COFAR blog

As the Massachusetts House of Representatives gets ready to debate the Fiscal Year 2027 state budget next week, we are advocating for three budget amendments to help ensure the preservation of the Wrentham and Hogan Intermediate Care Facilities.

At our request, Representative Marcus Vaughn, whose district houses the Wrentham Center, has filed Amendment 695 to the budget legislation. This amendment states that people with intellectual and developmental disabilities (I/DD), who have been found to be eligible for ICF-level care, have a right to an ICF residential setting.

A second amendment filed by Rep. Vaughn (Amendment 699) requires DDS to report on its efforts to inform families of all residential choices available for care, including ICF care. And a third amendment (Amendment 703) states that residents of ICFs cannot be involuntarily discharged from those facilities.

Among the House members who have told us they support the proposed amendments and will co-sponsor them are Reps. Lisa Field, a member of the Mass. Nurses Association; Lindsay Sabadosa, and Joseph McKenna. We are urging our members to call or email their House member and ask them to cosponsor or sign onto Amendments 695, 699, and 703. You can find your legislator here.

DDS failing to recognize the right to ICF care

The Department of Developmental Services (DDS), which operates the Wrentham and Hogan Centers, has routinely denied requests for placements in those facilities, implying that clients of the Department do not have a right to such placements.

At the same time, DDS has not provided clear or acceptable criteria for admission to Wrentham or Hogan. As a result, the census in both facilities has continued to drop, and we believe the centers are on a path to closure due to attrition. (See the graph below.)

In at least two cases in recent years in which family members have filed administrative appeals to gain admission to Wrentham, a DDS hearing officer accepted the Department’s argument that the federal Medicaid law “does not entitle (the individual) admission to an Intermediate Care Facility…”

DDS’s only stated criterion for admission to Wrentham in those appeals was: “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.”

Wrentham and Hogan are the only two congregate-care ICFs remaining in Massachusetts. They are state-run, federally regulated, and Medicaid-certified. They provide specialized services for people with profound disabilities, including 24/7 medical care and structured educational, vocational, and recreational programming.

The loss of these centers would mean the loss of critical care for individuals with the most profound disabilities. Given that thousands of people are reportedly waiting for residential placements in the DDS system, individuals are already facing increased hospitalizations and emergency room visits, and many families are forced to take on care beyond their capacity. The loss of Wrentham and Hogan would only worsen this situation.

Boulet case confirms a right to ICF care under federal law

In our view, eligible DDS clients do have a right to choose care in an ICF. That right is established in the federal Medicaid law and regulations, and is affirmed in the landmark Boulet v. Cellucci federal court decision (107 F. Supp. 2d 61 (D. Mass. 2000).

The Boulet decision, which was written by U.S. District Court Judge Douglas Woodlock, required DDS to provide residential services promptly to thousands of clients who had been waiting for placements, in some cases for years.

Woodlock’s decision states that there is a right to ICF care, provided with “reasonable promptness,” for those clients who are found to be eligible for that level of care and request it. The decision cites and closely tracks the federal Medicaid statute and regulatory language that we have been citing for some time.

• The Boulet decision states that if a state includes ICF services in its state plan, which Massachusetts does, the Medicaid law requires “that this type of ‘medical assistance’ be provided ‘with reasonable promptness.'” The decision then cites the Medicaid statute (42 U.S.C., § 1396a(a) (8)), and adds, “Therefore, to the extent that the plaintiffs have requested ICF/MR (now ICF/IDD) services, the state must provide those services reasonably promptly.”  

• The decision also discusses the Home and Community Based Services (HCBS) waiver, and states that under the waiver, an ICF-eligible individual or his legal representative “will be: 1. informed of any feasible alternatives under the waiver; and 2. Given the choice of either institutional or home and community-based services.”  The decision further cites the Medicaid regulation, 42 C.F.R. § 441.302(d), as explicitly requiring the choice of either institutional or HCBS care.

Woodlock’s decision also cites a 1998 11th Circuit U.S. Court of Appeals decision (Doe v. Chiles,136 F.3d 709 (1998) at 721) that held that states cannot justify long delays for covered services, including those provided by ICFs/IDD.

We think our proposed budget amendment is therefore consistent with the holdings of both federal law and with Boulet, both of which recognize that eligible clients must be informed of all feasible residential alternatives and given a choice among service settings, including ICF care.

We believe that asserting a right in state law to ICF care for eligible individuals will make it clear that DDS cannot deny admissions for Wrentham or Hogan without establishing clear criteria for admissions that include factors such as the degree of a person’s cognitive impairment.

That should ensure that the doors to those facilities are reopened to eligible clients who seek placements there, and thereby ensure the preservation of those critically important centers.