Archive
Father and sister now told they must wait for long-delayed trial before they can visit disabled woman
The state’s story keeps changing as to why the father and sister of a developmentally disabled woman have been banned for more than two years from having any contact with her.
The woman, whose name we are withholding, has been kept in virtual isolation by the Department of Developmental Services since her mother’s alleged boyfriend was charged in 2014 with sexually assaulting her. The woman’s mother has also been charged in connection with the alleged assault.
However, since November 2015, both David and Ashley Barr, the woman’s father and sister, have been prohibited from having any contact with her and have not even been told where she is living. Neither Ashley nor David has been charged with any crime. David has been divorced from the woman’s mother since 2003.
As of this past week, Ashley Barr was being told she and her father would not be able to visit the woman until her mother and her mother’s alleged boyfriend are tried in connection with the alleged sexual assault. The trial, which has apparently been delayed at least once, is now scheduled for May 15, according to the office of Essex County District Attorney Jonathan Blodgett.
Ashley said the reason given her for waiting for the trial was unclear. She said DDS General Counsel Marianne Meacham told her last week that there was concern on someone’s part that a visit from her father and her would somehow make her sister “lose focus” in preparing for the trial.
Ashley said Meacham had initially told her the trial would be held in April.
David and Ashley Barr
In an email this week, Carrie Kimball-Monahan, director of communications for the Essex District Attorney’s Office, said the district attorney was not responsible for the ban on family contact. Kimball-Monahan said the ban was ordered by Dorothy Wallace, the woman’s DDS-paid guardian.
Kimball-Monahan added that the district attorney was not in a position to try to resolve the visitation issue with DDS. “We are prosecuting a criminal matter and that is our focus,” she stated.
In previous comments in probate court, Wallace stated that she was imposing restrictions on contact between the woman and her father and sister because David and Ashley became overly emotional when they had been allowed to visit her. Wallace made no mention during the probate court hearing, which was held in August 2015, to the ongoing criminal prosecution involving the woman’s mother and alleged boyfriend.
Ashley said she is not convinced anyone in the system cares whether she and her father ever see her sister again.
Wallace received $20,100 from DDS for guardianship services for an undisclosed number of persons in Fiscal Year 2016, according to DDS records. Yet, Wallace appears to have had relatively little contact with the disabled woman in this case over the past year, according to records and other information reviewed by COFAR.
A violation of DDS regulations
The continued isolation of the woman in this case appears to involve a violation of DDS regulations, which state that people in the Department’s care have the right …“to be visited and to visit others under circumstances that are conducive to friendships and relationships…” The only limitation on this right is if the individual “is ill or incapacitated to the degree that a visit would cause serious physical or emotional harm.”
Also, the right to visitation is a key aspect of family integrity in international human rights law. As an article in the Berkeley Journal of International Law states, “Sufficient consensus exists against particular types of family separation…to constitute customary international law.”
In an email sent February 10 to Meacham, Lutkevich asked whether DDS would provide a letter stating that Ashley “will in fact be able to see her sister after the trial…I truly hope there is a full intention of allowing these visits to occur,” Lutkevich added, noting that the probate court has not issued any orders barring visitation with the woman.
Meacham had not responded to Lutkevich’s message as of today (February 13.)
The Barrs have been unable to afford the cost of hiring a lawyer to pursue their case in probate court. As we have reported in another case, it is extremely difficult to prevail in any probate court proceeding in Massachusetts if you are not a legal guardian or appear without a lawyer.
David and Ashley have asked their local state legislators to intervene with DDS to allow visits, but have gotten little or no help from them. Despite requests from the Barrs and from COFAR, mainstream media outlets have not reported on the ban on family contact in the case.
As we reported in January 2017, the Boston-based Disability Law Center temporarily intervened in the case that month to ask a state-appointed attorney, who is representing the woman, to support family visits if the woman wished that. However, the attorney didn’t agree to do so.
The attorney, Melissa Coury Cote, told COFAR in March 2017 that she would not support court permission for visits to the woman by David or Ashley Barr, despite the DLC’s request. She provided no reason to us for opposing family visits other than to say that the woman had not specifically asked her to allow visits from her father and sister.
Ashley said, however, that her sister has, on occasion, surreptitiously tried to call her and her father from her undisclosed location.
17 years later, a man hopes some good will come of his brother’s scalding death in a DDS group home
Richard Buckley desperately wanted an explanation as to how it was possible that his older, intellectually disabled brother could have received injuries in his group home that were serious enough to cause his death.
But no one, it seemed, wanted to listen to him, much less offer any answers to his questions.
On the morning of March 30, 2001, Richard’s brother, David, received second and third degree burns to his buttocks, legs, and genital area while being showered by staff in a West Peabody-based group home run by the Department of Developmental Services. The temperature of the water in the residence was later measured at over 160 degrees.
David Russell Buckley
David died from complications from the burns some 12 days later, yet no one was ever charged criminally in the case, and the DDS (then Department of Mental Retardation) report on the incident almost unbelievably did not substantiate any allegations of abuse or neglect.
Before that shower incident, David had endured a series of incidents of alleged abuse and neglect in a corporate-provider-run group home in Hamilton, including an alleged sexual assault by a caregiver. That incident had been witnessed by another staff member of the home. Yet, the witness failed to report the alleged abuse for two weeks, and, as a result, no one was ever criminally charged in that case either.
David, who was 39 years old when he died, had Down Syndrome and Obsessive Compulsive Disorder. He stood only 4 feet, 10 inches tall and weighed about 95 pounds. He is described by his family as a loving man who enjoyed collecting harmonicas and Snoopy items from the Peanuts comic strip.
Richard Buckley attended last month’s oversight hearing on DDS care, which was held by the Legislature’s Children, Families, and Persons with Disabilities Committee. He had put his brother’s case aside for nearly 17 years. But when he heard that the committee was scheduled to hold the hearing, he decided he would attend and possibly testify, if only to help others in similar situations.
Yet the committee would not accept verbal testimony from Richard or any other families with similar stories of abuse and neglect. “It felt like the committee pretty much put on a dog and pony show, with the invited officials stating their policies and processes and no one really questioning them on any level,” Richard said. “There seemed to be a lack of willingness (on the part of the committee) to bring up important issues.”
But while Richard was disappointed in the hearing, he says he nevertheless remains inspired by those other families that have continued fighting for answers. In particular, he said, he is inspired by Anna Eves, who has been fighting relentlessly for changes in the DDS system in the wake of the near death of her son, Yianni Baglaneas, in a group home last April.
“The same types of abuse just keeps happening,” Richard said, “but Anna spearheaded a response to it that may create change. After hearing about that, I thought if they (Anna and the other families) can use my brother’s story in any way, I would send as much information about it as I could find. I want to do what I can do to follow up Anna’s work, which is phenomenal.”
For years following David’s death, Richard said, he and his family were too discouraged to do anything.
David’s father and sister, who were David’s co-guardians at the time, sued the state for $100,000, which is the maximum state liability under the Massachusetts Tort Claims Act. The state settled for that amount; but the state then kept all but $2,000 of the settlement as charges for David’s medical care.
Richard, who was not a party to the lawsuit, said what the family really wanted were answers, and they wanted those directly responsible for David’s death to be held accountable.
Initially, there was word that the Essex County District Attorney’s office was investigating the case; but months went by, and the family could not get any information about it. In a letter to David’s father in July 2001, then state Representative Anthony Verga said he had been assured by the D.A.’s office that “the case was on track and still under investigation.” Verga promised “to continue to help push for prosecution of the case.”
But the case was never prosecuted. The family was told by their attorney that the prosecution was ultimately called off after September 2001 because much of the D.A.’s resources had been diverted toward the investigation of the 9/11 terror attacks. The two airliners that hit the World Trade Center in those attacks had originated in Boston.
“I understand the logic behind putting their resources into the 9/11 case, that but doesn’t help our family’s closure. We were left in the dark,” Richard said. He said the family was also told by their attorney that the D.A. never actually wanted to investigate David’s case because “this was a case of the state prosecuting the state. It was considered a lose-lose situation.”
Then in February 2002, the family received a copy of the DDS investigation report, which failed to substantiate any allegations of abuse. “The final finding was basically ‘we can’t prove anything, and therefore nothing happened,'” Richard said. “I was stunned by that conclusion.”
As time went on, the family received less and less information about David’s death.
“I remember calling people from various departments and getting some information that would give us glimmer of hope, and then we would not hear anything,” Richard said. At one point, he said, he was told to contact a DDS official who was located at Danvers State Hospital. “I sat in her office for eight hours waiting for her to come out, and she never appeared. I also left multiple messages with her. She didn’t want to talk to me.”
Richard said that he gradually lost hope that anything would be done about the case. “We finally had to walk away from it,” he said. “There was no need killing ourselves trying to be heard by people who didn’t want to hear us.”
Then when he heard last month about the Children and Families Committee hearing and about Anna Eves’ efforts to bring her son’s case to light, he said he began to revisit David’s case for the first time in all those years.
David (left) and Richard Buckley circa 1970 when David was about 10 years old and Richard was about 4.
Details of scalding case
(Please be advised that some of the details listed below are graphic.)
According to the DDS investigation report, David had woken up in his group home at 6:15 on the morning of March 30, 2001, and had defecated in his bed. When one of two overnight-shift staff members, who were identified in the report as alleged abusers, tried to guide him to the shower, he reportedly resisted.
One of the alleged abusers told the DDS investigator that she used one hand to hold David and used the other hand to spray him with a hand-held shower attachment in a tub in the bathroom. She said the second alleged abuser held David’s other arm to keep him still.
The first alleged abuser stated that after the second staff member suggested the water might be too hot, she noticed that David’s legs looked red and immediately took him out of the tub and sat him down in bathroom where she noticed his legs peeling. At that point, she said, she applied cold compresses to David’s legs and notified a nurse about the situation via a beeper. She estimated that she had sprayed David with the attachment for about 30 seconds.
The DDS report states that the beeper nurse asked the first alleged abuser whether she had checked the water temperature prior to showering David, and that the beeper nurse stated that the alleged abuser “did not really provide an answer.”
Two maintenance workers, who were called to the residence on the morning of the incident, noted that the water temperature in the bathroom initially read as high as 162 degrees and then dropped to 150 degrees. One of the workers further stated that the bottom cover to controls on a water tank in a back room of the residence was on the floor.
The American Society of Sanitary Engineering states that at a water temperature of 154 degrees or above, scalding of the skin is immediate. Scalding would occur in 30 seconds at a temperature of 126 degrees.
The DDS report stated that departmental regulations require that the water temperature in residential facilities must read between 110 and 130 degrees. The report noted that the water temperature in David’s group home had been found the previous December to be 158 degrees. Three maintenance reports prior to the shower incident indicated that the temperature was over the DDS limit.
According to the DDS report, no issues regarding the water temperature were identified in any DDS licensure reports for the group home.
The DDS investigative report stated that both alleged abusers in the shower incident left the residence after their shift ended at 7 a.m., and a new staff member arrived. That first-shift staff member stated that he thought David’s injuries looked serious and that he was shivering as if he might be in shock. The staff member notified an on-call nurse who came to the residence.
The on-call nurse stated that she observed reddened and peeling areas on David’s upper thighs, genital area, and buttocks, and that he screamed in pain when she tried to apply a compress to those areas. The nurse called 911 at 7:20 a.m., which was approximately an hour after David was first exposed to the hot water in the shower.
According to the DDS report, a physician at Massachusetts General Hospital, whose name was redacted, stated that he did not believe the one-hour delay in calling the ambulance “could have a significant effect on outcome” of David’s injuries.
The DDS report noted a number of inconsistencies between the accounts given by the two alleged abusers. For instance, while the first alleged abuser stated that that second alleged abuser had stayed in the bathroom during the entire incident and had held David’s other arm, the second alleged abuser denied that he had done so.
David was taken by ambulance to Massachusetts General Hospital and was transferred from the burn unit to the intensive care unit on the same day because he was having seizures and suffered respiratory arrest.
Richard said that while David was at Mass General, the family had to fight for adequate care for him even there. The family didn’t feel the doctors were willing to give David sufficient medication to reduce his pain.
Richard said, though, that the nurses did what they could. “They were phenomenal,” he said.
The death certificate stated that David died from “complications from a thermal injury.” Those complications included a sepsis infection and pneumonia.
The DDS report ultimately concluded that while evidence showed that the burns David received in the shower directly led to his death, there was not sufficient evidence that his injuries were “linked to an act or omission by caretakers.”
The report also concluded that while it was “concerning” that the water temperature of the shower exceeded DDS regulations, neither the landlord of the group home nor the maintenance staff are considered caretakers under state law, and therefore none of them could be found negligent. There was insufficient evidence, the report added, to determine whether the staff or house manager of the group home had knowledge of an ongoing problem with spiking water temperature in the residence.
After David’s death, anti-scalding devices were placed on showers in the residence and the staff was instructed to monitor the water temperature prior to giving showers. The landlord, whose name was redacted in the report, was unwilling, according to the report, to replace the electric water heater in the residence with an oil-fired hot water heater even though the water temperatures were continuing to spike.
The report recommended that maintenance staff get training in adjusting water tanks and that additional staff including the house manager review maintenance records.
Despite the report’s conclusion that there was insufficient evidence to substantiate abuse or neglect in David’s death, Richard believes his death was the result of inadequate care if not intentional abuse.
The DDS investigative report appears to leave many questions unanswered
A review of the DDS report raises a number of questions, not only about the circumstances surrounding David’s death, but about the thoroughness of the investigation itself.
For instance, the DDS report noted that the Mass. General doctor had said that an hour delay in calling an ambulance in the case was likely not a factor in David’s death. As a result, the investigator concluded that the delay was not an omission in care.
Among our questions are: Did the investigator really press the doctor on his or her assessment that the delay in calling the ambulance was not an issue? David reportedly went into shock while waiting for the ambulance. Is it really possible that an hour delay in calling an ambulance wouldn’t make a difference in that case?
Who was the Mass. General medical expert consulted by the DDS investigator, and why was his or her name redacted in the report? Other names of staff, nurses and officials involved weren’t redacted.
Also, it seems there were a number of other questions that should have been asked of the medical expert, but weren’t. For instance, it doesn’t appear the medical expert was asked what the temperature of the water would have had to have been to have resulted in the degree of skin damage that David suffered.
Other questions that appear to have gone unanswered by the report include the following:
- How is it possible that one person could have held a person under scalding water for 30 seconds using only one arm? Wouldn’t it have taken two people to hold someone under those conditions?
(As noted, at least one of the alleged abusers said both of the staff members had held David while she showered him with a hand-held shower attachment. The second alleged abuser denied that was the case. The report acknowledged inconsistencies between the two alleged abusers’ accounts, but the investigator didn’t seem to press them to determine who was lying.)
- Did the investigator ask the staff about David’s strength, agility, or ability to get away from one person holding him by one hand?
- Why were there burns only on David’s legs, buttocks and genital area? Doesn’t that indicate those areas may have been intentionally targeted?
- What does the report mean in stating that the first alleged abuser “didn’t really provide an answer” to the question whether she checked the water temperature prior to showering David? If she refused to provide an answer to a question like that from a nurse, isn’t that, in itself, evidence of possible negligence?
- Was everyone in the house questioned about the removal of the cover on the controls to the water heater at the time of the incident?
- Had there been any other instances in the home of David or any other residents getting burned or complaining that the water was too hot? Were there any other injury complaints filed with the Disabled Persons Protection Commission about the home in that regard?
- Is it possible that the reason David always resisted getting showered, and resisted that morning, was because the water was always too hot?
- Is it really possible that David’s resistance or yelling did not intensify, as both alleged abusers claimed, when the scalding water was sprayed on him, thus warning the staff about a problem?
Previous allegations of abuse in provider-run group home
David was subjected to at least five previous alleged instances of abuse or neglect in a group home in Hamilton run by Turning Point, A DDS corporate provider, between 1996 and 1998.
In one incident in August 1998, a witness reported an alleged sexual assault of David by a caregiver in a bathroom of the group home. However, the witness did not report the incident to investigators until some two weeks after it allegedly occurred.
Due to the two-week delay in reporting the incident, a medical examination of David did not find evidence of sexual assault. No one was criminally charged in the case.
In an incident in February 1997, DDS did uphold allegations of mistreatment and abuse. The alleged abuser, a probationary employee, allegedly initiated the incident by drinking a milkshake in front of David and telling him he couldn’t have any of the drink.
According to the DDS report, David became upset and agitated over the denial of the milkshake, and threw a telephone across the room and then refused an order from the alleged abuser to pick it up. The alleged abuser at one point dragged David into the living room and put his foot on his chest, according to a witness. David received a small cut on his forehead in the incident.
Recalling the incident, Richard said his brother, who was largely mute, would often pick up a telephone when the two of them got into childhood spats with each other, and would indicate he was calling the police on Richard. “When he threw the phone (in the incident in the group home), he was telling on his caretaker,” Richard said. “But no one listened to him. No one took the time to know his language.”
The alleged abuser was found to have violated David’s treatment plan, which called for positive reinforcement, not force. Allegations of mistreatment and abuse were substantiated by DDS, although emotional abuse was unsubstantiated. The alleged abuser in that case was subsequently terminated from employment with the provider.
In a third incident in December 1996, David came home for Christmas with a temperature of 103 degrees and a bad cough. His weight was down to 80 pounds.
The DDS report on the incident stated that the group home staff claimed to be unaware that he was sick. On December 27, David was brought to a doctor and diagnosed with pneumonia.
Staff and employees interviewed said David did not appear to be ill. Allegations of neglect of care were found to be unsubstantiated.
“The closest person I know in life”
In an email sent to friends and family members while David was dying from the burns inflicted in the showering incident, Richard wrote that his older brother “is the closest person I know in life, and we grew up fairly inseparable. He has Down Syndrome, Autism, and various other challenges. But that is irrelevant in how much he means to me.”
Richard added, “My brother is just an innocent, a vessel of love. He only reacts to the outside world in kind. If he loves, it is because he has felt love. If he hurts, it is because someone has hurt him…”
Once again, we are calling on the Children and Families Committee to hold another hearing to listen to Richard and the many other families who have had similar experiences in the DDS system.
For far too long, few, if anyone, in positions of authority in the state have been willing to listen to these families.
Donald Vitkus, inspirational survivor of the Belchertown State School, dies at 74
Donald Vitkus, a survivor of the former Belchertown State School, whose life became an inspiration to many in the disabled community, died Wednesday of complications from a brain tumor.
Vitkus was the subject of a book published in 2016 by Ed Orzechowski, vice president of COFAR and a founding member of the Advocacy Network, an organization for families and persons with developmental disabilities in western Massachusetts.
Orzechowski’s book, “You’ll like it here,” chronicled Vitkus’s childhood at Belchertown in the 1950s, and his life afterwards in which he dealt with lasting emotional effects of his experiences in the institution. After an initial failed marriage and a literal search with his son for his past among Belchertown records, he found his calling in recent years as an advocate for persons with developmental disabilities.
Vitkus’s wife, Patricia, said there will be a memorial service in Massachusetts at a later date.
Vitkus was sent by a foster family to Belchertown in 1949, when he was six years old. He had a tested IQ of 41 and was labeled “a moron” in the state school records, according to Orzechowski’s book. In fact, that assessment of Vitkus cognitive ability and similar assessments of many of his peers at Belchertown proved to be wrong. He and many of his fellow “inmates” had to use their wits to survive there.
Donald Vitkus speaking at a recent event in his role as an advocate for people with developmental disabilities
In his book, Orzechowski described how Vitkus first approached him in 2005 following a book signing for “Crimes Against Humanity,” a detailed account by the late Benjamin Ricci of conditions at Belchertown and the other institutions prior to the 1970s. Ricci launched the class action lawsuit, Ricci v. Okin, in that decade that resulted in major improvements in the care and conditions in the facilities.
In a post yesterday on Facebook, Orzechowski said that when he first met Vitkus at that book signing, Vitkus was then a 62-year-old student at Holyoke Community College, earning a degree in human services.
Vitkus told Orzechowski that he had grown up at Belchertown and was looking for someone to help him write his story. “I had no idea how important this man would become in my life,” Orzechowski wrote yesterday.
“You’ll like it here” describes what were at the time horrifying conditions at Belchertown, and the treatment of the residents as prison inmates who could be abused with impunity.
When Vitkus refused at one point to take antipsychotic medication that was then routinely given to everyone, an attendant tried to jam the pills down his throat. Vitkus bit off the attendant’s finger and was placed in solitary confinement for 34 days as punishment. He noted to Orzechowski that the medication was used to keep the residents docile.
Orzechowski also described how the introduction of a television set, donated by a parents’ group, opened Vitkus’s mind to the outside world, but also raised troubling questions for him, particularly about things such as the civil rights struggles of the late 1950s. From the book:
“Why were colored people treated like that?” he wondered. “Why was anyone treated like that? Why did places like Little Rock, Montgomery, and Belchertown exist? Where was justice?”
In 1960, Vitkus was “paroled” from Belchertown at the age of 17, after graduating from the sixth grade at the school. He was sent to a program run by the Catholic Church called Brightside. Later, he enlisted in the Army and was sent to Vietnam where he lost a buddy who was killed in a firefight.
After his return from Vietnam, Vitkus got married to a young woman whom he’d met while he was a resident at Brightside. He also took night classes at a local high school and received a high school diploma.
But while Vitkus and his wife had two children, he found that he was incapable of expressing affection for her or for his children. Eventually, his wife filed for divorce.
Vitkus later reconnected with his son, Dave, who became a police officer in Northampton, and the two of them went on an exhaustive hunt together for information about Vitkus’s past. That search took them to Belchertown, which was then in the final process in the early 1990s of closing.
At the age of 52, Vitkus remarried, earned an associate degree in human services at Holyoke Community College, and began a new career in caregiving to people with developmental disabilities.
Orzechowski offered some remembrances of his experiences with Vitkus in just the past year during a series of book signing events in western Massachusetts. One of those events was at Whole Children, an agency established in Hadley by mothers of developmentally disabled kids.
As Orzechowski described it:
It was a terrible stormy night last January—i thought it might be cancelled—but a sizeable crowd still showed. I saw one woman in the audience sitting with her son, probably middle school age. She later told me that her son is seldom communicative, but on the way home in the car he couldn’t stop talking about Donald and that he wanted to grow up to be like him, speaking out and advocating.
I had watched a woman in the audience, clearly moved. When Donald called for questions following our presentation, he asked, “What brought you here, ma’am?” — a question he often asked. The woman was so emotional she couldn’t speak. There was a long silence, and Donald went to her and embraced her. This from a man who at one time couldn’t stand to be hugged because it reminded him of abuse and restraints.
Donald and I had dropped off some books to be sold at Gail’s (my wife) hairdresser’s shop. Donald and I went next door for coffee, and were at a table talking. A woman (Darlene) who had been sitting near us (she was wearing an apron, on break) said she couldn’t help overhearing, and introduced herself. She had also been a patient at Belchertown as a child. She and Donald started reminiscing, and I went out to my car to get a book to give to her. We continued talking after I gave her the book, and before she left I told her that there were several pictures in the back of the book. She was still standing at our table, and when she opened to those pages, her hands started to tremble. It was extremely moving.
In his Facebook post yesterday, Orzechowski described Vitkus as “a man of courage, justice, integrity, resiliency, humor, and humility. He was a remarkable advocate for the rights and care of people with mental disabilities.”
Orzechowski added that, “I am both privileged an honored to have shared his life story, and to have become a very close friend. We had quite a journey together.”
Children and Families Committee needs to show it’s serious about investigating the DDS group home system
At the start of a legislative hearing last week on the Department of Developmental Services, state Representative Kay Khan made what seemed to be a major announcement about a new federal report on problems in group home care in Massachusetts and two other New England states.
Khan, who is House chair of the Children, Families and Persons with Disabilities Committee, said the committee will be guided by the report in whatever review or investigation her panel undertakes of the DDS system in Massachusetts.
But if that’s the case, it doesn’t look as though the Children and Families Committee will be doing much of an investigation because there wasn’t much in the report, which was issued by the Inspector General for the federal Department of Health and Human Services.
I first developed the pessimistic assessment that the committee wasn’t going to do much of an investigation after listening to an hour of listless questioning by Khan and other legislators of the heads of DDS and the Disabled Persons Protection Commission during last Wednesday’s hearing. Reading through the HHS IG’s report only strengthened that assessment.
The committee scheduled last week’s hearing in the wake of a case last year in which Yianni Baglaneas, a young man with Down Syndrome, nearly died in a DDS-funded group home after aspirating on a piece of cake.
Although the committee hearing room last week was filled with family members of DDS clients, including Yianni’s mother, Anna Eves, those family members were not permitted to testify verbally. The Children and Families Committee wanted to hear only from Acting DDS Commissioner Jane Ryder and from Nancy Alterio, executive director of the DPPC, an agency charged with investigating abuse and neglect of disabled persons.
We hope the committee gets more serious about this investigation. We have submitted written testimony (here and here) to the panel and have read the written testimony from Anna and from many other family members and guardians who detailed harrowing experiences in a dysfunctional system.
During last week’s hearing, Ryder, in particular, painted a rosy picture of DDS’s role in managing and overseeing the group-home system. None of the Children and Families Committee members challenged Ryder’s assertions or asked any particularly probing questions of her.
Senator Joan Lovely, Senate chair of the Children and Families Committee, talks following last week’s committee hearing with Michael Horn, the father of Alexa, who suffered unexplained injuries while living in a group home. At left is Anna Eves, the mother of Yianni Baglaneas, who nearly died in his group home after aspirating on a piece of cake. Neither Eves nor Horn were allowed to testify verbally before the committee about those cases.
We have been calling for years for a comprehensive legislative review of the system of care for persons with developmental disabilities in Massachusetts. The last such review was done in the late 1990s by the House Post Audit and Oversight Committee, which found problems of abuse, neglect, and financial irregularities throughout the system.
When I first glanced through the latest federal IG report, I thought that agency had finally produced a report on the level of that Post Audit Committee report in Massachusetts. The IG report looked comprehensive. But I was admittedly seduced by the color and graphics. After actually reading the report, my assessment of it changed.
First, it turns out the findings in the IG’s report about failures to report abuse and neglect incidents in Massachusetts were simply repeated from an earlier report issued by the IG in July 2016.
That previous report found that abuse and neglect incidents in Massachusetts were not being reported regularly to investigators. But that report was limited to that single issue about incident reporting. The IG had also previously issued a similar report about Connecticut.
Moreover, the new material in the latest IG’s report consists of a series of vague recommendations that don’t seem to fully address a request in 2013 by U.S. Senator Chris Murphy of Connecticut for a major investigation into abuse and neglect in privatized group homes throughout the country.
Sen. Murphy’s letter in 2013 to the IG concluded by stating:
Privatization of care may mean lower costs but without the proper oversight and requirements for well-trained staff. While individuals with developmental disabilities may not be able to speak for themselves, we are not absolved of the responsibility to care for them in a humane and fair manner. … Again, I respectfully request that you conduct an investigation into this issue. I believe that it would be able to shed light on the trend towards privatization and the impact that has on the care of the individuals. (my emphasis)
The IG’s report, however, doesn’t appear to address issues related to privatization such as low wages paid to direct-care staff, high turnover, denial of family rights to visitation, violations of federal law requiring that DDS provide state-run services and other care options to persons desiring them; or violations of federal law stating that families are the key decision-makers in the care of the intellectually disabled.
There is no reference anywhere in the IG’s report to problems accompanying the increasing privatization of services or to the resulting elimination of state-run programs, or the resulting lack of meaningful activities for participants in day programs, or the excess funding of salaries of nonprofit executives. Murphy specifically stated in his letter to the IG that he hoped the IG’s investigation “would be able to shed light on the trend towards privatization and the impact that has had on the care of the individuals.”
One has to wonder if anyone from the IG’s office has read any of a number of media reports in recent years of the deeply troubling problems plaguing group home systems around the country.
Those reports include exposes in 2013 by The New York Times and The Hartford Courant, (here and here) and more recent exposes by papers such as The Chicago Tribune. That latter newspaper reported last year that while officials in Illinois continued to issue rosy accounts of the process of transferring clients from developmental centers being closed in that state to group homes, many of those group homes were “underfunded, understaffed and dangerously unprepared for new arrivals with complex needs.”
We reported that the HHS IG first produced a virtual joke of a report in 2015 on the group home system in New York State. That report had no critical findings and was a total of six pages long.
As noted, at least part of last week’s IG report was a rehash of those previous findings on incident reporting in Massachusetts and Connecticut. The latest report does purport to go further than the previous reports by including “suggestions for ensuring group-home beneficiary health and safety.”
For instance, the latest IG report includes recommendations on “quality assurance mechanisms” for community-based services.
But while those recommendations seem intended to get to the larger issues inherent in care in the provider system, they are still vague. The recommendations are presented in an appendix to the report, but little explanation and few specifics are provided even there.
Under a heading in the appendix on the “quality assurance mechanisms,” the report recommends “person-centered planning.” But there is no explanation provided of person-centered planning, which is an approach being promoted in Massachusetts by DDS. We’ve expressed concerns that person-centered planning has the potential to marginalize families and guardians in helping develop individual support plans or ISPs.
The same appendix in the HHS IG report also calls for audits done by providers that:
- Include assessments of staff training (There are no specifics provided about this.)
- Include assessments of performance evaluation (Again, no specifics.)
An additional category in the appendix is labeled “Assessment of the fiscal integrity of (provider) service billing and reimbursement.” This would appear to be a key recommendation regarding financial integrity, but it consists only of the following two statements, with no specifics or explanation:
- Includes ongoing State desk audits
- Includes periodic on site audits of select service providers and support coordination agencies
Finally, the report states that the federal Centers for Medicare and Medicaid Services should form a “SWAT team” in order to address “serious health and safety findings involving group homes.” But while that sounds impressive and urgent, the report provides no details about what such a SWAT team would consist of or do.
We hope the Children and Families Committee develops an investigative scope that goes well beyond that of the HHS IG. We also think the committee can demonstrate its seriousness by scheduling another hearing in which families would be invited to provide verbal testimony.
Last week, Senator Joan Lovely, the Senate chair of the committee, told some family members that she would speak to Rep. Khan about scheduling that additional hearing. We hope that happens soon.
Families want legislative committee to know the value of places like the Wrentham Developmental Center
As a legislative committee prepares for an oversight hearing Wednesday on the Department of Developmental Services system, several family members of residents of the Wrentham Developmental Center said they hope the committee will recognize the Center’s value and that of facilities like it.
In a COFAR membership meeting on Saturday, family members described harrowing accounts of their experiences in privatized, DDS-funded group homes, and the arduous paths they had to take in order to get their loved ones into either the Wrentham Center or state-run group homes.
Many of those family members, such as Pat and Michael Horn, plan to submit written testimony about those experiences to the Legislature’s Children, Families, and Persons with Disabilities Committee, which has scheduled an oversight hearing on DDS on Wednesday. (As we have noted, the committee announced that family members would not be allowed to testify before the committee in person, but could only submit written testimony.)
“The care here (at Wrentham) is exquisite,” said Pat Horn, whose daughter, Alexa, had suffered broken bones and other unexplained injuries in a corporate provider-run group home before they got her to Wrentham. “We’re so happy here.”
Pat Horn (at right) and her husband, Michael, describe their experience in getting their daughter, Alexa, to the Wrentham Developmental Center. At left is Susan Tucker, a physician, whose brother, Danny, is also a Wrentham Center resident.
COFAR Executive Director Colleen Lutkevich, whose sister, Jean, is a Wrentham Center resident, said the legislators and others may not fully understand the true nature of the problems that afflict the DDS system today.
In recent decades, Lutkevich said, it has been the rapidly growing, privatized group home system that has exhibited serious problems with care and with abuse and neglect. State-run facilities such as the Wrentham Center and an existing network of state-run group homes have been relatively free of those problems.
Yet, the Wrentham Center has been “terribly misrepresented” in the media and by opponents of congregate care, who characterize it as an institution or as a warehouse, Lutkevich said. “What the media and many others don’t understand is that the care today is state of the art at Wrentham and Hogan (the second of the state’s two remaining developmental centers, also known as Intermediate Care Facilities or ICF’s).”
At Saturday’s COFAR meeting, some families expressed concern about rumors that DDS intends to close Wrentham and Hogan through attrition if not sooner. DDS data show that the residential population in each facility has leveled off and begun to drop. And despite the high level of care available in each, most clients waiting for care in the DDS system are not offered placements at either Wrentham or Hogan even if they ask for them.
Families waiting for residential care for loved ones are routinely offered placements only in DDS-funded, privatized group homes. The families are usually not informed even about the state-operated group homes even though those facilities have staff that tend to be better trained and better paid that than direct-care staff in the corporate-run homes.
Lutkevich and COFAR President Thomas Frain, who both attended Saturday’s membership meeting, discussed a DDS document that families waiting for residential care are required to sign, waiving their loved ones’ legal right to care in the state’s two remaining ICFs. Frain and Lutkevich maintain the document is coercive and possibly violates federal Medicaid law, which requires the state to offer all available residential facilities as care options to people who request them.
Frain went through a lengthy battle with DDS to get his brother, Paul, out of a provider-run group home, where he had been badly mistreated, and into a state-operated group home.
Families such as the Horns have been able to get their family members into Wrentham only because those family members were either literally facing life-and-death situations or because they were members of the original class-action lawsuit (Ricci v. Okin) that resulted in major upgrades to the Massachusetts DDS system in the 1980’s.
A disturbing litany of mistreatment
In the Horns’ case, their daughter, Alexa, who has Rett Syndrome, a neurological disorder, had lived at home until she was 16 and a half. At that time, the Horns explored the possibility of getting Alexa into the Fernald Developmental Center, but they were told Fernald was closing.
Pat Horn said they found a special needs residence for Alexa, but she developed a urinary tract infection and a subsequent sepsis infection there. The infections occurred after direct-care staff failed to tell the facility’s nursing staff that Alexa had not eaten or drunk anything for almost 24 hours. Alexa was cared for in the intensive care unit at Boston Children’s Hospital for two weeks and was transferred to Franciscan Children’s Hospital for six weeks of rehabilitation.
When she turned 22, Alexa was placed in a DDS-funded group home near her family home in Watertown in which the care was quite good for a number of years. After five years, however, the residence started to experience a high degree of turnover of house managers, and new direct care staff were hired with little apparent training or qualifications.
Pat said the residence became dirty, clinician appointments were missed, protocols for administering Alexa’s medications and her feeding tube were not followed, and her personal hygiene degraded to the point that she had to be treated for ringworm, a type of fungal infection of the skin, on numerous occasions.
In 2014, Alexa fell out of her shower chair while a staff member was showering her because the staff member had undone her safety belt in order to wash her back. Her injuries required a trip to the emergency room and an MRI. Miraculously, Alexa did not sustain any serious injury in that incident, but she did suffer a significant amount of soft tissue damage to her face and broken blood vessels in her eye.
In another incident, the same caregiver failed to check the rate of the feeding pump when setting up her g-tube feed, and Alexa received 12 hours worth of food in a two-hour period, causing her to vomit and aspirate.
Early 2015, Pat said, she was informed by staff during a weekly Saturday visit that Alexa’s leg had been hurting her since the beginning of that week, but that the house manager had not taken her to be assessed by her doctor. The Horns called the manager on duty that weekend, who finally took Alexa to a hospital emergency room where an x-ray confirmed that Alexa had a fracture of the tibia.
Pat said the DPPC did a three-month investigation of the incident and substantiated a charge of mistreatment, but was unable to determine how the injury had happened. The DDS “action plan” recommended only staff retraining.
During the three-month period in which the family was waiting for the results of the investigation, Alexa suffered a fracture of her upper left arm. That injury was investigated by DDS, which concluded that she had broken her own arm as her medical record showed that she had osteoporosis. The Horns consider it highly improbable that Alexa broke her own arm.
The Horns then arranged to have Alexa sent to the Marquardt skilled nursing facility at the former Fernald Center rather than to have her discharged back to the group home.
A few weeks later, Pat said, she and Michael met with the DDS area director, Alexa’s DDS service coordinator, and administrators from the group home provider during which the Horns recounted six months worth of mistreatment that their daughter had endured. At the end of this meeting, the DDS area director said that since Alexa would “‘undoubtedly be difficult to place,'” she might have to be sent back home to her parents. According to Pat, that “sounded very much like a threat.”
During her first months at the Marquardt, as she was recovering from her broken arm, Alexa contracted pneumonia and respiratory failure. After two weeks on a respirator at Mt. Auburn Hospital, she was transferred to a rehabilitation hospital where she contracted a ventilator-acquired pneumonia and a “C. difficile” gastrointestinal infection, and suffered from serious seizures because of the medications given to combat the infection. After two and half months, she was finally well enough to be transferred back to Marquardt.
In August of 2016, the Horns learned that the Marquardt center was going to be closed, and Alexa finally became a resident of the Wrentham Center in February of 2017.
Yianni Baglaneas’s parents attend COFAR meeting
Also attending Saturday’s meeting were Anna and James Eves, the parents of Yianni Baglaneas, whose case sparked the Children and Families Committee hearing.
Attendees at Saturday’s COFAR meeting.
In her own written testimony to the Children and Families Committee, Anna Eves said that since the news got out that Yianni had nearly died in his group home after aspirating on a piece of cake, other people began contacting her about similar cases involving their loved ones. “As I looked further, I was shocked and saddened and outraged that this truly is an epidemic – the DPPC receives 10,000 calls a year – 10,000. And they only have five investigators, which tells you how much we as society care about this epidemic of abuse.”
During Saturday’s COFAR meeting, Kathleen MacKechnie described a difficult, eight-month process of getting her brother, Tom, into the Wrentham Center. In her written testimony to the committee, she suggested that the committee “consider better funding
and monitoring (of DDS care) rather than budgetary cuts, and stop turning a blind eye to the problem.”
Also attending the Saturday meeting was Pat Feeley, who was nearly removed as guardian of her son, Michael, by DDS after she advocated for full-time nursing care for him.
Other attendees of Saturdays’ meeting who have family members at Wrentham included Mitch Sikora, whose brother has been at the Center for many years, and Mary McNamara, whose uncle has been a long-time resident there.
Lutkevich said she is organizing a legislative breakfast at the Wrentham Center for early March. The breakfast will be sponsored by COFAR and its affiliated family-based organization, the Wrentham Association.
Committee won’t allow DDS clients and families to speak at oversight hearing on DDS care
On Wednesday (January 17), the Legislature’s Children, Families, and Persons with Disabilities Committee will hold what may be the first oversight hearing in its history to examine problems with care of persons with developmental disabilities in Massachusetts.
The bad news is that those individuals and their families and guardians will not be allowed to speak during the hearing.
A news release issued by the committee states that “verbal testimony” will be taken only from representatives of DDS and the Massachusetts Disabled Persons Protection Commission (DPPC). (The DPPC is an independent but seriously understaffed agency that is charged with investigating allegations of abuse and neglect in the DDS system, but which refers the vast majority of those cases to DDS itself for investigation.)
I confirmed the details of the news release today with the committee and asked a staff member to convey our disappointment in it to Representative Kay Khan and Senator Joan Lovely, the committee co-chairs.
The news release notes that DDS clients, family members, guardians, and members of the public are “invited” to attend the hearing and listen to the testimony, and are even “encouraged” to submit written testimony to the committee. But the committee isn’t interested in hearing about their experiences directly.
This explains why the committee has devoted only half a day to this critically important issue of abuse and neglect in the DDS system. The hearing is scheduled to begin on Wednesday at 1:30 p.m. in Room A2 of the State house. It shouldn’t take long if the committee intends only to ask questions of selected officials from DDS and the DPPC.
What we are hoping is that people will submit written testimony and request in their testimony that the committee hold another hearing so that they can testify in person. That written testimony can be submitted via email to Kay.Khan@mahouse.gov, or mailed to: Joint Committee on Children, Families, and Persons with Disabilities c/o Representative Kay Khan, State House, Room 146, 24 Beacon Street, Boston MA, 02133.
The committee scheduled the hearing in the wake of a case last year in which a young man nearly died in a DDS-funded group home after aspirating on a piece of cake.
We have been calling for years for a comprehensive legislative review of the system of care for persons with developmental disabilities in Massachusetts. The last such review was done in the late 1990’s by the Post Audit and Oversight Committee, which found problems of abuse, neglect, and financial irregularities throughout the system.
The Post Audit report stated that DDS’s oversight of privatized care, in particular, raised “grave doubts about (DDS’s) commitment to basic health and safety issues and ensuring that community placements provide equal or better care for (DDS) clients.”
Some 20 years later, as we have previously noted, it does not appear that much has changed. The association of poor oversight with increased privatization and abuse and neglect is still the case, and inadequate care and conditions remain all too common in group homes and other state-funded facilities in Massachusetts and around the country.
Unfortunately, since the Post Audit Committee’s report was issued in 1997, it doesn’t appear as if the Legislature has committed itself to grappling with these problems in a serious way. Unless and until Representative Khan and Senator Lovely agree to listen directly to the families and guardians affected by the DDS system, we don’t see much to indicate that the Legislature has gotten serious about that.
Parents continually frustrated by DDS and group-home provider in advocating for adequate care for their son
Ryan Tilly, who has Down Syndrome, had been living in his provider-operated group home in Haverhill for only four months in March of 2016 when he was allegedly assaulted by a staff member of the residence.
It was only the beginning of what would turn out to be a nightmare for Ryan, who turns 24 this month, and for his parents, Deborah and Brian.
The Tillys maintain that in addition to the assault, Ryan was subjected to neglect in the group home, which is operated by the NEEDS Center, a Department of Developmental Services provider. He was also harassed by another resident of the group home so severely in 2016 that he has continued to isolate himself in his room there and was afraid for a period of time to take showers in the residence.
Ryan Tilly
Yet, rather than working with the family to address those problems, both NEEDS and DDS initially turned against the parents, according to the Tillys and to documents in the case. The Tillys were accused of being “volatile and unpredictable,” and of fabricating a charge that the staff was failing to clean clothing that Ryan had soiled.
Ryan’s father, Brian, was banned for months from visiting Ryan in the NEEDS residence, while Deborah had to make appointments in order be able to see him.
A DDS investigation of the Tillys’ charge regarding Ryan’s clothing determined that there wasn’t sufficient evidence to charge the group home with neglect in the matter; but the report did not refute the parents’ allegations. In September 2016, DDS recommended that NEEDS and DDS meet regularly with the Tillys to “foster cooperation,” and that DDS explore possible new residential options for Ryan.
Deborah Tilly
But neither NEEDS nor DDS appear to have fostered that communication, at least initially. The restrictions against the Tillys on visiting Ryan in the group home continued through at least October of 2016, according to emails from the provider.
In response to an email query from COFAR last week, Jim Sperry, NEEDS President and CEO, declined to comment on the overall case.
While the Tillys ultimately filed three abuse complaints against NEEDS involving their treatment of Ryan, DDS consistently maintained that there was a lack of evidence to support the complaints. Yet it appears that DDS failed to interview key witnesses in at least two of those cases.
In the assault case, the DDS report disclosed that the investigator never interviewed a witness who had also originally reported the incident. In the neglect case, DDS also found a lack of evidence to support the charge, yet never interviewed Deborah herself.
We have seen that dynamic many times in which parents and other family members have raised issues or made allegations about care; but rather than thoroughly investigating those allegations, DDS has turned against the family members and branded them as volatile or overly emotional. In those cases, family members are made by DDS and its providers to feel as though they are to blame for the providers’ own failures in care.
For the Tillys, things began to improve only after they hired a lawyer to press their case to improve their son’s care and to overturn the restrictions on visiting Ryan. Their attorney, Thomas J. Frain, is COFAR’s Board president.
Nevertheless, the situation remains unpredictable, Deborah said, and the improvements could be reversed at any time. The Tillys have requested another residential placement for Ryan, including a possible state-operated residence, but DDS has so far not found one for him.
“We had to fight for Ryan’s rights to have us visit him at his residence without the restrictions the NEEDS and DDS placed on us, especially on his father,” Deborah said in an email to us. “We also had to get counsel to insure that the abuse, and neglect Ryan was subject to ended.”
Deborah’s email added that, “We as his parents know our son and can read his behaviors and actions very well….(Yet) the district DDS office continued to side with the providers, leaving parents and guardians fighting to keep their loved ones safe and cared for with dignity.”
Abuse neglect issues: 3 major cases
The following are details about the three complaints filed by the Tillys, based on interviews and documents provided by Deborah. A NEEDS meeting minutes document from that period of time referred to a staff shortage in Ryan’s group home and to “a good deal of turnover” there.
Alleged assault by staff member
Deborah said Ryan had been living at the NEEDS residence for four months when Sperry, the NEEDS president and CEO, called her on March 31, 2016, to inform her that a report had been filed by an anonymous person to the Disabled Persons Protection Commission (DPPC) about an alleged assault on Ryan by a staff member.
The alleged assault had actually occurred on March 17, two weeks earlier, while Ryan was being directed to a van to take staff and residents to a weekly community-based dinner. Ryan, who did not enjoy going on these outings, hit a female staff in the face when she got close to him. He was already agitated because of a previous dental appointment and because the staff member would not let him enter the home after the dental visit, but instead directed him to the van.
Deborah said that Ryan should not be seated near anyone within striking distance while riding in a vehicle. “He becomes very anxious and will hit those who are too close,” she said. This particular day, a male staff had seated another individual very close to Ryan. The female staff member whom Ryan had just hit, reminded the male staff that Ryan needed to sit by himself due to anxiety.
The male staff moved the individual, but the staff member himself sat next to Ryan even though there was room for him to sit elsewhere. Ryan struck the male staff and the male staff became angry. According to Deborah, a witness who was in the van said the male staff stood in front of Ryan and then punched Ryan in the face. The witness reported that Ryan had a swollen lip and a black right eye.
Deborah, who talked to the witness, said the witness had intended to report the incident the next day to the group home manager when she overheard the manager tell the male staff that he needed to “cover his tracks” in regards to a report about a prior incident the week before with a different victim. The witness decided not to talk to the manager at that time, and reported it instead to the DPPC, which referred the investigation to DDS.
According to the DDS report of the incident, staff and supervisors at NEEDS stated that they never saw any visible injuries on Ryan. Yet, at the same time, the report stated that a witness said Ryan suffered a black eye and swollen lip, and that the alleged abuser later stated that Ryan “had given himself a black eye.”
The DDS report also described the witness to the alleged assault as having “thought she saw ALAB (the alleged abuser) hit ALV (the alleged victim, Ryan).”
Despite that assertion, the DDS report stated that the reporter of the incident was never contacted because he or she was anonymous.
Deborah, who interviewed the witness herself, said the witness was the same person who reported the incident to the DPPC. If that is the case, it is unclear how the DDS investigator could seemingly identify this witness and report what she thought she saw, yet not contact her for an interview because the reporter was supposedly anonymous.
“The NEEDS administration knew who the reporter was, as I gave them the information,” Deborah said. “DDS also knew who she was because I gave the information to Ryan’s (DDS) service coordinator. So the investigation was one-sided since the only people who were interviewed were the (remaining) staff from NEEDS.”
Although the assault allegedly took place on March 17, 2016, Deborah and her husband were not informed of it until March 31. In an April 10, 2016, email to Sperry, Deborah wrote: “We have entrusted NEEDS and NEEDS staff to take care of our son in our absence. If we are not being informed about injuries, how can we trust those who are with him on a daily basis?”
In an email response the next day, Sperry maintained that he had not been informed of the assault allegation until March 31. He stated that his agency had “interviewed all staff” who had worked during the time in question and none of them had said they observed an assault or that Ryan had a black eye. Yet, Deborah said Sperry had told her in a phone call that Ryan’s day program staff had reported the black eye.
Sperry added that if the abuse complaint was substantiated by DDS, the alleged abuser would be terminated, and that he would be transferred to another group home even if the alleged abuse was not substantiated. The alleged abuser was reportedly terminated by the provider even though the abuse allegation was not substantiated by DDS.
Alleged neglect
Deborah said that on June 13, 2016, she reported neglect charges against the NEEDS staff to the DPPC because of disturbing changes in his behavior when he came home every other weekend for visits.
She said that during the months leading up to that point, she had noticed that Ryan was afraid to use the shower at his home. He was also urinating and defecating in his room, in his clothing, and in his closet. There were several incidences where Deborah was finding soiled clothing at the residential home in his bureau.
Deborah sad she made several unannounced visits to the group home and found many times he had clothing rolled up in his laundry basket full of feces. Each time, she said, she alerted staff about those problems and followed up with emails to the NEEDS CEO, supervisor and house manager as well as the DDS service coordinator.
While plans were put into place to deal with the situation, the plans were not being followed by the staff, Deborah said. Things came to a head one weekend when Ryan came home smelling of body odor and very dirty. He refused to take a shower claiming he was afraid to go in the bathroom. “This is a young man who would take two showers a day and enjoyed being clean,” she said.
Deborah and her husband took him back to the group home on June 12, 2016. “We were very agitated and wanted to get to the bottom of the issue, and Brian at one point used profanity in suggesting that the “place should be closed down.”
Following the contentious meeting with the house manager, Deborah said, “they began accusing me of bringing the dirty feces into the NEEDS residences. Those accusations were outrageous and I had no alternative but to file abuse and neglect charges.”
However, a July 25, 2016, DDS decision letter found insufficient evidence to support the Tillys’ allegations of neglect, and stated that Sperry claimed Ryan was not exhibiting those behaviors at the group home and that he claimed the parents “are very volatile and unpredictable.”
Deborah said she was never contacted by the DDS investigator. But despite the lack of substantiation of the neglect charge, a DDS action plan called for regular meetings between the Tillys and the NEEDS staff “to foster communication” and to “address any areas of concern that may arise.”
Unexplained head injury
Deborah said Ryan’s NEEDS Center day staff supervisor phoned her on September 29, 2016, to let her know that Ryan had a self injurious episode three days before in which he suffered a laceration on his forehead. She said the supervisor said he was concerned that Ryan might need medical attention to the injury because he believed it was infected.
Deborah said the day staff supervisor could not explain why no one from the day program nor the residential program had notified her of the injury at the time it happened.
On November 15, 2016, Deborah filed a complaint with DDS about the injury and the apparent failure of staff to treat it. On July 21, 2017,the investigation was concluded. Again the charges came back as not substantiated. The only recommendation from the investigator was for NEEDS staff to report any injury to the parents/guardians on the date they occur.
Restrictions imposed on visitation. Family hires lawyer.
Deborah said that after she and Brian held the contentious meeting on June 12, 2016, with the NEEDS house manager over the staff’s alleged failure to clean Ryan’s soiled clothing, both NEEDS and DDS imposed severe visitation restrictions on the Tillys.
Brian was banned from the residence entirely and told that if he showed up at the house, the staff would call the police and that he would be arrested for trespassing. Although a DDS official stated that the ban would last 30 days, it actually lasted for months, Deborah said.
Deborah said that during that time, she was told she would need to make appointments to go to the house to visit Ryan.
Emails in October of 2016 from a group home staff member stated that Brian was still banned from the residence as of that time. On October 12, Deborah asked for clarification of the restriction because Brian had constructed a new bed for Ryan to replace one that was broken, and there was apparently no one else able to put the new bed together in the residence. No such clarification was forthcoming.
The visitation restrictions were lifted only after the Tillys hired Frain as their attorney.
Improvements and continuing issues
As a result of the legal intervention in the case, there have been notable improvements in Ryan’s care, Deborah said. Ryan now regularly sees a psychologist and has a clinical team. The team has started a program to address Ryan’s isolation and to control his behavioral issues with medication.
The staff at the residence has changed and are more open with Deborah about the events in Ryan’s day, she said. Ryan’s behaviors have improved dramatically to the point where his behavioral issues have almost disappeared. “We feel we brought to light the many injustices Ryan was subjected to,” Deborah said. “Things have improved but we still have a wary eye on them.”
Things still happen every now and then, she said. She still occasionally finds dirty clothing in Ryan’s room, and the staff still never seem to fully explain it.
Ryan is still afraid of the resident who had been harassing him and is still reluctant to leave his room. He now must be sedated just to go to the doctor or dentist, and he requires two staff to bring him.
Deborah said she continues to be in daily contact with her son and will often visit unannounced.
Case should be considered by Children and Families Committee
This is one of the cases that we hope the Legislature’s Children, Families, and Persons with Disabilities Committee looks into. The committee has scheduled an oversight hearing on the DDS system for January 17 at 1:30 p.m. at the State House in Boston.
A careful review of this case and DDS’s handling of it should provide much valuable information as to how DDS’s policies and procedures might be improved.
Committee to schedule one or more oversight hearings on DDS system
In the wake of findings by the state of negligence by the staff of a human services provider that almost resulted in the death of a developmentally disabled man, a legislative committee plans to hold one or more hearings on the Department of Developmental Services system, starting next month.
A press release issued by the state Legislature’s joint Children, Families and Persons with Disabilities Committee referred to a single hearing and said it will concern “current DDS policies, procedures, and responses to reported incidents.” The press release did not specify a date for the hearing, but said it will be held “in the New Year.”
A staff member of the committee said last week (on December 7) that a specific date had not yet been set for the hearing, but that it would be held sometime in January. Previously, another staff member had stated that more details about the scope of the committee’s review, including whether the committee would focus on the privatized system of DDS care and whether there might be more than one hearing still needed to be ironed out.
COFAR is inviting people with information about abuse or neglect in DDS-funded group homes in Massachusetts to testify before the committee. If you have information you would like to share, please contact us.
In the case that apparently sparked the committee’s interest, a DDS investigation concluded in September that seven employees of Bass River, Inc., a DDS provider, were at fault after Ioannis “Yianni” Baglaneas, a 29-year-old man with Down Syndrome, contracted severe pneumonia in his group home after aspirating on the cake.
The DDS cited the staff for failing to ensure that Yianni regularly used required breathing equipment that could have prevented the pneumonia; and the report stated that a high-level Bass River employee removed key records from the home and instructed the staff not to cooperate with the DDS investigation.
COFAR has urged legislators for several years to hold oversight hearings as part of a comprehensive legislative investigation of the DDS group home system. To date, no such investigation has been undertaken by the Legislature since the late 1990’s when the House Post Audit and Oversight Committee examined the group home system and found systemic problems with abuse, neglect, and financial irregularities.
The Post Audit report stated that DDS’s oversight of the privatized system raised “grave doubts about (DDS’s) commitment to the basic health and safety issues and ensuring that community placements provide equal or better care for (DDS) clients.”
Now, 20 years later, it does not appear that much has changed in the system. The association of increased privatization with poor oversight and abuse and neglect is still the case, and inadequate care and conditions remain all too common in group homes in Massachusetts and around the country.
AFSCME Council 93, a union representing state, county and municipal workers in Massachusetts, recently endorsed COFAR’s call for hearings, sharing COFAR’s previous post on the subject on the union’s Facebook page on November 28.
COFAR is continuing to urge people to call Representative Kay Khan, the House chair of the Children and Families committee (617-722-1230), or Senator Joan Lovely, the Senate chair ( 617-722-2011), to express support for multiple and comprehensive hearings. We are also, as stated, are urging people to contact us about testifying before the committee.
“We certainly hope that the committee will thoroughly investigate this very critical issue,” said Colleen M. Lutkevich, COFAR’s executive director. “We hope they will zero in on the key problems that have resulted from runaway privatization of services with inadequate oversight.”
It’s time for the Legislature to investigate the privatized DDS system
Although seven employees of a corporate provider have been found to be at fault in a case in which a developmentally disabled client nearly died in a group home after aspirating on a piece of cake, we hope the Baker administration, the Legislature, and the media will not treat this as an isolated case.
We understand that the Department of Developmental Services has issued an “action plan” in response to this incident, and the Legislature’s Children, Families, and Persons with Disabilities Committee is reviewing documents regarding the matter.
The Essex County District Attorney has opened an investigation that could result in the lodging of criminal charges against one or more of the employees of the Beverly-based provider, Bass River, Inc.
Both The Boston Globe and The Salem News have reported (here and here) on the DDS investigation of the case, which found that inadequate care by the staff of the group home caused the 29-year-old man, Yianni Baglaneas, to contract severe pneumonia nearly a week after he reportedly aspirated on the piece of birthday cake on April 9.
The DDS report also alleged that a high-level Bass River employee attempted to obstruct the investigation by instructing group home staff not to cooperate with the investigation and by removing records from the residence.
On April 15, Yianni was admitted to Addison Gilbert Hospital in Gloucester in critical condition, six days after aspirating on the cake, and then spent 11 days on a ventilator and a week in the Intensive Care Unit at Mass. General Hospital.
Despite the relatively quick response to the DDS report by the legislative committee and others, what we haven’t yet seen is evidence that those in administrative and other positions of authority understand or are concerned that Yianni’s case is a symptom of a larger problem. He is the victim of a dysfunctional system overseen and managed by the DDS that is rife with abuse and neglect and a disregard for the rights of developmentally disabled individuals and their families. It is also a system that has been subject to extensive and ongoing privatization.
On October 25, we emailed the chairs of the Children and Families Committee, urging them to hold hearings on those larger issues. Two days later, the chief of staff to Representative Kay Khan, the committee’s House chair, emailed back saying the committee chairs were taking “immediate action” and were requesting documentation from “a number of agencies in order to obtain more details about this serious incident.”
The email from Khan’s chief of staff said that as soon as Khan’s office had reviewed the documents, the chairs would “make a determination about pursuing next steps regarding the DDS group home system.”
We are glad that the committee chairs recognize the seriousness of Yianni’s case and that they are considering next steps regarding the group home system. At the same time, the chief of staff’s email doesn’t make clear that the chairs are cognizant that there is a system-wide problem involved here.
The chief of staff’s email states only that the committee chairs have requested documentation about Yianni’s particular case. I’m not sure how they get from there to being able to make a determination about next steps regarding the entire group home system.
It would seem that the committee should request a much broader set of documentation than the documents relating to just this one case. In our October 25 email, we offered to assist the committee in gathering information on the problems affecting the system as a whole. To date, the committee has not sought any further information or help from us.
Meanwhile, the Globe’s editorial page rejected an op-ed we submitted in which we similarly tried to place Yianni’s case in the context of the wider group home issues. It’s concerning that the most powerful media outlet in the state does not seem to be interested that there is a wider problem that potentially affects thousands of people in the DDS system.
As a nonprofit advocacy organization for persons with developmental disabilities and their families, we have followed this situation for many years. The association of increased privatization with poor oversight and abuse and neglect is not coincidental. The inadequate care and conditions in Yianni’s group home that led to his near-fatal pneumonia are all too common in group homes around the country.
In 2013, after The New York Times and The Hartford Courant both ran separate investigative series on abuse and neglect in group homes in their respective states, U.S. Senator Chris Murphy of Connecticut called for a federal investigation of deaths and injuries in privatized care. Unfortunately, such a comprehensive federal investigation has still not been undertaken.
It is important to place the present-day state of affairs within the DDS system in an historical context. Until the early 1990s, the system was dominated in Massachusetts and other states by large, poorly run institutions. Those facilities were grossly unsanitary and were essentially warehouses of abuse and neglect.
That all changed starting in the 1970s when federal courts around the country issued consent decrees in response to class-action lawsuits, and required substantial upgrades in care and conditions in the existing institutions. At that same time, a new system of smaller, privately run but state-funded group homes began to appear as residential options for many of the former residents of the larger institutions. A network of state-run group homes was created as well in Massachusetts.
During the past 20 years, the privatized group home system has overtaken and surpassed both the state-run group home network and the large facilities both in terms of state funding and number of residents. All but two of the large facilities have been closed in Massachusetts.
But the new system of thousands of dispersed group homes has its own set of structural problems. This system that replaced the large, centralized facilities has been much harder for the state to monitor with regard to care and conditions and with respect to the finances of the nonprofit agencies that directly operate the residences. In addition, the group home system operates today under a waiver of stringent federal Medicaid regulations that still govern the remaining large facilities.
The growth of the corporate provider system has also resulted in the creation of a largely hidden bureaucracy of highly paid executives of those nonprofit agencies. These executives have seen their own levels of compensation rise as the wages of direct-care staff have remained stagnant or failed to keep pace with inflation.
Due to the combination of poor oversight and and relatively low pay and training of direct-care staff, the privatized group-home system has for some time exhibited many of the warehouse-like characteristics of the former institutions prior to the 1980s. In addition to failing to address problems of abuse and neglect, the group-home system has not been able to provide promised openness and community integration. We hear about stories like Yianni’s all the time.
Yet, in Massachusetts, the private providers have established themselves as a powerful lobbying force on Beacon Hill and have essentially captured the system’s managerial and regulatory agency, DDS, which has continued to press for more and more privatization of services. The result today is a growing imbalance in state funding of DDS services. A priority has been placed by successive administrations and by the Legislature in Massachusetts on privatized care at the expense of state-run care.
In addition to worsening the problems of abuse and neglect, the funding imbalance has reduced the availability of state-run services as a choice to a growing number of people waiting for residential care and placements.
These issues need to be examined in a comprehensive way. That’s why we are calling for hearings by the Legislature’s Children, Families, and Persons with Disabilities Committee on problems with privatized care and what needs to be done to address them.
We’re urging people to call Rep. Khan (617-722-2011) or Senator Joan Lovely (617-722-1230), Senate chair of the Children and Families Committee, to ask the committee to schedule hearings on the privatized DDS group home system in Massachusetts.
New Yorker article on guardianship abuses has familiar ring
An article last month in The New Yorker magazine on abuses in the guardianship system in Nevada is beyond disturbing, and its findings echo many of the concerns we have raised about the dysfunction of the Department of Developmental Services and probate court systems in Massachusetts.
The New Yorker article is primarily about abuses by guardians of the elderly, and it gets into an issue we haven’t fully explored, which is the financial exploitation of people who are represented by professional guardians. But we think many of the article’s points are relevant to the system involving DDS-paid guardians in Massachusetts.
As we have seen in several cases in Massachusetts, the DDS-probate guardianship system has trampled over the rights of family members of developmentally disabled persons, including sharply limiting or even eliminating their right in some cases to contact or visit their loved ones. That is also apparently a feature of the system described in the New Yorker piece.
As is the case in Massachusetts, the primary problems with the system exposed by the New Yorker article appear to lie with abuses by attorneys or other professionals who are appointed as guardians of incapacitated individuals. In many of these cases, family members, who would be better suited to be the guardians, are passed over by the courts and excluded from consideration for that role.
The article and previous reporting by The Las Vegas Review-Journal disclose how two professional guardians named April Parks and Jared Shafer used the probate system in Nevada to become court-appointed guardians of hundreds of people who were mostly elderly, and then took control of their bank accounts, estates,and property.
It isn’t clear whether that type of financial abuse has happened to developmentally disabled persons in Massachusetts, but there appears to be a potential for it. In 2008, an investigative article in The Boston Globe found that some 900 DDS clients in Massachusetts received little or no benefit from trust funds containing some $30 million.
Instead, the money was largely siphoned out of the accounts to pay bank management charges, legal bills, and fees charged by the Massachusetts Probate and Family Court system, “which has long neglected its obligation to ensure the funds are expended for the benefit of some of the state’s most helpless citizens.”
In July, COFAR reported that the state’s system of paying attorneys and corporate providers to serve as guardians of DDS clients is poorly overseen and that the system appears to give professional guardians an incentive to do little work representing individual clients while taking on as many clients as possible.
Families have also been victimized financially by the Massachusetts system. As one family member of a DDS client in Massachusetts described the attitude of the various guardians and clinical and court professionals that she dealt with in the DDS-probate system, “it was just a given that our checkbook was theirs.”
The New Yorker reported that without their families even knowing it, in many instances, elderly people were removed from their homes by Parks and Shafer who then sold their property and pocketed the money. Parks was indicted last spring on theft and other charges after the local media finally ran stories on the issue.
The New Yorker article further stated that when family members tried to contest the guardianships or become guardians themselves, “they were dismissed as unsuitable, and disparaged in court records as being neglectful, or as drug addicts, gamblers, and exploiters.” That sounds familiar to us because it is what we’ve seen in a number of cases in Massachusetts.
Another revelation in the article that sounded familiar to us was that the professional guardians often would not inform families about the care and conditions of their loved ones, and often prevented family members from being able to visit them. The director of an assisted-living facility into which many of the wards were placed, is quoted as saying that families were “devastated that they couldn’t know if the residents were in surgery or hear anything about their health. They didn’t understand why they’d been taken out of the picture. They’d ask, ‘Can you just tell me if she’s alive?’ ”
In one case, an elderly couple was moved with little notice by April Parks to a new assisted-living facility. When their daughter tried to visit them there, Parks refused to let her see her parents. According to the article, Parks later wrote that she had told the woman that “she was too distraught to see her parents, and that she needed to leave.” When the woman refused to leave the facility, Parks had the police called who then cited the woman for trespassing.
This sounds very similar to the reasoning given for keeping David and Ashley Barr from visiting David’s daughter, a developmentally disabled woman who has been ordered kept from their contact by a DDS-paid guardian since November 2015. The Barrs were supposedly too emotional when visiting her even though they said the reason they were emotional was because they often found her to be in a heavily drugged state during the visits.
Another family was prevented from talking to their daughter on the phone for a similar reason.
Another revelation in the New Yorker article that had a familiar ring was a description of the longstanding inaction of investigative authorities when presented with evidence of abuses in the guardianship system.
As we’ve said many times, a first step in reforming the DDS-probate system in Massachusetts would be for the Legislature to enact H.887, a bill which would establish a presumption that parents of a developmentally disabled person are suitable guardians for that person.
The bill would thus make it harder for parents to be bypassed by probate judges who tend to side with DDS, which often favors the appointment of professional guardians in the place of families.
H.887, however, has been stuck in the Judiciary Committee since last January despite the fact that there appears to be no public opposition to the measure. It has been re-filed by Representative David Linsky in every Legislative session since 1999, but has never gotten out of the Judiciary Committee to our knowledge.
We’re hoping, as usual, that this year will be different. But despite a supportive statement last spring from Representative Claire Cronin, House chair of the Committee, that the bill was her “top priority,” the measure hasn’t moved forward in the current legislative session.
It’s time for the Judiciary Committee to finally act on H.887. The numbers to call there are:
(617) 722-2396 for the office of Rep. Cronin, House chair; and/or
(617) 722-1280 for the office of Senator William Brownsberger, Senate chair.
As noted, this bill is only a first step. We are continuing to urge others in the Legislature as well to step forward to address the underlying systemic problems in the DDS and probate court systems.
COFAR blog 