COFAR blog

When an “Abuser Registry” was authorized in Massachusetts with the enactment of “Nicky’s Law” in 2020, we joined many others in welcoming it as a major step forward in ensuring adequate and safe care for persons with intellectual and developmental disabilities.

Under the law, the names of caregivers against whom abuse and neglect allegations are substantiated are placed in the Abuser Registry — a database that the state and its provider agencies must check before hiring new personnel. Placement of the name of an individual in the Abuser Registry means that person is no longer eligible to work for the Department of Developmental Services (DDS) or for any agency funded by DDS.

Equitable use of the Abuser Registry requires balancing the protection of disabled persons from abuse with due process for accused care providers.

But new data we have received from the Disabled Persons Protection Commission (DPPC) under a Public Records Law request raise a question whether the scales in that balance might be weighted too heavily in favor of the care providers.

The data show that in only 36% of the cases in which DPPC affirmed initial substantiations of abuse allegations against care providers did the agency conclude that those persons’ names should be placed in the Registry.

The DPPC data covered a three-year period since the database was first put into use in July 2021.

The chart below summarizes our analysis of the DPPC data.

The Registry statute and regulations differentiate between individuals who are referred to as “caretakers” and those who are “care providers.” Only names of care providers can be placed in the Registry.

A care provider is a person who is employed by either DDS or an agency that contracts with DDS to provide services to persons with intellectual or developmental disabilities. Care providers can include volunteers.

If DPPC initially substantiates an abuse allegation and determines that the abuser is a care provider, DPPC notifies that individual of a substantiated finding of “Registrable Abuse.”

Caretakers, who include family members and others persons who are not employed by DDS or its contractors, can be investigated by DPPC and DDS for abuse; but they are not subject to placement in the Registry.

DDS and its contracting service agencies must check the Registry prior to hiring care providers.

As part of the effort to ensure due process, the Registry statute and regulations allow care providers, against whom Registrable Abuse allegations have been initially substantiated, to file petitions with DPPC to prevent their placement in the Registry.

The DPPC data show that during the three-year period since the inception of the Registry, DPPC upheld initial abuse findings involving 132 care providers who had filed petitions challenging those substantiations; yet the agency determined that only 47 of those care providers should have their names placed on the Registry. In 85 of those cases, the agency concluded that the care providers were still fit to continue providing services.

The relatively low number of care providers who have been barred from further DDS-funded employment appears to be due to provisions in the Registry regulations that appear to give wide discretion to DPPC to decide whether an individual is fit to continue to provide services.

Even if a Registrable Abuse allegation is initially substantiated against a care provider, the regulations state that the DPPC can decide not to place that individual in the Registry if the alleged incident of abuse is found to be “isolated,” or if the provider is found to be “fit to provide services.”

Determining whether an incident of abuse was isolated could potentially require DPPC to determine whether the individual had prior abuse allegations lodged against them. But while the regulations state that DPPC may consider information like that, the regulations don’t require DPPC to take those particular factors into consideration.

Confirmed abusers not necessarily placed in the Registry

When a care provider petitions DPPC to overturn an initial finding of Registrable Abuse, one of three things can happen. DPPC can:

1. Determine that the abuse substantiation was not supported by a preponderance of the evidence. In that case, the substantiation finding is reversed, and the care provider’s name is not placed in the Registry.
2. Uphold the abuse substantiation, but determine that the incident was isolated and unlikely to reoccur, and that the care provider is fit to provide services to persons with disabilities. In that case, referred to as a “split decision,” the care provider’s name is similarly not placed in the Registry.
3. Determine that the substantiation is supported by a preponderance of the evidence and that the care provider has not shown that the incident was isolated or that they are fit to continue to provide services. In that case, the care provider’s name is placed in the Registry.

If a care provider does not file a petition to overturn a Registrable Abuse substantiation, their name is automatically placed in the Registry.

In our view, the second outcome above involving consideration of care provider petitions is problematic. How does DPPC determine whether an incident of abuse is unlikely to reoccur or that a caregiver is fit to continue to provide services?

Under the regulations, there are a number of factors that DPPC may consider, including whether the care provider “received training relevant to the incident at issue”; the care provider’s employment history in working with individuals with disabilities; prior instances of similar conduct by the care provider; any statements or communication regarding the care provider’s work history and fitness to provide services; and whether the care provider’s conduct “could reasonably be addressed through training, education, rehabilitation, or other corrective employment action and the care provider’s willingness to engage in said training, education, or other corrective employment action.”

But as noted, the regulations say only that each of these criteria may be considered by the DPPC, not that they must be considered. At least some of these criteria also seem vague and potentially easy to establish.

So it’s not necessarily the case that DPPC, for instance, would consider prior instances of similar conduct in determining whether to approve or deny a petition to overturn a Registrable Abuse substantiation. As a result, it seems that the regulations may provide care providers with a relatively easy path to avoid placement in the Registry.

The DPPC doesn’t agree with our conclusions. An attorney with the DPPC defended the Registry statute and regulations, saying they were “drafted with input from various stakeholders to balance the safety of persons with I/DD (intellectual and developmental disabilities) and the due process rights of care providers.”

The DPPC attorney added that the agency “believes that the seven enumerated but non-exhaustive factors in (the regulations) are neither vague nor do they present an ‘easy path’ for exclusion from the registry.  Each Petition is carefully analyzed based on its unique circumstances.”

Our analysis of the data

We analyzed DPPC data concerning Registrable Abuse for Fiscal Years 2022, 2023, and 2024, the years that the Registry has been in existence.

The DPPC data show an average of 13,500 allegations of abuse were filed each year, but DPPC “screened in” only an average of 2,400 of them per year for investigation over the three-year period. Of those screened-in allegations, DPPC and DDS initially substantiated Registrable Abuse involving 266 care providers.

Of those 266 care providers who had Registrable Abuse substantiated, 180, or 67%, filed petitions with DPPC, contesting the substantiations. The names of the remaining 86 providers, who didn’t contest the abuse substantiations, were automatically placed in the Registry.

The data show that over the three-year period, DPPC issued decisions in 161 of the 180 petition cases. As of June 17 of this year, 19 of those cases were still pending.

According to the data, DPPC upheld the initial abuse substantiations in 132, or 82%, of the 161 petition decisions. However, in 85, or 64%, of the 132 cases, the agency determined that the abuse wasn’t Registrable, meaning the care provider was fit to continue providing services and should not be placed in the Registry. Those were so-called split decisions.

In only 47 of the 132 cases, in which abuse substantiations were upheld, did DPPC determine that the care providers’ names should be placed in the Registry.

The data further show that a total of 24 care providers, against whom DPPC had affirmed Registrable abuse, exercised their additional right under the regulations to appeal to the Division of Administrative Law Appeals (DALA), an independent state agency that conducts adjudicatory hearings. DALA overturned DPPC’s decisions in only 2 of those 24 appeals.

According to the data, a total of 102 names of individuals were placed in the Registry during the three-year period. That is 38% of the total number receiving initial notices of substantiated Registrable Abuse.

We think the DPPC regulations need to be made more stringent to ensure that while due process should remain for care providers who are accused of abuse, unfit providers do not continue to work in the DDS system.

In considering care provider petitions, DPPC should be required to consider all of the enumerated factors in the regulations, particularly a care provider’s previous incidents of abuse and previous work history. Those factors are critically important in determining whether a given incident of abuse is isolated or not. Leaving it to DPPC’s discretion whether to consider those factors invites distrust of the agency’s decisions.

We also think DPPC should be required to consider impact statements from the victims and their families.

Registry established because of paucity of criminal convictions

Prior to the establishment of the Registry, caregivers in Massachusetts were prevented by law from working in DDS-funded facilities only if they had prior criminal convictions.  However, even when abuse against persons with developmental disabilities is substantiated by agencies such as the DPPC, it does not usually result in criminal charges.

Thus, the Abuser Registry was intended to ensure that individuals who have been affirmed to have committed Registrable Abuse cannot be hired or continue to serve in the DDS system even if they don’t have criminal records.

We believe that in this respect, the establishment of the Abuser Registry was a major step forward in the care of persons with intellectual and developmental disabilities. But we think the balance between safety of those individuals and due process that is afforded to their care providers needs to be adjusted.