Archive for February, 2023

DDS turns COFAR’s public records request over to a computer, resulting in an initial processing fee estimate of over $22k

February 27, 2023 7 comments

The Department of Developmental Services (DDS) has begun using computers and algorithms to locate and process records in response to our public records requests, and that doesn’t appear to have been a good thing for transparency.

In the latest case, I had asked DDS in January for records listing reasons for the closures of seven state-operated group homes during a two-year period from 2021 through this year.

You would think it would not be difficult for DDS to locate and provide a reasonably reviewable number of documents listing those reasons.

But in a response to my records request, a DDS attorney said the Department had “requested information technology (‘IT’) staff” to search for internal emails, and that the computer search had identified 33,541 such emails and attachments “that may be responsive.”

The DDS records attorney then noted that the Public Records Law allows agencies to charge $25 per hour for staff time in compiling and redacting documents in order to comply with privacy and other laws such as HIPAA.

The attorney stated that because it would take an estimated 837 hours to process the 33,500 emails, the fee for providing them to us would be $22,925. And that fee could go higher if the hourly estimate turned out to be low.

DDS supposed to use its “knowledge of the records”

Arguing that DDS could have located a small number of responsive records, I appealed the DDS response on January 23 to Manza Arthur, the state’s public records supervisor, who heads a division in the office of Secretary of the Commonwealth Bill Galvin. The Public Records Division was established to ensure that state agencies comply with the Public Records Law.

Arthur issued an initial “determination” on February 3 that DDS needed to explain more fully how it had calculated its fee. In addition, the supervisor stated that DDS must “must use its knowledge of the records to facilitate providing any responsive records.”

Arthur didn’t elaborate on what is involved in using knowledge in providing records. But to us, it seems to mean that DDS presumably has personnel who have knowledge of the issues involved, and that those individuals should be able to use that knowledge to find and produce a small number of responsive records.

In that case, there wouldn’t be a need to redact and process thousands of documents that may or may not be responsive to our records request.

A Guide to the Massachusetts Public Records Law published by CommonWealth magazine states, in fact, that a state agency’s “records custodian is required to use his or her ‘superior knowledge’ to determine the exact records that are responsive to (a public records) request.”

The use of such knowledge appears to be what was missing from the Department’s response to my records request. DDS appeared to have simply conducted a computer search for the records using search terms. Anyone can feed search terms into a computer. Institutional knowledge is much different.

DDS says it lacks “capacity,” apparently for a records search based on knowledge

In a phone conversation with the DDS records attorney on February 8, I suggested that instead of conducting a computer search for the records I was seeking, DDS should query departmental personnel with that knowledge of the issue and the records. I also offered to narrow my original request for documents to a period of four months between August and November 2021.

But in a February 17 written response to me, the DDS attorney stated that DDS “does not have the capacity to conduct searches for the documents responsive to your request.” Therefore, he said, DDS had once again requested It staff to conduct a computer search.

This time, the number of “potentially responsive documents” was narrowed to 2,399 emails. The attorney said that using an “algorithm for computing costs…,” DDS had calculated a new fee for producing records of $1,499.38.

While this estimated fee was down from DDS’s original fee estimate of $20,925, the revised estimate is still unacceptable to us. The DDS attorney didn’t elaborate on what he meant by lacking “capacity.” But the end result was the same as the first time. The Department was continuing to feed search terms into a computer.

A test for the state’s Public Records Division

As a result, on February 21, I once again appealed to the supervisor of records.

In my second appeal, I stated that using computers and algorithms to respond to public records requests — which DDS has now done on several occasions —  invariably results in a large number of “potentially responsive” documents, which may or may not be truly responsive. Such computer searches also result in inordinately large processing fees for producing the records.

As noted, my narrowed records request concerned seven DDS-run group homes that were closed during the period from August through November 2021.

Does DDS lack such superior knowledge of records concerning those seven homes? Are there no employees within the Department who have an understanding of the reason or reasons that the homes, which the Department managed, were closed in that short period of time?

Is that what the Department means by lacking capacity? If there are no such knowledgeable employees in DDS, the Department should state that to be the case.

In my latest appeal, I asked the public records supervisor to order DDS to more fully explain what it means in saying the Department lacks the capacity to conduct anything other than a computer search for responsive records, and specifically why the Department cannot use its superior knowledge in searching for the requested records.

In our view, this is a potentially important test for the state’s Public Records Division.

Will the public records supervisor require DDS to query its employees about these records, which is something DDS apprently doesn’t want to do? Or will the supervisor find that doing a computer search is sufficient to constitute a use of institutional knowledge?

In that latter case, it would seem that DDS and other agencies would have the green light to turn every public records request entirely over to computer searches.

It’s certainly possible that the supervisor will come up with a different solution to the problem. We expect a determination from the supervisor next week.

UPDATE: DDS says it will hold provider ‘accountable’ for ‘unacceptable’ insect infestation in Waltham group home

February 17, 2023 5 comments

A Department of Developmental Services (DDS) official said this week that the Department intends to hold the corporate provider that operates a group home in Waltham “accountable” for a cockroach infestation that has led to the temporary shutdown of the residence.

As we reported on Wednesday, five residents of the group home for persons with intellectual and developmental disabilities were evacuated from the residence last week due to the insect infestation. The residents have been staying at the Marriott Hotel in Woburn since the group home was shut on February 8, according to Christine Davidson, the mother of John Davidson, one of the residents.

The group home is run by WCI, Inc., a provider to DDS. As we reported, Christine has previously raised concerns about what she contends are unhygienic conditions in the residence.

In an email sent on Wednesday afternoon to both Christine and her nephew George Papastrat, who are John’s co-guardians, Jessica Belcher, assistant DDS area director, said she “just wanted to follow up with you about the recent concerns in regard to the cockroach infestation at WCI’s Kendall Park home.”

Belcher stated that, “We agree that this is completely unacceptable and are holding the agency (WCI) accountable to fix the problem and create a plan so that something like this does not happen again.” She didn’t elaborate on what steps DDS is taking to hold WCI accountable.

Belcher aded that, “We understand that this interruption in John’s life is problematic, and we will work collaboratively with you both so that the disruption causes the least amount of stress possible for John.”

Christine said she is glad to receive a message of concern from DDS, but is still having difficulty in getting answers to her questions about situation. She said she has tried for the past two days to reach a top manager at WCI, but he hasn’t called her back. She said she still has not gotten any word as to when the group home will reopen.

Christine also said that among her concerns is that John has not had access for the past week to a breathing machine for treating his sleep apnea. His previous machine was infested by the cockroaches and was reportedly disposed of by the group home.

The email message from Belcher came on Wednesday, a week after the residence was shut down and just hours after our blog post about the matter was published.

In her message, Belcher told Christine and George to “let us know if you feel a meeting between yourselves and DDS is needed at this time.” Christine said she responded by asking Belcher to contact her. She said she hasn’t yet received a response from Belcher.

Belcher also stated in the Wednesday email that DDS “would also like to encourage you to call DPPC (the Disabled Persons Protection Commission) to report any additional concerns that may arise.”

It is unclear whether the group home was ordered shut after an inspection by DDS. The Department conducts licensure inspections of both provider-run and state-run group homes.

I sent an email Tuesday morning to DDS Commissioner Jane Ryder, asking whether the Department had any comment on the shutdown of the home, and whether the shutdown is an isolated incident. Ryder has not yet responded to my message.

We are glad as well that DDS has indicated concern about the situation to Christine and George. But we too would like to see the Department and WCI do more to keep Christine and the other families and guardians of the group home residents informed. There is no excuse for not returning their phone calls.

Categories: Uncategorized

Waltham group home reportedly temporarily shut down due to insect infestation

February 15, 2023 5 comments

Five residents of a group home in Waltham for persons with intellectual and developmental disabilities were evacuated from the residence last week after it was ordered shut down due to an insect infestation, according to the mother of one of the residents.

Christine Davidson, whose son John is a resident of the home, which is run by WCI, Inc., a corporate provider to the Department of Developmental Services (DDS), said her son and the other residents have been temporarily moved into the Marriott Hotel in Woburn. She said it has been difficult to get information about the situation, and no one has told her when the group home will reopen.

Christine has previously raised concerns about what she contends are unhygienic conditions in the residence.

The insects appear to be cockroaches, based on a photo taken by Christine of her son’s BiPAP breathing machine, which appears to have two roaches inside it. Christine said that when John came home to her house over the weekend, she saw bugs in his breathing machine, and said two bugs crawled out of his wheelchair. BiPAP and CPAP machines are used to treat sleep apnea.

A portion of John’s breathing machine, which appears to contain two cockroaches. (Photo taken by Christine Davidson.)

It is unclear whether the group home was ordered shut after an inspection by DDS. The Department conducts licensure inspections of both provider-run and state-run group homes.

I sent an email Tuesday morning to DDS Commissioner Jane Ryder, asking whether the Department had any comment on the shutdown of the home, and whether the shutdown is an isolated incident. Ryder has not yet responded to my message.

Christine said the residents are being fed meals in their rooms in the hotel. She said John has been taken on a daily basis to his day program in Medford since his move to the hotel, but has few other activities while he is in his hotel room.

She said she is concerned her son’s health may be at risk as a result of the infestation. “Right now, he (John) doesn’t have a breathing machine,” she said. “It’s a dangerous situation.” She said the group home took back his contaminated machine.

Christine said she believes John could have picked up a pulmonary infection by using a machine that was infested with roaches. She said she has made several calls to her son’s DDS service coordinator and the coordinator’s supervisor hoping to relay her concerns and get answers to her questions, but no one has called her back.

Christine has previously raised concerns about unsanitary conditions at the Waltham group home, including the allegedly unhygienic state of John’s BiPAP breathing mask. On February 3, 2022,  Steven Cohen, a gastroenterologist with Beth Israel Deaconess Medical Center, also stated in a medical progress note that John’s breathing mask at that time was “apparently not hygienic.”

Also last February, Christine sent us photos of potentially unsanitary conditions inside the group home, including a clogged air vent, a dirty bathroom, and what appeared to be insect larvae on John’s clothing in his bedroom dresser drawer. At the time, we were not able to confirm that the objects on his clothing were actually larvae.

Christine said that despite her complaints, the unhygienic conditions in the group home have persisted over the past year. It is unclear why those issues have lingered until they apparently triggered a shutdown of the residence.

We are receiving more frequent reports of a lack of activities and proper care of residents in group homes around the state. These reports appear to stem, at least in part, from an ongoing staffing shortage since the COVID pandemic began.

DDS upholds disenrollment of client from shared living, but appears to leave door open for her to reapply

February 13, 2023 7 comments

Department of Developmental Services (DDS) Commissioner Jane Ryder last week upheld the Department’s move last summer to disenroll Mercy Mezzanotti, a DDS client, from shared living services because Mercy has refused to move out of the home of her longtime caregiver, Karen Faiola.

However, in accepting a hearing officer’s 10-page decision in the matter, Ryder appeared to leave the door open for Mercy and Karen to reapply directly to a “qualified provider” agency in order to continue their shared living relationship.

DDS does not directly employ shared living caregivers such as Karen, but funds nonprofit “qualified providers” that do directly contract with them.

In an interview last week, Mercy said DDS officials had repeatedly told her that she would have to leave Karen’s home and find another caregiver in order to continue receiving shared living services. But Johanna Soris, the hearing officer, stated in her decision that it is the responsibility of the qualified provider agency, and not DDS, to determine whether to employ a particular caregiver and whether to accept a client into its program.

Karen Faiola and Mercy Mezzanotti

As we have reported, the previous qualified provider in the case, Venture Community Services, temporarily removed Mercy, against her will, from Karen’s Sutton home last May, and placed Mercy in the home of another person in Worcester whom Mercy had never met. That same day, May 23, Venture terminated Karen’s shared living contract without stating a reason for the termination.

Karen and Mercy maintain that Venture terminated Karen’s contract because the two of them had complained that Venture employees had emotionally abused Mercy.

After objecting to her involuntary move, Mercy was able to return, after two days, to Karen’s home. However, DDS notified Mercy in July that she was no longer eligible for enrollment in the Department’s Home and Community Based Services (HCBS) Intensive Support Waiver Program, which funds shared living services.

Mercy appealed her disenrollment, and a “fair hearing” was held on her appeal on November 10. Soris was appointed as hearing officer in the case by Commissioner Ryder.

DDS argued during the hearing that Mercy became ineligible for the HCBS Waiver program when she came back to live with Karen after her involuntary removal from Karen’s home.

According to DDS’s argument, which was presented in a legal brief in the case, shared living services must be provided by a caregiver who is employed by a qualified provider. The Department maintained that because Karen was no longer under contract with Venture, she could no longer provide shared living services under the HCBS Waiver program. And because Mercy had refused to leave Karen, DDS argued that Mercy herself was no longer eligible for the program.

DDS said to have no role in hiring shared living caregivers

Karen, who has continued to care for Mercy in her home, said she contacted a new qualified provider agency, but was told by that agency that DDS would have to refer her to them in order for her to continue to provide shared living services. She said DDS has refused to provide such a referral. As a result, she has not been paid for providing services to Mercy since May.

In her decision, Soris, the hearing officer, asserted that DDS has no authority under the Waiver program to refer Karen to another qualified provider because DDS does not contract directly with caregivers. According to the decision, the shared living process requires both Mercy and Karen to apply directly to qualified providers to participate as a client and caregiver respectively.

In our view, Soris’s decision, while upholding Mercy’s disenrollment from the Waiver program, implies that both Mercy and Karen could apply to any qualified provider of their choosing and ask that they be allowed to remain together. Karen said last week that she and Mercy plan to do that.

Soris’s decision added that, “The Appellant (Mercy) is still entitled to Waiver services so long as she fills out the proper paperwork and works with a DDS service coordinator to find a Qualified Provider.” In our view, it isn’t clear, based on Soris’s other findings, why Mercy would even need to work with a DDS service coordinator in that regard. Soris appears to have concluded that DDS plays no role in the shared living application process, either with regard to the client or the caregiver.

Hearing officer notes that Mercy benefited from Karen’s care

In her decision, Soris’s acknowledged that Mercy had “thrived” under Karen’s care. And her decision provided details that appear to cooroborate Karen and Mercy’s claim that Venture terminated Karen’s contract after Karen and Mercy had both complained that Venture employees had emotionally abused Mercy.

Soris noted that prior to living with Karen, Mercy had lived in four different shared living homes “that were each unsatisfactory in different ways.”

Citing the testimony of both Mercy and of her therapist, Grishelda Hogan, Soris wrote that Mercy originally “came to Karen Faiola’s home as a shy, timid person who could not effectively advocate for herself. Over the course of the four years with Karen Faiola, (Mercy) made great strides in overcoming her shyness and gaining self-confidence,” Soris added.

Soris also noted testimony from both Mercy and her therapist that that Mercy was having “difficulties” with her job coach, who was a Venture employee, and that Karen had asked Venture management on numerous occasions to have the job coach replaced. Mercy maintained that the job coach was emotionally abusive toward her.

Soris then stated that on May 19, Venture convened a Zoom meeting in which Karen “was informed she should resign and Venture employees would be removing (Mercy from Karen’s) home on May 23.” No reason was noted in Soris’s decision for Venture’s decision to terminate Karen.

Mercy told staying with Karen was “not an option”

On May 20, Soris wrote, a behavioral counselor from Venture picked Mercy up at her work place and “instructed her to pack her belongings over the weekend because Venture was taking her to a new home for a new start.” Soris added that Mercy “didn’t know why she couldn’t continue living with Karen Faiola. (The Venture behavioral counselor) told her it was not an option. (Mercy) was crying and stunned at this information.”

Then on Monday, May 23, Soris stated, the Venture job coach picked Mercy up at her work place and dropped her off at the new shared living caregiver’s home. Mercy then spent two days there.

“During that time,” Soris stated, Mercy “phoned and texted Karen Faiola and Grishelda Hogan exhibiting great distress to the point that both women (Karen and Hogan) filed complaints with DPPC (the Disabled Persons Protection Commission) alleging that (Mercy) was experiencing great emotional distress.”

On May 25, after having spent two nights at the new shared living caregiver’s home, Mercy called Karen “and asked her to bring her home,” Soris stated. “Karen Faiola did so and described (Mercy) as a ‘happy camper’ (in returning to her home.)”

As noted, we asked DPPC last fall to undertake a full investigation of the allegations of emotional abuse by the job coach and of Mercy’s involuntary removal from Karen’s home. DPPC has not responded to our request.

DPPC apparently referred the complaints filed by Karen and Hogan to DDS. A September 30 Complaint Resolution letter written by DDS Area Director Denise Healy did not assess whether the alleged actions of the Venture employees were appropriate, or indicate that the allegations of emotional abuse had been investigated.

We are hoping for a happy outcome to this continuing ordeal for both Mercy and Karen. Mercy said the fact that Karen hasn’t been paid since last May to care for her has had a severe financial impact on both of them. “I’m having sleepless nights,” she said. “We could end up homeless.”

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