contact our senator who did nothing. When they spoke to their liaison to DDS at Beacon hill, they told the senator’s office that they new about the case and they have regulations, that’s it. You can read comment before this one about who we have contacted. We even contacted channel 7 and channel 5 with the story. Haven’t tried the globe but my feeling is they will protect DDS and not publish anything against them.

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  5. Anonymous
    December 14, 2022 at 1:00 pm

    when something is working why mess it up?

    Like

  6. January 26, 2023 at 12:14 pm

    God is watching. Eternity is a long time. These are God s most vulnerable people. Does anyone have a conscience anymore?!!

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