COFAR blog

A Department of Developmental Services (DDS) hearing officer has denied a couple’s request to submit a COFAR blog post to him for consideration as part of their appeal to place their son at the Wrentham Developmental Center.

The June 15 COFAR post claims, among other things, that federal law requires DDS to give individuals a choice of care in a facility such as the Wrentham Center. DDS primarily informs people looking for residential settings only of the existence of corporate provider-run group homes.

The couple, who have asked that their names not be used, requested that they be allowed to submit COFAR’s post in rebuttal to a DDS closing brief in the case. The DDS brief claimed that people with intellectual disabilities do not have a right to care at facilities such as Wrentham.

Last October, the couple appealed their son’s DDS Individual Support Plan (ISP) to the Department in an effort to have him placed at Wrentham. DDS held a hearing on the couple’s appeal on April 21 after the Department denied the requested placement. Under the ISP appeal regulations, the Department appointed a hearing officer in the couple’s case.

The hearing officer, William O’Connell, has not yet issued a decision on the appeal. His July 11 order denying consideration of the June 15 COFAR blog post stated that the post was submitted after his June 2 deadline for closing submissions in the case. However, O’Connell had previously extended that deadline to allow DDS to submit its closing brief on June 5.

Despite submitting its own brief under that extension, DDS subsequently opposed the couple’s request to have the COFAR rebuttal similarly entered into the record.

Hearing officer’s ruling is taken almost verbatim from DDS attorney’s objection

DDS’s written objection to the COFAR post described the post as “a late Rebuttal to the Department’s closing argument and brief,” and as “new evidence and argument that was not presented during the hearing or in the parties’ final closings.”

The DDS objection then stated that, “The (COFAR) evidence, a public opinion blog post, is of little probative value, and would likely not be admissible even if it were not filed late.”

Key portions of O’Connell’s written order about the COFAR blog post appear to have been taken almost word-for-word from DDS’s objection. O’Connell stated in his July 11 order that:

The (couple) submitted the rebuttal (COFAR post) well after the deadline for closing submissions had passed. Notwithstanding that the record was closed for evidentiary purposes at the close of the hearing on April 21, the proposed rebuttal to the DDS closing brief that the (couple) are attempting to submit as evidence and argument is a public opinion blog that is not probative and has no foundation for admissibility” (my emphasis).

Couple believes the hearing officer is biased against them

The couple maintain that O’Connell’s reliance in his order on the language in the DDS objection to the blog post appears to be evidence of a bias on his part in favor of DDS. They noted that he didn’t dispute any claim made in the post itself, but simply repeated DDS’s assertions about it.

The couple, who were not represented at the hearing by an attorney, also contended that O’Connell treated them with impatience during the April 21 hearing, and was deferential to DDS. “During the hearing, the hearing officer interrupted me several times and asked me to ‘get to the point,’” the wife said. “However, the DDS attorney was able to say her piece without interruption.”

The couple said they feel their case was “quite strong” at the hearing. But they said they are so certain their appeal will ultimately be denied by O’Connell that they are already planning their next move, which will be to take their case to state Superior Court to get their son into Wrentham.

If the couple are right about O’Connell’s likely decision, it will be interesting to see whether he primarily relies on the DDS closing brief in writing that decision, as he did with their request to submit our blog post into the record.

Unclear why DDS controls ISP appeal hearings

As noted above, DDS is in charge of the ISP appeal process, and even appoints the hearing officer who issues a recommended decision in each case. The final decision on the appeal is made by the DDS commissioner. We would agree that this creates, at best, a perception that the process is biased in favor of the Department.

We think the ISP appeal process should be decided by the independent Division of Administrative Law Appeals (DALA), which conducts appeal hearings for more than 20 state agencies, including the Disabled Persons Protection Commission (DPPC).

Hearing officer provided no support for claim that COFAR post was inadmissible

O’Connell stated that his order denying admission of the COFAR post was issued pursuant to the Massachusetts statute and regulations on adjudicatory practice and procedure (M.G.L. 30A and 801 CMR 1.02.)

We believe, however, that those rules would allow the post to be entered into the case record at any time, just as the DDS closing brief was entered after the hearing officer’s arbitrary closing date for submissions.

The regulations that O’Connell cited as underlying his ruling (801 CMR 1.02) constitute “informal rules” of adjudicatory procedure in Massachusetts.

Also, M.G.L.c. 30A, s. 11 states, with regard to the admissibility of evidence, that:

Unless otherwise provided by any law, agencies need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude unduly repetitious evidence, whether offered on direct examination or cross-examination of witnesses.

(3) Every party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses who testify, and to submit rebuttal evidence.

As we argue below, the COFAR blog post was intended to present evidence on which reasonable persons would rely in the conduct of serious affairs. It was not intended, as DDS and O’Connell casually dismissed it, to be a “public opinion blog.”

Both DDS and the hearing officer mischaracterized the nature of the COFAR blog post

As noted above, both DDS and O’Connell characterized the COFAR blog post as “a public opinion blog that is not probative and has no foundation for admissibility.”

However, the blog post directly rebutted the DDS assertion in its closing brief that federal law does not give persons with intellectual or developmental disabilities the right to placement at either the Wrentham Developmental Center or the Hogan Regional Center.

The post presented new evidence in the case regarding a succession of administrations in Massachusetts, which have allowed the residential population or census at the Wrentham and Hogan centers to decline. This decline, the post noted, has been due to DDS’s apparent policies of denying admission to those facilities to most persons who ask for it, and failing to inform persons looking for placements that those facilities exist as residential options.

We think the blog post therefore helped explain the almost automatic denial by DDS of the couple’s request to have their son placed at Wrentham.

Secondly, the blog post directly rebutted a statement in the DDS closing brief that the couple’s son currently lives in “a less restrictive community-based setting” than he would in an Intermediate Care Facility (ICF) such as the Wrentham Center.

The blog post then presented evidence that directly rebutted the DDS closing brief’s statement that the couple’s son “…has been successfully supported in the community for 13 years,” and that “he is well served by his community-based services and supports.”

Finally, the blog post revealed a misrepresentation in the DDS closing brief of the U.S. Supreme Court’s 1999 Olmstead v. L.C. decision with regard to institutional care. The post explained how the brief had wrongly implied that the Court had held that in all cases, individuals should be placed in community-based rather than institutional settings.

The statute that governs adjudicatory practice and procedure (M.G.L. c.30A, s.11), states that:

In all cases of delayed statement, or where subsequent amendment of the issues is necessary, sufficient time shall be allowed after full statement or amendment to afford all parties reasonable opportunity to prepare and present evidence and argument respecting the issues. 

In our view, the couple were denied a reasonable opportunity to present evidence and argument in response to the evidence and argument in the DDS closing brief.

For all of the reasons discussed above, we believe the hearing officer erred in his denial of the couple’s request that the COFAR blog post be entered into evidence in their appeal.