Massachusetts lags in criminal background checks for caregivers to disabled
While the Patrick administration appears to support national criminal background checks for people hired to care for the intellectually disabled, the administration has failed to apply for federal grant funding that would help it design a federal background check program.
The administration also does not seem to have aggressively pursued proposed legislation in Massachusetts that would authorize national background checks of people hired to work in the Department of Developmental Services system.
This is an administration that has been nothing short of enthusiastic about closing state-run care facilities and moving the residents in them to community-based group homes. But as far as protecting those people from abuse and neglect in the community system is concerned, the administration’s level of enthusiasm seems to drop off sharply.
National background checks involve matching a job applicant’s fingerprints against a federal database maintained by the FBI. This table I compiled shows how each state compared as of 2008 regarding national background check requirements, and which states have taken advantage of federal grant funds available since 2010 to design a national background check program.
As the table shows, Massachusetts was one of 16 states as of 2008 that had no national background check requirements. (The information is based on a survey by the National Conference of State Legislatures.) It is still the case today that Massachusetts requires only in-state criminal background checks of people hired to work in the DDS system.
As the table also shows, Massachusetts is among as many as 27 states that haven’t applied for the grants that have been available from the Centers for Medicare and Medicaid Services under the Affordable Care Act “to design comprehensive national background check programs for direct patient access employees.” A total of 23 states and Puerto Rico have been awarded a total of $53.4 million in those grants, which have been as high as $3 million per state.
Every advocacy group for the disabled that I know of agrees that state-only background checks are not sufficient in screening applicants seeking jobs in caring for the disabled because those checks turn up only convictions for criminal activity in that state. The checks do not identify criminal convictions that a job applicant might have from another state.
In testimony to the state Legislature’s Judiciary Committee last month, State Representative Martin Walsh stated that the state Disabled Persons Protection Commission had identified 1,000 cases in which “criminal abusers” were working in Massachusetts, and that one out of five of them had come from outside the state.
I contacted the Massachusetts Executive Office of Health and Human Services and the Department of Developmental Services regarding the federal grant program, and received a response from Victor Hernandez, a deputy assistant DDS commissioner. Hernandez stated in an email that the state has not applied for a CMS grant because Rep. Walsh’s legislation authorizing national background checks by DDS is not yet in place. Once such legislation is enacted, Hernandez wrote, “we will pursue the federal dollars.”
That sounds reasonable enough except that under the grant rules, the state is not obliged to wait for enactment of a national background check statute before receiving the funding. In an online FAQ about the grant program, the CMS states that in cases in which “necessary state legislation is not in place prior to the start of the grant period,” CMS would “work with the state to identify a portion of the potential grant funds that would be available immediately and additional funds that may be available at a later time when the additional authority is in place.”
I also received an email from CMS, which stated that there are a number of states “that have been in the (national background check grant) program for several years and have yet to be successful in implementing state laws.”
I wrote back to Hernandez to ask if the Patrick administration has worked with CMS to identify a portion of the grant funds that might be immediately available to the state. I haven’t yet heard back.
It’s not only the administration that can’t seem to get excited about protecting the developmentally disabled from abuse and neglect. The Legislature as a whole doesn’t seem to have an attitude that is much different in that regard.
As I’ve previously noted, Walsh’s proposed national background check legislation for new workers in the DDS system has been stalled for a number of years in the Legislature. Last year, the Legislature did pass a bill to implement a national background check requirement for people hired to work in public and private school systems in the state. Massachusetts, however, was reportedly the last state in the nation to enact a national background check for school personnel.
This year’s national background check bill for DDS system workers (H. 1674) was filed by Walsh in January and referred to the Judiciary Committee at that time. The committee only got around to holding a public hearing on it on July 9, and still has not acted to approve the measure.
Walsh noted in his testimony to the Judiciary Committee that his bill had been approved twice in the past two years by that committee only to be sent to the House Ways and Means Committee to die a slow death.
That the developmentally disabled are subject to abuse and neglect in the community system of care is hardly disputed by anyone who looks at the matter objectively. The VOR has cited an “alarming number” of deaths and cases of abuse of developmentally disabled individuals around the country, and noted the “prevalence of preventable deaths at privately run group homes across this nation.” Community-based care, which is primarily delivered in widely dispersed group homes, is by definition harder to monitor and oversee than care delivered in larger congregate-care settings.
But whether abuse, neglect, or misappropriation of funds occurs in the privatized or state-run systems of care, the federal CMS has recognized those three issues as “a widespread problem for millions of Americans receiving LTC (long-term care) services.”
Let’s hope that both the Patrick administration and the state Legislature begin soon to place a higher priority on finding a solution to those problems. The administration could show it is placing a priority on addressing abuse and neglect, at least, by applying immediately for a CMS grant to design a workable national background check program in Massachusetts; and the Legislature could begin by acting as quickly as possible to pass Rep. Walsh’s national background check bill.
Making care for the disabled a zero-sum game
There is no question that Massachusetts is facing budget problems that are making it increasingly difficult to fund services for our most vulnerable citizens, particularly those with intellectual and other disabilities.
One thing we shouldn’t do in this situation, though, is try to help one group at the expense of another. That, in our view, is what two pieces of proposed legislation now before the Children, Families, and Persons with Disabilities Committee would do.
Both bills were the subject of a public hearing last week before the committee. I wanted to testify about both of them, but they were way down on the committee’s hearing list. After waiting two and a half hours to testify and then realizing by that time that almost all of the legislators on the committee had left, I left the hearing without testifying publicly and submitted my remarks in writing to the committee staff the next day.
I’ve already written several times about one of these two bills – the ‘Real Lives’ bill (H. 151), though not specifically about how it would potentially divert funding from intellectually disabled people living in state-operated group homes to corporate providers that contract with the Department of Developmental Services. I’ll get to that in a bit.
Early on in last week’s hearing, I first found out about the other bill, which was filed by state Representative Tom Stanley at the behest of the Association of Developmental Disabilities Providers (ADDP), the lobbying organization for those same state-funded, corporate providers.
Stanley personally appeared before the Children and Families Committee to promote the ADDP bill (H. 156), which would require that at least half of the “savings” in closing state-run DDS developmental centers be used to fund programs run by corporate providers. (Legislators don’t have to wait to testify at committee hearings, but are given the floor when they show up.)
Specifically, Stanley’s bill would require that “not less than 50 percent” of those developmental center closure “savings” be used to “fund and implement Chapter 257 of the Acts of 2008.”
What is Chapter 257 of the Acts of 2008? As the ADDP notes, it is a statute that provides for “standardization and adjustment for rates to contracted human and social service providers.” In other words, it’s intended to adjust state payments to the group home providers upwards. Last January, the ADDP was anticipating that the administration would provide up to $175 million in funding in the current-year budget to implement Chapter 257.
As the ADDP put it on their website:
After waiting for nearly 25 years, developmental disability programs (read “the providers”) may finally see their prayers answered with Governor Deval Patrick’s FY 14 House One Budget….
An administration document posted by the Providers’ Council, another provider lobbying group, last January indicated that the governor had proposed that at least $53 million in Chapter 257 funding go directly to the provider residential line item in the DDS budget in the current fiscal year.
The ADDP’s and the Providers’ Council’s prayers, however, were apparently not fully answered. The total proposed Chapter 257 funding apparently did not materialize in the final budget for the current fiscal year. The provider residential line item in the final budget, as approved by the Legislature, is $13.1 million less than what the governor proposed in January.
In a July 2 recap of the final FY 14 budget, the Arc of Massachusetts, a close ally of the ADDP and the Providers’ Council, stated that the organization was hoping for passage of a supplemental budget this year “to fully implement Chapter 257 in Residential Services for 2014.”
But what if such a supplemental budget is not forthcoming? Maybe that explains the need for Rep. Stanley’s bill. Because the Legislature was apparently not willing to put the amount of additional money into the provider group home line item that the ADDP, the Providers’ Council, and the Arc were seeking, the ADDP figured they could get it from somewhere else. That somewhere else is apparently the developmental center closure “savings.”
While we would dispute that there has actually been any savings in closing the developmental centers, what has occurred is that the developmental center line item in the DDS budget has been cut by some $80 million since FY ’09, when the administration first announced it planned to close four of the centers.
It seems the funding cut from the developmental center line item has gone in the past five years to the state’s General Fund, rather than being plowed back into the provider-run, community-based system, as the administration had originally promised. However, at least some of that money has been transferred back from the General Fund to both the state-operated and provider-run group home accounts.
As the developmental centers have been closed, a large percentage of the former residents has been moved primarily to one of two remaining developmental centers and to state-operated group homes. The state-operated group home line item has thus been increased by about $41 million since FY ’09, largely to accommodate that influx of residents. The provider-run group home line item has been increased by some $230 million in that time.
So, now we have Rep. Stanley’s bill, which says, as we understand it, that at least 50 percent of the funds cut from the developmental centers must be directed to fund Chapter 257. Given that passage of this bill would result in a significant increase in funding for the providers (or else why would the ADDP want this bill filed?), what does that mean for the state-operated group homes? There is only a finite pot of money involved. Funding for the state-operated group homes would potentially have to be cut.
We know that the state-operated residential facilities are struggling in Massachusetts. These facilities are required under court order to provide care for most former developmental center residents that is equal or better to the care they previously received. Although funding has been increased to the state-operated group homes, the increase this year was significantly less than what the administration projected was needed.
These are among the questions I posed in a phone call on Thursday to Rep. Stanley. In filing his bill on behalf of the ADDP, did he understand the full implications for the state-operated group homes, in particular, and the level of services the residents in them would continue to receive?
Stanley responded that he believed his bill would “help both the state-operated and provider-operated group homes.” He said it was his understanding that Chapter 257 would boost funding to most, if not all, DDS line items and that he would get back to me to confirm that. I’m waiting for his follow-up call.
As I noted to Stanley in an email following our Thursday phone call, there are many documents online about Chapter 257, and they indicate, as I’ve noted above, that Chapter 257 was intended and drafted to fund purchase-of-service programs only, not state-operated programs.
For example, there is that administration document posted by the Providers’ Council, linked above, which shows the proposed $53 million in Chapter 257 funding going into the provider residential line item in the DDS budget. While some of the Chapter 257 funding would go to other agencies in the Executive Office of Health and Human Services, nothing in the document indicates that any of the Chapter 257 funding would go toward the DDS state-operated group homes. Chapter 257 is clearly targeted toward contracted services obtained from corporate providers to DDS and other EOHHS agencies.
So, how much money are we talking about in diverting 50 percent of the funding cut from the developmental centers to the providers? In the current fiscal year, it appears the developmental center line item has been cut by $10.8 million from the previous fiscal year. Fifty percent of that figure would be $5.4 million.
As noted above, the final FY 14 budget provided $13.1 million less in funding for the provider residential line item than did the governor’s budget proposal. Thus, if Rep. Stanley’s bill is passed, it would seem the providers would get back some $5.4 million – or about 41 percent – of the amount the Legislature had cut from the governor’s proposal in the current fiscal year. Not the whole ball of wax, but it would reduce the amount that would be needed in that hoped-for supplemental budget to satisfy the providers.
It turns out, though, that Rep. Stanley’s bill was not the only piece of legislation heard by the Children and Families Committee last week that would divert funding from the developmental centers to the providers. There’s also the Real Lives bill, proposed by Rep. Tom Sannicandro. While I was there, a long line of legislators testified in favor of that measure, which is intended to give all DDS clients more choice in services. The Real Lives bill happens to state that 40 percent of the “savings” in closing at least three of the developmental centers must be directed to a fund that would support “self-directed services,” presumably for all DDS clients.
As I’ve previously pointed out, the Real Lives bill specifies a large role for the providers in establishing that self-directed services fund. And one of the purposes of the fund would be to subsidize providers who lose funding when their clients leave their facilities for facilities run by other providers.
So, between these two bills (proposed by Reps. Sannicandro and Stanley), it would seem that at least 90 percent of the funding cut from the developmental centers would be earmarked for specific funds or line items that would help the providers, in potential competition with the state-operated group homes and other DDS accounts. Ninety percent of the $10.8 million cut from the developmental center line item in the current fiscal year totals roughly $9.7 million. Now, we’re talking about the providers getting back $9.7 million – or almost three quarters – of the amount the Legislature had cut from the governor’s proposed funding for provider-run group homes.
To be clear, we support adequate funding of provider-run group homes and thus we support full funding of Chapter 257. But we don’t support that funding increase coming at the expense of the state-operated group homes or other DDS line items. Robbing Peter to pay Paul should not be the solution to the problems the administration is facing in providing care to everyone who needs it.
We can do better than the final DDS budget for current fiscal year
As we start the 2014 fiscal year, there was some good news, but mostly bad news for people with intellectual disabilities and their families in the final budget produced by the Legislature last week .
The bad news is that funding for state-operated care fared poorly in the final budget bill as it emerged from a House/Senate Conference Committee on June 30. As explained below, this has negative implications for corporate-run, community-based care as well.
The good news is that there will at least be a hearing on the so-called ‘Real Lives’ bill, if that flawed piece of legislation ever gets enacted. The Conference Committee did not approve the Real Lives language, which we have objected to and which had been quietly inserted into the budget bill by its prime sponsor.
The Real Lives bill’s supporters will have to go back to pushing the measure (H. 151) through the normal legislative process. The proposed legislation, which is still in the Children and Families Committee, still hasn’t been scheduled for a hearing, according to the legislative website.
The budget Conference Committee did accept the Senate’s proposed funding level for the state-operated group home line item, which is slightly better news than had the Committee accepted the House funding level. As a result, the state-operated group home line item was cut by only $1.5 million from the governor’s budget, rather than $1.96 million, as the House had previously voted.
The Conference Committee’s proposed funding for the state-operated residences is $9.1 million higher than in the just-ended fiscal year, but it apparently still represents a shortfall in the amount needed, according to the Department of Developmental Services. That is largely because state-operated group homes appear to be the preferred care setting for a large number of residents of developmental centers that have been marked for closure.
The Conference Committee also decided to cut the DDS administrative line item (which funds service coordinators) by $700,000 from the governor’s budget and cut the developmental center line item by close to $400,000 from the governor’s budget. Both of those cuts are bad news for state-operated care, and they will adversely affect the quality of community-based care.
First, service coordinators are state employees who make sure that DDS clients receiving both state and privately provided care are getting the right services. For years, their funding has been cut even as their caseloads have grown. Service coordinators are integral to maintaining the quality of care in the DDS community-based system. DDS Commissioner Elin Howe has referred to service coordinators as “the heart and soul of our agency.”
Secondly, while many proponents of community-based care may think that the continuing cuts to funding of the developmental centers is good news for the community system, the opposite may in fact be true. We’ve noted repeatedly that the money “saved” in phasing down and closing the developmental centers has not been diverted into most community-based accounts as the administration had promised.
The result is that as the developmental centers are closed, their residents are being moved into community-based care ahead, in many cases, of people who have been waiting for years for residential placements. And those former developmental center residents appear to be absorbing whatever additional funding has been put into the community-based system as the developmental centers are phased down.
For example, we understand that the last residents of the Glavin Regional Center in Shrewsbury were moved in recent weeks into state-operated and corporate-operated group homes in the surrounding area. Those former Glavin residents were clearly placed ahead of other developmentally disabled persons in the Shrewsbury-Worcester area waiting for residential care.
Some community-based line items did fare slightly better in the Legislature’s budget than they had in the governor’s budget plan last January. The Conference Committee approved a $2.8 million increase over the governor’s budget for adult family supports, a $1 million increase in autism services, and a $500,000 increase in Turning 22. The Committee accepted the governor’s budget amounts for both community transportation and day programs. The Senate had cut the governor’s proposals for both of those line items by $500,000.
The Conference Committee, however, cut the community residential line item by $13 million from the governor’s budget proposal. That still represents a $59 million increase over the just-ended fiscal year. But it appears the community system would need a far larger increase than that to begin to address the serious shortfall in care and services that the system is plagued with.
In sum, the administration and the Legislature have chosen with this budget to continue the expansion of corporate care of the disabled without adequate funding or oversight.
The state is continuing to close small, strategically located developmental centers, which provide the most intensive and heavily monitored levels of care, and to scatter the residents to inadequately monitored group homes. At the same time, the decision has been made to continue to cut funding for one of the few sources of monitoring left of the privatized system — the service coordinators.
And that privatized, community-based system itself continues to be underfunded, contravening the administration’s promised “Community First” agenda. It would seem that a state that prides itself on the care it provides its most vulnerable citizens could and should do better than that.
State-run facilities being asked to do more with less
State-operated care appears to be in increasing fiscal trouble in Massachusetts even though that type of care remains the choice of many families, including those whose loved ones have been transferred from developmental centers in recent years.
Unfortunately, the Legislature seems to be either unaware of the situation or simply doesn’t care about it.
The Patrick administration appears to be relying on state-operated residences and two remaining developmental centers to care for a large number of former residents of four developmental centers targeted for closure in 2008.
As a result, funding for state-operated residences was increased by about 17 percent between Fiscal Year 2010 and the current fiscal year. However, funding for the developmental centers has been cut in that time by the same percentage, according to the Massachusetts Budget and Policy Center’s interactive Budget Browser.
An analysis of the Budget Browser numbers by COFAR shows that as a result of the drop-off in developmental center funding, total funding for state-operated care in the Department of Developmental Services system has actually declined slightly in inflation-adjusted numbers since FY 2010.
We’ve previously noted that the funding previously provided to the developmental centers in the budget doesn’t appear to have been transferred to most community-based budget accounts. However, during that same period from FY 2010 to 2013, funding for corporate, provider-operated group homes did increase by roughly 6 percent.
It appears that the relative decline during that period in funding for state-operated care is putting strain on the state system. DDS Commissioner Elin Howe projected in April that two to three state-operated group homes might be forced to close if the governor’s proposed $7.8 million increase in funding for those residences for the coming fiscal year wasn’t approved.
Yet, in April and May, the House and Senate chose to cut the governor’s proposed increase for state-operated group homes, and made larger cuts than the governor proposed in the developmental center account. While lawmakers subsequently approved budget amendments to increase funding for some community-based accounts, administration-supported amendments to restore funding for both state-operated group homes and the remaining developmental centers were rejected by the House and Senate.
Currently, a House/Senate conference committee is considering how big a cut to make in the governor’s budget for state-operated group homes. The conference committee must decide between the House budget, which would cut the governor’s proposal by $1.9 million, and the Senate budget, which would cut it by $1.5 million. COFAR has been seeking adoption of the Governor’s budget recommendations in the state-operated group home and developmental center accounts.
We intend to ask DDS for data on the number of former developmental center residents who have opted for state versus provider-operated care. The administration projected in 2008 that state-operated group homes and two remaining developmental centers slated to remain open would accept close to 50 percent of the roughly 400 residents then remaining in four developmental centers targeted for closure. Provider-operated group homes were projected to accept the remaining 50 percent of those former developmental center residents, yielding these entities millions of dollars of additional revenue.
In the current fiscal year, funding for state-operated group homes and developmental centers comprises about 23 percent of the DDS’s total $1.4 billion budget, compared with funding for privately run group homes, which comprises 57 percent of the DDS budget.
The administration has claimed for a number of years that it is committed to a “Community First” agenda of boosting funding for corporate group homes and other community-based initiatives. That’s all well and good; but if the administration is continuing to rely on state care, particularly for those with the most severe and profound levels of intellectual disability, we hope the Legislature will agree to fund that care adequately.
Will we finally get a national background check for DDS hires?
A little more than two years ago, I wrote about a man who had served a year in prison in California for having sex with a minor before violating probation and fleeing to Massachusetts where he took a job driving people with intellectual disabilities to day programs.
I noted that this individual’s out-of-state conviction was not picked up in an in-state background check done on him in Massachusetts. That was because a longstanding bill that would require that national background checks be done of people hired to work in the Department of Developmental Disabilities system had not yet been enacted by the Massachusetts Legislature.
It’s now two years later, and the DDS national background check is still pending in the state Legislature. In the past two years, it was approved by the Judiciary Committee, but never got out of the House Ways and Means Committee.
This year the measure (H. 1674) is pending once again in the Judiciary Committee, awaiting a scheduled hearing before the committee on July 9. This much-needed bill has been filed each year going back as long as a decade by Representative Martin Walsh of Boston. It has never been clear to us why the bill has never made it through the legislative process or who has opposed it.
National background check legislation for new DDS hires has long been supported by a wide range of advocacy organizations for the developmentally disabled. We know of no advocacy groups that have voiced any opposition to it.
The Patrick administration and the Legislature appear to support national background checks in general. In 2010, the state upgraded its criminal records database to make it compatible with databases in other states and the FBI. And last year, Governor Patrick signed a bill into law (Chapter 459 of the Acts of 1012), which requires that all persons hired to work in public, private and parochial schools in the state as well as employees of contractors to the school systems and child care organizations undergo national background checks. Massachusetts apparently became the last state in the nation to impose those requirements.
However, the DDS in Massachusetts still hasn’t been authorized to require that the people whom the Department or its providers hire also submit to national background checks. H. 1674 would provide that authorization.
State regulations currently authorize DDS to require only that Criminal Offender Record Information (CORI) checks be done on individuals hired to work in both state and privately operated facilities in the DDS system. However, CORI records list only criminal arrests and convictions in Massachusetts and do not identify any convictions a job applicant might have from another state. A national background check system would fill in those potential gaps in the records of persons seeking to work with intellectually disabled persons in Massachusetts.
In enacting the requirement for national background checks for school employees, legislators maintained that such checks would prevent people with convictions for abusing children in other states from coming into contact with Massachusetts schoolchildren. But schoolchildren aren’t the only ones who are at risk for sexual and other types of abuse. People with developmental disabilities are at high risk as well.
H. 1674 appears to have numerous checks built into it to protect the rights and privacy of persons applying for DDS positions. The measure would give persons seeking DDS employment the right to inspect and contest the accuracy of out-of-state records and would require the Criminal History Systems Board to help resolve any such contested records within 30 days.
In addition, H. 1674 would require that only information from other states regarding convictions and open cases be made available to DDS or providers considering individuals applying for employment. Juvenile records would not be made available. The national background checks system would be jointly overseen by the Criminal History Systems Board, the Disabled Persons Protection Commission, and the State Police.
Clearly, this legislation is long overdue. The question is whether this will finally be the year for it.
‘Real Lives’ bill proponents are abandoning the democratic process
It appears the supporters of the flawed ‘Real Lives’ bill are trying an end-run around the normal democratic process for getting bills enacted in the state Legislature.
Their latest strategy has been to insert the language of the proposed legislation into the state budget bill for the coming fiscal year via an amendment process that does not require any recorded votes or public hearings. The fate of the proposed legislation therefore will now be decided as part of the closed-door horse-trading that is going on among the six members of a House-Senate conference committee on the budget.
I’ve written before about our concerns with the Real Lives bill, which is intended to give clients of the Department of Developmental Services more choice in the services they receive. While we support the overall concept of the bill, our concerns about it center around provisions that we believe are primarily intended to benefit corporate providers to DDS. As we see it, one of those provisions will essentially compensate providers for not providing services.
The prime sponsor of the bill, Representative Tom Sannicandro, has tried without success in recent years to get the bill enacted through the normal legislative process. That process of course involves first referring the measure to the appropriate legislative committee (or committees).
The appropriate committee — in this case, the Children, Families, and Persons with Disabilities Committee — would then schedule the bill for a public hearing and vote the measure up or down. If approved by the committee, the measure would ultimately be voted up or down by the full membership of the House and Senate, whose votes on the measure would be recorded.
Last year, the Real Lives bill was passed by the House, but the Senate declined to take it up, so it died at the end of that session as a result. We first expressed our concerns about the provider-friendly provisions of the bill to Sannicandro during the debate on it last year.
Unfortunately, when Sannicandro re-introduced the bill (now H. 151) at the start of the current legislative session in January, he made no changes to it, despite our concerns. The corporate-friendly provisions were all still there.
The bill was duly referred on January 22 to the Children and Families Committee. To date, the committee has not scheduled the bill for a public hearing. I called the committee this week to ask why no public hearing had yet been scheduled and was told it was because Sannicandro had asked that a hearing on the bill not be scheduled because the language in the bill was being proposed as a budget amendment.
Sannicandro’s budget amendment was in fact adopted by the House during its budget deliberations in April, meaning the House leadership agreed to put the amendment in the “yes pile” of amendments approved as a bloc by an unrecorded voice vote on the House floor. However, an identical amendment was subsequently placed by Senate leaders in the “no pile,” meaning it got rejected in that chamber by a similar unrecorded voice vote. As a result, it’s now up to the conference committee to decide whether the Real Lives bill lives or dies.
We don’t think the “yes pile” and “no pile” process used in the House and the Senate for deciding budget amendments is a particularly good or democratic one. We understand the rationale for it is that it saves a lot of time taken up by debate on budgetary issues — something we understand used to occur in the distant past in the Massachusetts Legislature.
But while there may be a valid rationale for taking up budget-related amendments in blocs that are not subject to debate or recorded votes, we don’t think that rationale applies to something like the Real Lives bill. The Real Lives bill is intended to make far-reaching changes in the way services are delivered to people with developmental disabilities. It appears to be only marginally a budgetary measure, and that’s only because of the special fund it sets up to compensate providers for not providing services.
For that reason, we wrote to Sannicandro yesterday, urging him to prevail on the conference committee not to adopt his bill, but to let the measure take the normal, democratic course in the Children and Families Committee. We think that’s the right way to go on this important issue.
Thousands falling through the cracks in the DDS system
Lauren Baletsa has Prader-Willi Syndrome, a genetic defect that causes such a strong compulsion to overeat that she forged her father’s signature on checks to buy food.
Baletsa was one of dozens of people who testified on Tuesday before the Legislature’s Children, Families, and Persons with Disabilities Committee in support of proposed legislation that would require the state to provide services to people with Prader-Willi and other developmental disabilities.
Many people with these disabilities have cognitive impairments and autism, leaving them unable to function normally or adequately in society. However, many of them have IQs that are just above the cutoff level to qualify for services from the Department of Developmental Services.
In testimony before the Committee, Rick Glassman of the Disability Law Center maintained that Massachusetts appears to be the only state in the nation that does not grant eligibility for services unless the individual has an intellectual disability as measured by an IQ score.
Glassman said research done by the DLC indicates that every other state provides services based on at least some additional measures of disability such as substantial functional limitations or designated impairments such as autism. “I hope I’m wrong about that and am missing something,” Glassman said. “But if so, I can’t figure out what it is.”
Glassman and other advocates, including COFAR, noted that DDS’s restrictive eligibility standard for services has left thousands of people in the state without services of any kind. COFAR has joined the DLC, the Arc of Massachusetts, the Aspergers Association of New England and other organizations in urging support for legislation (H.B. 78 and similar measures) that would require DDS to provide services to people with developmental disabilities and not just “intellectual disabilities.”
As Glassman and others pointed out, just because someone has an IQ higher than 70 (the DDS’s approximate cutoff level for providing services) does not mean that person is high functioning or able to complete even basic tasks such as dressing or bathing without assistance.
Awilda Torres is a case in point. She testified Tuesday that her son Carlos, 22, who has autism, was recently riding in a van when he jumped out while the van was moving, ran to a policeman and insisted he had been kidnapped by the driver. Carlos’s IQ, Torres said, is just above the DDS cutoff point for services.
Other parents of autistic adults testified that while services and even state-supported day and work programs were available to their children before they turned 22, those programs ceased once the children reached that age. At the age of 22, people with intellectual disabilities in Massachusetts, who had been receiving special education services through local school districts, must enter the DDS system with its more restrictive eligibility standard.
Karen Kadzen-Pandolfi testified that her son, who is now 23, lost his services a year before because his IQ was measured at 71. He has a problem with aggression and violent behavior. As a result, she must now stay home from her job to care for him. “My life is on hold,” Kadzen-Pandolfi said. “I keep searching for an answer, but there are no answers.”
Delivering COFAR’s testimony, I noted that the public is largely unaware of the severity of these developmental disabilities and of the fact that so many people are not receiving any services to cope with them. Tuesday’s hearing at the State House was not covered by any mainstream media outlets nor was a similar hearing last November in Worcester that had been held by DDS to consider proposed regulations regarding its IQ eligibility standard.
State audit confirms salary overpayments to DDS provider
The state improperly reimbursed the May Institute, a corporate provider to the Department of Developmental Services, for hundreds of thousands of dollars paid to company executives in excess of a regulatory cap on their salaries, according to the state auditor.
The auditor’s findings confirm concerns we raised in April and May 2011 that the state may have paid Walter Christian, the CEO, and other executives of the May Institute more than the state’s approximately $143,000 regulatory limit on individual executive salaries.
The auditor also found that Christian was improperly paid roughly $140,000 for a home health aide for his wife, day care fees for a grandson, the use of a minivan in Georgia, and a separate vehicle that he used when visiting Massachusetts. Christian, who retired in January, had been living in Georgia for a decade while running the Massachusetts-based company, according to the audit report.
Our blog posts in 2011 specifically noted that the May Institute appeared to be under-reporting Christian’s and other executive salaries as well as the number of people receiving those salaries, on Uniform Financial Reports (UFRs) submitted to the state Operational Services Division.
The two posts also noted that the same under-reporting of salaries appeared to be the case with Vinfen and Seven Hills, two other DDS providers. The state auditor focused solely on the May Institute, however.
The state auditor’s report noted that a state regulation capped state reimbursements to providers for salaries and other compensation paid to their executives at $143,986 in FY 2010 and $149,025 in FY 2011. Providers can pay their executives more than those amounts in salaries and other compensation, but the state is permitted to reimburse the providers only up to the threshold amount in a given year. The state attempts to keep track of those payments via the UFR’s, which the providers are required to submit to the Operational Services Division on a yearly basis.
We noted in our April 2011 post that the May Institute’s UFR listed only Christian and one other executive as making over the state salary threshold in 2009. Yet, a federal tax form, which was filed by the May Institute with the IRS for the same fiscal year, listed 13 individuals in the company as making over $150,000 each.
An OSD official maintained at the time that the state agency allows the state to pay costs in excess of the salary limit for clinicians working for providers. However, COFAR’s May 2011 post noted that all 13 May Institute employees who made over $150,000 were not listed on the IRS form as clinicians, but as executive-level employees, starting at senior vice presidents on up to the president and CEO.
In its report, the state auditor also found that several May Institute employees who were paid over the threshold amounts were managers and not clinicians.
We think this report by the state auditor lends strong support to our call for a comprehensive, independent study of outsourcing of care by DDS. The auditor’s findings also support the need for more funding for state-operated group homes for the developmentally disabled as an alternative to provider-operated residences.
But as I noted in a previous post, House leaders last month rejected budget amendments that would have both authorized a study of the DDS system and restored cuts made by the House Ways & Means Committee in the governor’s budget for state-operated residences. There is one more chance for these amendments coming up in the Senate, of course.
We applaud the state auditor for examining the May Institute’s payments to its executives. We hope, though, that Auditor Suzanne Bump expands her review to include additional providers in the wake of our concern that this is a potentially wider problem than just one company.
The House lets down the most vulnerable
Have our legislators forgotten about the most vulnerable people in our society?
Unfortunately, that’s the message we’ve taken away from last week’s actions by the House on the state budget.
First, we urged legislators to approve an amendment calling for a comprehensive, independent study of the Department of Developmental Services system, along the lines of a similar study that was approved last year of the Department of Mental Health system.
Among the questions we think need to be examined are whether the ongoing privatization of services to people with developmental disabilities is really resulting in improved care. Or is this trend simply padding the ample salaries of the executives of the hundreds of corporate providers that contract with DDS?
We also urged legislators to approve additional funding to prevent the layoffs of state service coordinators, who make sure that people in the DDS system are getting the services they need. And we asked for additional funding to prevent the possible closures of state-operated group homes, to which many former residents of state developmental centers are being sent as those centers are closed down.
The House rejected all of those amendments. But they did pass an amendment that provides all kinds of goodies to the corporate providers, including a state subsidy if residents of their group homes opt to leave those homes. That amendment will implement the so-called ‘Real Lives’ bill, without bothering with the need for a public hearing.
Could all this have anything to do with the fact that legislators nowdays seem to act solely in the interest of those who contribute the most to their political campaigns? Is there anyone out there who still doesn’t believe that’s the way our modern “representative” system of government works?
Apparently, lawmakers don’t feel under much of an obligation anymore even to fulfill promises made to those who don’t have political clout on Beacon Hill, or Capitol Hill for that matter.
What else are we to make of the virtual promise that state Representative Patricia Haddad, a leader in the House, who spearheaded last year’s legislation to study DMH, made to support the DDS study?
In a meeting with families of residents of the state-run Glavin Regional Center in September, Haddad had this to say about the proposed DDS study, which would have included a study of the closure of Glavin itself:
“Someone has to be the first to say we’re not afraid to have an outside study done to tell us what’s wrong and what’s right,” she said. That day, she also said a number of other things that the Glavin families desperately wanted to hear from her, including the statement that “there are more horror stories than good stories” in the privatized system of DDS care.
It initially came as a shock to us, therefore, when we found out just before the budget debate last week that Haddad had declined even to co-sponsor the amendment to undertake that outside study of DDS. Maybe she truly feels that someone has to be the first to say we’re not afraid to have the study, but it wasn’t going to be her.
Why won’t legislators like Haddad support these critically important initiatives for our most vulnerable residents when push comes to shove? Is there anyone who doubts that we need to re-examine the DDS system? It is a system in which, as Haddad herself said, there are often more horror stories than good stories.
As the state has increasingly come to rely on corporate-controlled care for people with developmental disabilities, the waiting list for services only appears to be growing longer. It’s a system in which the state does a mediocre job at best in monitoring the care provided in thousands of dispersed residences whose staff are largely poorly paid and do not receive adequate training.
It’s a system that is beginning to resemble the “warehouses” of yesteryear, when thousands of people with developmental disabilities were packed into institutions that did not have the staff or resources to care for them. Now, they’re simply packed into corporate-run group homes, which don’t have the staff or resources to care for them.
When will our elected leaders wake up to this and care enough to do something about it?
DDS, in dispute with parent over care of her disabled son, seeks to remove her as guardian
Apparently unable or unwilling to resolve a dispute over the proper residential placement for a developmentally disabled man, the state is seeking to remove the man’s mother as his guardian.
The Department of Developmental Services has filed in Middlesex Probate Court to remove Patricia Feeley, a COFAR Board member, as guardian of her 27-year-old son, Michael, and to appoint James Feld, a Woburn attorney, in her place.
Feld is described in the petition only as an “advocate” for Michael Feeley, but DDS acknowledged in a court document that Feld had never previously met Michael.
DDS is not alleging any abuse or neglect of Michael, and in fact, has described Feeley in court documents as “devoted to him” and “concerned for his well-being.” However, the Department contends that Feeley has rejected several suggested residential placements for Michael and is not acting in his best interest. And DDS is further alleging that Feeley’s home, where Michael has lived his entire life, is not safe because it has excessive “clutter” in it.
Feeley has actively sought for several years to place her son, who has type 1 diabetes, in a suitable DDS facility. She maintains that the real reason DDS is seeking to remove her as her son’s guardian is that the Department doesn’t want to provide a residential facility for him with 24-hour nursing care.
“The Probate Court is the wrong forum for this case,” Feeley maintains, adding she would be “devastated” if DDS succeeds in removing her as Michael’s guardian. A pre-trial conference in the case was scheduled in Probate Court on Thursday.
Michael, who has profound intellectual disability, is non-verbal and is unable to dress or bathe himself. Feeley said she was told his IQ was too low to measure. DDS’s petition to appoint Feld as guardian suggests that Michael be moved to a group residence in Chelmsford that Feeley noted does not have continuous, on-site nursing.
A friend and advocate of Feeley’s, who visited the North Chelmsford residence with Feeley last summer, maintained that the nurses there travel among several residences, one of which is in Lynnfield, about an hour away. The friend contended there are no nurses on site in the Chelmsford residence during the evening shift.
Feeley contends her son, who requires as many as seven injections of insulin per day, needs a residence with 24-hour, on-site nursing care. Feeley, 65, who works as a part-time clinical lab technician and is a certified nurse assistant, currently administers the injections herself, monitors Michael’s blood glucose, and personally provides all other care at home for him. Michael’s extensive care needs prevent her from working full time.
Feeley’s assessment of her son’s medical needs is backed up by a May 28, 2010 letter from a physician at Children’s Hospital in Boston, who wrote that Michael’s blood glucose spikes at times “for no apparent reason,” and that “it is not possible to predict when that might occur.” The doctor’s assessment continues: “A nurse needs to be present and able to attend to Michael’s needs at any time to avoid a delay in Mike receiving appropriate medical intervention.”
DDS, however, contends that Michael does not need 24-hour, continuous nursing. The Department has also alleged that Feeley’s home, where Michael has lived for his entire life, is unsafe for him because it contains stacks of newspapers and magazines in the hallways and other rooms, including the kitchen.
But Feeley denies that her home is unsafe, and her attorney, Stephen Sheehy, contended that the clutter issue is a “red herring.” Sheehy maintained that the issue is not germane because Feeley herself is seeking a suitable residential placement for her son, outside of her home. He added that DDS has failed to provide a clinical document, justifying its decision not to provide a setting for Michael with 24-hour nursing care on site.
Moreover, Sheehy noted, DDS last year informed Feeley that Michael was not entitled to a DDS care plan, known as an Individual Support Plan (ISP), which would specify nursing services for him, because he was not receiving any services from the Department.
Asked if he had any idea why DDS would seek to remove Feeley as her son’s guardian, given that her son is not currently served by DDS, Sheehy responded, “I don’t know. That’s one of many bizarre things about DDS’s involvement in this case.”
DDS contends that it first raised the issue of clutter in 2008 when an assistant DDS area director visited Feeley’s home. However, the Department did not act at that time to remove Feeley as her son’s guardian. Michael has lived at home for an additional five years since then. Feeley says that no one at DDS ever mentioned the issue of clutter in her home to her until last summer. In addition, DDS Commissioner Elin Howe stated in a letter to Feeley in 2011 that “it appears that Michael is doing well in his day program [which is not a DDS program] and living at home.”
In an affidavit attached to the DDS petition to remove Feeley as guardian, Alfred Nazzaro, director of the DDS Lowell Area Office, maintained that DDS “first tried to notify the Public Health authority (building inspector) [about the alleged clutter] but was unable to get any official to publicly confirm the danger, and on information and belief, Mrs. Feeley continued to deny both Department and Public Health officials access to her home.” Nazzaro’s affidavit did not state when the building inspector was contacted.
Feeley contends that no local health officials ever contacted her, and that she never denied anyone entrance to her home.
Also, while DDS depicts Feeley as being unreasonable in her alleged rejections of their proposed placements for Michael, court documents show that in at least one case, Feeley had accepted a proposed placement in writing, but that DDS later changed the terms of a verbal agreement with Feeley concerning nursing services that would be made available at the facility.
Nazzaro’s affidavit stated that Feeley had written him in early June 2009, accepting an offered placement at the Hogan Regional Center for Michael, and had urged that it be done as soon as possible, based on the availability of on-site nursing there. Her letter added that she had “finally found contentment for the first time since arranging for Michael’s future.” But, as the affidavit stated, it was DDS that subsequently changed the offer, in a meeting on June 30, when “it was determined that Michael did not need 24-hour nursing services.” Nazzaro’s affidavit stated that, “Once Mrs. Feeley was informed that 24/7 nursing services would not be recommended…Mrs. Feeley rejected placement at Hogan.”
Feeley denies that she actually rejected the Hogan placement at that point. In fact, she contends she was never told 24/7 nursing services would not be recommended at Hogan, and asserts that in a meeting which occurred months later, no one voiced disagreement with Michael’s diabetes treatment plan.
In a motion filed to dismiss the DDS petition, Sheehy also alleged several irregularities in the Department’s filing, including the lack of a signature of a human being on the petition document. On the signature line of the petition, which states that the document is signed under the penalties of perjury, someone had written only “Department of Developmental Services.”
“I don’t know who’s accusing me,” Feeley maintained.
Sheehy’s motion to dismiss stated that an entity such as DDS “can’t execute a document under the penalties of perjury, because such penalties can only attach to a human being…”
COFAR blog 