COFAR blog

We have submitted a complaint to the Department of Developmental Services (DDS) about what we consider to be “gross procedural irregularities and unconstitutional restrictions” imposed on us as advocates by a departmental hearing officer.

In a ruling that appears to violate state regulations and the First Amendment to the U.S. Constitution, the hearing officer, Donna Schofield, last week attempted to sharply restrict our efforts to advocate for a family member of a client of the Department during a virtual hearing.

I appeared at the start of the virtual pre-hearing on August 5, along with my colleague at COFAR, Maura Drummey, as advocates for the family member. 

First, Schofield stated that because we are not attorneys, we would not be allowed to speak during the proceeding or ask any questions. The hearing officer further threatened to sanction me “to the best of (her) limited ability” if I published a blog post about the pre-hearing conference.

As discussed below, two sets of state regulations allow appellants to be represented by non-attorneys in administrative hearings. A hearing officer cannot invent a sub-category of “silent observer” representation. By preventing us from speaking, Schofield was denying the appellant her regulatory right to active representation.

Further, we believe the threat to sanction me for writing about the proceeding amounts to an unconditional prior restraint on speech.

The family member for whom we are advocating is appealing an Individual Support Plan (ISP) developed for her sister, who has an intellectual disability. The appeal concerns allegations of inadequate services and a lack of viable ISP goals. The appellant is her sister’s guardian.

To protect the appellant, we are not identifying her. The August 5 pre-hearing was held to discuss issues related to the appeal. A Fair Hearing on the appeal is scheduled for September 28.

Given that the restrictions imposed by Schofield appeared likely to significantly impede our ability to adequately represent or advocate for the appellant, I stated that we could not agree to continue to attend the session, and Maura and I both left it. Before leaving, I stated that I would reserve my right under the First Amendment to write a blog post about the matter. 

On Monday (August 10), I sent an email to DDS Commissioner Sarah Peterson, urging her to assign the case to a different hearing officer, and asking that we be permitted to advocate for the appellant in her Fair Hearing to the fullest extent that the regulations and the Constitution allow.

While the hearing officer is technically not guided by the Department’s wishes in the hearing officer’s decisions, she works under contract to the Department.

Denial of right to present documents and call witnesses

Among the issues set for discussion during the August 5 pre-hearing was whether the appellant would be allowed to submit documents and call witnesses in the upcoming Fair Hearing. It is our understanding that Schofield verbally informed the appellant that she would not be permitted to submit documents or call witnesses for the hearing because she supposedly missed a July 20 deadline for doing so.

However, email records show that the appellant did submit the documents on June 11. The appellant told us that the hearing officer had complained the submitted documents weren’t properly labeled.

In our view, the hearing officer has no statutory or regulatory basis for issuing a verbal order to ban evidence or witnesses over an arbitrary labeling preference; and a purely verbal order blocking due process rights carries no validity.

DDS objection to non-attorneys ignores regulations

Before the August 5 pre-hearing got underway, the DDS attorney, Barbara Green-Whitbeck, objected to Maura’s and my attendance as advocates for the appellant, saying we are not attorneys. However, the DDS ISP appeal regulations [115 CMR 6.33(2)(d)] state that an appellant has a right to be “represented at the hearing by a person of his or her choosing.” The regulations don’t require that appellants be represented specifically by attorneys in administrative hearings.

In addition, the Massachusetts Standard Adjudicatory Rules of Practice and Procedure (801 CMR 1.02) explicitly state that parties in Fair Hearings “or their Authorized Representatives” have the right to present witnesses, present facts and evidence through oral testimony, and “question or refute any testimony, including an opportunity to cross-examine adverse witnesses.”

Hearing officer says we cannot speak

At the start of the August 5 virtual session, Schofield ruled, as noted, that Maura and I could attend the session on behalf of the appellant, but that we would not be allowed to speak or ask any questions during the session. We could advise the appellant, Schofield said. However, this was a virtual event, so it wasn’t clear how we could do this without speaking.

Schofield also said she was told by Attorney Green-Whitbeck that I write blog posts for COFAR about DDS issues. Schofield said she was therefore placing another restriction on our attendance. We could only attend if I agreed not to publish anything about the pre-hearing conference or to even refer to it in a blog post, whether names were used or not. I was not even to publish a post containing a “fact pattern” that fit the case. If I did publish anything like that, Schofield said, “I will sanction you to the best of my limited ability.”

Suppression of speech

While DDS regulations do state that the Fair Hearing is not a public forum, the regulations don’t say that statements made during the hearing must remain confidential. It is actually up to the guardian as to whether to speak out publicly about what happened during the proceeding.

The hearing officer’s threat to sanction me even if I simply described a fact pattern fitting the case amounted to an attempted gag order or prior restraint on my First Amendment right to speech.

No sanction authority

In fact, Schofield’s threat to sanction me was a bluff. A Fair Hearing officer has no actual authority to sanction any party that appears before them. State law (M.G.L. c. 30A) and its accompanying regulations (801 CMR 1.00) grant no punitive, contempt, or disciplinary jurisdiction to an administrative presiding officer over an independent advocate.

Yet, the same regulations say the hearing officer “must ensure that the rights of all parties are protected.” In this case, Schofield failed to guarantee the appellant’s right to adequate representation. She ignored state regulations and asserted a non-existent authority to sanction me for protected speech in order to restrict our ability to represent the appellant.

We have seen a number of instances in which DDS hearing officers in appeals have appeared to be biased in favor of DDS’s positions and against those of the families involved.

We think this case demonstrates that it is long overdue for reforms to the rules for administrative appeals in Massachusetts. There is no reason for a hearing officer to receive financial compensation from the same state agency on which the hearing officer sits in judgment.

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