COFAR blog

The original sponsor of the legislation that established an “Abuser Registry” in Massachusetts said it may be time to “fine-tune” the legislation in light our recent report that a potentially significant number of abusive care providers are able to avoid placement of their names in the Registry.

The Registry, which is managed by the Disabled Persons Protection Commission (DPPC), is intended to prevent care providers who have abused persons with intellectual and developmental disabilities (I/DD) from continuing to work for the Department of Developmental Services (DDS) or for any agency funded by DDS.

News Service alone discusses COFAR report that Registry has a possible loophole

The remarks of state Senator Patrick O’Connor, the sponsor of the Registry legislation, and other disability advocates about our findings were reported late last month by the State House News Service. The News Service covers political and governmental issues and events involving the state Legislature and the state administration.

The Registry, which was created under “Nicky’s Law,” has now been in operation for just over three years.

In July, we reported on DPPC data concerning substantiated abuse allegations against care providers since the Registry’s inception. We found that in only a minority of those cases did the DPPC conclude that those persons’ names should be placed in the Registry.

Under Nicky’s Law, care providers, who have been found after DPPC or DDS investigations to have committed abuse, can petition the DPPC to overturn both their abuse substantiations and the placement of their names in the Registry.

We found that of 161 petition decisions, the DPPC affirmed abuse in 132 cases, and reversed abuse substantiations in just 29 cases.

However, even among those 132 cases in which abuse was affirmed through the petition process, only 47 — or 36% — of those providers ended up in the Registry. In contrast, in 85 — or 64% — of those cases, the DPPC determined the abuse was not “Registrable.”

The fact that abuse was not Registrable in most of the substantiated abuse cases appears to be due to a possible loophole in the Registry regulations. The loophole allows DPPC to conclude that an abuse incident was “isolated” and “unlikely to reoccur,” or that the provider is “fit” to continue to provide services to people with I/DD.

As I noted to the State House News Service reporter who had interviewed me for her article, it is difficult, due to the confidentiality of DPPC investigations, to understand the logic behind the DPPC’s decision-making. There seems to be a built-in incentive in the regulations to care providers to petition to overturn any abuse substantiations against them by the DPPC or DDS.

DLC says they have concerns based on our report

The News Service reported that the Disability Law Center (DLC), a federally funded legal advocacy  organization in Massachusetts, had previously questioned whether the Abuser Registry regulations were too lenient toward abusive care providers, and whether the regulations may have even gone beyond the scope of Nicky’s Law.

The News Service article quotes Rick Glassman of the Disability Law Center as saying COFAR’s findings are “concerning” to him.

Nicky’s Law sponsor says ‘time to fine-tune’ law

State Senator Patrick O’Connor, the original sponsor of the legislation that led to Nicky’s law, told the News Service that he is worried by our findings and that it “may be time to fine-tune Nicky’s Law.” O’Connor said he intends “to learn more from DPPC about cases in which providers are permitted to stay employed despite committing abuse.

“It’s definitely a cause for concern,” O’Connor added, “and I will for sure be calling for meetings with DPPC to try to get specific examples of why this is happening on both ends to try to figure out how we can make the law better.”

Legislator says COFAR is “inaccurate,” but gives no specifics

State Representative Jay Livingstone, House chair of the Legislature’s Committee on Children, Families and Persons with Disabilities, defended the impact of the Registry to the News Service. Livingstone also alleged that “COFAR’s information is typically not accurate.” He provided no specifics in the News Service article to support that claim.

A month prior to the publication of the News Service article, I sent an email to Livingstone and to State Senator Robyn Kennedy, Senate chair of the Children and Families Committee, and close to 50 other legislators, calling their attention to our report about the Registry.

I have not received a response to date from any of them. Livingston, in particular, didn’t respond to my email. If he has questions about the accuracy of our report, he hasn’t let us know them.

Family member dissatisfied with DPPC investigations

One family member of an individual with I/DD was quoted in the News Service article as saying the DPPC’s investigative process in general isn’t working.

“There’s a lot of cases where these people (abuse investigators) are not doing their jobs,” Jeanne Cappuccio, whose daughter has an intellectual disability, said. “You complain, you file a complaint and it gets screened out. It reinforces that … it’s OK to treat people with disrespect, and it’s OK to be abusive, and it’s OK to mistreat.”

DPPC makes questionable claim about Registry placements

In comments to the News Service, Andrew Levrault, DPPC’s deputy general counsel, defended the Registry’s record and regulations. “We think it (the Registry) has really lived up to its goal to bridge that gap between individuals who would have otherwise had a clean CORI (Criminal Offender Record Information)…(and are now subject to a process) which prevents them from working in the field where they really shouldn’t be because of past abusive conduct,” he said.

Levrault said the instances in which individuals are kept off the Registry include cases in which there is “an opportunity for re-training, including for those who make medication errors.” He maintained that, “In cases of intentional physical or sexual abuse, those providers will be put on the Registry.”

It does not appear, however, that there is anything in the Registry regulations that requires the DPPC to place care providers’ names in the Registry in all cases in which the agency has affirmed allegations of intentional physical or sexual abuse against them.

Our recommendations

We have made a number of recommendations for tightening the Registry regulations, including requiring the DPPC to consider several factors listed in the regulations for determining whether a substantiated incident of abuse really is isolated and whether the care provider really is fit to continue to provide services.

Right now, the regulations say only that the DPPC “may” consider factors such as previous incidents of abuse and the provider’s previous work history.

We also think DPPC should be required to consider impact statements from the victims and their families when considering petitions by care providers to avoid placement in the Registry.

Also, the regulations should explicitly require that the DPPC place care providers in the Registry in all cases in which the agency has affirmed allegations of intentional physical or sexual abuse. Levrault claimed that his already happening, but the regulations don’t appear to support his statement.

The question that remains is how can we ensure that needed changes will happen?

At least some of the lawmakers and advocates interviewed by the State House News Service said the right things about the need to look into our concerns and fine-tune the law.

But at this point, there is little to hold lawmakers and other officials accountable or to ensure that they follow through on their promises.

It is becoming clearer every day that the media is no longer interested in playing that role. The media and our political and governmental leaders are today all part of the same club.