COFAR blog

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

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

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

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

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

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

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

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

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

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

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

Lawsuit reveals problems with safety of DDS system

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal charges are rare in assaults of people with developmental disabilities

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

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

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

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

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

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

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

DDS reportedly discounts second alleged assault of victim by another staff

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

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

Charitable Immunity cap

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

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

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

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

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

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

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

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

Christine and John Davidson

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

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

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

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

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

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

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

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

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

Final DPPC decision said cause was uncertain

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

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

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

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

Reed added that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Breathing mask unhygienic

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

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

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

Questionable abuse charge appealed

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

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

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

Numerous medical issues

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

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

DPPC placed blame on mother regarding breathing mask

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

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

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

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

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

Attempts to contact DDS commissioner and other officials

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

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

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

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

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

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