COFAR blog

The state public records supervisor has ordered the Department of Developmental Services to explain why it considers its policy for admissions to the Wrentham and Hogan Intermediate Care Facilities (ICFs) to be exempt from disclosure.

In a decision, dated Monday (November 9), Public Records Supervisor Manza Arthur said it was “unclear” why DDS is claiming the admissions policy falls under an exemption to the state Public Records Law for policies that are under development. Her decision was in response to an appeal we filed with her on October 26.

In July, we had asked for census information concerning Wrentham, Hogan, and group homes in Massachusetts, and for the Wrentham and Hogan admissions policy or policies. After a three-month delay, DDS did finally provide the census information, on October 21.

However, DDS stated that it was withholding its admissions policy, saying the policy was under development and therefore in draft form and not releasable. The Department cited “Exemption (d)” under the Massachusetts Public Records Law, also known as “the deliberative process exemption,” with regard to the admissions policy.

In our appeal to Arthur, we argued that DDS had been claiming that same exemption for its admissions policy for a year and eight months. We maintained that given that time span, the admissions policy was very likely no longer under development and had become the Department’s de facto operating policy.

DDS has long denied admissions to Wrentham and Hogan, resulting in a continuing decline in the number of residents remaining in the facilities.  However, the Department has declined since at least February 2025 to release any documents to us in response to our request for its actual written admissions policy.

In the Department’s October 21 response, the DDS records attorney stated that DDS was continuing to withhold records relating to admissions to the two ICFs and to Evaluation and Stabilization Programs. The attorney added that, “Both records are draft documents relating to policy development, and the release of these records could taint the deliberative process if prematurely disclosed. DDS has no other responsive records.”

In her November 9 decision, Arthur said that:

Based on the Department’s response, although the Department states that the records are “draft documents relating to policy development,” it is unclear what deliberative process remains ongoing or what legal or policy matters may be involved as required by Exemption (d)…Also, it is uncertain how disclosure of the requested records would taint any ongoing deliberative process. As a result, the Department has not sufficiently explained how the records are exempt from disclosure pursuant to Exemption (d). The Department must clarify these matters.

Arthur added that she was advising DDS that:

…any information contained in these records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Reasonably completed factual studies or reports on which the development of such policy positions has been or may be based are not permitted to be withheld.

Arthur ordered DDS to provide me with a response consistent with her order within 10 business days, which would be November 23.

In our view, DDS has clearly been applying admissions criteria in operating Wrentham and Hogan even though it has not released a formal written admissions policy. The only written reference we have seen to the Department’s current policy is a statement in legal briefs in 2024 that “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.”

We think this apparent de facto admissions policy runs contrary to federal law, which asserts a right to ICF care for eligible persons who desire it. Moreover, should Wrentham and Hogan be allowed to die by attrition, the critical backstop they provide for intensive care for persons with the most severe and profound levels of intellectual disability will be lost forever in Massachusetts.

COFAR believes that DDS should be required to address at least the following three questions in its response to the public records supervisor’s November 9 decision:

1. What written policies or criteria has the Department been using to govern admissions to the Wrentham and Hogan Centers over the past several years? If the Department has not been operating under written policies, what criteria has it been applying in making admissions decisions?

2. How does the Department’s purported draft admissions policy differ from the admissions policies or criteria the Department has been applying in actual admissions decisions? Specifically, does the draft propose new admissions standards, or does it primarily formalize criteria that the Department has already been using?

3. How would disclosure of the requested documents interfere with any ongoing deliberations concerning admissions policies for the Wrentham and Hogan Centers? What particular deliberations remain ongoing, what policy decisions remain unresolved, and how would disclosure compromise those deliberations?

We believe that the Department’s responses to these questions are essential in determining whether the requested documents actually qualify for protection under Exemption (d), or whether they instead reflect DDS’s established policies and practices.