COFAR blog

Reversing her previous order, a Department of Developmental Services (DDS) hearing officer will allow us to attend a departmental appeal hearing as non-attorney advocates for a woman with an intellectual disability and her guardian.

However, the hearing officer, Donna Schofield, has ruled that the appellant cannot present her proposed evidence and witnesses to support her appeal.

We are continuing to object to what appears to be a serious violation of the appellant’s rights under state law to appeal an Individual Support Plan (ISP) developed for her sister. The appeal concerns allegations of inadequate services and a lack of viable ISP goals.

To protect the appellant and her sister, we are not identifying them.

Allowing us to attend, and one of us to speak

In an order dated September 21st, Schofield, who had previously barred my colleague at COFAR, Maura Drummey, and myself from speaking on behalf of the appellant, stated that she now believed that the appellant, “has the right to make this choice on behalf of her sister, and therefore Mr. Kassel and Ms. Drummey may appear.” She said one of us will be allowed to speak and question DDS witnesses during the September 28 Fair Hearing.

Did not accept DDS attorney’s request to remove me from the case

In a request to the hearing officer, dated September 18, DDS Attorney Barbara Green Whitbeck had asked that I be removed from the case altogether as the appellant’s advocate.

In an argument that we maintained was flawed, Whitbeck asserted that only the disabled individual and not their guardian could be represented under state regulations. However, Schofield did not accept Whitbeck’s argument and did not remove me from the case based on a series of unsupported charges that Whitbeck made against me in her written request.

Whitbeck’s primary legal argument appeared to be that under DDS regulations the guardian does not have the right to be representative by an advocate. We argued in response that the regulations establish that, in cases in which an individual has a guardian, the guardian is expressly recognized in the regulations as an appealing party.

Still barring appellant from presenting evidence and calling witnesses

In her September 21 decision, Schofield left in place her August 24 order barring the appellant from presenting her proposed evidence and witnesses in the appeal. Schofield maintained that the appellant had missed a July 20 deadline for submitting the documents in the required format. The appellant had actually submitted the documents in June, but the hearing officer contended the documents were not properly numbered.

We objected to the hearing officer’s August 24 decision, arguing that under state law (M.G.L. c.30A, s. 10), agencies conducting adjudicatory proceedings must afford parties “an opportunity for a full and fair hearing.”

While we do not dispute that the hearing officer may establish reasonable procedures for organizing exhibits, we noted that, “a failure to comply with an exhibit numbering preference that was not contained in a written order or applicable regulations should not result in the complete exclusion of an appellant’s otherwise relevant evidence.”

In her one-paragraph order on September 21, Schofield did not respond to our arguments regarding the evidence and witnesses. She said only that her August 24 order barring the presentation of the evidence and witnesses remained in place.

DDS attorney leveled unsupported charges

In her September 18 request to remove me from the case, Attorney Whitbeck provided no evidence for a series of charges against me, including that I was “disrupting the hearing process and interfering with the orderly presentation of the case.”

I replied that we have, on the contrary, tried to be cooperative with the hearing officer and to act in good faith. We made an effort to pare down the appellant’s proposed exhibits to fewer than 20, from what had been a substantially higher number.

Whitbeck additionally provided no evidence to support her charge that I had interfered with the ability of other parties to present their case. Nor did she provide evidence to support her assertion that I have a conflict of interest in representing the appellant because I work for COFAR and represent the interests of COFAR rather than those of the guardian.

I pointed out that our organization’s mission is explicitly to represent the interests of individuals with intellectual and developmental disabilities and their families and guardians. We do not charge for those services.

Finally, Attorney Whitbeck provided no specific examples or other evidence to support an assertion that my “interpretations of law are often incorrect, muddled, and misleading.”

I noted, in response, that the fact that Whitbeck disagrees with my legal arguments does not establish that I have acted improperly or that I should be barred from representing the appellant.

As noted, Schofield did not remove me from the case based on Whitbeck’s charges.

A partial win, but serious concerns remain

While the latest outcome in this case has been a partial win for us, it is certainly disappointing that the appellant will not be allowed to put on her full case.

If her appeal is ultimately denied, the appellant would have a significant issue to raise in Superior Court: whether the exclusion of all of her proposed evidence and witnesses deprived her of the full and fair hearing required by state law.

This case has raised serious questions about whether the administrative hearing process in Massachusetts needs reform and whether so-called Fair Hearings are always conducted in an impartial manner.