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DDS hearing officer’s denials of appeals for placements at Wrentham Center appear to show bias against families and guardians
It’s becoming clear that the legal division and even the internal appeals division of the Department of Developmental Services (DDS) have a bias against families and guardians seeking residential placements for their loved ones at state-run congregate care centers in Massachusetts.
A decision by a DDS hearing officer last summer marks at least the second time in the course of a year that the Department shot down appeals by families to transfer intellectually disabled persons from corporate, provider-run group homes to the Wrentham Developmental Center.
Concerns downplayed
In both cases, the same DDS hearing officer, William O’Connell, denied the appeals in rulings that used the same language in many instances. And O’Connell appeared to downplay or even ignore concerns raised by the families about a lack of adequate care and meaningful activities in the “community-based” group homes and day programs.
In his decisions, O’Connell stated either that he did not give “substantial weight” to testimony of the families, or that they had not provided “substantial and probative evidence” that their adult children were receiving inadequate services or that Wrentham had more services and less turnover among staff. At the same time, he found to be “credible” every argument raised against the families by DDS in its closing briefs.
In particular, O’Connell didn’t explain why he didn’t give substantial weight to what is arguably easily verifiable and true assessments about the Wrentham Center regarding services and staff turnover. This is clearly due to the fact that O’Connell fully subscribes to the administration’s ideology that all congregate residential care is institutional and therefore bad.
Also, as explained below, O’Connell’s decisions appear to be internally contradictory with regard to whether clients in the DDS system have a right to placements at the Wrentham Center and the Hogan Regional Center in Danvers, which are known as Intermediate Care Facilities for individuals with intellectual disabilities (ICFs).
As we previously reported, O’Connell denied an appeal in July 2023 filed by a father and mother who had been trying to get their son into the Wrentham Center. Last summer, O’Connell denied a second appeal by another mother to gain admission to Wrentham for her son. Then DDS Commissioner Jane Ryder upheld both of O’Connell’s decisions.
We have frequently noted that both ICFs are critical backstops for care in the DDS system. Yet these facilities are being targeted for eventual closure by the administration. Families and guardians of persons needing residential placements are not informed that the two ICFs exist; and, if they do ask for placements there, are almost always denied.
Conclusion stated at outset of decisions
The DDS bias was evident at the start of each of O’Connell’s decisions in which he stated that care in the community in each case had been “successful.”
In both cases, O’Connell stated that one of the “issues presented” was, “Does (the) appeal … entitle (the individual) to a change in residential placement, specifically admission to a specific ICF, after…years of successfully being supported in a less-restrictive community-based residence.” (my emphasis)
It appears from this language in both appeal decisions that O’Connell had already made up his mind before even hearing testimony. He listed, as an “issue presented” (meaning the case had yet to be heard), that the individual’s supports in the community had been successful.
However, in each case, the family had appealed based on an argument that the community-based supports had not been successful.
Also, a guardian in at least one of the cases claimed that her son was leading a highly restricted life in his community-based group home. And both families noted that they found that the Wrentham Center is highly interactive with its surrounding community, and offers many services and activities that are normally not available in their sons’ group homes.
So, the hearing officer’s presumption from the start in these cases that ICFs are automatically more restrictive than are community-based group homes indicates an unwillingness to consider evidence in individual cases that the opposite may be true.
Also, his presumption that care in the community-based system is uniformly successful ignores years of evidence that the community-based system has become highly dysfunctional and is rife with abuse and neglect.
Claims of inadequate services not given weight
As noted, O’Connell actually acknowledged that he didn’t give “substantial weight” to allegations by each family about a lack of specific activities or supports in the community-based system. Instead, he accepted DDS’s assertions that the individuals in each case were “well supported” or “successfully supported” in that system.
In fact, O’Connell used the exact same language in stating in each decision that:
I find credible (DDS’s) testimony that admission to (Wrentham) is not appropriate for (the individual) because there was no immediate risk to (the individual’s) health or safety and no indication that (the individual’s) needs cannot continue to be met in the community.”
O’Connell just updated the name from the first to the second decision.
In both decisions, O’Connell also stated that DDS was “continuing to work” or “willing to accommodate” some of the specific services and supports requested by the parents. But those promises, in the parents’ view, are vague and ultimately empty. If DDS were really committed to doing these things, they would have been done years ago, and the parents would not be appealing for placements at Wrentham.
Hearing officer’s decisions and DDS policy are internally contradictory regarding ICF admissions
In each decision, O’Connell accepted the DDS argument that the federal Medicaid law “does not entitle (the individual) admission to an Intermediate Care Facility at the Wrentham Center… “
O’Connell, as noted, also accepted DDS’s uniform position that each individual “is not entitled to admission because (Wrentham) is not the least restrictive environment available to serve (the individual.” And in each decision, O’Connell added that, “the Medicaid Act choice provision does not entitle (the individual) to choose between ICF or in a community home on an annual basis.”
But DDS, in fact, does offer such a “choice.” It’s just that DDS, not the Medicaid Act, insists the “choice” must always be a community-based home.
DDS requires families and guardians to sign a waiver of ICF care in order to receive DDS services. In what is referred to as a “Choice Statement” on the form, the applicant for DDS services is required to sign the following:
CHOICE STATEMENT:
I ____________________________________(Applicant or guardian) choose to apply for the Home and Community-Based Services Adult Waiver Programs and live and receive my services in the community rather than in an ICF/ID. (my emphasis)
DDS essentially admits here that a choice of ICF care exists in that the Department requires families and guardians to waive that choice in order to receive DDS services.
In fact, O’Connell explicitly stated in each appeal decision that the family applied for enrollment of their child “in the HCBS (Home and Community Based Services) Waiver …, exercising their choice for community rather than ICF services in so doing.” (my emphasis)
Despite that apparent choice, O’Connell stated in both decisions, as noted, that the individuals in question did not have a right under federal law to placement in an ICF. DDS, in fact, asserted in each case that:
DDS avoids institutionalization at the ICFs except in cases where there is a health or safety risk to the individual or others, and generally, when all other community-based options have been exhausted.
This, in our view, appears to violate federal law, which does confer a right to institutional care for those who desire it. The U.S. Supreme Court, in Olmstead v. L.C., also held that a right to institutional care exists.
Not only does federal law specify that there people who are found to eligible for ICF-level care are entitled to choose it, but DDS and O’Connell both acknowledge that such a choice exists. It is not a real choice, though, if DDS requires families and guardians to waive their right to one of the available options.
It is moreover, disingenuous of DDS and the hearing officer to tie families and guardians forever to community-based care by falsely claiming that those persons had freely chosen it years before in many cases.
What is ultimately so frustrating about this situation is that DDS and the administration as a whole continue to cling to an ideological position against congregate care that ignores reality. They continue to maintain that ICF care is more restrictive than care in the community, no matter what evidence may be presented to the contrary.
And DDS and the administration continue to ignore evidence that community-based care is beset by serious problems. As a result, when families and guardians appeal the inevitable denials by DDS of a full continuum of choice in residential care, the official adjudication process they encounter is anything but fair and impartial.
A compelling new book chronicles a girl’s life at the Belchertown State School
Edward Orzechowski has done it again. He has written a second gripping, as-told-to account of life within the notorious and now long-closed Belchertown State School in western Massachusetts.
The launch of his new book, “Becoming Darlene,” is scheduled for November 23 at 1 p.m. at the Florence Civic Center in Florence, MA.
“Becoming Darlene” is about the life of Darlene Rameau, a former Belchertown resident, as related in a series of interviews with Orzechowski. It follows a similar pattern to that of Donald Vitkus, whose experience before, during, and after Belchertown, was the subject of Orzechowski’s first book, “You’ll like it Here.”
In each case, Orzechowski, a former COFAR Board member, has written the life story of a person who spent most of their childhood at the Belchertown school. When Donald was first sent there in the 1950s, and Darlene in the 1960s, that institution, like a number of others in Massachusetts, was a literal warehouse of abuse and neglect.
It is important to understand that the type of institution that Orzechowski describes in both of his books no longer exists today. Starting in the mid-1970s, while Darlene was still at Belchertown but Donald had long since left it, major upgrades in care and conditions began to be implemented at that and other similar institutions in Massachusetts. These changes were the result of a class action lawsuit first brought by Benjamin Ricci, the father of a former Belchertown resident.
The upgrades were overseen by U.S. District Court Judge Joseph L. Tauro. By the time Tauro disengaged from his oversight of the case in 1993, he wrote that the improvements had “taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.”
As Orzechowski notes, Darlene became aware while she was still at Belchertown of the impact of Tauro’s involvement. Suddenly, and seemingly in one day, new, kinder staff appeared. Restrictions and beatings ended, Darlene says. But those changes still took many years to be fully implemented.
In 1996, Belchertown was closed for good. Today, only two large congregate care facilities remain in Massachusetts — the Wrentham Developmental Center and the Hogan Regional Center. Both centers must meet strict federal standards for care and staffing that were made possible by the federal litigation in Massachusetts and in other states starting in the 1970s.
At Belchertown, Darlene was a keen observer of nonstop human suffering, of wards filled with naked, neglected children, and reeking of urine and feces and infested with insects.
As was the case with Donald Vitkus’s story, much of the story about Darlene is about her attempts to cope in the “real world,” after having been discharged from Belchertown. For both Donald and Darlene, the transition was filled with trials and setbacks. Belchertown continued to affect both of their lives in sometimes tragic ways.
“Becoming Darlene” is a true story, but it reads like a novel. It is a page turner. It is at turns disturbing and heart breaking. But as with Orzechowski’s first book, one finishes this second book with a feeling of gratitude for Darlene and for the triumph of her spirit.
Update on our efforts to advocate for families in probate court
We reported last month about our efforts to help family members of persons with intellectual and developmental disabilities who have lost their guardianships and have found themselves legally outgunned in probate court.
In many cases, families can’t afford attorneys whose fees can run into the tens of thousands of dollars.
Even family members that do go into probate court with attorneys often feel outnumbered by the personnel arrayed against them there. Those opponents may not only include the attorney or attorneys for the Department of Developmental Services (DDS), but, in many cases, both the state-funded guardian appointed to replace the family member, and the state-funded attorney appointed to represent the intellectually disabled client.
In some cases, even the guardian ad litem (GAL), an attorney appointed to independently advise the judge, may take what appears to be a position against the family. We have seen cases before involving biased GALs.
In two cases in which we are currently involved, the GALs appear to have sided with DDS and with the state-appointed guardians and attorneys in seeking to remove the parents’ guardianships.
Probate judges open to allowing parents’ advocate to attend sessions
Last month, I contacted probate court clerks’ offices in Worcester and Woburn to see whether I could attend court sessions on behalf of the parents in those two cases. I received conflicting answers from the offices as to whether I, as a non-attorney, could appear as an advocate in the sessions.
However, when I did appear in court in those cases, the judge allowed me, in each case, to stay and stand at the counsel table alongside a mother who is seeking to regain her guardianship of her son.
In one of the two cases last month, Middlesex Probate Judge Thomas Barbar allowed me to speak on behalf of the mother, and then suggested that I “work with” her attorney as an advocate for her. It was encouraging, although it wasn’t quite clear whether I will be allowed to continue to address the judge directly in that case.
In the other case, Worcester Probate Judge Kathryn Bailey said she would allow me to be called as a witness for that mother when her case goes to trial, tentatively in February.
I came away from both sessions with a sense that my attending as an advocate from COFAR at least provided some independent weight to both parents’ positions before the court. Both sets of family members seemed to feel that way as well.
But the jury (no pun intended) may still be out on how effective a courtroom advocate, who is not an attorney, can be, and, perhaps ironically, whether I would be allowed to participate as an advocate if the person I am supporting does not have an attorney.
In that case, it seems possible that I might be seen as acting as the family member’s attorney, which would be illegal. I may, in those cases, only be allowed to attend the court session, and perhaps not speak.
A number of years ago, I tried to attend a probate court session in support of Stan McDonald, who had been seeking for years to regain guardianship of his intellectually disabled son. That case had been impounded, meaning the entire record was sealed from public disclosure, so the judge wouldn’t even let me in the courtroom. That was even though a previous judge had let me attend a previous court session in Stan’s case.
Supreme Judicial Court ruling may support non-attorney advocacy
But even in an impounded case, it seems it may be possible for an outside advocate to be called as a witness for a family member. Even in cases in which the parent or family member doesn’t have an attorney, I think it may be possible to argue that an advocate who is a non-lawyer can intervene as an “interested person.”
In a case known as “Guardianship of B.V.G.,” the Massachusetts Judicial Supreme Court held in 2016 that the grandfather of a young, intellectually disabled woman had the right to intervene in a probate court proceeding in order to gain permission to communicate with her.
Even though the grandfather was not B.V.G.’s guardian and wasn’t an attorney, he was an “interested person” within the meaning of the state’s Uniform Probate Code, according to the SJC. As such, he had the right to intervene in the probate court proceeding in order to remove restrictions on his contact with his granddaughter.
The SJC noted that the Uniform Probate Code (which is contained in the state’s general laws) allows anyone defined as an “interested person” to intervene in a guardianship proceeding in probate court. The high court concluded that an individual can be considered an interested person under the Probate Code simply by being interested in an incapacitated person’s well-being. As such, the grandfather of B.V.G. was clearly an interested person, the high court concluded.
So, I think I could argue that I should be allowed to intervene as an advocate in guardianship cases, based on the argument that I am similarly interested in the wellbeing of the incapacitated client.
DDS objects to our submission of information to the judge
In the two ongoing cases, I submitted written reports to the judges on behalf of the mothers, arguing for the return of their guardianships. It’s not clear if those reports have been accepted by the judges for consideration. In submitting the reports, I applied to “present information” to each judge, using a probate court application form that doesn’t specify that the presenter must be an attorney.
The application form further states that the “attached written statement (of information) is not evidence and that (the applicant) may be requested to testify at Court.”
However, in the Worcester Probate Court hearing, the DDS attorney filed a motion objecting to my submission of information in the case. John Geenty Jr., a DDS assistant general counsel, asserted in his motion that I have “no expertise”; that I have “no first-hand knowledge of the evidence” in the case, and that I was “trying to provide legal representation without a law license.”
During the court session, Judge Bailey allowed me to respond verbally to Attorney Geenty’s assertions. I noted that I have had more than 20 years’ experience in analyzing guardian cases and advising families and guardians in those matters, and that I was not claiming to be an attorney. The judge didn’t contradict me, and then said she would allow me to be called as a witness for the mother. As noted, it is not clear that the judge will consider the information that I submitted.
In the second case in Middlesex Probate Court, I submitted a rebuttal to the Guardian ad Litem’s report in that case, which had found the mother unfit to remain as her son’s guardian. I argued that the GAL’s report was deficient in not having included any interviews of clinicians or other witnesses who were supportive of the mother. As noted, it isn’t clear yet whether the judge in that case will take my report into consideration.
Difficulties in getting legal representation
We are, meanwhile, exploring other options for families such as contacting attorneys that provide pro bono representation.
As we previously reported, we have been trying to help a DDS client who told us she had been placed involuntarily under the guardianship of a DDS-funded provider agency. In that case, the client had asked that a longtime friend and former caregiver of hers become her guardian.
However, in December 2022, the Bristol Probate and Family Court appointed the Cooperative for Human Services, a corporate DDS provider, as the client’s guardian. The Cooperative has reportedly assigned an employee of the organization to provide guardianship services to the client, but the client told us she doesn’t even know who that appointed guardian is and has never met her.
Last month, I emailed four legal advocacy organizations to request that they represent the client in getting the guardian she wants.
I did receive a response on Wednesday (November 6) from the executive director of the Easthampton-based Center for Public Representation (CPR), who expressed interest in meeting with the client and “exploring the kind of help she is seeking.” We are trying to arrange that meeting now.
Two other legal advocacy organizations — the Boston-based Disability Law Center (DLC) and Brockton-based South Coastal Counties Legal Services — stated that they either don’t or can’t handle guardianship cases, while a third — the National Center on Law and Elder Rights — hasn’t responded to us.
As we stated before, the DDS-probate court system appears to be broken in that it doesn’t respond well to families of DDS clients. It particularly doesn’t respond well to families that aren’t represented by attorneys. But we are hopeful that there are other ways in which we can help.
If anyone has any additional insights into these matters, please feel free to share them with us.
COFAR blog 