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Advocacy group appears to say persons with even the most profound intellectual disability may not need guardians
We are questioning statements from a leading organization seeking to reduce or eliminate guardianships that imply that a guardian may not be necessary even for some of the lowest functioning people with intellectual or developmental disabilities.
In an email to me on September 27, Dari Pogach, a staff attorney with the American Bar Association’s Commission on Law and Aging, stated that decisions to appoint or terminate guardians “should not be based on diagnosis or condition.”
That statement appears to imply that an individual’s diagnosed level of disability is irrelevant in determining whether that person needs a guardian; and therefore, even the most profoundly cognitively impaired persons may not need guardians.
The ABA Commission is working with the National Center on Law and Elder Rights (NCLER) to replace guardianships with a more informal process called Supported Decision Making (SDM).
Under SDM, individual guardians are replaced by teams or “network supporters,” who enter into written agreements with disabled individuals to “help them make decisions” about their care, finances, living arrangements and other areas. The network supporters can include family members, but they can also include corporate service providers, according to the Center for Public Representation, which is pushing for SDM in Massachusetts.
COFAR is concerned that SDM, which is part of a growing effort to reduce or eliminate guardianships, could marginalize family members in decisions made about the care of their loved ones with developmental disabilities. That’s because it is primarily family members who seek to become guardians of incapacitated persons after they reach the legal age of adulthood at 18.
The VOR, a national advocacy organization for people with developmental disabilities, adds that SDM “could weaken protections for those who are the most vulnerable.”
Pogach’s full statement to me was as follows:
The decision to appoint a guardian in the first place, or terminate the guardianship, should not be based on diagnosis or condition, but rather on the person’s ability to make their own decisions, with or without support and to be safe from abuse, neglect and exploitation (my emphasis).
The problem with this statement, in our view, is that it raises a troubling question. If clinicians are not required or allowed to consider an individual’s clinical level of disability, how can they determine what a person’s ability is to make their own decisions? It would seem that in that case, that determination would become totally arbitrary.
Pogach’s statement draws no distinction between levels of intellectual or developmental disability, and appears to imply further that people even with the most severe or profound levels of such disabilities may be capable of making their own decisions about life choices and care without the need of a guardian.
Pogach was a panelist in an NCLER-sponsored webinar on August 22 that discussed efforts by the organization to terminate guardianships in a number of instances involving persons who were elderly or had developmental disabilities. As a member of the webinar audience, I submitted a written comment and a question to the webinar panelists. Pogach’s September 27 email was in response to my comment and question.
In my comment to the webinar panel, I stated that COFAR was concerned that SDM could “marginalize family members who we have found often make the best guardians for persons with intellectual and developmental disabilities.”
I also noted that severe and profound levels of intellectual and developmental disability present very different issues from moderate levels of those conditions, and we did not necessarily see those distinctions made by the webinar panelists.
Finally, I posed the question whether any protections were possible under SDM to ensure that a family member would not be “outvoted” on an SDM team by providers, clinicians and others who may not have the same degree of interest in the wellbeing of the disabled individual.
In her September 27 email in response, Pogach included the following statement:
The purpose of SDM is not to marginalize family members. SDM is predicated on the person being at the center of the decision-making process, and that includes choosing who will act as a (network) supporter. It is also means the person can choose to agree or not to agree with everyone in their supported decision-making network, including providers, clinicians, and family members. (my emphasis)
This response raises further questions and concerns for us. It appears to imply that not only can an individual with an intellectual or developmental disability, no matter how severe or profound, make their own decisions about their care, they can overrule family members and others on their SDM team or network.
While that viewpoint might appear to be simply meaningless if it were to be applied to extremely low-functioning persons, it is nevertheless concerning because it further implies that family members, in particular, should not be making decisions about the care of their developmentally disabled loved ones.
Pogach’s statement added that:
When supported decision-making is working, the person does not follow the majority vote of the (SDM network) supporters. The role of the supporters is to listen, help the person understand their options, and help the person to make their own decision. (my emphasis)
As noted, this viewpoint appears to make no distinction between people who are elderly, for instance, and persons with developmental disabilities, or between high functioning individuals with developmental disabilities and those with severe or profound levels of disability.
The fact that support for SDM has become an ideological position is evident in a statement in a law journal article by Leslie Salzman, a prominent SDM proponent:
Virtually everyone has the ability to participate in the decisions affecting his or her life, with the possible exceptions of persons who are comatose or in a persistent vegetative state. (my emphasis)
For Salzman, it’s apparently more likely than not that even a person in a persistently unconscious state can participate in making decisions about their care.
In an October 1 email in response to Pogach, I stated that we have seen instance after instance in which providers, clinicians, state agency managers, and other professionals have sided with each other and against family members in disputes over care of the individuals in question. The views and concerns of the family members are often dismissed or ignored in these cases, even though it is usually the family that knows the individual best. And, of course, family members are almost always the only people in this group with strong emotional bonds to the individual.
I also noted that the federal Developmental Disabilities Assistance and Bill of Rights Act (PL 106-402) states that “Individuals with developmental disabilities and their families are the primary decision makers regarding the services and supports such individuals and their families receive…” (my emphasis)
No distinction made between family members and professionals as guardians
While abuses in the guardianship system certainly occur, we think the potential for abuse is greater when professional guardians are involved than when family members are guardians. DDS pays attorneys and corporate entities to provide guardianship services to persons in cases in which family members are not available or have been removed as guardians.
As we have reported, there is relatively poor oversight of the professional guardianship system, at least in Massachusetts.
However, while SDM might be seen as a solution to the abuses committed by professional guardians, we are concerned that it may just shift the potential for exploitation from those professional guardians to corporate providers.
These state-funded providers have a direct financial stake in the care of persons with developmental disabilities. As such, including providers in an SDM network establishes a potential conflict of interest. Yet, the Center for Public Representation, a prominent SDM supporter, suggests that an SDM network can include “family members, co-workers, friends, and past or present providers.”
We have also reported that many of the same organizations that are advocating for SDM as an alternative to guardianships, including the Center for Public Representation, have also been involved in efforts to restrict congregate care and promote privatization of care for the developmentally disabled.
In sum, we do agree that significant reforms are needed in the guardianship/probate court system with respect to persons with intellectual and developmental disabilities. But we see that exploitation as being due primarily to rampant privatization and its connection to poor governmental oversight of professional guardians, and not to the appointment of family members as guardians.
SDM could be a viable component of the reform of the current system, provided there is an acknowledgement that SDM is not appropriate or suitable in every instance and that there are persons who simply cannot reliably make their own life choices and will ultimately need to have guardians. In cases in which SDM is determined to be an appropriate option, a way needs to be found to ensure that the family member or members on the SDM network remain the primary decision maker(s) on the network.
I noted to Pogach that the following are some of the additional reforms we have proposed to the system:
- Increased financial oversight of the corporate provider system and the DDS/probate guardianship system.
- Passage of legislation requiring probate court judges to presume that family members are suitable guardians of persons with intellectual and developmental disabilities.
- The provision of free legal assistance to family members and guardians who been barred from contact with their loved ones in the DDS system or who have otherwise faced retaliation from the Department or from providers.
- The provision of free legal assistance to family members whose guardianships are challenged by DDS.
- A policy statement by DDS that the Department will make every effort to comply with the Developmental Disabilities Assistance and Bill of Rights Act, and, in particular, the statement in the law that individuals with developmental disabilities and their families are the primary decision makers.
We’re anxious to hear back from Pogach on this. Unfortunately, the movement to reduce or eliminate guardianshps appears to be yet another area in which ideology is replacing both common sense and scientific, evidence-based policy making. We need to maintain those latter values.
Senator Warren’s concern about payment of subminimum wages to developmentally disabled people is misplaced
Massachusetts Senator Elizabeth Warren has proven to be one of the nation’s most effective advocates for workers and their financial security; but we think she’s wrong in charging that persons with intellectual and other developmental disabilities are being exploited by work programs that pay them a subminimum wage.
Warren is leading an effort in Congress to eliminate waivers that have allowed employers to pay a subminimum wage to disabled persons who are hired by employers in mainstream work settings. Warren alleges that payment of subminimum wages under the so-called 14(c) certificates or waivers is exploitative and discriminatory.
We would agree that for disabled people with normal intellectual functioning, payment of subminimum wages is exploitative and unnecessarily discriminatory; but a distinction needs to be made in the case of persons who have intellectual or other developmental disabilities that severely limit cognitive functioning.
In not making this distinction in calling for the elimination of the subminimum wage waivers, Warren is making the same well-intentioned mistake that many people in the advocacy community have made. That mistake is to assume that all developmentally disabled people are exactly the same as non-disabled people in terms of their employment potential and, even more importantly, their employment aspirations.
Those assumptions overlook a number of realities, including the fact that virtually all developmentally disabled persons who are placed in those work programs receive government assistance in some form for residential care, day care, or other services. Unlike non-disabled persons, most, if not all, individuals with significantly impaired cognition are not seeking to support themselves financially through work. They are seeking to occupy their time with activities that are meaningful and satisfying to them.
As the brother of an intellectually disabled person noted to me, his brother has no understanding of the concept of money, and wouldn’t know or be able to appreciate whether he was paid a minimum wage rate or not.
In an April 23 letter to U.S. Labor Secretary Alexander Acosta, Warren and six other senators attempted to link payment of subminimum wages to problems of abuse and poor work conditions in work settings for people with developmental disabilities. The letter cited four instances in which disabled persons were forced to work in sweatshop-like conditions, including a case in Iowa in which intellectually disabled men were working in a turkey processing plant for little or no wages and were subjected to verbal and physical abuse and unsanitary conditions.
But as is the case with abuse or poor conditions in any care-related or work setting, the instances cited in Warren’s letter appear to be the result of poor governmental oversight of those programs. Those problems could have been avoided or could be rectified with proper oversight. The problems were not necessarily the result of payment of subminimum wages.
Moreover, citing isolated instances of abuse in specific work settings doesn’t prove it is a problem in all work settings. In fact, we have not heard of any instances of such exploitation or abuse occurring in sheltered workshops or other work activity programs in Massachusetts.
We have made a number of attempts to contact Warren about this issue. I left separate voicemail messages since Monday of this week with Warren’s Washington and Boston Senate offices. On Monday, I also posted what was essentially this blog post on her website contact page, and asked if she or her staff would respond. To date, I’ve gotten no response and no call back.
The unfortunate impact of the effort to prohibit employers from paying subminimum wages to developmentally disabled people is that rather than paying them higher wages, most employers choose not to employ them. So the end result is that these disabled individuals miss out on satisfying and meaningful ways to occupy their time.
As we have reported, DDS data show that the number of developmentally disabled persons being placed in integrated or mainstream employment paying at least the minimum wage in Massachusetts has been steadily dropping in the past few years.
During Fiscal Year 2016, a high of 509 clients in the Department of Developmental Services system newly started working in mainstream jobs. That number dropped to 127 clients entering integrated employment during Fiscal 2017, and to a net increase of only 98 clients during Fiscal 2018.
We are assuming that demand for these mainstream jobs remains high, possibly in the thousands. That there was a net increase of less than 100 developmentally disabled persons in integrated employment in Fiscal 2018 appears to show that the administration has been unable to find jobs for people who want them.
Promises in closing sheltered workshops haven’t been kept
In 2014, the administration of then Governor Deval Patrick began closing sheltered workshops in Massachusetts that provided developmentally disabled persons with piecework activities because those facilities supposedly segregated those persons from their non-disabled peers and paid them less than minimum wage. The Baker administration followed that same policy, ultimately closing all remaining workshops as of the fall of 2016.
The plan of both administrations was to provide training to those former workshop participants and place them in mainstream workforce settings along with supports that would help them to function in those settings.
We expressed concerns at the time, however, that the workshop closure policy was being pursued without knowing, among other things, whether sufficient jobs existed in the private sector for all of those former workshop participants and others who want jobs.
Unfortunately, our concerns have proved to be well founded. Instead of being placed in mainstream or integrated jobs, the vast majority of the former sheltered workshop participants have ended up in DDS-funded Community Based Day Supports (CBDS) programs, which offer little or no work opportunities, and have left many of those people frustrated and bored.
DDS data also show that the DDS day program population increased by 81% from Fiscal 2014 through 2018 in Massachusetts while integrated job placements increased by only 19%. The chart below reflects this trend and illustrates the fact that the total day program population in the DDS system has caught up with and even surpassed the total number of departmental clients in integrated employment since Fiscal 2014.
Barbara Govoni, the mother of one former sheltered workshop participant, is continuing to advocate for legislation that would allow for the return of piecework activities in her son’s CBDS program.
Direct care workers are the ones who are exploited
Ultimately, Senator Warren’s concern about exploitation is misplaced. It is not the developmentally disabled who are exploited by subminimum wages. Rather, it is the people who are hired by DDS-funded providers to care for them who are usually the victims of systematic exploitation in this field.
As we have noted, direct-care workers in the DDS system, who do have to work in order to feed themselves and their families, are the ones who Senator Warren and other advocates for the disabled should be concerned about.
When direct-care workers are underpaid, it is not only they and their families who suffer, but the very people who depend on their services who suffer as well from substandard care. Paying developmentally disabled people less than minimum wage as part of their work programs doesn’t harm them. Paying their caregivers less than a living wage does.
Connecticut has moved ahead of Massachusetts on direct-care worker wages
It apparently took the threat of a major strike, but the Connecticut Legislature passed a bill and the Connecticut governor signed it earlier this year to raise the minimum wage of direct-care workers in that state’s Department of Developmental Services system to $14.75 an hour, starting January 1.
A similar effort fell short last year in Massachusetts when a budget amendment to raise direct-care wages to $15 was killed in a budget conference committee in the Massachusetts Legislature.
While Governor Charlie Baker signed separate legislation in June to raise the minimum wage across the board in Massachusetts to $15, that wage level won’t actually be reached until 2023. The minimum wage will rise to only $12 next year, whereas it will be close to $15 in Connecticut for human services workers as of January 1.
It seems that even though legislators and the administration of Governor Dannel Malloy in Connecticut are equally as tolerant of runaway privatization as they are here in Massachusetts, the Connecticut Legislature and governor have shown a greater recognition that increased privatization has resulted in low wages for direct care human service workers, and that low wages have had a negative impact on services.
In May, after the Connecticut Senate voted overwhelmingly in favor of setting the minimum direct-care wage at $14.75, Malloy made a statement that we have yet to hear Governor Baker make:
“For far too long,” Malloy said, “the people who provide care to our most vulnerable neighbors have been underpaid for their critical work.”
In fairness to Baker, Malloy made that statement only after 2,400 employees of nine corporate provider agencies in Connecticut voted in April to authorize a strike that was set to begin in early May. The workers in Connecticut are represented by the SEIU 1199 New England union.
Clearly hoping to avert that strike, the Malloy administration proposed raising the minimum wage for human services workers to $14.75 an hour and providing a five-percent raise for workers earning more than $14.75 an hour effective January 1.
The Malloy administration’s proposal, which was endorsed by the SEIU union and ultimately signed into law, applies to 19,000 union and non-union caregivers that staff some 170 group homes and other nonprofit agencies that receive Medicaid funding in Connecticut, according to The Connecticut Mirror.
As Connecticut Senate President Pro Tempore Martin Looney noted:
The work (those caregivers) do is among the most important in our state in terms of humanity. If we are to consider ourselves a humane and caring society, at long last we should begin at least to recognize the value of that work.
In Massachusetts, SEIU Local 509 helped organize a five-day strike for a living wage in July at CLASS, Inc., a DDS-funded day program provider based in Lawrence. The workers there were getting paid about $13 an hour and wanted a $1 increase. The company was offering an increase of only 40 cents.
The president of CLASS, meanwhile, was making about $187,500 a year, according to the state’s online UFR database.
In July, workers at CLASS, Inc. reached a settlement with management to raise the workers’ wages by 60 cents an hour. That would still leave the average worker there well below what direct-care workers will be earning in Connecticut.
The Massachusetts strike, moreover, didn’t have the impact on legislators and other policy makers here that the threat of the Connecticut strike apparently did in that state. Thus far, it isn’t apparent that there is any political will in Massachusetts to raise the minimum wage of direct-care workers to Connecticut’s level.
That is concerning because five years is a long time to wait for the minimum wage for direct-care workers to reach $15. Due to inflation alone, that $15 will be worth less to Massachusetts workers in 2023 than it would be if they were to receive it starting this January.
Our September newsletter questions the Children and Families Committee’s role in investigating DDS
Each issue of our newsletter, The COFAR Voice, tends to have a theme that units most of the articles.
The theme running through the September issue, which we posted last week on our website, has to do with questions about the role of the state Legislature’s Children, Families, and Persons with Disabilities Committee in investigating care and conditions in the Department of Developmental Services system.
That role that the committee is playing is, to say the least, unclear. As the newsletter notes, the committee appeared to open its review of DDS last January when it scheduled an informational hearing on abuse and neglect in the DDS system. But while numerous family members and guardians of DDS clients showed up, ready to share their accounts of their experiences with the system, they weren’t permitted to testify during the public hearing.
State Senator Joan Lovely, Senate chair of the Children and Families Committee (left), and Barbara Govoni.
The committee invited only DDS Commissioner Jane Ryder and Nancy Alterio, executive director of the Disabled Persons Protection Commission, to testify publicly. Members of the public were allowed only to submit written testimony.
As we have noted to the committee, written testimony alone is limited in its accessibility to others and therefore in its impact and ability to inform the public at large.
As of late August, the committee was planning to hold a second hearing, but even then — seven months after the initial hearing — no decision had been made as to whether members of the public would be allowed to testify in public before the panel.
It’s unclear why the committee is so reluctant to allow public testimony on these critically important issues. In fact, we see no basis at all for that reluctance.
Also unclear, even at this juncture, is the scope of the committee’s overall review. We have not gotten an answer from the committee co-chairs when we have asked for specifics on that scope.
We have long sought a legislative investigation of the DDS-funded group home system, which is subject to continuing reports of abuse and neglect and inadequate financial oversight. Is the Children and Families Committee really interested in undertaking a comprehensive investigation? No clear answer to that question has been forthcoming.
We also raise questions in the September newsletter about the committee’s decision in June to effectively kill a bill that would have provided work opportunities for clients of DDS-funded day programs. To be fair, that decision was made amid continuing confusion over federal and state rules governing those work activities.
In mid-August, Barbara Govoni, a COFAR member who proposed the work opportunity bill, and I met with Senator Joan Lovely, Senate chair of the Children and Families Committee, to discuss the legislation, the DDS review, and related issues. We are hoping to continue to work with the committee to clear up the confusion over the work opportunity issue and to help get new legislation enacted and passed in the coming legislation session, which starts in January.
We have also offered on a number of occasions to provide information to the committee about care and conditions in the group home system.
Other important stories in our September newsletter concern:
- The decision by the state’s Public Records supervisor to uphold the secrecy of virtually all reports done by the Disabled Persons Protection Commission, and
- How direct-care workers at two DDS-funded day program agencies won at least partial victories in their fight for adequate wages and working conditions,
and more.
You can find the new newsletter on the home page of our website and on our newsletters page. Please check it out.
Has the Globe just shown a newfound, if inadvertent, support for the Pacheco Law?
Although we are an advocacy organization that focuses on human services, we have at times waded into the ongoing controversy over the operation of the MBTA in Boston.
The reason for that has to do with a now decades-long debate over privatization of public services and the implications of the Pacheco Law in that regard.
On Sunday, The Boston Globe reiterated its support for the privatization of T functions with an editorial that defended the current contracted operation of the T’s problem-plagued commuter rail system.
As a supporter of privatization, the Globe has, in recent years, been at the forefront of the long-running criticism in political and journalistic arenas of the Pacheco Law. But in calling on Sunday for a cost-benefit analysis prior to any proposed move to bring the T’s commuter-rail system in house, it seems to us that the Globe is also endorsing, if inadvertently, the principles and intent of the law.
The Pacheco Law requires state agencies seeking to privatize existing operations to do a cost-benefit analysis that demonstrates that the cost of privatizing the service would be lower than continuing to do the service in-house, and that the quality of service would be equal or better if it were privatized.
The Pacheco Law, which was enacted in 1993, has been a lightning rod for political criticism and controversy over the years. Much of the state’s political establishment and prominent journalistic institutions have been harshly critical of it.
We have supported the law because we see it as providing a potentially important layer of oversight and analysis in the ongoing privatization of services for the developmentally disabled in Massachusetts.
In a 2011 editorial, the Globe called the Pacheco Law “an affront to common sense,” and charged that it was allowing public employee unions to place their “demands” above “the obligation to run government efficiently.”
But in its editorial on Sunday, the Globe actually put forth an argument that appears, without directly admitting to it, to endorse the precepts of the Pacheco Law. In criticizing calls by Democratic candidates for governor for in-house operation of commuter rail when the current contract with Keolis expires in 2022, the editorial states:
Whoever is in charge in 2022, though, here’s a suggestion: Since in-house management is an idea that refuses to die, [and I would add, so is privatization, for that matter!] the state should ask the T to submit a plan showing what it would entail. If nothing else, that would clarify for the public the costs and benefits, and bring some specifics to what is now little more than a vague applause line for Democrats. (my emphasis and insertion in brackets)
That is exactly what the Pacheco Law calls for when state agencies seek to privatize services. What the Globe is calling for is the same type of cost-benefit analysis, only in reverse — from privatized services to in-house. To me, it actually sounds like a good idea.
The Sunday editorial further states that while the state “can definitely do a better job with commuter rail after its current contract with Keolis expires in 2022…the goal of better service, not adherence to ideological precepts, should guide the next governor.” (my emphasis)
Agreed, and that is also the goal of the Pacheco Law, which is to ensure better service and lower cost rather than privatizing based on ideological precepts.
The editorial contends that:
…the T doesn’t have — and never has had — the in-house ability to operate the commuter lines itself, and dumping the commuter rail system directly into an already overburdened agency risks disruption. It could also raise thorny union issues, probably raising labor costs. And there’s no reason to expect running the commuter rail in-house would result in better service. (my emphasis)
Maybe not, but in-house operation of commuter rail might actually result in cost savings.
We reported in 2015 that the annual cost to the MBTA of contracting for commuter rail services had risen by 99.4 percent since 2000, compared with a 74.9 percent increase in the annual cost of the agency’s in-house bus operations, according to cost information we compiled from public online sources.
Finally, the Globe editorial suggests that rather than bringing management of commuter rail in house, the T should consider offering the next contractor “a longer-term deal, to better align the incentives of the contractor and the state and potentially bring in private-sector money for capital investments.”
I would note here that long-term contracts are not necessarily better deals for the state or consumers. It is difficult if not impossible to project financial risks over long periods of time. As a result, long-term contracts tend to have provisions that protect private contractors from those risks while transferring the risks to the public.
Also, private investments for capital improvements must be repaid by taxpayers and riders, and those deals can be very expensive to the public. Often there is little transparency in the terms and provisions of private investment arrangements in public infrastructure.
All of these are reasons why the Pacheco Law is necessary and important to the continued efficient and effective operation of government. The law provides for an open and detailed analysis and discussion of costs and benefits when public and private services and functions come together.
Confusion reigns over employment of the developmentally disabled in Massachusetts
When it comes to the crucial issue of employment of people with developmental disabilities in Massachusetts, the policies of both the federal government and the Baker administration appear to be unclear, confusing, and to contain a number of contradictions.
Yet, neither the Baker administration nor the Massachusetts Legislature, in particular, seem to be showing much interest in clearing things up.
Consider these facts:
- Although the Patrick and Baker administrations stated that they were closing all sheltered workshops in Massachusetts in order to place developmentally disabled people in so-called “integrated” or mainstream work, those mainstream jobs have proven to be difficult for many, if not most, of those people to find.
- An unknown number of former sheltered workshop participants, some of whom do not want mainstream work, have been left without work of any kind in their Department of Developmental Services-funded day programs.
- It is unclear what work arrangements are considered by both the federal and state governments to be legal. In one case, DDS has resorted to a creative, if jerry-rigged arrangement under which a developmentally disabled man has been placed on the staff of his day program so that he can continue to do piecework there in compliance with federal rules.
Barbara Govoni (right) with state Senator Joan Lovely, Senate chair of the Children, Families and Persons with Disabilities Committee, this week. The Committee did not approve a bill Govoni proposed that would ensure work opportunities for her son and other developmentally disabled persons. But Lovely says she wants to work with Govoni on the issue.
Let’s look at each of these issues a little more closely:
Integrated work is apparently still unavailable for many who want it in the mainstream workforce
In 2014, the administration of then Governor Deval Patrick began closing sheltered workshops that provided developmentally disabled persons with piecework activities because those facilities supposedly segregated those persons from their non-disabled peers and paid them less than minimum wage. The Baker administration followed that same policy, ultimately closing all remaining workshops as of the fall of 2016.
The plan of both administrations was to provide training to those former workshop participants and place them in mainstream workforce settings along with supports that would help them to function in those settings.
We expressed concerns at the time, however, that the workshop closure policy was being pursued without knowing, among other things, whether sufficient jobs existed in the private sector for all of those former workshop participants and others who want jobs. We also expressed concern that the Legislature wasn’t following through with funding needed for training.
Since 2014, data appear to have borne out our concerns.
DDS data provided to us last month show that despite the workshop closures, smaller and smaller numbers of people have actually entered the integrated or mainstream workforce in Massachusetts since Fiscal 2016. During that fiscal year, a high of 509 clients in the DDS system newly started working in mainstream jobs. That number dropped to 127 clients entering integrated employment during Fiscal 2017 and a net increase of 98 clients during Fiscal 2018.
We are assuming that demand for these mainstream jobs remains high, possibly in the thousands. That there was a net increase of less than 100 developmentally disabled persons in integrated employment in Fiscal 2018 appears to show that the administration has been unable to find jobs for people who want them.
Fiscal years 2015 and 2016 were apparently the years in which most of the population of the sheltered workshops left those programs and in which most of the increases in integrated employment programs took place. The problem is that the numbers of clients entering integrated employment in those years were much smaller than the numbers entering DDS-funded day programs.
Overall, the DDS day program population increased by 81% from Fiscal 2014 through 2018 while integrated job placements increased by only 19%. The chart below reflects this trend and illustrates the fact that the total day program population in the DDS system has caught up with and even surpassed the total number of departmental clients in integrated employment since Fiscal 2014.
Source: DDS
When we asked DDS for any records indicating whether the Department is having a problem providing suitable work opportunities for those who want them, DDS referred us to two policy documents dated 2010 and 2013. But those documents obviously do not provide any information about the situation today.
One of those policy documents is the Department’s 2010 “Employment First” policy statement, which called for “integrated employment as a goal for all” DDS clients. The policy statement also called for a “consistent message” and an “infrastructure including prioritizing and directing of resources, that supports this effort.” (my emphasis)
To date, however, neither a consistent message nor an adequate infrastructure appear to exist to support that goal of universal integrated employment.
The DDS’s 2013 document, titled “Blueprint for Success,” stated that it was the Department’s goal to close all remaining sheltered workshops as of June 30, 2015. (The last workshops were closed a little more than a year later.)
The title page of the Blueprint states that the document was prepared by DDS and by the Massachusetts Association for Developmental Disabilities Providers (ADDP) and the Arc of Massachusetts. Both the ADDP and the Arc are largely supported by DDS-funded providers, which have benefited from higher DDS funding for the day programs to which most of the former sheltered workshop participants have been transferred.
Some DDS Employment First website links don’t work
In response to our request for documents and information, DDS also referred us last month to its Employment First website. It isn’t apparent, however, that the website contains any information that indicates whether or not it is difficult for developmentally disabled persons to find mainstream employment.
In one case in which I clicked on the website and then went to the “Career Planning” section under the “Resource Library,” a link to a “Career Planning Guide” took me to an error page. Another link to a “Guide to Person-Centered Planning for Job Seekers” took me to a page with generic advice on seeking employment, but no information on current job prospects for people with developmental disabilities in Massachusetts.
Under a link called “Program Development and Management,” I clicked on another link labeled “Ensuring Excellence in Community Based Day Supports,” and got another error page message.
Barbara Govoni and Patty Garrity, two of the more active family members of former sheltered workshop residents, both said they had never been referred to the website by DDS.
Legislative committee kills work opportunities bill
Last year, state Representative Brian Ashe of Longmeadow filed a work opportunity bill (H. 4541) at the request of Govoni, the mother of Danny Morin, a former sheltered workshop participant. The bill would have required optional work activities in DDS-funded day programs for up to four hours a day.
Govoni is concerned that Danny has been provided with few activities that are meaningful to him after his workshop closed in 2016, and misses the steady work that the workshop provided. She terms this lack of available work opportunities for Danny and others a human rights issue.
But Govoni’s bill was referred to the Children, Families, and Persons with Disabilities Committee, which effectively killed the measure in June by sending it to a study. Earlier this week, Govoni and I met with state Senator Joan Lovely, the committee’s Senate chair, to discuss the bill among other DDS issues.
Lovely said the employment bill was filed late in the two-year legislative session. She noted there was little time to analyze the implications of the bill, so the committee decided to send it to a study. The problem with that is that no one in the Legislature actually does such studies. Sending a bill to a study is a euphemistic expression used for killing a bill.
But Lovely said the committee is concerned about the work opportunity issue, and said the committee has been in touch with DDS about it. One proposal being discussed is to hire an ombudsman in the Department who would help individuals and families locate existing day programs that offer work opportunities.
Another proposal under consideration is to establish new work opportunities programs in existing day programs without making such work opportunities a legislative requirement of DDS.
But it isn’t clear that DDS really is working to establish those programs or whether the Department even considers work activities in day programs to be legal.
A staff member for Representative Ashe said she was told by DDS officials that the Department is essentially hamstrung by federal rules that prevent DDS day programs from offering any work activities because such activities can only be offered in “integrated” settings.
DDS tries creative approach to comply with federal requirements
Despite that, we have heard of recent cases in which arrangements have been made to provide work activities in DDS day programs. Patty Garrity’s bother, Mark, is one of those cases.
As we reported last year, Mark, like Danny Morin, was bored in his day program after it had ceased operating as a sheltered workshop. He wasn’t interested in the classes on painting, cooking, or money management that had replaced the piecework he had enjoyed doing.
In March of 2017, Mark’s day program found paper shredding work for him that DDS determined was in compliance with federal rules.
Ashe’s aide queried DDS about Mark’s case and was told that in order to allow Mark to do the paper shredding work under the new federal rules, the provider agency running his day program has actually placed him on its staff and is paying him minimum wage. As a result, Mark is now considered to be working in an integrated setting.
Ashe’s aide told us that Mark’s work arrangement is considered a “unique circumstance.”
Federal rules regarding integrated employment are unclear
The problem with unique arrangements such as Mark’s, however, is that they don’t necessarily solve problems involving larger groups of people. And it may even be questionable whether Mark’s arrangement was actually necessary.
Despite what DDS told Ashe’s legislative aide, it does not appear clear that the federal rules strictly forbid work activities in day programs such as Mark’s.
In an informational bulletin issued in 2011, the federal Centers for Medicare and Medicaid Services (CMS) stated that federal Medicaid funding will not cover “vocational services delivered in facility based or sheltered work settings, where individuals are supervised for the primary purpose of producing goods or performing services.”
That would appear to preclude at least some work activities in DDS day programs. But it seems possible that what the CMS bulletin refers to as “pre-vocational services” do allow for at least certain work opportunities in those settings, although the guidance, as usual, is vague. It also isn’t clear which types of work activities DDS recognizes as pre-vocational services and which it considers vocational.
The CMS bulletin offers a rather vague and clunky definition of pre-vocational services as:
…services that provide learning and work experiences, including volunteer work, where the individual can develop general, non-job-task-specific strengths and skills that contribute to employability in paid employment in integrated community settings. (My emphasis).
The bulletin does state that persons doing pre-vocational activities can be paid for those activities “in accordance with applicable Federal laws and regulations.”
The bulletin implies that these pre-vocational work opportunities can be provided in “fixed-site facilities,” which we think would include DDS day programs, although this again is not clear. Also, the bulletin states that these work opportunities must occur “over a defined period of time,” which implies that the individuals are ultimately expected, as the bulletin says, to be placed in permanent integrated employment. Once again, the “defined period of time” isn’t defined!
It’s also unclear to us what the CMS bulletin means in stating (above) that while pre-vocational services can include “work experiences,” they must provide the person with “non-job-task-specific strengths and skills.” Does that mean that the individual can do work but can’t do specific tasks?
It seems that the paper shredding activity that Mark Garrity is doing could be considered a “work experience.”
As a result, it seems possible that when Govoni’s bill is refiled, as we hope it will be in the next legislative session in January, the bill should specify that all DDS day programs be required to offer pre-vocational activities to anyone who requests that.
When Govoni and I met with Senator Lovely, Lovely agreed that the current rules governing work opportunities are confusing and need to be clarified.
The federal and state models are ‘one size fits all’
The CMS bulletin recognizes that work is vitally important to people with developmental disabilities in the same way it is important to non-disabled persons. As the bulletin notes:
Work is a fundamental part of adult life for people with and without disabilities. It provides a sense of purpose, shaping who we are and how we fit into our community.
Yet, after that acknowledgement, the CMS bulletin appears willing to ensure that fundamental part of life only for those who agree to work in the mainstream workforce. The bulletin states:
…Because (work) is so essential to people’s economic self sufficiency, as well as self esteem and well being, people with disabilities and older adults with chronic conditions who want to work should be provided the opportunity and support to work competitively within the general workforce in their pursuit of health, wealth and happiness.
Neither the federal government nor the Baker administration in Massachusetts appear to recognize that at least some persons with the most profound levels of disability are not able to participate in the mainstream workforce.
The CMS bulletin states the following:
All individuals, regardless of disability and age, can work – and work optimally with opportunity, training, and support that build on each person’s strengths and interests. Individually tailored and preference based job development, training, and support should recognize each person’s employability and potential contributions to the labor market.`(my emphasis)
The DDS Employment First policy referred to above appears to go even further in that regard, stating that:
It has now been clearly demonstrated that individuals who were previously considered unemployable in integrated community settings can work successfully. Even for those individuals with the most significant level of disability, through careful job matching and support design, employment has been shown to be a viable option. (my emphasis)
These statements are unsupported by the evidence. That is probably why neither statement provides any evidence to support its claims.
Recently, however, the federal government proposed changes at least to rules that prevent developmentally disabled persons from working for less than the minimum wage.
We hope to work with the Baker administration and the Legislature to find ways to penetrate and clear up this dense thicket of confusion and contradictions that has grown up in the past several years over the vital issue of work for the developmentally disabled.
We hope Govoni’s work opportunity bill is enacted in the next legislative session. In the meantime, legislators, advocates, and policymakers need to get together to clarify and agree on what can and should be done.
Direct-care human services workers fight inch by inch for better wages and conditions
Two ongoing cases involving human services workers are illustrative of the challenges those workers face in getting decent wages and working conditions, particularly in privatized facilities funded by the state.
In both cases, the SEIU Local 509 human services union has either represented the workers or has tried to organize them to join the union.
In an interview, Peter MacKinnon, the president of the local, discussed the cases and the implications they have for care throughout the Department of Developmental Services system.
Earlier this month, workers at CLASS, Inc., a DDS-funded day program provider based in Lawrence, engaged in a five-day strike at the facility for a living wage.
MacKinnon said that although the CLASS strike ended on July 13, the contract dispute had not been resolved. The workers there are getting paid about $13 an hour and wanted a $1 increase. The company is only offering an increase of only 40 cents.
The president of CLASS made about $187,500 a year in Fiscal Year 2017, according to the state’s online UFR database. The CFO made $132,900 that year.
Last month Gov. Baker signed a bill into law that would establish a $15 an hour living wage as of 2023.
In a second ongoing case, the National Labor Relations Board filed a complaint against Triangle, Inc., another DDS day program provider, over allegations that the provider had fired some of its workers for trying to organize a vote to join the SEIU.
MacKinnon said that Malden-based Triangle recently agreed to a settlement of that case under which the fired workers will be either reinstated or provided with financial compensation, and a vote to unionize will be held early next month. He said the union is satisfied with the settlement.
We published a blog post in March noting that Triangle had received $10.2 million in revenue in Fiscal 2017, including $6.9 million in funding from DDS, according to the state’s online UFR database. Coleman Nee, the Triangle CEO, was listed on the UFR database as having received $223,570 in total compensation in Fiscal 2017. That may not have covered an entire year with the agency.
That year’s tax filing listed six executives as making over $100,000 at Triangle.
MacKinnon noted that human services workers:
…do some of the hardest work in the human service field, and these are folks who are getting paid the least…When you have pay that low and work that difficult, it causes difficulties in retaining and recruiting staff.
Both COFAR and the SEIU have reported on the huge disparity in pay received by provider executives and direct-care workers in the DDS system. We reported in 2012 that workers for DDS-funded providers had seen their wages stagnate and even decline in recent years while the executives running the corporate agencies employing those workers were getting double-digit increases in their compensation.
In January 2015, a larger COFAR survey of some 300 state-funded providers’ nonprofit federal tax forms found that more than 600 executives employed by those companies received some $100 million per year in salaries and other compensation. By COFAR’s calculations, state taxpayers were on the hook each year for up to $85 million of that total compensation.
Nevertheless, much of the mainstream media still does not appear to understand this dynamic. The Lawrence Eagle Tribune quoted a spokesperson for CLASS, Inc. three days after the CLASS, Inc. strike began as saying the state had reduced rates to the providers to pay workers.
In fact, as the SEIU has reported, a 2008 law known as Chapter 257 enabled human services providers in the state to garner some $51 million in net or surplus revenues (over expenses) in Fiscal 2016. Yet, while raising wages of direct-care workers was a key goal of Chapter 257, those workers were still struggling to earn a living wage” of $15 per hour as of 2016, according to the SEIU.
The SEIU report, which got minimal news coverage, noted that Chapter 257 helped boost total compensation for CEOs of the corporate providers by 26 percent, to an annual average of $239,500.
The struggle to make headway in bringing about better pay and conditions for human services workers is a painstaking one. “If you want to attract and retain qualified experts in direct care, you need education, training, and in some cases advanced degrees, so you have to compensate these people fairly,” MacKinnon noted. “The old adage that a bad boss is the best organizer really holds true.”
MacKinnon said Local 509 now represents about 6,700 human services workers in Massachusetts working for about 40 providers of DDS and the departments of Mental Health, Children and Families, and Elder Affairs. That’s a good number, but still only a small fraction of the providers out there.
Next month, we’re scheduled to meet with state Senator Joan Lovely, the Senate chair of the Legislature’s Children, Families, and Persons with Disabilities Committee. Among the messages we hope to convey in the meeting are that the Legislature needs to get involved in helping fight for better pay and conditions for those caring for some of the most vulnerable members of our society.
Questions remain as key disabilities committee kills work opportunities bill
The Legislature’s family and disabilities rights committee has rejected H. 4541, a bill intended to ensure that developmentally disabled individuals get work opportunities in their state-funded day programs.
A staff member of the Children, Families, and Persons with Disabilities Committee said the committee understands many people cannot find those work opportunities and is therefore discussing other possible ways of providing for them. But details regarding the policies being considered by the Children and Families Committee are sketchy, and the committee hasn’t yet responded to written questions about those ideas.
Barbara Govoni, the mother of a developmentally disabled man, had pushed for months for passage of H. 4541, which would have established optional work activities in DDS-funded day programs for up to four hours a day.
Many people in community-based day programs funded by the Department of Developmental Services have not been able to find such work since all sheltered workshops were closed in Massachusetts in 2016.
H. 4541 had been referred to the Children and Families Committee in May, and the committee effectively killed the measure last month by sending it to a study. With formal business in the current two-year legislative session ending on July 31, any similar legislation will have to be re-filed next January and go through the legislative process all over again.
It isn’t clear what the committee’s objections were to H. 4541. We’ve noted that some committee members appeared to have some misconceptions about the bill, including the idea that it would bring sheltered workshops back to the state.
In fact, the bill would have simply provided work activities for individuals who continued to desire those activities in their day programs, and who either could not or did not want to work in “integrated” or mainstream work settings. As we have reported, many of these people miss the work they used to do in their sheltered workshops, and are unable to relate to most day program activities that replaced that work.
At the same time, it appears that some DDS-funded day programs are, in fact, continuing to offer work activities to some residents. It’s not clear how many such programs currently exist.
A legislative aide to Representative Kay Khan, House chair of the Children and Families Committee, said earlier this week that the committee had been in touch with the Department of Developmental Services about the work opportunity issue, and that one proposal discussed was to hire an ombudsman in the Department who would help individuals and families locate existing day programs that offer work opportunities.
Funding remains a question
Another proposal under consideration by the Children and Families Committee and DDS is to establish new work opportunities programs at additional day programs without making such work opportunities a legislative requirement of DDS.
No details are yet available, however, on the scope of the Children and Families Committee’s or DDS’s proposals. Also unknown is how funding would be appropriated for an expansion of existing work opportunities programs, and what the amount of that funding might be.
The Legislature, unfortunately, has previously shown a reluctance to fund job training and other programs as part of the effort to replace sheltered workshop programs with “integrated” or mainstream work opportunities for DDS clients.
The administration of then Governor Deval Patrick and the Legislature had set up a DDS line item in Fiscal 2015 to fund job training and other programs to help transfer clients from sheltered workshops into mainstream employment. That line item was initially funded with $1 million and was raised to $3 million the following year.
For Fiscal 2017, current Governor Charlie Baker, with the support of the DDS corporate providers, had proposed boosting the job development line item to $7.6 million; but the Legislature wouldn’t agree to the higher funding.
As of Fiscal 2018, the job development line item was eliminated and all funding for those efforts was transferred to the overall DDS Community Based Day and Work line item. It would seem the case needs to be made that additional funding is now needed for the day and work line item to fill the gap in work opportunity programs.
The solution needs to be comprehensive
Robin Frechette, an aide to Representative Brian Ashe, who filed H. 4541 on Govoni’s behalf, said she believes the Children and Families Committee co-chairs and other committee members “understand there is a gap in services to a particular group of individuals who are not able to work out in the community, and it needs to be addressed.”
But Frechette expressed a concern that simply having an ombudsman direct individuals whose day programs don’t offer work opportunities to different day programs that do offer those opportunities could be disruptive to those individuals. She also said she was concerned that there may be few such programs available in the western part of the state where Barbara Govoni and her son live.
Earlier this week, we sent email queries to both the Children and Families Committee co-chairs and DDS to try to find out more about the proposals under consideration.
We have asked for records from DDS on the number of work opportunity programs that currently exist in DDS-funded, community-based day programs, and the number of work opportunity programs that DDS plans to establish.
We are also asking for the number of DDS clients who have been placed in “integrated employment” or mainstream workforce jobs and the number of DDS clients in community-based day programs since Fiscal 2014.
And we have asked DDS for its assessment as to whether there is a problem in providing suitable work opportunities for people in the DDS system who desire it, and whether some DDS clients are unable to function in mainstream work sites.
In addition, we’ve asked the co-chairs of the Children and Families Committee what the committee’s specific objections to H. 4541 were.
Despite the rejection of H. 4541, the opportunity remains for state legislators and policy makers to address the critical work opportunity problem facing developmentally disabled people across the state in an effective way. We hope those legislators and policy makers will make a serious commitment to finding a workable solution; but we know from experience that deeds will be more important than words in that regard.
COFAR renews request for DPPC report on woman’s death in wake of Boston Globe court ruling
Although the state’s Public Records Supervisor ruled in April that the state Disabled Persons Protection Commission (DPPC) can keep all investigative reports on the sudden death of a developmentally disabled woman secret, we believe a recent state Superior Court ruling has provided a basis for renewing our request for the records.
The decision by Superior Court Judge Douglas H. Wilkins in December 2017 upheld an appeal by The Boston Globe, which has been seeking mug shots and incident reports of police and other public officials who have been arrested on various criminal charges.
In our view, the Globe’s argument that the records it is seeking are public applies equally to the DPPC report and related records in the case of Karen McGowen, which COFAR has been seeking.
Ms. McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at her Pittsfield-based day program funded by the Department of Developmental Services.
The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, confirmed it was investigating Karen McGowen’s death. On February 13, the DPPC denied COFAR’s request for the records in the case.
In her decision on our records appeal on April 20, Rebecca Murray, the state public records supervisor, focused on one exemption to the Public Records Law [known as “Exemption (a)”], which appears to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.
We are arguing in our renewed bid for the DPPC records that the DPPC’s enabling statute does not actually explicitly state that all of the Commission’s regulations are exempt from disclosure.
In her April 20 determination, Murray focused on the DPPC’s regulations, which, contrary to the enabling statute, do explicitly state that the Commission’s records are not public. The regulations would therefore appear to exempt all or most of the Commissions records from public disclosure.
But that apparent inconsistency between the DPPC’s enabling statute and regulations was not noted in Murray’s determination.
That appears to be the crux of the matter because a similar apparent inconsistency between a statute and regulations regarding the state’s CORI law is the basis of Judge Wilkins’ December decision in the Globe’s public records case. In his ruling, Wilkins upheld the Globe’s argument that the CORI law does not permit public officials to block the release of mug shots or police reports.
Wilkins also upheld the Globe’s argument that a regulation issued by the state agency that administers the CORI law is inconsistent with the law in that the regulation appears to justify withholding the records from disclosure.
“The regulation is invalid because ‘its provisions cannot in any appropriate way be interpreted in harmony with the legislative mandate,'” Wilkins’ decision stated.
State Attorney General Maura Healey and the City of Boston have appealed Wilkins’ ruling. Oral arguments in the appeal have not yet been scheduled, according to a reporter we talked to at the Globe.
With regard to the DPPC’s records, the Commission’s enabling statute states that: “The Commission shall promulgate regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.” (my emphasis)
However, the DPPC regulations seem to go well beyond that, stating that “the records of the Commission shall not be considered ‘public records’…”
The regulations go on to exempt from disclosure all “investigative materials” compiled by the DPPC. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”
Our argument is that the DPPC’s statute does not state that DPPC records are not public or that all investigative materials are exempt. And the statute doesn’t give the DPPC the discretion to determine that the agency can withhold all records because removing identifiable information would not protect privacy interests. The statute simply says the Commission should disclose as little identifiable information as possible.
As a result, it appears to us that the DPPC regulations are similarly invalid because their provisions cannot be interpreted in harmony with the DPPC’s legislative mandate.
In his decision in the Globe’s case, Judge Wilkins wrote that if any doubt remained about that type of inconsistency, the CORI statute “establishes a clear ‘presumption that the record sought is public’ and places a burden on the record’s custodian ‘to prove with specificity the exemption which applies’ to withheld documents.”
Similarly, we argue that the DPPC’s enabling statute establishes a clear presumption that the Commission’s records are public and that the Commission has the burden of proving with specificity the exemption that applies to withheld documents. In stating that the records of the Commission are not public, the regulations contradict the plain language of the statute.
So it is the burden of the DPPC to prove that any of the exemptions to the Public Records Law apply to the information we are seeking — particularly to completed reports. To the extent that personally identifiable information exists in those documents, the Commission can redact it.
Given that we think the DPPC is still likely to deny our renewed request, we hope that the Public Records Supervisor will then take Judge Wilkins’ decision into account in making a new determination in the matter. In doing so, the Public Records Supervisor should at least seek to review the materials we are requesting to determine the level of redactions that would be needed to comply with the DPPC’s enabling statute.
As we’ve stated before, it’s disappointing that to the extent the DPPC does get involved in crucial investigations of abuse and neglect in the state’s human services system, it has taken the position that the products of its work must be kept secret.
The system failed Dennis Perry, and it has also failed his killer
Paula Perry Smith is still grieving for her brother, Dennis Perry, who was fatally assaulted in a state-run facility for persons with developmental disabilities in 2013; yet she believes that the system not only failed to protect her brother, it has failed the man who killed her brother.
Perry, who was 64, died in September 2013 after having been allegedly shoved into the side of a boiler at the former Templeton Developmental Center’s dairy barn by Anthony Remillard, then 22, a resident of the center, who had a history of violent behavior.
After spending more than four years in the Worcester County House of Correction, Remillard pleaded guilty to manslaughter in March of this year, and was sentenced to seven years in prison. He received credit for time already served, so will spend close to three more years in prison. Remillard is intellectually disabled as was Perry.
The dairy barn at the former Templeton Developmental Center, the site of the fatal assault of Dennis Perry by Anthony Remillard
Remillard was found competent to stand trial for the crime last year; but in 2015, he had been found by a different Superior Court judge to be not competent. The judges were confronted with opposing opinions by clinicians on that matter.
In a recent interview, Paula Perry Smith said that if Remillard was indeed competent to stand trial, then the seven-year sentence imposed in March by Worcester Superior Court Judge Daniel Wrenn was “a disgrace” because it was far too light.
But Perry Smith said she doesn’t actually believe Remillard was competent to stand trial. For that reason, she doesn’t believe he belongs in prison, but rather should be in a secure Department of Developmental Services facility that would provide treatment to him.
The problem, as we have noted, is that the Templeton Center was, at one time, just the sort of secure DDS facility that would have been appropriate for a man with behavioral issues such as Remillard.
But during the time Remillard was at Templeton, the Center was being phased down from a secure Intermediate Care Facility (ICF), which must meet strict federal care standards, to a group-home level facility, with much looser standards for care and supervision.
Perry Smith said that during the sentencing of Remillard, she gave a victim impact statement to Judge Wrenn in which she tried to make the point that prison was not an appropriate place for Remillard.
In her impact statement, Perry Smith referred to an investigative series that had been published in 2016 by The Boston Globe, which noted that after closures of state-run hospitals in Massachusetts for persons with mental illness, those people were similarly ending up inappropriately in emergency rooms and prisons, and many of them were committing homicides because they were not getting treatment.
But Wrenn was not swayed by Perry Smith’s argument, and sentenced Remillard to further prison time. “I don’t think he (Wrenn) got all of what I was saying,” Perry Smith said.
In a portion of Perry Smith’s impact statement that was reported by The Worcester Telegram, she said, “We have spent years looking for answers as to how and why this (murder) happened. A man with explosive anger issues and a history of violence was housed with our brother, who was an elderly, intellectually disabled man incapable of defending himself. We have been trying to learn how and why the system failed our brother,” she said.
We have long been trying to find the answer to that question as well.
DDS dodges questions about supervision of Remillard at the Templeton Center
In 2014, DDS largely cleared itself of responsibility in the matter of Dennis Perry’s death, concluding in an investigative report that there wasn’t evidence that the staff at the Templeton Center could have prevented Remillard’s alleged “spontaneous and unpredictable assault” on Perry.
We believe, however, that the fatal assault of Perry raises many questions about the Department’s policies and procedures involving care and supervision of clients with behavioral issues.
Among the questions raised by the Perry case that were not considered in the DDS report was whether the overall level of supervision at the Templeton Center was declining as the Center was being phased down from its ICF-level status.
No apparent questioning of the appropriateness of prison
While Paula Perry Smith has questioned the wisdom of placing Remillard in prison, it is not clear whether anyone in the state’s criminal justice system or executive branch ever asked that same question.
As we’ve stated before, intellectually disabled people like Anthony Remillard need to be in places that provide them with supportive supervision, structure, and security. It’s hard to imagine that the behavioral issues that Remillard had that led to the alleged assault on Dennis Perry are dealt with in a positive way where he is now.
Perry Smith said she understood that Remillard had been placed in isolation many times at the Worcester prison facility because “he keeps getting in trouble” there.
The Globe’s 2016 investigative series did not come as a surprise to many working in the field of mental illness who have known that deinstitutionalization since the 1960s has led to a continued increase in the population of mentally ill people in the nation’s prison system.
What the case of Dennis Perry and Anthony Remillard tells us is that many of the same problems have resulted from the parallel deinstitutionalization, starting in the 1980s, of people with intellectual and developmental disabilities.
It appears that while many political and governmental leaders and many in the media have begun to recognize the problems caused by the deinstitutionalization of the mentally ill, few of those policy leaders realize that similar dynamics have occurred in the field of developmental disabilities.
Until policy makers and other leaders recognize that unchecked deinstitutionalization and privatization have created problems throughout our system of care for people with disabilities of all kinds, that system will continue to fail people like Dennis Perry and Anthony Remillard.
COFAR blog 