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UPDATE: Senate budget amendment is redrafted to require that provider funding go to direct care workers

May 19, 2022 4 comments

After COFAR questioned a state Senate budget amendment earlier this week that would provide almost $600 million in funding to corporate human services providers without requiring that any of that funding be spent to boost wages for direct care workers, we’ve learned that the amendment was redrafted yesterday to include that requirement.

According to the redraft of Amendment 466, any human services provider receiving funding under a budgetary provider reserve account must direct at least 75% of that funding to compensation for “direct care, front-line and medical and clinical staff.”

Amendment 466, which has been filed by Senator Adam Gomez, Senate chair of the Children, Families, and Persons with Disabilites Committee, would also increase the provider reserve account from $79 million to $581.6 million in Fiscal Year 2023.

The direct care compensation requirement in Senator Gomez’s redrafted amendment is now identical to language adopted by the Senate Ways and Means Commitee last week with regard to the reserve account, known as the Chapter 257 account.

In a blog post on Tuesday, COFAR reported that the original draft of Gomez’s amendment would significantly raise the reserve account level while eliminating the 75% direct care wage funding requirement. The redrafted amendment both raises the reserve account level and includes the 75% requirement.

On Monday, I had sent an email to Senator Gomez and his staff, which was based on the original language in Amendment 466. In my message, I said we were concerned that without specific language requiring that funding in the reserve account be used for direct care wages, there is little or no assurance that adoption of his amendment would lead to higher wages for those workers.

No one from Gomez’s office has yet responded to my email. But we were informed yesterday that the senator’s office had redrafted the amendment to include the 75% funding requirement, and that the requirement had reportedly been left out of the orignal draft “by mistake.”

The redraft of Amendment 466 is available on the budget page of the Legislature’s website.

Senator Gomez’s redrafted amendment would still add more than $350 million to the amount approved for the provider reserve account by the Senate Ways and Means Committee. The Ways and Means Commmittee approved $230 million in funding for the account for the coming fiscal year — the same amount proposed by Governor Baker and approved by the House last month.

Based on a request by a coalition of provider organizations, Senator Gomez’s amendment would  bring the total reserve account funding to $581.6 million.

The Senate is scheduled to vote next week on the budget for Fiscal Year 2023 and on amendments filed to it.

Under the Senate Ways and Means budget plan, the 75% funding provision would appear to require that $173 million in the reserve account be directed by human services providers to boost direct care wages.

Based on the much larger funding total in Senator Gomez’s amendment, the amount directed to direct care wages would appear to be $436 million.

All of this still leaves a number of questions. For instance, how much would the $436 million funding requrement actually boost direct care, front-line, and medical and clinical staff wages? Is the 75% language sufficient to ensure that the money would indeed go to those workers?

As we reported earlier this week, both the state inspector general and the state auditor have found that controls are needed over spending by the providers to ensure that the funding goes to direct care workers.

In the House, a budget amendment, which was rejected last month, would have required that the providers sign a form attesting to a plan for spending the reserve account funding. Neither the Senate Ways and Means language nor Senator Gomez’s amendment contain that attestation requirement.

It’s also the case that while the Senate now will approve a 75% funding requirement regarding the reserve account, there is no such requirement in the House version of the budget. So a House-Senate conference committee will have to decide whether the 75% provision stays in the final budget.

But even with those questions surrounding it, we still support the 75% funding provision, and hope it stays in the final budget.

Senate budget committee revives measure targeting state funding for direct care wages; but provider amendment would undo it

May 17, 2022 2 comments

The state Senate’s Ways and Means Committee has revived a state budget provision for the coming fiscal year that would require that hundreds of millions of dollars be spent to boost direct care wages in the human services system.

A similar provision was rejected last month in the House.

But an amendment filed this past week in the Senate on behalf of the corporate human services providers would override the Senate Ways and Means provision requiring that 75% of funding in a reserve account for the providers go toward boosting wages for their direct care workers.

The Senate budget amendment, which was filed by Senator Adam Gomez, would significantly raise the reserve account level while eliminating the 75% direct care wage funding requirement.  Gomez is Senate chair of the Children, Families, and Persons with Disabilities Committee.

The Senate is scheduled to vote next week on the budget for Fiscal Year 2023 and on amendments filed to it.

Last month, a budget amendment filed in the House to impose the 75% funding requirement was killed by the House leadership even though it had garnered 107 cosponsors, an amount comprising more than two thirds of the House membership.

Last week, the Senate Ways and Means Committee approved an overall state budget bill that revives the 75% requirement. The Ways and Means Committee also approved an increase in the provider reserve account, known as the Chapter 257 reserve account, from $79 million to $230 million.

Senator Gomez’s amendment (Amendment No. 466) would add $350 million to the $230 million approved for the reserve account by the Senate Ways and Means Committee and previously by the House. The amendment’s total proposed funding of $581 million in the reserve account has been sought by a coalition of corporate human services providers.

However, Gomez’s amendment no longer contains any language that requires that the additional $350 million go toward direct care wages.

Like the previous House amendment, the Senate Ways and Means language requires that 75% of the reserve account funding amount be used for “compensation for direct care, front-line and medical and clinical staff,” and states that the funding may include “hourly rate increases, wraparound benefits, shift differentials, overtime, hiring and retention bonuses or recruitment.”

Under the Senate Ways and Means plan, the 75% funding provision would require that more than $170 million be earmarked by corporate human services providers for direct care wages.

The House amendment went a step further than the Senate Ways and Means Committee provision by requiring that the providers sign a form attesting to a plan for spending the $170 million. The Senate Ways and Means provision doesn’t have that attestation requirement.

COFAR is strongly supporting the 75% funding requirement because it would address a key reason for staffing shortages in the state’s human services system. COFAR has called for a minimum wage for direct care workers in the DDS system of $25 per hour. Right now, the average hourly rate for these workers appears to be $16 or possibly even less.

In an email I sent to Senator Gomez and his staff yesterday, I noted that we are concerned that without specific language requiring that funding in the reserve account be used for direct care wages, there is little or no assurance that adoption of his amendment would lead to higher wages for those workers. I haven’t yet received a response to my message.

IG and state auditor have both found a lack of controls over promised funding for direct care wages

I also noted in my email to Gomez that the Massachusetts Inspector General’s 2021 Annual Report stated that the IG had examined how human services providers spent $139 million in federal COVID relief funds that the adminiistration disbursed in April 2020.

The IG report said the $139 million was supposed to be spent on “staffing, PPE, and infection control activities.” However, the Bureau received several hotline complaints “that the vendors received excessive funding and misspent it on executive compensation.” (my emphasis)

The Annual Report stated that the IG investigated the complaints and “found evidence that some vendors may have used the funds for unauthorized expenditures.”

The IG Annual Report added that the IG recommended that providers provide detailed expenditure reports, and that the Executive Office of Health and Human Services “coordinate and share information with DDS and other agencies.” However, the report said that EOHHS did not fully implement these recommendations.

Also, in a 2019 report, State Auditor Suzanne Bump’s office reported that Chapter 257 funding, which was at least partly intended to boost direct-care wages, “likely did not have any material effect on improving the financial wellbeing of these direct-care workers.”

The bottom line is that additional funding is needed to ensure that direct care wages in the human service sector are boosted to competitive levels. But controls are clearly needed to ensure that the money gets where it’s supposed to go, and doesn’t go instead into executives’ pockets.

Unfortunately, Senator Gomez’s amendment doesn’t provide for needed controls or even a spending reqirement with regard to the provider reserve account. The Senate Ways and Means language does at least establish a requirement that the increased funding go to direct care workers.

Mother says she is being ‘railroaded’ out of her guardianship by unfair court report

May 4, 2022 6 comments

The mother of an intellectually disabled man says she is being unfairly accused in probate court of having a conflict of interest in caring for her son, and that the conflict charge is being used to limit and possibly eliminate her co-guardianship rights.

Valerie Loveland said that in an April 19 Barnstable County Probate Court hearing on Zoom, an investigative attorney appointed by the judge presented a report concluding that Valerie had a conflict because she both sells natural medicinal products to customers and provides those products to her son.

Valerie maintains, however, that she derives no material benefit from the arrangement involving her son. She said her son buys the products directly from the company, Young Living Brand. She said his primary medical care provider approves all of his alternative medicines in accordance with his group home’s policy.

Valerie’s 24-year-old son is a resident of a group home on Cape Cod run by the May Institute, a corporate provider to the Department of Developmental Services (DDS). Valerie has asked that her son’s name be kept private.

We have previously reported that Valerie has been fighting both a motion to limit her co-guardianship of her son and a move to evict her from her subsidized apartment due to an alleged technical violation of her lease.

The motion to limit Valerie’s co-guardianship was filed in March by John Cartwright, an attorney who is paid by DDS to serve as Valerie’s son’s other co-guardian. Cartwright’s motion seeks to remove Valerie’s authority to make medical decisions for her son and to transfer her authority as representative payee for her son’s Social Security funds to the May Institute.

(Valerie said yesterday that her housing situation was being resolved favorably for her after discussions with housing officials.)

Health clinic program director approves natural medicines

In an April 27 letter, Gretchen Eckel, a certified physician assistant and a program medical director at Outer Cape Health Services, said Valerie’s son’s natural medicines have been subject to “shared decision making to permit these treatment plans.”

Eckel said she has seen “no harm or risks” to Valerie’s son caused by the use of the alternative medicines. She described Valerie as “a tremendous advocate for (Valerie’s son’s) needs, and I believe she has always had his best interests in mind.”

Valerie says she was not interviewed by guardian ad litem

Valerie contends she is being “railroaded” by Cartwright’s motion and by the report alleging that she has a conflict of interest in providing the natural medicines to her son. The report was writtten by Christopher Lebherz, who was appointed by the court in the case as a guardian ad litem (GAL). In Massachusetts, a GAL is an independent investigative official, often an attorney, who assists the court in guardianship cases.

Valerie said she was neither interviewed by Lebherz for his report, nor was she provided with a copy of the report either before the hearing or since. She was allowed by the judge in the case, Susan Sard Tierney, only to view the report and take notes on it in the courthouse, following the hearing. She was not allowed to make a copy of it.

The GAL’s report has been made available, however, to both Cartwright and to Carol Coyne, a DDS attorney in the case, according to an April 19 order issued by Tierney.

Valerie said the GAL’s report indicates support for the motion by Cartwright to limit her co-guardianship. Due to the GAL report’s confidential nature, COFAR has not been able to obtain a copy of it.

Valerie termed “caring and concerned mother”

In an email in response to a query I sent, Lebherz said he was “concerned about a conflict of interest or the appearance of a conflict of interest (on Valerie’s part) regarding rep payee.”

Lebherz also said he “spoke with Valerie and all other interested parties” in the case.  He said he “asked her (Valerie) and others to summarize all of their positions and send it all along to me.”

Lebherz also said he did not recommend that Valerie lose her medical decision making authority. He added that he “reviewed the case history and all filings,” and that he visited the May institute.

Lebherz declined to respond to my follow-up question whether he had found or presented any evidence in his report that Valerie had derived any material financial benefit from providing natural medicines to her son.

He also declined to respond to my follow-up question whether “speaking” with Valerie and asking her to “summarize her positions” constituted an interview, or whether he had specifically asked her about the alleged conflict of interest.

Lebherz, nevertheless, said, “All parties agree Valerie is a caring concerned mother. These are difficult issues and situations and we all try to do our best.”

While Lebherz said he didn’t recommend that Valerie lose her medical decision making authority, Valerie said that Lebherz stated in his report that he agreed with Cartwright’s motion that her medical decision making be limited to consenting to medical treatments directed by others.

“I raised (her son) completely alone,” Valerie said. “I worked where I could, managed his money and medical appointments, all of it for 18 years, below the poverty line. Now they’re trying to take everything away. What have I done?  I’ve never heard of anyone doing everything right and being treated so badly.”

Guardian ad litem standards require an interview and detailed fact finding

Under Massachusetts standards for guardians ad litem, the GAL must “provide each party with a separate interview so that each party may speak with candor.” (Section 4.4)

The GAL must also “conduct  the investigation in a fair and balanced manner”(6), and the GAL’s report “should provide accurate, detailed and balanced information about the parties and their children.”(8)

In addition, the GAL report should include “all relevant facts collected from all sources, including facts that are consistent and inconsistent with other reported facts.”(8.2). Further, the report must “set forth the connection between the facts and the conclusions or recommendations.”(8.5)

If Lebherz’s report concluded that Valerie has a conflict of interest, the GAL standards would appear to require that the report include relevant facts that support that conclusion, such as the extent of any financial benefit that Valerie received as a result of the alleged conflict.

No material benefit from providing natural medicines to son

Valerie said the GAL’s report alleged that she has a conflict of interest because she has provided natural medicines and other products to her son, and that she has a business in which she sells those products. She said that appears to be the primary reason that Lebherz recommended that she be removed as rep payee and that all medical decisions be made solely by Cartwright.

In fact, Valerie said, she has not derived a material financial benefit from her son’s use of the medicines. She said her son purchases the products directly from the company with his own money. She and her son both have accounts with the company and receive points for their purchases.

Valerie said she receives an average of $5 a month in “commissions” from her son’s purchases. “I set it up so that when I died whoever handles his account could continue ordering his supplies for him,” she said.

It doesn’t appear that the fact that Valerie sells natural medicines and has established an account for her son for those products would be a conflict unless she received a material financial benefit from that. As a user and seller of natural medicines, she might naturally be inclined to encourage her son to use them.

Valerie says Cartwright, the DDS co-guardian, has long opposed her efforts to provide natural medicines and essential oils to her son.

In her April 27 letter in support of Valerie, Eckel, the certified physician assistant, said Valerie’s son has been her primary care patient since 2014, and that she last examined him on April 27.

Eckel said Valerie raised her son since birth, and raised him independently since the age of three when his biological father left them. She said that since Valerie was appointed as her son’s co-guardian in 2016, Valerie has attended most of his medical visits “with the exception of a very few visits” when he was attended by staff of the May Institute.

Eckel added that “Valerie has opted for natural treatment options when available and safe for (Valerie’s son’s) ailments over the years, and we have used shared decision making to permit these treatment plans as I have seen no harm or risks to these strategies.”

Valerie said natural or alternative medicines are considered complementary to, and not a replacement for, western or modern medicines. She said the natural supplements and treatments provided to her son are in addition to his modern medications, and that he is fully vaccinated for COVID and for childhood diseases.

“I had an informed conversation with Gretchen (Eckel) regarding the vaccinations and their effectiveness, side effects, etc., before giving consent to the May to proceed with their vaccination clinics,” she said. She added that “May staff also reports he’s doing great since these changes (use of natural medicines) have been made.”

This is one of several cases on which we’ve reported, which raise questions about the fairness of the DDS and probate court systems, particularly when it comes to family members who lack financial resources or attorneys to represent them.

Our justice system isn’t supposed to function differently for people who lack those resources; but we’ve seen a number of instances (see here and here) in which that has unfortunately been the case.

House leadership rejects budget amendment to raise direct care wages

April 28, 2022 1 comment

Despite support from well over a majority of the Massachusetts House of Representatives for a state budget amendment that would raise wages of direct care workers in the Department of Developmental Services (DDS) system, the amendment was rejected on Tuesday (April 26) by House leaders.

Debate concluded yesterday (April 27) in the House on a $49.7 billion state budget for Fiscal Year 2023, which begins on July 1. The budget legislation now goes to the Senate Ways and Means Committee.

Amendment 788 to the House budget bill would have required that 75% of funding in a reserve account for state payments to corporate human services providers go toward boosting wages for their direct care workers.

As COFAR has recently reported, low pay has become a recognized cause of staffing shortages in the state’s human services system. COFAR has called for a minimum wage for direct care workers in the DDS system of $25 per hour. Right now, the average hourly rate for these workers appears to be $16 or possibly even less.

In January, Governor Baker had proposed placing $230 million in the provider reserve account, an amount almost three times the size of the account’s current-year funding. Amendment 788 would have required that 75% of the account, or some $173 million, be used to boost direct care wages.

It isn’t clear to us how much the 75% funding requirement would have raised those wages.  On Wednesday, I contacted the office of Representative John Mahoney, the chief sponsor of Amendment 788, for more information about the measure. I’m waiting to hear back from his office.

House leadership ignores legislative support 

In the absence of current legislation to raise direct care wages to $25 per hour, we had urged support for Mahoney’s amendment. As of April 22, the amendment had garnered 44 co-sponsors. Three days later, that number had jumped to 107 co-sponsors out of the 160 member House. That is more than two thirds of the total House membership.

However, the budget process in Massachusetts does not generally allow for votes in the House on individual amendments. Instead, legislative leaders, including the House speaker and the chair of the House Ways and Means Committee, appear to make the decisions as to which amendments survive and which fail.

In a November 2021 paper, a working group of the Progressive Democrats of Massachusetts included the following statement from an observer of the legislative budget process in this state:

… during the House budget process, there are thousands of amendments. They’ll (legislative leaders) go into the backroom and then come back out with ten consolidated amendments and that’s all that’s on the record for a vote.

In other words, rank-and-file legislators are allowed to vote only on “consolidated amendments,” which are bundles of individually proposed amendments that have been deemed acceptable by the leadership. In this case, the language of Amendment 788 was not accepted into a consolidated amendment.

HHS secretary reportedly testified in support of 75% of funding for direct care wages

Despite the decision by the House leadership to scuttle Amendment 788, even state Health and Human Services Secretary Marylou Sudders reportedly implied her support for the idea of earmarking 75% of state funding to providers to be used for direct care wages.

At a March 7 legislative hearing, Sudders testified that, “it might be time for the state to consider mandating a percentage of rates paid to private providers be used for salary enhancements,” according to the State House News Service.

The News Service then quoted Sudders as saying, “Maybe we need to say 75 percent of our rates have to go to direct care salaries.”

On March 21, I sent an email query to EOHHS, asking whether Sudders was indeed supporting the idea. I also asked whether EOHHS had an estimate or projection of the amount to which such a requirement would raise direct care wages. To date, I haven’t received a reply to that query.

I also asked in that query whether Sudders would support legislation to require a minimum wage for direct care workers of $25 per hour.

Currently, the only legislation that appears to remain on Beacon Hill that addresses the issue of direct care wages is S.105. a bill that would require that the state provide funding to providers to close a “disparity” in wages between provider-based workers and state workers. That bill was filed more than a year ago and has remained since February in the Senate Ways and Means Committee.

As we noted recently, the intent behind S.105 appears to be good in that it would potentially boost the wages specifically of direct care workers in provider-run group homes and other facilities in the human services system. But the bill doesn’t specify either a minimum wage for those workers or the amount of the wage disparity that the bill sponsors are seeking to close.

COFAR also seeking higher funding for state-operated group homes and developmental centers

COFAR has also pushed during the current budget process for higher funding for DDS developmental centers and state-operated group homes.

The House budget bill approved yesterday contains the governor’s proposed 6.2% increase for the state-operated homes and 5.1% increase for the Wrentham and Hogan Developmental Centers. However, since January, inflation in New England has climbed to 7.4%, according to the Bureau of Labor Statistics inflation site.

As a result, the nominal dollar increases approved by the House in the state-operated group home and developmental center line items amount to cuts when adjusted for inflation.

There is a need for action to address pressing problems within the DDS system, particularly with regard to direct care wages and to preserving state-run residential services. Those services are critical to maintaining adequate care for some of the most vulnerable among us. Unfortunately, we’re up against a political system in Massachusetts that is not fully responsive to its constituents.

Mother protests state’s restrictions on son’s contact with church, and questions safety in his group home

April 7, 2022 26 comments

Note to Readers:

Last week, we reported here about Valerie Loveland’s fight against efforts to limit her co-guardianship of her son and evict her from her apartment.

This week, we are updating the case of Cindy Alemesis, the mother of another client of the Department of Developmental Services (DDS). As we have previously reported, DDS is continuing an effort to remove Cindy as her son’s co-guardian even though Cindy acted to save her son’s life in 2018.  

A hearing in Middlesex Probate Court on DDS’s guardianship removal petition against Cindy has been scheduled for May 5.

Cindy says that in addition to trying to remove her as her son’s co-guardian, the state is imposing unfair and punitive restrictions on her son’s contact with the community and with his church. She says the church, which she also attends, has been a “lifeline” for her 30-year-old son Nick.

Cindy also said she is concerned about Nick’s safety in a group home in Dracut in which he suffered an apparent head injury last month.  The group home is operated by Incompass, Inc., a corporate provider funded by the state.

In seeking to remove Cindy as co-guardian of Nick, DDS appears to be trying to give sole guardianship to the other co-guardian who is paid by the Department. Cindy contends that co-guardian, who has other wards, has rarely visited Nick.

Nick and Cindy Alemesis

In 2018, Cindy appears to have saved her son’s life after she discovered he was ill following a church service. She insisted he be taken to a hospital, where doctors discovered that a shunt in his brain had been leaking fluid into his stomach. Nick spent 10 months in the hospital with sepsis, and underwent numerous brain operations and other procedures as a result.

The 2018 incident was not investigated by the Disabled Persons Protection Commission (DPPC) even though Zaheer Ahmed, Nick’s doctor, charged that staff in the group home failed to bring Nick to a scheduled ultrasound appointment. According to the doctor, that ultrasound would have revealed the fluid leaking from the shunt.

Dr. Ahmed recently wrote a letter to the probate court, supporting Cindy and opposing DDS’s attempt to remove her as Nick’s co-guardian.

Recently injured in group home

Cindy contends that care and safety problems have persisted in Nick’s group home, and said she thinks Nick may have been physically abused in the residence on or about March 18.

Cindy has been out of the country since March 14 on a church-sponsored missionary trip to Nigeria. While there, she received a call from her mother that Nick was bleeding from his ears in his group home, and had been  taken by ambulance to a hospital. In addition, she said, his face was bruised.

Cindy said no one from the group home has responded to her questions about the incident, but that staff told her mother Nick’s injury was self-inflicted by banging his head against a wall.

Cindy said, however, that she has never witnessed Nick injure himself. She also said Nick is afraid of the group home, and has told her people are hurting him there.

No incident report apparently filed with DPPC

On Monday (April 4), Cindy called the DPPC to ask if a report was ever filed about Nick’s injury and hospitalization in March. She said the DPPC informed her on Wednesday that no report had been filed.

Under state law, the group home staff must report any case of suspected abuse or neglect to the DPPC.

Cindy said she called the DPPC hotline number this morning (April 7) to file a report herself with the agency about the March incident, but was told the wait time was 50 minutes due to a high volume of calls. She said she left a voicemail message asking for a callback, and planned to try to call again.

She was finally able to call in the report later on April 7.

According to a DPPC guidance document, even self-injurious incidents and unexpected hospital visits should be reported because they may indicate negligence of a caregiver or provider.

DDS Co-guardian writes letter restricting Nick’s visits to church; cites safety concerns

Rather than investigating or addressing conditions or care in Nick’s group home, Cindy said, DDS officials have moved instead to restrict her son’s contact with his church and community.

Following Nick’s injury in March, the DDS co-guardian wrote a letter to Cindy and the group home staff, which imposed a restriction on Nick’s attendance at his church in Londonderry in New Hampshire. The March 24 letter stated that,“Nick can go to church only if Cindy can take him and she provides supervision.”

The co-guardian’s letter also imposed restrictions on Nick’s contact with the community. The letter stated that, “Nick cannot go to church or access the community with (his) Uncle Danny or any friends from church due to issues of liability. They can visit him at the group home only. Incompass will find a local Baptist church where staff can supervise him.”

Given that Cindy has been out of the country, she said Nick has been unable for the past month to visit his church. She said she doesn’t understand why DDS would react to an injury to Nick that occurred in his group home by restricting his contact with his church and with the community.

For years, Cindy said, Nick has been taken to church services and functions from his group home either by family members or friends. Cindy herself doesn’t drive, and depends on those people for transportation to the church as well.

It is not clear what authority the DDS co-guardian has to restrict Nick’s church attendance. However, Nick’s DDS service coordinator texted Cindy on March 29, stating that the co-guardian’s “guidance” was “fair.”

Cindy said going to church is Nick’s principal social activity, and that his life revolves around church functions. He has been attending the church since he was five years old.

However, the DDS co-guardian’s letter stated that, “Nick presents a risk to the community, and is a risk to reoffend.” There was no explanation in the letter as to what type of risk Nick presents or what offenses Nick may have committed there.

In his March 29 text to Cindy, Nick’s DDS service coordinator stated that, “Nick is having an alarming increase in temper tantrums. He is exhibiting self-injurious behavior. He has a forensic history. There are concerns of him reoffending. There are issues of liability. He isn’t safe to go out into the community unsupervised. Period.”

Two incidents in 2014

Cindy said the references to Nick having a forensic history are apparently to two incidents that occurred in 2014. In one, she said, Nick “kissed a girl’s hand and wanted to walk her home.  He knew her from school.” That same year, she said, “he urinated outside.”

Cindy said that in the wake of those incidents, Nick was found by the probate court to be incompetent, and Cindy agreed to become his co-guardian. He was never charged criminally. Cindy said Nick was first placed at that time in a group home. She said there have been no similar incidents since 2014.

Cindy said Nick has never been violent with others in the community, and has never had a forensic history, which implies criminal activity.

Cindy says no basis for restrictions on church and communty contact

In her March 24 letter, the DDS co-guardian stated that Nick “can go to lunch with mother or walks with father if conditions met.” Among those conditions are that, “There must be no temper tantrums, property damage, or incdents of self injurious behavior for 48 hours prior to event.” The co-guardian’s letter added, “Behaviors documented after interactions with family.”

Cindy maintained, however, that Nick has never had any problems with safety or injury in his church or in the community.

Pastor confirms he never saw Nick cause problems in church

The pastor of Nick’s and Cindy’s church, the Reverend Keith Phemister, confirmed Cindy’s assertion that Nick has never caused problems in his church.

“We’ve never had a problem with Nick,” Phemister said. “He’s never hit or hurt anyone here.” He said that a few months ago, Nick expressed anxiety at having to return to the group home. “He doesn’t like it there for some reason,” he said.

Phemister confirmed that as a result of the DDS co-guardan’s letter, Nick has not been able to attend the church for the past month. “I know he looks forward to coming to church,” he said. It’s his lifeline.”

On March 29, Cindy texted the service coordinator, saying, “ When I die, Nick will have no more church. … Why. Why take it away.”

The service coordinator texted back, saying, “Nick’s family and church friends can visit him anytime at the group home. I will not respond to anymore emails at this time.”

DDS not providing supported resasoning for its actions

In our view, DDS is attempting to remove Cindy as her son’s guardian, apparently without regard for the fact that she is the one person who has clearly acted in his interest in saving his life and advocating for his safety.

Nick does not appear to be safe in his group home and has expressed a fear about being there. He was injured there last month. Yet, the response by DDS officials has been to restrict his contact with his family members, his friends and his church, and the community as a whole.

Nick does not appear to pose any risk of harm to himself or others in his church or the community.

The DDS response does not appear to make sense. That’s may explain why the service coordinator doesn’t want to respond to further email inquries from Cindy.

Mother fighting both removal of her guardianship rights and eviction

April 1, 2022 5 comments

The mother of a man with a developmental disability has found herself having to fight both an effort to limit her co-guardianship of her son and a move to evict her from her subsidized apartment.

For Valerie Loveland, whom we have written about before, this two-front battle is the latest chapter in her years-long struggle with a system that seems to be designed to override rather than uphold her and her son’s rights.

Valerie is co-guardian of her 24-year-old son who is non-verbal and needs 24-hour care. He has been a resident for the past six years in three separate group homes on Cape Cod run by the May Institute, a corporate provider funded by the Department of Developmental Services (DDS).

Valerie has asked that her son’s name not be published.

A motion to limit Valerie’s guardianship rights was filed in early March in Barnstable County Probate Court by her son’s other co-guardian – an attorney who is employed by DDS.

Valerie Loveland

This is one of a number of cases we have reported on in which DDS has sought, or is seeking, to limit guardianship rights of family members or remove their guardianships altogether. (See here, here, here, and here.)

Valerie said DDS had first attempted to remove her as her son’s guardian when he turned 18, but then agreed to the co-guardianship arrangement.  The other co-guardian has other wards as well.

Valerie contends that the DDS co-guardian virtually always sides with the May Institute, which she says has failed to provide adequate care for her son. The co-guardian also opposes Valerie’s use of prescribed natural medicines for her son’s care.

Emails show the DDS co-guardian also objected last year when Valerie temporarily removed her son from a previous May Institute residence after he was allegedly sexually assaulted there. More recently, the co-guardian opposed a decision by Valerie to remove her son temporarily from his current residence after she said she was informed he had suffered a head injury there.

Eviction notice based on apparent technicality

The eviction proceedings were launched against Valerie in December by her landlord, Lake Street Limited Partnership, and its managing agent, The Community Builders, Inc., a nonprofit corporation. The eviction notice is based on what appears to be a technical violation of the lease for her Chatham apartment.

Valerie said she has never failed to pay her rent on time. The issue raised by the landlord in the eviction notice is that Valerie is a full-time college student. The notice states that as a full-time student, Valerie is in violation of a provision of her lease stating, among other things, that a household with a full-time student must also include a single parent with children.

Valerie said that after receiving the eviction notice, she emailed the attorney for the landlord, asking whether her son’s weekly visits home satisfied the lease provision. She said she received no response to her query.

A DDS official even wrote to a housing official involved in the management of Valerie’s apartment complex on March 2, confirming that Valerie’s son needs to have a room maintained for him in the apartment. That message from DDS, however, apparently has had no effect on the decision to evict her.

Both issues are coming to a head this month. A Southeast Housing Court mediation session has been scheduled for April 11 in the eviction case; and a hearing on the motion to limit Valerie’s guardianship rights has been scheduled for April 19 in Barnstable County Probate Court.

Son’s care has taken a financial toll

Valerie estimates that it cost her thousands of dollars in lost income while she cared her son at home last year and drove him each day to his day program in Mashpee.

She works in grocery delivery and part-time in aromatherapy, Reiki, and low-carb diet counseling, and is pursuing an online college degree in alternative medicine.

Valerie and her ex-husband were divorced in 2002. She said her ex-husband has been completely uninvolved in her son’s life and hasn’t seen him since her son was about two or three years old. Valerie cared for her son at home until he was 18.  Her ex-husband owes her child support, she said, but has disappeared.

Valerie takes pride in her studies in alternative medicine. She is a sophomore in the online Bachelors in Alternative Medicine program at Everglades University of Boca Raton, FL. She is studying to become a qualified naturopath, and passed her ethics semester with high honors (597/600 points.)

DDS co-guardian seeking to and limit Valerie’s ability to make medical decisions

In a motion filed March 2 in Barnstable County Probate Court, the DDS co-guardian stated that he was seeking to transfer Valerie’s authority as “representative payee” regarding her son’s Social Security funds to either the May Institute or to himself.

The co-guardian’s motion also asked that Valerie’s medical decision making be limited to consenting to medical decisions made by others, and that Valerie be barred from removing her son from the May Institute home in the future.

The motion further stated that “it is believed” that Valerie’s “motivation” in bringing her son home to her “is primarily based on it being the only way for her to retain her present housing.” The motion referenced the eviction proceeding against Valerie.

Valerie said the co-guardian had been threatening for years to seek her removal as co-guardian of her son.

Not seeking financial remuneration

In a statement she sent to the Probate Court this week, Valerie said that she isn’t paid for caring for her son and isn’t seeking payment for that. “I want what everyone parent wants for her child. For him to be successful at his program, happy at his home life, and stable enough to mature,” she wrote.

Son’s behaviors and health are linked to his diet

Valerie said that while her son was at the first May Institute group home in Cotuit, his aggressive behaviors started to escalate, including banging his head against walls and tearing up his mattresses.

Valerie maintains that dietary changes that she insisted upon reduced the head-banging. Those dietary suggestions included giving him whole foods, including fresh vegetables, fruits, and whole-grains and essential oils supplements.

Last May, however, the DDS co-guardian stated to her in an email that her changes to her son’s diet constituted “a major step, especially if the reason is not medically required.”

Natural medicines and supplements are prescribed by doctor

Valerie said her son’s diet has been prescribed by his doctor, who has supported her request that the May Institute not feed him packaged processed foods. “The additives and chemicals are too much for his system,” she said.

Valerie added that alternative medicine has been her son’s primary medicine. She said he had strong allergies  as a baby, including an allergy to infant Tylenol. “It’s no secret that a child with autism already has a compromised immune system. I had to work very hard to build his system up to be tolerant of vaccinations, and antibiotics and over-the-counter meds,’ she said. “ I knew a day would come where I wasn’t going to be in his life.”

Removed son temporarily from home in February

Valerie said that this past fall, she was informed by her son’s doctor that her son had been banging his head frequently in his group home. She said she had not been made aware of that by the group home staff.

The situation has continued, she said. In late February of this year, she took him home after a repeat of the incidents last fall. She said she again received a message that her son had been banging his head and had not received medical attention for it. “No one was returning my calls, so I went and got him,” she said.

That was when the DDS co-guardian filed the motion in court limiting her guardianship and preventing her from removing her son from the group home. In response, she said, she returned her son to the May Institute residence.

In an affidavit attached to his motion to limit Valerie’s guardianship, the DDS co-guardian maintained that Valerie had indicated in emails that she intended to bring her son home permanently. The co-guardian alleged that she was doing this to avoid eviction from her apartment.

Valerie maintained, however, that her intention in bringing her son home was to protect him. “My son communicates with behaviors,” she said. “When he’s frustrated he bangs his head. When he’s sick he bangs his head. I’m very concerned that with six residents in his group home and with only three and sometimes two staff on hand, that it’s a safety issue.”

Co-guardian opposed removal from group home despite abuse allegation

In March 2021, Valerie said she was informed that her son had been abused sexually by a staff member. She has still not been provided with details of the abuse or information as to whether there have been criminal charges filed in the matter.

In the wake of that incident, Valerie said she took her son home with her and sought placement of her son in another facility. But the DDS co-guardian objected to an alternative placement to the May Institute residence.

In a May 25, 2021, email, the DDS co-guardian stated, “I trust the May Institute and its staff to be working for the best for (Valerie’s son). I am not in favor of looking for another residential placement… I am unaware of any other residential program that would accept (her son) or be in his best interests.”

As late as June 2, 2021, the co-guardian said he continued to “fully object to his (Valerie’s son’s) removal from May until a response from DDS is obtained.”

Valerie said the co-guardian finally relented regarding removing her son from the first group home, and later in June of last year approved his move to the new residence.

Disregarded and disrespected by co-guardian and staff

After Valerie’s son was placed in his latest May Institute residence in Cotiuit last year, it appeared things were getting better. The staff appeared to be making an effort to follow her requests to improve her son’s diet, and were carrying out his occupational therapy plan.

But Valerie said her son’s continuing head-banging incidents earlier this spring and the co-guardian’s motion to limit her guardianship rights have convinced her nothing has really changed.

Valerie maintains she has been continually “disregarded and disrespected” by the DDS co-guardian and by the group home staff. “My son needs someone in addition to me who is willing to educate themselves in occupational therapy and willing to listen about alternative medicine, and, if necessary, advocate for my son,” she wrote in her recent statement to the probate judge.

We hope that DDS will reassess this case and the track record and actions of its co-guardian. Valerie’s rights as her son’s guardian should not be limited. We also intend to advocate for Valerie in her fight to stay in her apartment.

As a parent whose interest is maintaining the wellbeing of her child, Valerie should not also have to fight a system that is apparently trying to make her homeless.

Questionable effectiveness and little progress appear to characterize state’s efforts and proposals to raise direct care wages

March 23, 2022 1 comment

With low pay a recognized cause of staffing shortages now endemic to the the state’s human services system, we are concerned about an apparent lack of urgency and effort by the administration and the Legislature in raising direct care worker pay.

We have called for a minimum wage for direct care workers in the Department of Developmental Services (DDS) system of $25 per hour.

Thus far, we haven’t been able to get key lawmakers or administration officials even to comment on our proposal. Those officials are similarly mum regarding the potential impact of their own proposals.

Meanwhile, as the staffing shortage problem drags on month after month, a lack of timely action by lawmakers and the administration to address it is especially frustrating given the state’s strong financial condition and projected surplus revenues.

Over the past several months, the Baker administration has distributed federal funding for only a one-time, 10% increase in wages under last year’s American Rescue Plan Act (ARPA). But those wage increases, which have been paid by at least some providers to workers in the form of bonuses, are not the basis of a permanent increase in their pay.

Questions about current bill to raise wages

A key bill in Massachusetts that is intended to boost direct care worker wages permanently is S.105, which was filed by state Senator Cindy Friedman. As Senate chair of the Health Care Financing Committee and vice chair of the Senate Ways and Means Committee, Friedman is one of the most influential and powerful members of the Legislature.

The intent of Senator Friedman’s bill appears to be good in that it would potentially boost the wages specifically of direct care workers in provider-run group homes and other facilities in the human services system.

But the bill doesn’t specify a minimum wage for those workers. Rather, it calls for an unspecified amount of state funding to close an apparently as-yet unquantified “disparity” in wages between provider-based workers and state workers.

I first contacted Friedman’s staff in early February to ask if they had an estimate of the amount to which her bill would raise direct care wages. I haven’t gotten an answer from her office on that.

Last week, after I renewed my query, Friedman’s communications director emailed me to say that Friedman “will be holding off on any official comment (regarding her bill) until the bill is finalized through committee.”

Friedman’s  bill was reported favorably by the Children, Families, and Persons with Disabilities Committee in February, and sent to the Senate Ways and Means Committee. Prior to that, the Children and Families Committee had sat on the bill for almost a year.

I’m not sure what “finalized through committee” means, but I assume it means that Friedman won’t comment on her bill unless and until it is reported favorably by the Senate Ways and Means Committee.

It’s not clear why Friedman won’t publicly comment on her bill while the Senate Ways and Means Committee is still considering it. Legislators are generally eager to comment on bills they have proposed unless they either don’t fully support the measures or possibly don’t have answers to questions about them.

I wrote back to Friedman’s communications director, Stephen Acosta, last week, listing what I think are potential problems with the bill, or at least unanswered questions about it. We think a bill that specifies and requires a minimum wage for direct care workers would be a potentially more effective piece of legislation.

Among the problems or questions we have about Friedman’s bill are the following:

“Disparity” apparently hasn’t been quantified                       

The “disparity amount” is defined in the bill as “the monetary calculation of the average difference in salary” between direct care workers in provider organizations that contract with the state, and workers who are employed directly by the state.

Friedman’s bill would require the Executive Office of Health and Human Services (EOHHS) and other agencies, in collaboration with the Council of Human Service Providers, Inc., to calculate the amount of the disparity, and report back to the Legislature as of July 1.

Those entities would also be required to calculate the amount of state funding that must be appropriated to the providers to reduce the disparity over a five-year period ending in July 2027.

Friedman’s bill is a tacit admission that state workers are paid more for direct care work than are workers in provider agencies. But it appears that no one in the administration or Legislature currently knows what the difference in pay is.

As we have previously reported, the amount of that disparity has apparently only been “guesstimated,” and the guesstimate is that the disparity is roughly 20 percent. That guesstimate came from a staff member of the Children and Families Committee.

The federal Bureau of Labor Statistics lists an average hourly wage for “personal care aides” in Massachusetts of $16.29. Personal care aides, according to the BLS, include workers in both group homes and private homes.

If the Children and Families guesstimate is correct, it appears that even after five years, Friedman’s bill would raise the wage of a worker making $16 an hour to roughly only $19 – a level nowhere near $25.

Disparity would take five years to eliminate

We’ve written frequently about the need to raise direct care wages in order to address the ongoing staffing shortage affecting the entire DDS system.

Under S.105, state agencies, including EOHHS, would be required to raise funding for human services providers to reduce the wage disparity amount to 50 percent by July 1, 2023, and to zero by July 1, 2027.

Given the state’s current surplus in revenues, it seems to make little sense to wait for five years to fully fund the solution to a problem that is affecting the system and people’s lives right now.

No method of ensuring the money would go to direct care workers

Friedman’s bill states that, “ All increases in the rate of reimbursement provided (to human services providers) shall be used to increase the compensation of human services workers.”

But there are no specifications in the bill of any amounts that individual providers would be required to pay those workers. There is also no requirement that the providers show that the additional funding they receive under the legislation has, in fact, gone to direct care workers.

Approach has been unsuccessful in the past

In 2019, State Auditor Suzanne Bump found that a major boost in state funding in previous years had resulted in surplus revenues for providers, but had led to only minimal increases in wages for direct care workers.

Bump’s audit concluded that the increased funding, which was at least partly intended to boost direct care wages, “likely did not have any material effect on improving the financial wellbeing of these direct care workers.”

Bill based on average wages, not a minimum wage.

S.105 refers to eliminating an “average difference in salary” between provider-based and state workers. That could allow some providers to pay less than the average if others pay more.

We are calling for a minimum wage for direct care workers of $25 per hour. So, even if S.105 were to achieve an average wage of $19 an hour after five years, it would still imply a minimum wage of less than $19. That is another reason why it doesn’t appear that Senator Friedman’s bill would raise the minimum direct care wage to the neighborhood of $25 an hour.

Sudders has suggested a different approach to raising direct care wages

According to a March 7 State House News Service article, Health and Human Services Secretary Marylou Sudders testified that, “it might be time for the state to consider mandating a percentage of rates paid to private providers be used for salary enhancements.”

The News Service then quoted Sudders as saying, “Maybe we need to say 75 percent of our rates have to go to direct care salaries.”

Sudders was testifying at a hearing before the Joint Ways and Means Committee, which Friedman was co-chairing, according to the News Service. During the hearing, Sudders acknowledged workforce shortages in the human services sector.

The 75-percent idea has also been proposed before. In 2020, a bill  would have required providers to use up to 75 percent of their total state funding to boost direct care worker salaries to at least $20 per hour.  State Sen. Jamie Eldridge proposed a similar measure in 2017.  Neither of those measures was enacted by the Legislature.

On Monday (March 21), I emailed EOHHS’s media relations manager, asking whether the agency had an estimate or projection of the amount to which such a 75-percent requirement would raise direct care wages. I also asked whether EOHHS had a figure regarding the current percentage of funding to providers that goes toward direct care wages.

Finally, I asked whether Secretary Sudders would support legislation to require a minimum wage for direct care workers of $25 per hour. I have also previously posed that question to Senator Friedman and the co-chairs of the Children and Families Committee.

So far, we haven’t gotten any responses to these questions. We urge people to call their state legislators and ask them to act on a $25 minimum wage for workers in the DDS system.

You can find your local legislators here.

Lawsuit filed after Suffolk DA apparently declines to bring criminal charges in alleged rape of a woman with an intellectual disability

March 7, 2022 4 comments

Although the Department of Developmental Services (DDS) substantiated a sexual abuse charge in 2018 against the supervisor of a day program for allegedly raping a client of the program, the Suffolk County District Attorney’s Office has apparently not brought criminal charges against the supervisor.

The case has resulted in a lawsuit brought by the victim’s mother against the supervisor and the day program provider, Work, Inc.

The case offers insights into why sexual abuse of disabled individuals happens so often in day and residential programs and why it is so difficult for victims of the crimes to obtain justice.

The lawsuit states that on September 5, 2018, a supervisor at the Dorchester-based day program allegedly “coerced and intimidated (the victim) to follow him into a separate room on the premises. He then physically forced her into the bathroom and raped her.”

The Boston Globe reported last month that DDS investigated and substantiated the sexual abuse allegation against the supervisor, based primarily on a medical examination that revealed physical evidence of rape.

According to the lawsuit, the victim, who is deaf, was unable, due to her disability, to call out for help during the alleged assault. The following day, September 6, the victim disclosed to a staff member at WORK, Inc. that she had been sexually assaulted by the supervisor, the complaint stated.

Both the Globe and an attorney for the victim stated, however, that no criminal charges have been brought against the supervisor.

John Martin, an attorney representing the victim, said that the alleged assailant’s employment was terminated after the complaint was substantiated by DDS. He said, however, that no disciplinary action was taken against the assailant’s supervisors or the program manager.

COFAR has asked the Suffolk County District Attorney’s Office why criminal charges have not been filed in the case. Thus far, the office has not responded.

“We do not know why they (the Suffolk County DA) did not prosecute or arrest the assailant,” Martin told COFAR. “The fact that he was not arrested is unfathomable to me.”

The name of the victim is being withheld. The supervisor is referred to in the lawsuit as “John Doe.” The lawsuit is seeking $1 million in damages.

Lawsuit reveals problems with safety of DDS system

The lawsuit alleges several lapses or omissions  in Work, Inc.’s safety procedures in its day program. Among them are that Work, Inc. “failed to maintain proper policies and procedures to protect (clients’) safety… failed to properly supervise and monitor their staff and their (clients) while on the premises, and … failed to maintain any type of surveillance on certain areas of the premises.”

The complaint specifically alleges that Work, Inc. had no security measures in place in separate parts of the facility, such as surveillance cameras, and had no policies regarding monitoring or safety checks on clients when they “stepped away from the main area where the program was conducted.”

Also, Work, Inc. didn’t have any formal policies or procedures “regarding instructors and staff being alone with disabled clients in the program,” and didn’t have any policies in place “specific to female disabled (clients).”

According to the lawsuit, Work, Inc. was also negligent in waiting several hours after the victim disclosed to a staff member that she had been sexually assaulted by the supervisor before sending her to the South Shore Hospital ER to undergo a Sexual Assault Nurse Exam (SANE).

And Work, Inc. failed to send a sign language interpreter with the victim to the hospital. No interpreters were available at the hospital either, so the victim was forced to wait until the next day to undergo the exam, the complaint stated.

In addition, the complaint alleges that Work, Inc. “failed to exercise reasonable care in hiring, training, and supervising (the supervisor),” who the complaint alleged was “unfit and/or incompetent to perform the work for which he was hired.”

We are concerned that Work, Inc. is not alone in failing to maintain proper policies and procedures to protect clients in both day and residential programs. Some of these measures can be costly, and it has become apparent that many corporate providers that dominate the DDS system are more focused on keeping their costs down rather than keeping clients safe. (See here and here.)

Case was referred to the Suffolk County DA, which apparently has not brought charges

It is our understanding that under state regulations, this incident should have been reported to the Disabled Persons Protection Commission (DPPC). Also, under DPPC regulations, the DPPC should have referred it to the Suffolk County District Attorney for a crminal investigation. I first checked February 23 with the DA’s office, and was told there was no record of the case having been referred to them.

Martin contended, however, that he has emails indicating that the rape allegation had been referred to the Suffolk County DA, which” allegedly conducted an investigation, including an interview of the assailant.”

On March 1, after talking with Martin, I called the DA’s office back and reached a supervisor who said she would  ask the DA’s High Risk Crimes Unit about the matter. She said it is possible that the DA’s office concluded that there was not enough evidence to bring charges, but that she didn’t know if that was the case here.

The supervisor also said that since we are not directly involved in the case, she might not be able to give me any information about it, but that she would get back either way. To date, we have not heard back.

It is hard for us to believe that the DA would not have sufficient evidence to bring charges in a case like this in which the victim had not only reported the assault and identified the alleged assailant, but DDS had substantiated her allegation.

Alleged assailant’s name will apparently not go into Nicky’s Law registry

Given that DDS substantiated the alleged rape in 2018, it does not appear that the alleged assailant’s name would be placed in a new state registry of names of substantiated abusers of persons with developmental disabilities in Massachusetts.

Under Nicky’s Law, persons whose names are placed in the registry are banned from further employment in DDS-funded facilities. Nicky’s Law, however, went into effect in July 2021.

In this case, it would appear the Work, Inc. supervisor, whose alleged assault was substantiated in 2018, could be continuing to work in another day or residential program in the system.

Criminal charges are rare in assaults of people with developmental disabilities

If the Suffolk County DA is reluctant to bring charges in a sexual assault case involving a developmentally disabled victim, the office would not be alone. Prosecutions of assaults against disabled persons are apparently rare.

Perpetrators, in fact, are aware that women, in particular, with developmental disabilities ”are less likely to be believed by police, judges and juries” when they say they have been sexually assaulted, according to researchers at the University of British Columbia.

The researchers, Janine Benedet and Isabel Grant, noted that experts in criminal court proceedings often portray  women with developmental disabilities as “having childlike levels of intelligence” in order to undermine their credibility  as witnesses “in ways that would be impermissible for other women.”

In addition, the researchers contend that while women with developmental disabilities are often “infantilized,” their  ”vulnerability disappears” when considering whether they actually gave consent,  and instead they are “portrayed as desperate for male attention or as overly friendly.” (Links in the orignal.)

Martin said, in fact, that recent correspondence from Work, Inc.’s defense counsel suggests they are intending to pursue a “blame the victim defense” and have instructed him to “preserve all evidence of the ‘relationship’ between our client and her rapist.”

This would be a particularly disturbing legal strategy by Work, Inc., in our view.  We don’t understand how it is possible that someone could argue that a sexual relationship between a developmentally disabled client of a day program and a supervisor of that program could be consensual.

In discussing when an individual can be considered to have given sexual consent,  Alexander A. Boni-Saenz  wrote in Psychiatric Times that the individual “must be willing to express volition, have the ability to control one’s choices, and not be overly susceptible to outside influence.”

DDS reportedly discounts second alleged assault of victim by another staff

Martin said that the victim in this case was recently assaulted again at the same Work, Inc. facility when an employee “flirted with her and slapped her on the buttocks.” He said DDS has opened another investigation, but that their opening letter “included some very disappointing and alarming language that indicates they are treating the complaint with a great deal of skepticism.”

Specifically, Martin said, the DDS investigator “took pains to point out that the assault was not witnessed by other employees, a fact that should be irrelevant given that no one witnessed an anal rape that was medically confirmed.”

Charitable Immunity cap

Adding to the difficulties that developmentally disabled victims, such the victim in this case, face in seeking justice is a state law limiting legal liability for nonprofit organizations in Massachusetts in abuse and neglect cases.

Under the the Charitable Immunity Law (M.G.L. c. 231, s. 85K), any damages assessed against Work, Inc. would apparently have to be whittled down to $20,000. We are advocating on Beacon Hill for ending or changing the law to eliminate the $20,000 cap.

Martin maintained that,“ There are ways around the cap and we intend to pursue all of them in this case.”

It is likely, however, that the Charitable Immunity Law will present one more difficulty in a long series of difficulties that the victim and her family in this case will face in order to realize a measure of redress for what happened to her more than three years ago.

DPPC rescinds abuse charge against mother who gave her son prescribed Tylenol and cough syrup

February 28, 2022 9 comments

In what appears to be a rare reversal, the state has rescinded an abuse charge against Christine Davidson for giving her son John an “undetermined” amount of cough syrup and Tylenol last June.

Robert A. Reed, an assistant general counsel with the Disabled Persons Protection Commission (DPPC), stated in a February 17 letter that he was changing the agency’s conclusion regarding the abuse allegation against Christine from “substantiated” to “unsubstantiated.” The letter was addressed to Thomas Frain, an attorney who is representing Christine and who is also COFAR’s president.

Reed’s letter stated that his decision was the final decision of the DPPC, which is a state agency that is charged with investigating abuse and neglect of adults under 60 with disabilities.

“I’m so relieved,” Christine told us. “I’m so glad they understand that I love my son and have never done anything to harm him. The truth has finally won out.”

Christine and John Davidson

Frain had filed an appeal of the original abuse charge with the DPPC in November. COFAR has maintained that the Tylenol and cough syrup with codeine that Christine provided her son had been prescribed by his primary care doctor, and that there was no evidence presented by the DPPC that she did not follow the prescriptions.

In accusing Christine in October of abuse, the DPPC alleged that in addition to giving him an “undetermined amount of cough syrup and Tylenol,” she had failed to provide him with prescribed breathing therapy support “causing (John) to lose consciousness” while he was home with her on the morning of June 21. The prescribed therapy was the use of a Bi-PAP breathing assistance machine at night.

Christine maintains that the Bi-PAP machine was not delivered to her until June 22, the day after John’s episode of low oxygen or hypoxemia. She also said she did not receive necessary training in how to use the machine.

Christine was unable to wake John up on the morning of June 21, while he was home for a weekend visit, and called 911. John was brought to the Newton Wellesley Hospital ER. He quickly recovered after being given oxygen.

Reed’s February 17 decision acknowledged that an October DPPC report, wich had substantiated the abuse charge, had based its conclusions on an uncertain opinion about the cause of John’s hypoxemia rather than on conclusive evidence of the cause.

Reed further acknowledged that the DPPC had blamed what it alleged to be excessive Tylenol use and the lack of use of breathing machine solely on Christine, when in fact Tylenol had also been given to John in the group home. Reed further noted that the breathing machine had apparently not been used in the group home either.

“Given these unresolved factual disputes which bear directly on the causation analysis of (John’s) injury, including the confusion about the type and use of (John’s) prescribed and unprescribed cough medicines … I do not find that the conclusions of the Report were supported by the weight of the evidence,” Reed’s decision stated. “As such, I amend the Report to unsubstantiated.”

In the wake of the original abuse charge, John has been subject to a prohibition on visits home to his mother. Earlier this month, two medical specialsists stated that John has been declining physically in his group home where he is currently receiving no physical therapy and few, if any, other activities.

The group home is run by WCI, Inc., a corporate provider to the Department of Developmental Services (DDS).

Final DPPC decision said cause was uncertain

As we reported in January, doctors at Newton Wellesley Hospital, who were interviewed by DPPC, did not appear to have provided the investigator with a conclusive cause of John’s episode of hypoxemia on June 21.

One Newton Wellesley hospital official told the DPPC investigator that Christine’s son had an enlarged liver, which was likely caused by a drug toxicity. The official said, however, that John’s Tylenol levels were not elevated when he was examined at the hospital. Nevertheless, the hospital official said that toxicity in John’s liver could be due to small amounts of Tyleol built up over time.

Christine maintained, however, that since her son had only been with her over the weekend of June 18 to June 21, when he was hospitalized, she believed it was possible that any toxicity buildup in his liver from Tylenol use could have happened previously at the group home. The DPPC report did not mention that possibility.

In his February 17 decision overturning the abuse charge, Reed appeared to accept Christine’s argument. He noted that the Newton Wellesley Hospital official, who he identified as John’s treating physician, “did not wholeheartedly endorse (the) theory” that Tylenol use was the cause of John’s liver enlargement.

Reed added that:

Even if (the hospital physician’s) couched opinion about the cause of (John’s) enlarged liver is accepted, it begs the question of why (Christine) would be more accountable for a long-term overdosing of (John’s) acetaminophen (Tylenol) —when (John) spent limited time under her care.

Decision stated that Bi-PAP machine not used in group home either

Even though the DPPC’s October report had accused Christine of failing to use the prescribed Bi-PAP machine on John, the report acknowledged that it appeared the group home staff rarely if ever used the machne either.

In his final decision, Reed stated that John’s attending doctor at Newton Wellesley Hospital had “partially attributed (John’s) unresponsive state to the failure to use (John’s) Bi-PAP, and again assigned this omission to (Christine), when there were conflicting accounts from medical professionals about the use of this device generally.”

Like Christine, we are relieved that the DPPC recognized that it’s standard for substantiating abuse based on the proponderance of the evidence was not met in this case. We hope, among other things, that this case prompts DPPC to reassess its investigative policies and practices. All too often, both DPPC and DDS do not appear to reach the right decisions in these cases. (See examples of that here, here, here, and here.)

Two medical specialists say physical therapy needed for man allegedly isolated in group home

February 17, 2022 5 comments

John Davidson, a man with an intellectual disability, is declining physically in his group home and has not received needed physical therapy there after an extended stay last year at Tewksbury State Hospital, according to two medical specialists.

One of the physicians, Adam Harris, a specialist in spinal disorders at New England Baptist Hospital, on Wednesday (February 16) recommended an eight-week regimen of physical therapy for John at Spaulding Wellesley rehabilitation center.

In a summary of an examination of John on Wednesday, Dr. Harris wrote that John had “deconditioned” after his stay at Tewksbury. Harris’s summary stated that following that hospitalization, John was “never transferred to outpatient therapy.”

A second specialist, Steven Cohen, a gastroenterologist with Beth Israel Deaconess Medical Center, wrote in a medical progress note, dated February 3, that John was declining physically due to a lack of physical therapy and other stimulative activities.

John has been confined to a wheelchair following the stay at Tewksbury, which reportedly stemmed from a broken leg that he suffered from a fall outside his group home in 2019.

The two medical assessments corroborate a contention by John’s mother, Christine Davidson, that John has not been provided with stimulative activities at the residence, which is operated by WCI, Inc., a corporate provider to the Department of Developmental Services (DDS). She said he was not receiving physical therapy and has had no functioning day program. She also said he is depressed and wants to be allowed to visit her at her home.

Cohen also wrote in the progress note that he believes John should be living with his mother rather than in the group home.

“Overall, I’m very concerned about prognosis due to poor conditioning,” Cohen’s progress note stated. “Aggressive PT is best hope. Would be best served if living with his mother whose excellent care I have witnessed for over 20 years.”

Cohen added that, “John is terribly deconditioned and needs PT and aquatherapy.”

Cohen also stated that John was “clearly deteriorating” in terms of his mobility, and was “too weak” to be safely examined on a table in Cohen’s office.  He further wrote that John was “upset over not being home.”

Breathing mask unhygienic

In addition to his concerns over John’s physical condition, Cohen stated in his February 3 progress note that a breathing mask that is apparently being used on John at the group home to treat sleep apnea was “apparently not hygienic.”  Christine sent us the photographs below that her partner, Carmine Tocco, took on February 2 of John’s breathing mask, which is attached to a Bi-PAP machine at the WCI residence.

Christine Davidson said she has spoken to the group home staff about the breathing mask and about what she said were other poor hygienic conditions in the residence.

Photographs taken February 2 of a reportedly dirty breathing mask apparently being used on John in his group home.

Questionable abuse charge appealed

In a recent blog post, we reported that we have raised numerous questions about the accuracy of a report written by the Disabled Persons Protection Commission (DPPC), which concluded last October that Christine abused John after she gave him an “undetermined” amount of cough syrup and Tylenol last June. Since then, John has been subject to a prohibition on visits home.

Christine’s attorney, Thomas Frain, who is also COFAR’s president, filed an appeal with DPPC of the abuse finding. The appeal notes that the cough syrup and Tylenol that Christine provided her son had been prescribed by his primary care doctor, and that there was no evidence presented by the DPPC that Christine did not follow the prescriptions.

Christine is a co-guardian of her son. The other co-guardian, George Papastrat, is Christine’s nephew and lives in North Carolina. Under the co-guardianship agreement, Papastrat has the authority to make medical and other decisions about John’s care. Papastrat has not responded to emails I have sent him raising concerns about John’s care.

Numerous medical issues

John has Down Syndrome, “multiple gastrointestinal issues,” Celiac disease, obesity, severe osteoporosis, and several other medical conditions. He is also continuing to experience pain from the leg fracture in 2019.

In addition to the lack of physical therapy, Cohen said John was not being taken out of the residence for aquatherapy, an activity he previously enjoyed.

DPPC placed blame on mother regarding breathing mask

In accusing Christine in October of abuse, the DPPC alleged that in addition to giving him an “undetermined amount of cough syrup and Tylenol,” she had failed to provide prescribed breathing therapy support “causing (John) to lose consciousness” in the morning of June 21. The prescribed therapy was the use of the breathing mask and Bi-PAP breathing assistance machine at night.

Christine was unable to wake John up in the morning of June 21, and called 911. John was brought to the Newton Wellesley Hospital ER. He quickly recovered after being given oxygen.

Christine maintains that the Bi-PAP machine and mask were not delivered to her until June 22, the day after John’s episode of hypoxemia or low oxygen level. She also said she did not receive necessary training in how to use the machine. When she inquired of a group home staff member about receiving training, she said she was told there would be no opportunity for that.

Christine said the breathing machine was later removed from her home by a group home staff member, and that she later saw the machine’s breathing mask on the floor of John’s room and noticed that it looked dirty. She said when she brought that to the attention of the staff, they did not respond to her.

Following the DPPC’s decsion to level the abuse charge against Christine, DDS issued an “action plan” in October that recommended sharply curtailing contact between Christine and John. The DDS action plan also stated that the Bi-PAP machine “should be operated by trained residential staff.”

Attempts to contact DDS commissioner and other officials

On February 14, I sent an email to DDS Commissioner Jane Ryder, asking whether she would inform either us or Christine of what measures, if any, DDS may be taking to address the concerns raised by Dr. Cohen and Christine about John’s care.

I sent a similar email the same day to Nancy Silver Hargreaves, president and CEO of WCI. To date, I haven’t received a response from either Ryder or Hargreaves.

On January 10, I wrote to Gail Gillespie, DDS Metro Region director, and Joan Thompson, DDS area director, about John’s situation. I have not received a response from Gillespie.

On January 11, Thompson responded with a two-sentence email stating that I would need written authorization from both co-guardians in order for her to release any information about the matter.

As we have previously stated, we think DDS should conduct an investigation of the conditions under which John is living, and should take immediate steps to provide him with physical therapy and other activities – particularly those activities recommended by Drs. Cohen and Harris.

We have also urged DDS to take both John’s and Christine’s often-stated wishes into account and begin by arranging for visits home for John. We concur with the assessment that the best hope for John is to return home to live with his mother.

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