COFAR blog

In a decision we think may set a bad precedent, a state administrative judge has dismissed a mother’s appeal of an abrupt cutoff of services last year by the Department of Developmental Services (DDS) in a staffed apartment for the mother’s intellectually disabled daughter.

In a three-page decision that took more than three months to issue, state Division of Administrative Law Appeals (DALA) Magistrate Kenneth Forton concluded on May 9 that Jeanne Cappuccio’s appeal of the then impending closure of the Andover apartment on April 1, 2024, was moot because she had taken her daughter Mia home with her shortly before the services in the apartment were terminated.

“Taking Mia home mooted any objection to her move that DALA could even possibly review,” Forton’s decision stated. “DALA is only able to order DDS to delay or stop a transfer, it cannot prevent a move that occurred a year ago.”

However, Jeanne contended that the matter was not moot because DDS had failed to allow her then timely appeal of the shutdown to proceed. Her appeal had been filed in March 2024 under DDS regulations that allow appeals to DALA of proposed transfers of clients from one residence to another.

Mia and Jeanne Cappuccio

Jeanne argued that in a violation of the regulations, DDS had declined to forward her original March 26, 2024, appeal of the impending termination to DALA for adjudication. As a result, we helped Jeanne refile her appeal directly to DALA on December 6. We also helped Jeanne in submitting a written objection to a motion filed by DDS on January 27 to dismiss her December appeal.

Jeanne maintained that due to the imminent termination of the services in the apartment as of March 2024, she had no choice but to bring her daughter home after DDS blocked her appeal from proceeding. She contended, however, that even today, DALA could order DDS to find a new, suitable location for Mia.

Since April 2024, Mia has been living at home with Jeanne and her husband Tom. But Jeanne said she and Tom are “overwhelmed with the challenges of providing Mia’s intensive supports and maintaining our commitments to our full time jobs.” She said DDS has not provided Mia with physical therapy nursing, or counseling services for the past year.

Following Forton’s May 9 dismissal of Jeanne’s December appeal, she asked Forton on May 20 for reconsideration of his decision, arguing that it contained significant factual errors. Forton denied her request for reconsideration without explanation the same day we filed it.

In both her March 2024 and December appeals, Jeanne alleged that the cutoff of services was done in retaliation for her complaint that Mia had been emotionally abused by staff in the apartment.

In Jeanne’s appeals and plea for reconsideration, she urged Forton to order DDS to provide an alternative residential location for Mia “that meets her best interest” as required by the DDS statute covering transfers. She added that, “A failure to do so simply rewards DDS for failing to comply with the statute and regulations that specified a timely process for appeal.”

Jeanne further argued that dismissing her appeal would allow DDS to evict disabled individuals from their homes by simply withdrawing all supports, without providing due process or alternative placements that provide services. This would set a precedent that would contradict the intent of the statutory framework governing the provision of services to persons with intellectual and developmental disabilities (I/DD).

Apartment program did not live up to promises

As we reported in February, DDS had initially proposed what was described as a novel residential program for both Mia and another woman who had both been subjected to poor care and conditions in a previous group home.

The Department proposed to rent an apartment in Andover for the women, and staff the new residence with direct care workers. Those workers would be employees of Northeast Residential Services (NRS), a division of DDS, which operates group homes in DDS’s northeast region of the state. It was to be an apartment where the two women could lead independent lives while still receiving Intensive Support Services from DDS.

But Jeanne maintains that far from providing better care than the previous group home had provided, DDS never appeared to be committed to making the new residential program work.

Jeanne said that in an incident on February 20, 2024, while she was talking with Mia over the phone, she overheard a staff member begin shouting at her daughter to get back in her room. Her daughter had been attempting to do her laundry, but the staff member would not let her do it. She said her daughter began crying.

Unable, after calling DDS and then visiting the apartment to get any answers, Jeanne filed a complaint with the Disabled Persons Protection Commission (DPPC).

On February 23, 2024, just three days later, NRS informed Jeanne that the residential program would be terminated in roughly a month. This was another violation of the regulations, which require a 45-day notice of proposed transfers.

Meanwhile, on the same day that NRS informed Jeanne of the termination of the program, DDS’s legal division petitioned in Middlesex Probate Court to limit or possibly eliminate Jeanne’s and Tom’s co-guardianship of Mia. That action had come out of the blue, Jeanne said. She said that DDS eventually withdraw its petition, but only after she had initiated discovery proceedings in the case.

Magistrate improperly quoted from regulatory provision by omitting a key phrase

Among the errors we cited in Forton’s decision were that he had left out five key words in citing the transfer regulations and thereby concluding that the regulations didn’t apply to Jeanne’s case.

In addition to wrongly concluding that Jeanne’s appeal was moot, Forton stated that one of the options suggested by DDS to Jeanne in March 2024 was to have Mia remain in the  apartment and use a different service provider.  He then stated that under the transfer regulations, “A change in the identity of the provider… involving no move, shall not be deemed a transfer.”

But while the regulations do state that a change in the identity of the provider shall not be deemed a transfer if there is no move, the provision in question specifically states that the change in the identity of the provider would have to occur “pursuant to a contract award.”

Thus, simply suggesting that a resident of a facility slated for closure can remain in the same location if the resident is able to find a new provider does not constitute compliance with the regulations. DDS, in that circumstance, must not only have identified the new provider, but must have signed a contract with that provider.

In Mia’s case, however, there was no contract awarded, and, in fact, a new provider had not even been identified.

The full regulatory provision that Forton partially quoted states the following:

…the change in the identity of the provider pursuant to a contract award involving no move, shall not be deemed a transfer…(Emphasis added)

In quoting the provision, Forton left out the critically important phrase “pursuant to a contract award.”  Leaving out that phrase completely altered the meaning of the provision.

Thus, the magistrate’s finding that there was no transfer because DDS had offered Mia the option of staying in the apartment was incorrect.  Jeanne ultimately took Mia home because DDS would not allow her timely appeal to DALA to proceed in March 2024, and because DDS had not identified a new provider, much less awarded a contract to one, before terminating services.

Jeanne argued that the question for DALA to decide in this case, and in all such appeals brought under the transfer regulations, is whether or not a proposed transfer is appropriate. She cited the precedent of the closure of the former Fernald Developmental Center in 2014. In that case, DDS gave notice that Fernald was going to be closed and the services there terminated.

The difference between the Fernald situation and Jeanne’s and Mia’s case is that DDS allowed the residents in the Fernald case to appeal to DALA under the transfer regulations prior to the cutoff of services.

Ultimately, this DALA decision was disappointing, not only because it went against Jeanne and Mia, but because it did not appear to seriously consider Jeanne’s arguments.

Moreover, in stating that the matter was now moot, the magistrate’s decision appears to have rewarded DDS for having violated the transfer regulations by preventing Jeanne’s timely appeal from proceeding.

Had DDS properly allowed the appeal to proceed in March 2024, it would have stopped the imminent termination of services in the apartment pending the outcome of that original appeal.