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Questions surround the governor’s budget plan for DDS
In a conference call with advocates last week, Department of Developmental Services Commissioner Elin Howe put what seems to be a highly optimistic spin on the governor’s FY 14 budget plan for her department.
Howe said that, “I think we’re entering into this (budget process) in better shape than in a considerable period of time.” Last spring, she similarly described the plan for the current-year DDS budget, as it emerged from the House Ways & Means Committee, as “the best budget the Department has had in five years.”
Governor Patrick’s $1.5 billion, FY 14 budget plan for DDS appears to be typical of his overall budget proposals for human services, but we aren’t ready to make too many rosy projections about it.
First, there’s the question whether the governor’s budget proposals are realistic, given that they depend on passage of his plan to raise taxes. And as was the case last year, Howe seems to be focusing on the brightest spots in a budget for her department that appears to have many dark spots as well.
Howe did begin the Wednesday call by noting that the governor’s proposed budget (H1) depends on legislative passage of his proposal to increase the income tax rate to 6.25 percent. The state’s current revenue estimate for the coming fiscal year “doesn’t support all of what we’re trying to do,” she said.
Howe said, though, that she had no figures on what might happen to the DDS line items for FY 14 if the Legislature were to balk at the governor’s tax plan, which seems a good possibility.
Secondly, while Howe noted that H1 calls for increasing a number of DDS line items, she acknowledged there are also a number of projected shortfalls and cuts in it. Among the line items in H1 with projected shortfalls are DDS Administration (which funds service coordinators), State-operated group homes, and Community-based Transportation programs.
Also, the community-based Adult Family Supports and Turning 22 accounts would be only level-funded under H1, while the Autism Division account would be cut by a small amount.
In addition, the state-run developmental center line item would be cut by $10.4 million, bringing the total amount cut from this account by the Patrick administration to nearly $80 million since FY 2009. As we’ve said many times before, we have yet to see how that cut in developmental center funding has provided much in the way of benefits for the average DDS client in the community system.
Moreover, Howe said there is no money in the H1 budget for the developmental center account for the continued operation of the Fernald Center in the coming fiscal year, meaning the Department will once again have to ask for supplemental funding for Fernald.
The following is a line-item breakdown for DDS, under H1 for FY14:
DDS Administration and service coordinators (5911-1003):
H1 would increase this line item by $1.7 million, to $64.7 million. However, Howe said this increase is the result of salary increases due to collective bargaining with the SEIU state employee union. Without an additional $500,000 in the account, 10 to 12 service coordinator jobs could be lost, she said.
Service coordinators have the critical task of making sure DDS clients are receiving the right services in the community system, and their caseloads are growing out of control. SEIU is asking for an additional $2.5 million in the administrative line item in order to restore 50 service coordinator jobs out of the 82 jobs lost since 2007.
Community Transportation (5911-2000):
H1 would increase this account by $537,000, to $13 million. However, Howe said this increase will still result in a shortfall in the transportation account of $500,000.
Community Residential (5920-2000):
H1 would increase this account by $71.7 million, to $860.3 million. Howe said some of this increased funding is the result of “Chapter 257,” a 2008 “global payment” initiative, which established pre-set rates for DDS residential service vendors. The Arc of Massachusetts says the Chapter 257 increase amounts to $55 million and is a “down-payment” on a total $175 million increase in funding that is expected to be given to the vendors.
State-operated Residential (5920-2010):
H1 would increase this account by $10.6 million, to $191.4 million. Howe noted that this increase is largely for the operation of new state-run group homes for residents from developmental centers marked for closure. Overall, she said, the increase in this account is $3.5 million less than what DDS requested, meaning the Department is once again projecting a shortfall in needed funding.
Community Day and Work (5920-2025):
H1 would increase the amount by $28.4 million, to $161.9 million, which is good news.
Adult Family Supports (5920-3000):
H1 would level-fund this account at $49.5 million, which is not good news.
Autism Division (5920-3010):
H1 would cut this account by $22,166, to $4.6 million. Bad news.
Turning 22 (5920-5000):
H1 would level-fund this account at $6 million. However, it would increase the annualized amounts for Turning 22 clients in the community residential, community day programs, and community transportation accounts. Mixed news.
Facilities (developmental centers) (5930-1000):
H1 would cut this account by $10.4 million, to $123 million. The Facilities account has been cut by nearly $80 million since FY 09.
Templeton Retained Revenue (5982-1000):
H1 would level-fund this account at $150,000
Non-DDS line items:
EOHHS Salary Reserve (1599-6901):
It does not appear that H1 contains any funding for the salary reserve for wage increases for direct-care workers employed by DDS vendors. In November, Patrick froze $20 million that had been placed in the fund for the current fiscal year.
Disabled Persons Protection Commission (1107-2501):
H1 would increase this account by $23,000, to $2.3 million. The effect, however, is level-funding of the agency, which has been level-funded since FY 2009. The DPPC is an independent state agency charged with investigating complaints of abuse and neglect of people with intellectual and other disabilities.
We’ll stay tuned of course to see what the House and Senate do with the governor’s budget for DDS. All in all, we don’t share the assessment that we’re entering into this budget process in great shape.
We are no doubt well into an era of reduced public services and of having to do more with less. Unfortunately, the administration doesn’t appear to have put much thought into how to accomplish that. It’s main initiative has been to close developmental centers, which hasn’t boosted funding to most community-based accounts.
Update on the National Council on Disability’s anti-institutional bias
We wrote here before about the extreme ideological position of the National Council on Disability, which called last month for the closure of all residential facilities for persons with intellectual disabilities with more than three people living in them.
The NCD appears to be at it again, this time in the wake of the tragic shooting deaths of children and teachers in Newtown last month by a young man who may have had a mental illness or at least needed mental health treatment.
In a January 11 letter to Vice President Joe Biden, in Biden’s capacity as head of the president’s gun violence task force, Jonathan Young, chair of the NCD, appears to be more concerned about creating “an unnecessary expansion in institutionalization” than in ensuring that people who pose a danger to others get treatment or medication.
Young uses most of the letter to urge the vice president to avoid any measures that could unnecessarily institutionalize people, involuntarily commit them, or force treatment on them.
No one would disagree with Young’s contention in his letter that people who pose no risk of violence should not be subject to institutionalization or forced treatment. But Young says little about what the task force could or should do to protect everyone’s safety.
While COFAR’s mission is to advocate on behalf of people with intellectual disabilities, not specifically on behalf of people with mental illness, we are commenting on Young’s letter because much of the debate over deinstitutionalization of both groups of people has been similar. Certainly, Young and the NCD take the same view in favor of complete deinstitutionalization of both groups, and make the same flawed arguments about each.
In his letter to Biden, Young states that “institutional care has a long-standing history of poor outcomes and civil rights violation (sic) among persons with psychiatric disabilities.” At the same time, he bemoans a “profound shortage in community-based services” for people with mental illness.
There are a number of potential contradictions here. First, Young and many other institutional opponents gloss over the fact that many so-called community-based services are institutional in nature. The NCD, in fact, takes this viewpoint to an extreme. With regard to people with intellectual disabilities, the NCD has stated that even community-based group homes are institutional and should be closed down if they have more than three people living in them.
Young and the NCD can’t have it both ways. Young talks about a shortage of community-based services and yet he and the NCD want to dismantle much of the community-based infrastructure that exists for people with intellectual disabilities.
Secondly, while institutional care, whether of persons with psychiatric disabilities or intellectual disabilities, has certainly had its problems in the distant past, that care has come a long way. It’s deinstitutionalization, which has had the more checkered recent history and the poorer outcomes.
Here is an assessment in 2007 of the success or lack thereof of deinstitutionalization of the mentally ill, by the Kaiser Commission on Medicaid and the Uninsured.
The history of deinstitutionalization began with high hopes and by 2000, our understanding of how to do it had solidified. But it was too late for many. Looking back it is possible to see the mistakes, and a primary problem was that mental health policymakers overlooked the difficulty of finding resources to meet the needs of a marginalized group of people living in scattered sites in the community (my emphasis).
This marginalization of people living in scattered sites in the community is something we at COFAR have been saying for a long time with regard to people with intellectual disabilities. It’s distressing that the NCD, an independent federal agency that advises the president and Congress on disabilities issues, has apparently chosen to rewrite the real history of deinstitutionalization.
Young’s other major concern in his letter to Biden appears to be that safety-related measures under consideration by Biden’s task force, such as requiring colleges to refer students with perceived psychological disabilities for evaluation and institutionalization, might perpetuate a stigma or damaging stereotypes about mental illness. This concern on Young’s part appears to override his concern about the need such people might have for treatment.
We need to have a constructive discussion concerning the future of care for people with both mental illness and developmental disabilities. One way to begin is to stop the stereotypes and stigmas about institutional care.
DDS residential services vendors operating with expired licenses
An undetermined number of service vendors to the state Department of Developmental Services have operated group homes and provided other services to clients of the Department despite having expired state licenses, according to a survey done by COFAR.
The survey identified at least three vendors — the Center for Human Development (CHD), Vinfen, and Independent Living for Adults with Special Needs — that were operating with expired two-year licenses as of mid-December.
The situation appears to be the result of an inability of DDS to approve the vendors’ license renewal applications within a prescribed time frame of 60 to 120 days, possibly due to a lack of adequate staffing in the Department.
DDS regulations allow vendors to continue to operate with expired licenses as long as those vendors submit license renewal applications more than 60 days prior to the license expiration dates. That was the case with the three vendors identified by COFAR, according to DDS.
The DDS licensure system for vendors is viewed as a critical means of ensuring that the vendors provide quality care and safe environments for thousands of people with developmental disabilities. According to an online DDS Licensure Manual, the licensure process he is based on the ability of a vendor to meet several “essential safeguards” that concern personal safety, health, rights, a competent workforce, and individual care plans.
While the regulations appear to provide the Department with a technical reason for declaring expired licenses valid, it is concerning that DDS is apparently unable to ensure that license approvals are not more than two years old for all vendors.
According to DDS, Independent Living submitted its license renewal application on April 4, 2012. As of mid-December, some eight months later, the Department had apparently not yet approved the application or issued a new license to the vendor to continue to operate. The vendor’s license expired in August 2012.
Similarly, CHD submitted its license renewal application in July 2012 and Vinfen submitted its application in August 2012, according to DDS, and yet neither of those vendors had apparently been issued new licenses to operate as of mid-December. CHD’s license expired in October, and two licenses held by Vinfen expired in November.
COFAR emailed DDS Commissioner Elin Howe on January 2, seeking an explanation as to why it was taking so long in each of these cases for DDS to approve the licensure applications and issue new licenses to the three vendors. A revision of the DDS licensing process in 2009 envisioned, among other things, improving the “efficiency” of the process and shortening the time it takes to survey a vendor’s group homes from a maximum of 14 days down to 5 days, according to the DDS Licensure Manual.
COFAR last surveyed online DDS licensure reports in November for some 30 DDS vendors and found that 11 of the reports appeared to be out of date on the DDS website because they listed licenses granted to the vendors that appeared to have expired. Among those reports were the following:
- A licensure report for CHD, dated November 2010, which listed an expiration date for the vendor’s license for residential and individual home supports of October 28, 2012. As of January 7, 2013, the November 2010 licensure report was still the only posted document for this vendor on the DDS site.
- A licensure report for Vinfen, dated December 2010, which listed an expiration date of November 8, 2012 for each of the vendor’s licenses for residential and individual home supports and for employment and day supports. As of January 7, 2013, a follow-up report, dated March 2011, was posted on the DDS site for Vinfen, but the document did not indicate any change in the license expiration date.
- A licensure report for Independent Living, dated September 2010, which stated that the vendor’s license for residential and individual home supports had been “deferred” as of that date because six “critical indicators” had not been met during an August 2010 licensure survey. As of January 7, 2013, the September 2010 licensure report was still the only posted document for this vendor on the DDS site.
In letter to COFAR, dated December 19, 2012, Robert Smith, a DDS assistant general counsel, stated that the licenses for the three vendors were considered valid by the Department because the license renewal applications for each vendor had been submitted more than 60 days prior to the license expiration dates.
Smith said that while the license for Independent Living had been temporarily deferred in 2010, the vendor corrected its licensure deficiencies in October of that year and was subsequently issued a two-year license that expired on August 26, 2012. Because the vendor had submitted its license renewal application in April 2012, more than 60 days prior to the expiration of the license, that license, like those for CHD and Vinfen, was considered valid by the Department, Smith said.
In an earlier December 5, 2012 letter to COFAR, Smith stated that the Department was “actively correcting delays in posting current reports on its website.”
DDS loosens IQ eligibility restrictions
Bowing to criticism from families and advocates, the Patrick administration has promulgated new, final regulations that will loosen its restrictive definition of “intellectual disability” in determining people’s eligibility for services.
It appears that under the new regulations, the Department of Developmental Services will no longer automatically deny services to anyone who scores above a 70 on an IQ test.
The new DDS regulations refer to the American Association on Intellectual and Developmental Disabilities (AAIDD), which defines intellectual disability as involving “significant limitations both in intellectual functioning and in adaptive behavior.” The AAIDD also states that a limitation in intellectual functioning can be indicated by an IQ score as high as 75.
Meanwhile, the state Legislature has enacted a bill (H. 4252), which would similarly adopt the AAIDD definition of intellectual disability in Massachusetts. The bill, filed by Representative Dan Winslow, was on the governor’s desk as of today, awaiting his signature. COFAR is asking people to call the governor’s office to urge that the governor sign the bill into law.
In 2006, DDS adopted regulations restricting eligibility for services to people scoring 70 or below on an IQ test. This led to the denial of benefits to an undetermined number of people and to a lawsuit filed on behalf of a woman who had had scored 71 on an IQ test at age 18, 69 at age 40, and 71 at age 42. The woman, who was subsequently denied services by DDS, was represented in the case by Thomas Frain, who is also president of COFAR.
In July, the Massachusetts Court of Appeals ruled in the case that the DDS’s 2006 regulations were invalid in defining intellectual disability without referring to a “clinical authority.”
DDS initially responded to the Appeals Court ruling by proposing emergency regulations in September that named the Department itself as a “clinical authority” in determining the presence of an intellectual disability. But that led to a chorus of objections from advocacy organizations, including COFAR, and family members of intellectually disabled people.
In the final regulations, DDS has withdrawn the designation of itself as a clinical authority. However, questions remain as to how much weight DDS will place on factors other than IQ in determining eligibility for services. The Disability Law Center, a federally funded public interest law firm, is also concerned that in basing eligibility for services solely on intellectual disability, Massachusetts is failing to serve many people with other types of developmental disabilities, including many people with autism.
That concern was reflected in the testimony of dozens of people at a DDS hearing in November that members of their families with severe disabilities were falling through the cracks in the system and failing to get services from the Department.
The final DDS regulations nevertheless appear to be a step in the right direction. It’s also important, as has been discussed here on BMG, that the language in the regulations be enshrined into law — hence the importance of Rep. Winslow’s bill.
The National Council on Disability can’t be serious
A key sign that ideology has taken over rational thinking in an organization is that the organization ups the ante on a given issue by taking progressively more radical positions on it.
At a certain point, the organization’s position reaches the level of the absurd, and that is what seems to have happened in the case of the National Council on Disability’s latest position in favor of deinstitutionalization of the intellectually disabled.
In a new online report and “Toolkit” titled “Deinstitutionalization: Unfinished Business,” the NCD, a federal agency that advises the president and congress on issues concerning the disabled, calls for the closure of all institutions for the intellectually disabled. Here’s the first sentence of the report:
The unfinished business of closing state-run institutions and other public and private institutional settings that have traditionally served people with intellectual disabilities and developmental disabilities is an important first step and should be a top public policy priority in every state where such institutions exist.
More about that in a moment. First, it’s important to note that the report introduces a new definition of an “institution”:
NCD believes that institutions can be not just large state-run institutions, but community-run small group homes as well; therefore NCD has defined “institution” as a facility of four or more people who did not choose to live together. (my emphasis)
This can’t be serious! A group home with four people in it is now an institution? The Social Security Act has up to now defined institutions as facilities housing 16 or more people.
What do the group home providers around the country, who have long opposed institutional care, think about the NCD’s new definition? Suddenly it’s the providers themselves who are apparently running little institutions, thinking all along that they were running “integrated” community-based homes.
It gets worse. The NCD report seems to focus most of its anti-institutional fire on Intermediate Care Facilities for the developmentally disabled (ICFs), which tend to serve the most profoundly disabled people and which must meet more stringent federal standards for care and treatment than do most group homes. While developmental centers such as the Fernald and Glavin centers in Massachusetts are ICFs, small, privately operated ICFs also exist in many states.
Apparently, the NCD doesn’t like the fact that the ICFs must meet standards of any sort. The NCD report characterizes ICFs as providing “a regulated program of services in a formally certified setting,” which means, according to the report, that residents in those facilities are “still living an institutional life.” Is NCD advocating unlicensed or uncertified facilities here?
Should all ICFs, and group homes with more than three residents in them, for that matter, be shut down, whether the residents are happy in them or not, because the residents are somehow living an institutional life? Apparently so.
How would that work? Would providers, for instance, be required to build a new generation of smaller residences that only house three people? Should families shoulder more of the burden of caring for extremely disabled children or siblings in order to avoid “institutionalizing” them in a residence with more than three people? The NCD report doesn’t discuss any of that, as far as I could see. And why should it? When you’re promoting an ideological viewpoint, why get into practical details?
It would seem the NCD’s goal is ultimately to put everyone out on the street, where they can fend for themselves; and once there, apparently no matter how disabled they are, they will somehow find “dignity, freedom, choice, and a sense of belonging that is not possible in an institutional environment.” Does anyone really believe that?
The NCD report adds that “deinstitutionalization is a civil rights issue,” and that a key strategy in closing institutions is to “focus on closure as a civil right.” But what about the civil rights of the vast majority of families of residents of developmental centers and other “institutions,” who don’t want those facilities to close?
The VOR, a national organization that advocates for a continuum of community and institutional care for those who need it, last week characterized the NCD report and Toolkit recommendations as “irresponsible, given the widespread, well-documented tragedies associated with under-funded and ill-prepared ‘community’ programs for individuals with profound needs. NCD has put its most fragile constituency at great risk of harm.”
The VOR further questioned whether the NCD has the legal authority to define institutions for the disabled differently than does the Social Security Act.
Meanwhile, here are some of the other strategies in the NCD’s Toolkit for closing those facilities:
- “Define the choice (over closure) as not ‘if,’ but ‘when’ and ‘how,'” and
- “Close the Front Door,” meaning push for the prevention of new admissions to developmental centers and presumably all other facilities with more than three people in them. The Toolkit states that a strategy of blocking new admissions tends to reduce opposition among families when the decision is made to close those facilities.
My favorite strategy in the Toolkit, however, is to “Build your case with faces, not facts.” The Toolkit states:
‘Faces not facts’ are important drivers of the discussion and the community’s support. The issue should have a “face”—personal stories, individual self-advocates, and parents who support the closure are all important influencers.
That sort of says it all that one of the main strategies advocated by the NCD is to downplay the importance of facts in the debate over closing ICFs.
To be fair, the NCD report does appear to recognize some of the serious problems that exist in the community system, including wages to direct-care workers that average only $10.14 an hour, compared with $15.53 for direct-care workers employed in residential institutions. The report also acknowledges that there are long waiting lists for care in the community system.
The NCD report even appears to recognize that community-based care can be as or more expensive than institutional care if the same costs and populations are compared. The report notes:
The average cost of care in the community is not necessarily comparable to the average cost for people in institutions owing to differences in severity of disability and the required services and supports.
And the report recognizes that concerns among families of institutional residents “might include access to regular health care and dental care, safety, and continuity and quality of care” in the community system.
That’s the real unfinished business in providing care to the intellectually and developmentally disabled among us, not closing vital institutions. As the VOR noted in their statement in response to the NCD report and Toolkit:
Closures (of institutions) opposed by the very people impacted have done nothing to address community capacity. Waiting lists continue to grow and community tragedies to occur.
Familes decry DDS’s ‘rigid cutoff’ in providing services
[Note: COFAR sent a notice on Wednesday to media outlets around the state about this public hearing scheduled for Thursday in Worcester. Not one newspaper or TV reporter showed up. This is a shame.]
Janet Suarez’s 22-year-old daughter Amanda cannot complete basic hygiene and is “unaware of physical boundaries,” putting her at risk of, among other things, sexual abuse.
Yet, DDS has disregarded the recommendations of clinical experts, Suarez said, and denied her daughter services. “She stays at home most days,” Suarez said. “She’s discouraged.”
Suarez was among a parade of people who testified at a public hearing at the Worcester Public Library on Thursday on state regulations governing eligibility for services from the Department of Developmental Services.
It was the same wrenching story again and again as the parents of developmentally disabled children talked about how the regulations have allowed DDS to deem their children ineligible for services because they had scored slightly above the cutoff score of 70 on IQ tests administered by the Department.
Speaker after speaker talked about how their now-adult children are overwhelmingly ill-equipped to cope with society. Most said their children have virtually no social skills or means of adapting to social norms. Many of those disabled individuals are unable to or can barely speak.
Eric Olson (at podium) testifies at a public hearing Thursday about the isolation his son has endured after being denied services by DDS.
The parents talked about their desperate need of services from DDS and about their sense of despair and isolation when those services were denied. In most cases, the family members stated that psychologists had found that their children had severe adaptive problems; yet, DDS had disregarded these findings in focusing solely on IQ scores.
COFAR has joined with the Disability Law Foundation, the Arc of Massachusetts and other organizations, including the national VOR, in urging DDS to change its regulations, which have given the Department the latitude to deny services to anyone scoring above a 70 on an IQ test.
DDS is also facing a court order stating that it must tie its determinations of intellectual disability to a “clinical authority,” and not base its service eligibility decisions solely on IQ measurements. But DDS emergency regulations, adopted in the wake of the court order, still appear to give the Department excessive discretion to rely on IQ scores, according to COFAR, the DLC, and the other advocacy groups, which provided testimony on those regulations on Thursday.
Eric Olson testified that his son Matthew has scored between 70 and 80 on IQ tests, making him ineligible under the DDS regulations for services; yet he cannot function without support. While his son received special education services, he attended work programs. In the past several years, “he’s been without significant work. He’s completely idle and isolated,” Olson said.
Donna Frank is the mother of two sons with autism, one of whom was rejected by DDS for services because his IQ was measured above 70. Ryan cannot cross a road safely and has had to be physically restrained many times while in school programs, Frank said. She said he has no concept of the difference between clean and dirty, and often comes home from school wearing other children’s clothes. Like many parents, she said she will have to quit her job to care for him when he turns 22, two years from now.
Also testifying was Gary Siperstein, Director of the Center for Social Development and Education at the University of Massachusetts Boston. Siperstein maintained that thousands of people with developmental disabilities go without services from DDS because “the regulations demonstrate a lack of flexibility that limits the number of people found to have intellectual disabilities.”
The emergency regulations, Siperstein continued, make it optional for the Department to even consider the standard error of measurement in an IQ test.
While DDS appears to have dropped language that would name the Department itself a “clinical authority” in determining the presence of intellectual disabilities, the regulation still inappropriately lists the Department as the “state intellectual disability authority,” according to Richard Glassman, litigation director with the Disability Law Center.
Glassman maintained that given the thousands of people in Massachusetts who have developmental disabilities and yet are not considered intellectually disabled by DDS, the Department needs to provide services on a broader basis. “We are raising a generation of young people who are spending their days in their bedrooms playing video games and watching TV,” Glassman said. “Their only real tie is to the Nintendo Corporation.”
Nirith and David Avraham testified on behalf of their son, who is 21 years old and autistic and was sitting with them in the hearing room. The young man would frequently rock back and forth in an agitated manner while his mother and father tried to calm him. Recent immigrants to this country, Nirith and David Avraham said that while their son is a very good artist, he can’t speak and has no social judgment. Yet, he was denied services after his IQ was measured at 72.
“It’s just me and and my husband to take care of him,” Nirith Avraham said. “”We have no network.”
Joan Durkin testified that her daughter, a single mother, is becoming desperate about what will happen to her own 21-year-old daughter, Annie, who has autism and obsessive-compulsive disorder, yet has been denied services because of an IQ measured at 71. Durkin said her granddaughter is non-verbal, has no problem-solving skills and needs 24-7 care. “Yet, DDS says she has no intellectual disability,” Durkin said.
DDS online licensure data remains out of date
We’ve raised a number of questions over the past year about the thoroughness and effectiveness of the state’s policies and procedures for inspecting and licensing group homes for people with intellectual disabilities. (See here and here.)
Unfortunately, we were unsuccessful in persuading the Legislature’s Children, Families, and Persons with Disabilities Committee to hold a hearing on the issues we raised.
But in response to our concerns, the Department of Developmental Services did indicate it was making efforts to update group home licensure reports on its website that we found were sometimes years out of date.
These licensure reports provide both information about the results of inspections of the vendors’ group homes and the type and duration of the license or licenses each vendor has been granted. The licenses are normally granted for two-year periods, so any such licensure reports that are more than two years old are, by definition, out of date.
In May of this year, DDS Commissioner Elin Howe stated in a letter to Representative Kay Khan, co-chair of the Children and Families Committee, that in addition to updating the licensure reports on the DDS website, licensure follow-up reports were being posted as of that time showing the outcomes of deficiency findings in the original reports.
As a result of these assurances from DDS, we went back and took another look this week at the online DDS licensure data for the same sample of 30 group home vendors that we first examined more than a year ago.
Based on the follow-up we’ve just done, it appears that DDS has taken some steps to update the licensure information on its website; however, much of the information still appears to remain out of date. Of the same 30 providers, licensure reports for 11 were still out of date as of this week, and one report (for the Merrimack Education Center) was no longer posted. That’s now 40 percent of the sample with out of date or missing reports.
Also, the promised follow-up licensure reports or updates were posted for only eight of the 30 vendors in the sample. (See table below with the latest results of our review of the DDS online licensure reports for our vendor sample.) No follow-up reports were posted for any of the 44 vendors listed on the website in the Metro Boston area.
In addition, the licensure reports posted on the DDS website for Behavioral Associates of Massachusetts (BAM) and the Center for Human Development (CHD) — two vendors that we selected for review — remained out of date this week, and no follow-up reports or updates were posted for either vendor. The BAM licensure report was dated April 2009 and the CHD report was dated November 2010.
We had reported in our April 2012 newsletter that DDS didn’t appear to have followed up on numerous deficiencies noted in the BAM and CHD licensure reports. As we noted in the newsletter article, a subsequent licensure report for BAM, dated May 2010, addressed some, but not all, of the licensing deficiencies identified in the previous April 2009 report.
Yet, that same April 2009 document was still the only licensure report for BAM that was posted on the DDS site as of this week. We had received the subsequent May 2010 licensure report from DDS in February of this year in response to a Public Records request. By the way, even that May 2010 report would have been out of date by now had it been posted on the DDS site.
Similarly, the November 2010 licensure report for CHD is now out of date because the two-year license for the vendor was listed in that report as valid through October 2012.
As we reported in the same April 2012 newsletter article, the November 2010 CHD report had cited the vendor for failing to report three incidents of abuse or neglect to the state Disabled Persons Protection Commission. In response to our same Public Records request, we received a follow-up report on CHD, dated December 2010, in February. Yet, as of this week, that December 2010 follow-up report had not been posted on the DDS site.
We sent an email message to DDS Commissioner Howe asking why it is taking so long to replace out-of-date licensure reports on the DDS website and why so few follow-up reports appear to have been posted. We cc’d Rep. Khan’s general counsel on the message. So far, we haven’t heard back from either Howe’s or Khan’s offices.
Results of COFAR review of DDS online group home licensure reports as of the week of November 5, 2012
| DDS Vendor | Date of licensure report posted online | Status of posted report | Follow-up reports or updates posted |
| Central-West Region | |||
| Aditus, Inc. | July 2011 | Current | None |
| Behaviorial Health Network, Inc. | October 2011 | Current | None |
| Center for Human Development, Inc. | November 2010 | Out of date | None |
| Evergreen Center, Inc. | May 2010 | Out of date | None |
| Independent Living for Adults with Special Needs, Inc. | September 2010 | Out of date | None |
| Mass Mentor | January 2012 | Current | None |
| Nonotuck Resource Associates, Inc. | April 2012 | Current | May 2012 |
| New England Center for Children, Inc. | March 2011 | Current | None |
| Seven Hills Foundation, Inc. | October 2011 | Current | November 2011 |
| Western Mass. Training Consortium, Inc. | May 2010 | Out of date | None |
| Northeast Region | |||
| American Training, Inc. | December 2009 | Out of date | November 2011 |
| Central Middlesex Arc, Inc. | September 2008 | Out of date | None |
| Fidelity House, Inc. | April 2012 | Current | July 2012 |
| Merrimack Education Center | No report posted | Unknown | August 2011 |
| Minuteman Arc for Human Services, Inc. | July 2008 | Out of date | None |
| Project Cope, Inc. | June 2011 | Current | August 2011 |
| Southeast Region | |||
| Arc of Cape Cod, Inc. | March 2011 | Current | None |
| Behavioral Associates of Mass., Inc. | April 2009 | Out of date | None |
| Cardinal Cushing Centers, Inc. | May 2012 | Current | None |
| Cerebral Palsy of Mass., Inc. | June 2011 | Current | September 2011 |
| Kennedy Donovan Center, Inc. | October 2010 | Out of date | November 2010, August 2011 |
| Road to Responsibility, Inc. | June 2008 | Out of date | None |
| Work, Inc. | November 2007 | Out of date | None |
| Metro Boston Region | |||
| Charles River Arc, Inc. | May 2011 | Current | None |
| Delta Projects, Inc. | August 2011 | Current | None |
| Justice Resource Institute, Inc. | August 2011 | Current | None |
| North Suffolk MHA, Inc. | April 2011 | Current | None |
| Till, Inc. | August 2011 | Current | None |
| Vinfen, Inc. | December 2010 | Out of date as of Nov. 8, 2012 | None |
| Walnut Street Center, Inc. | May 2012 | Current | None |
DDS finds a creative way to ‘comply’ with court order on IQ regs
The state Department of Developmental Services has found what appears to be a creative response to a recent court order that it redraft regulations that had allowed it to deny eligibility for services to persons with apparent intellectual disabilities.
The problem in our view is the Department’s response, in the form of new “emergency” eligibility regulations, creates the appearance of compliance with the order of the Massachusetts Court of Appeals without complying in reality. In fact, we think these new regulations would maintain the Department’s discretion to deny eligibility to a potentially large number of intellectually disabled people.
In what had appeared to be a big victory for people denied eligibility by DDS, the appeals court declared on July 23 that eligibility regulations, which the Department had adopted in 2006, were invalid. Those regulations gave the Department the latitude to deny services to anyone who scored above a 70 on an IQ test, even though the person seeking services might meet the statutory definition of intellectual disability in Massachusetts. That statute defines an intellectually disabled person as someone who is “substantially limited in his ability to learn or adapt.”
So what was the Department’s creative response to the court’s ruling that it must change the regulations? It was to state in the the new emergency regulations that the Department itself was now the “clinical authority” upon which clinical judgments regarding intelligence will be made.
It seems to us that this “solution” will allow DDS to continue to deny services to anyone scoring above a 70, while appearing to have complied with the appeals court ruling. DDS has scheduled a public hearing on the emergency regulations for Nov. 15 at 1 p.m. at the Worcester Public Library. COFAR joins the Disability Law Center and the Arc of Massachusetts in opposing the DDS’s disingenuous regulatory move.
The appeals court stated that DDS’s eligibility regulations prior to 2006 were consistent with the state law because they did specify a clinical authority — the American Association on Intellectual and Developmental Disabilities (AAIDD) — in defining intellectual disability. The AIDD’s guidelines in determining intellectual disability do not refer to “a bright-line IQ cutoff score” in making eligibility determinations, according to the appeals court.
The appeals court described the reference to clinical authorities in the DDS regulations prior to 2006 as a “statutory anchor” in establishing whether an applicant for services has an intellectual disability. Without such an anchor, the Department’s definition of intellectual disability had actually become “a moving target,” according to the court.
In now designating itself as the clinical authority in making eligibility determinations, DDS does not provide the anchor that the court intended.
It’s as if a judge had ordered a driver to obey the speed limit on a given road, and the driver were to say, “Okay, I’ll obey the speed limit, but the limit will be whatever I decide to set it at.” A judge wouldn’t be likely to buy that argument, and we don’t think the Massachusetts Court of Appeals will buy DDS’s new emergency regulations either.
More questions about the Glavin land deal
Suppose a couple owned a house, and one day, the husband stated that they couldn’t afford to live there anymore and would have to move out. However, rather than putting the house up for sale, he said he planned to let a friend live in it for a dollar a year.
Might the wife not object and say maybe they could afford to stay there if they didn’t need the income from a sale of the property?
Isn’t this same sort of giveaway that the administration has just agreed to concerning 69 acres of state-owned land at the Glavin Regional Center, which has been targeted for closure as of next July?
As we previously noted here, the governor signed a bill into law in August to lease 69 acres of land at Glavin for $1 a year for the next 25 years to the Town of Shrewsbury. The land subject to the lease consists of 15 acres currently used as soccer fields and 54 acres of farmland.
The Worcester Telegram & Gazette reported in 2010 that the total amount of land at Glavin is “more than 120 acres” and had been assessed at $22.36 million. Thus, the land that has been effectively given to the town in this case could be worth as much as $12.9 million.
Many people seem to think we oppose the continued use of open space at Glavin for recreational and agricultural uses. That’s not the case. Our main question here is what happened to the deliberative process that the administration promised with regard to the disposition of the land?
We ask this question not because we want to see this land sold or used for any particular purpose. But like the wife in the house giveaway scenario above, we question the administration’s assertion that it can no longer afford to keep Glavin open and must evict its longtime residents. If closing Glavin is about saving money, why effectively give almost $13 million worth of land away without going through the promised reuse process?
In 2008, the administration announced it was closing the Glavin, Fernald, Monson, and Templeton developmental centers, contending there would be a fiscal savings in doing so. In making the closure announcement, the administration expressly stated that disposition of the land at those centers would be subject to a “collaborative” reuse-committee planning process.
Legislation was subsequently enacted into law to set up land reuse committees for the Fernald Center (Chapter 149 of the Acts of 2004, S. 402) and for the Monson and Templeton Centers (Chapter 59 of the Acts of 2009). However, a bill filed in January 2009 to establish a similar land reuse committee for the Glavin Center never got out of the Bonding Committee.
The Glavin land reuse bill, which had been filed by then state Representative Karyn Polito, had stated that the proposed reuse committee “will be mindful of the rights of current Glavin residents, and their need for adequate and appropriate housing, clinical services, and appropriate staffing…”
Why Polito’s bill died and was never refiled is a mystery to us.
Interestingly, in February 2010, the administration proposed to sell what appears to be the same parcels of land at Glavin that it is now prepared to lease to the town for $1 a year. Area legislators opposed the planned sale of the land.
What caused the about-face on the administration’s part from wanting to sell the Glavin land with no formal reuse process in place, to agreeing to effectively give the land away, with no formal reuse process in place?
We’ll continue to ask these questions, hoping for some answers.
State’s decision to lease Glavin land for $1 raises questions
For years we’ve heard from the administration that it’s necessary to close the Glavin Regional Center and three other developmental centers in Massachusetts because the centers have become too expensive to operate.
But if these closures are about saving money, why has the administration agreed to essentially give away 69 acres of state land at Glavin to the Town of Shrewsbury? In agreeing in August to lease the land to the town for $1 a year for the next 25 years, the state will forego potentially millions of dollars it would have gotten from the sale of that land.
Our main question really is this: Why has the administration reached this deal with the town outside of what would normally be a formal and deliberative process to determine the best options for reuse of the land? The 69 acres, which include soccer fields and farmland surrounding the Glavin Center, comprise at least 62 percent of the total Glavin campus.
For the past eight years, the state has been involved in a painstaking and often contentious reuse process with the City of Waltham over the 200 acres at the site of the Fernald Developmental Center, which has also been targeted for closure. That process has brought parties from all sides to the table, and has involved public hearings and a report by a planning consultant.
No such reuse process has yet occurred at Glavin, and yet a decision has already effectively been made about the disposition of a majority of the acreage at that site. It’s a decision, moreover, that is a great financial deal for the Town of Shrewsbury, but not for the state, which is supposedly so strapped for cash that it has had to evict what were hundreds of longtime residents of the developmental centers from their homes.
Here by the way, is what Governor Patrick had to say this past May about the reuse process at Fernald:
Everybody’s on it (the Fernald reuse process). All the interests, all the factions, and that’s how it should be. I know the city has expressed interest in buying it (a portion of the Fernald land). I don’t think the state’s in a position to give it away. But I think selling to the city, some or all of it, is certainly an option.
So, the state is not in a position to give away any of the Fernald land, yet it is in a position to give away the Glavin land? And why, in the case of Fernald, are all the interests at the table whereas, in the case of Glavin, the only interests at the table were the state and the town?
Both Glavin and Fernald have been targeted by the administration for closure, over the objections of most of the family members and guardians of the residents of those facilities. The administration has repeatedly claimed to the Legislature that it would save up to $40 million a year in closing the Fernald, Glavin, Monson, and Templeton developmental centers. Yet the administration and other opponents of the centers have repeatedly opposed an independent study of the cost of closing those facilities.
The $1 lease arrangement at Glavin stems from a home rule petition that was presented by Shrewsbury to the state Legislature in May. The lease involves both a 15-acre tract that has housed town soccer fields for many years and a 54-acre tract of farmland. The Legislature approved the lease and the governor signed the bill in August.
We’re not opposed to preserving the land at Glavin as farmland or as soccer fields. But we question why this lease arrangement for 69 acres of land was done outside of a formal disposition process for the land and why it was done in such a seeming hurry.
We’ve filed Public Records requests with the state for records concerning plans for the reuse of the Glavin property. We’d like to know what’s going on.
COFAR blog 