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 the mother’s appeal of the then impending closure of the Andover apartment on April 1, 2024, was moot because she had taken her daughter home with her shortly before the services in the apartment were terminated.

We are not listing the mother’s and daughter’s names at the mother’s request.

“Taking (the daughter) 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, the mother 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.

The mother 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 the mother refile her appeal directly to DALA on December 6. We also helped her in submitting a written objection to a motion filed by DDS on January 27 to dismiss her December appeal.

The  mother 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 her daughter.

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

Following Forton’s May 9 dismissal of the mother’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, the mother alleged that the cutoff of services was done in retaliation for her complaint that her daughter had been emotionally abused by staff in the apartment.

In the mother’s appeals and plea for reconsideration, she urged Forton to order DDS to provide an alternative residential location for her daughter “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.”

The mother 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 the daughter 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 the mother 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.

The mother said that in an incident on February 20, 2024, while she was talking with her daughter 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, the mother filed a complaint with the Disabled Persons Protection Commission (DPPC).

On February 23, 2024, just three days later, NRS informed the mother 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 the mother of the termination of the program, DDS’s legal division petitioned in Middlesex Probate Court to limit or possibly eliminate her and her husband’s co-guardianship of their daughter. That action had come out of the blue, the mother 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 the mother’s case.

In addition to wrongly concluding that the mother’s appeal was moot, Forton stated that one of the options suggested by DDS to her in March 2024 was to have the daughter 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 the daughter’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 the daughter the option of staying in the apartment was incorrect.  The mother ultimately took her daughter 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.

The mother 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 the mother’s and daughter’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 the mother and daughter, but because it did not appear to seriously consider the mother’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 the mother’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.