COFAR blog

The Department of Developmental Services (DDS) is supporting a hearing officer’s order to us to refrain from speaking while serving as advocates for an appellant in a departmental appeals process.

In an August 20 email to us, DDS General Counsel Katherine Borden Alford said DDS will not remove the hearing officer, Donna Schofield, from the case, and that Schofield has the discretion to set virtually any conditions or restrictions she wants on anybody in the hearing room. 

In our view, Alford is essentially arguing that a DDS hearing officer has the discretion to violate the law.

Alford’s response to us also contained a number of untrue statements. DDS and the hearing officer appear to be working together to prevent due process for the appellant in the case. That person 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 and her sister, we are not identifying them.

A Fair Hearing on the appeal is scheduled for September 28. On August 5, my colleague at COFAR, Maura Drummey, and I had appeared at the start of a virtual pre-hearing, as advocates for the family member. 

Schofield stated at the start of the August 5 proceeding that because we are not attorneys, we would not be allowed to speak during the proceeding or ask any questions. Schofield further threatened to sanction me “to the best of (her) limited ability” if I published a blog post about the pre-hearing conference.

However, two sets of state regulations allow appellants to be represented by non-attorneys in administrative hearings, and allow non-attorneys to present facts, evidence, and witnesses, and even to cross-examine adverse witnesses. Further, we believe the threat to sanction me for writing about the proceeding amounts to an unconditional prior restraint on speech.

On August 10, I submitted a complaint to DDS Commissioner Sarah Peterson, contending that Schofield had violated state regulations and the U.S. Constitution by prohibiting us from speaking or asking questions during the pre-hearing.

Untrue statements

In an initial response to us on August 13, Alford said Peterson had referred our complaint to her and that she would respond more substantively “in the coming days.” In her full response on August 20, Alford stated that, “the Department will not intervene in the ongoing…fair hearing.”

Alford’s full response did not address our claim that the regulations give non-attorneys the authority to fully represent appellants in administrative hearings.

Alford listed a number of reasons in support of the Department’s position, which we consider questionable or untrue.

First, Alford said that:

Like judges, hearing officers are independent, and the agency does not direct them. As long as the hearing officer acts within the constraints of the law, it would be inappropriate for the commissioner to dictate a hearing officer’s conduct of her hearing.

It is incorrect that hearing officers are independent and are like judges. Hearing officers are paid by the Department under contract. They are, moreover, appointed to specific cases by the commissioner.

Judges are not appointed to cases by parties to those cases (See Part 1 of the Massachusetts Constitution, Article XXIX) and are not paid by those parties.  Judges, therefore, do not sit in judgement on the same agencies or persons that appointed them or designated them to preside over those cases.

Further, as we demonstrated, this hearing officer has not acted within the constraints of the law. She violated two sets of regulations and the First Amendment to the U.S. Constitution in prohibiting us, as the appellant’s authorized representatives, from speaking or asking questions during the pre-hearing.

Alford also said that:

Moreover, hearing officers have broad discretion in the conduct of their hearings, and a duty to conduct those hearings in a manner that ensures that the rights of all parties are protected.This includes, without limitation, the duty to ensure an orderly presentation of evidence (801 CMR 1.02(10)(f)), as well as discretion to determine whether attendance at a non-public hearing is in the best interest of the individual (115 CMR 6.33(2)(g)).”

But as we have argued, Schofield has not acted to protect the rights of the appellant in this case. She is also not letting the appellant present evidence and is not letting us question the evidence presented by the Department. Also, the appellant has not been allowed to be fully represented by an advocate of her choosing, as the regulations allow.

In our opinion, this case may set a disturbing precedent. The Department’s position is that hearing officers in DDS Fair Hearings are allowed to set any conditions they want on the participation of advocates for the appellants, regardless of the clear language and intent of the regulations, which do not provide that discretion.

Those hearing officers will be able to bar the appellant’s Authorized Representatives, who are not attorneys, from speaking, presenting evidence, and cross-examining adverse witnesses, all in contravention of the regulations.

Finally, Alford didn’t respond to the question whether Schofield has any authority to bar publication of a blog post reporting on a fair hearing or pre-hearing. As we have noted, she doesn’t have that authority.

We are exploring our procedural and legal options in this matter. Stay tuned.