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Mother says ‘no’ to DDS offer to drop effort to remove her as son’s co-guardian if she relinquishes all decision making authority

October 27, 2022 24 comments

The Department of Developmental Services has offered to drop a two-year-long effort in probate court to remove Cindy Alemesis as co-guardian of her son Nick, whose life she saved in 2018.

But Cindy said that as part of a proposal made last week to settle the case, the Department stated that all medical and residential decision making authority concerning her son would be given to a new DDS-paid co-guardian.

In an interview, Cindy said she is encouraged that the Department is at least now open to her remaining as Nick’s co-guardian. However, she said, she will not accept an arrangement under which she would lose all medical and residential decision making authority in Nick’s care.

“I’m not handing that to them,” Cindy said. “I’ve fought for proper care for Nick and for his rights for his entire life.”

Nick and Cindy Alemesis

In 2018, Nick nearly died after staff in his group home in Dracut failed to take him for a scheduled ultrasound appointment, which would have shown that his brain shunt was leaking spinal fluid.

A few hours later, Cindy was the first to notice that Nick was ill, and made sure he was taken to a hospital. There, doctors found that the shunt was leaking spinal fluid into his body, and that Nick had developed sepsis from it.

Nick spent eight months at Mass. General Hospital, during which he underwent multiple brain operations and other procedures. Cindy was at his bedside for much of that time.

Despite Cindy’s actions in 2018, DDS petitioned the Middlesex County Probate Court for unspecified reasons in October 2020 to remove Cindy as Nick’s co-guardian.

 

Co-guardianship could still be “suspended” for vague reasons

The new DDS proposal last week to drop the effort to remove Cindy’s co-guardianship also includes a condition that her co-guardianship could still be “suspended” if she was found to be “unwilling to make (Nick’s) health and welfare the ultimate goal of (her) co-guardianship.” The proposal doesn’t explain who would make that determination or how it would be made.

The proposal further states that the DDS co-guardian would have to agree to “the dissemination of protected health information or other personal information about (Nick) with third parties uninvolved with (his) medical care.”

That condition sounds like an effort to prevent Cindy from providing information about Nick’s care or services to an organization such as COFAR. Presumably, if an incident such as a leaking shunt were to happen again to Nick, Cindy would be prohibited, under DDS’s proposed agreement, from saying anything publicly about the matter unless the DDS co-guardian were to allow it.

Cindy alleges poor care and decision making by DDS and provider

Cindy maintained that since Nick’s 2018 hospitalization, DDS and Nick’s residential provider, Incompass Human Services, continued to make poor decisions in providing medical care and services to him. She noted that DDS recently sent Nick back to a day program operated by Incompass, causing Nick to act aggressively and apparently injure himself.

Cindy said that in recent months, Nick was repeatedly injured in the group home, and was afraid of the staff there. The same thing then happened in the day program, she said, because many of the staff were the same.

Following those repeated injuries, Nick was moved out of the group home in September, and is currently living in a respite facility in Saugus.

Cindy said Nick’s former DDS-paid co-guardan, who had imposed a temporary ban this summer on Cindy’s visits and phone contact with Nick, has resigned. But Cindy said she isn’t hopeful the situation will improve with the appointment of a new DDS co-guardian.

The new DDS co-guardianship proposal contains the following stipulations:

  • Eva Toscano, who appears to be a program manager with the Department of Mental Health, would be appointed Nick’s new DDS-paid co-guardian. Toscano would have sole medical and residential decision making authority regarding Nick’s care.
  • Cindy would be informed beforehand of Toscano’s residential decisions “when feasible,” and would be informed beforehand of Toscano’s medical decisions unless there was an emergency.

It would appear that under this stipulaton, Nick could be moved from one residence to another without Cindy being informed in advance. In all cases, he could be moved without her consent.

  • Cindy would have to give 48 hours notice to residential staff prior to visiting her son.
  • Cindy would be allowed phone calls with Nick, but only if it were determined to be “not detrimental to (Nick’s) behavior.”

The proposal doesn’t specify who would make that determination as to whether the phone calls were detrimental, but it would appear to be up to the DDS co-guardian. Cindy says Nick has acted out in the past because he objects to a rule cutting off his conversations after 10 minutes.

  • Cindy could continue to take Nick to his church, which he has attended for the past 25 years, but the DDS co-guardian could cut off the visits if she decided they were “detrimental to (Nick’s) behavior or health.”

Cindy would not be allowed to make that determination whether attending church was detrimental to Nick.

Both Cindy and Nick’s pastor, the Reverend Keith Phemister, have stated that Nick has never caused problems in his church. Yet Cindy said Nick has been restricted for months by DDS and by providers from attending church services and functions, even online.

In an interview in April, Phemister sad Nick had not been able to attend the church for the past month. “I know he looks forward to coming to church,” he said. It’s his lifeline.”

  • Cindy’s co-guardianship could be “suspended” if she was found to be “unwilling to make (Nick’s) health and welfare the ultimate goal of (her) co-guardianship.”

It seems to us that stipulating that a guardian can no longer make residential or medical decisions or give out medical information about their ward essentially amounts to removing their guardianship. At the very least, DDS’s proposed resolution of this case would ensure continuing disputes between Cindy and the DDS co-guardian. We fully understand why Cindy does not want to accept a proposal like that.

In November 2021, Dr. Zaheer Ahmed, Nick’s primary care physician, wrote a letter to the probate court, opposing DDS’s bid to remove Cindy as Nick’s co-guardian.  In his letter, Ahmed maintained that Cindy had always acted in Nick’s best interest.

We agree with Dr. Ahmed, and believe Cindy should keep her medical and residential decision making authority.

COFAR asks for full investigation of removal of a client against her will from her shared-living home

October 18, 2022 6 comments

COFAR has asked a state agency to undertake a full investigation of the removal in May of a client of the Department of Developmental Services (DDS) from the home of a woman from whom she was receiving shared-living services.

The DDS client, Mercy Mezzanotti, said she was taken, against her will, from the home of Karen Faiola, on May 23 by an employee of Venture Community Services, a nonprofit contractor to DDS. Mercy and Karen allege the employee showed up at Karen’s home in Sutton and drove Mercy to the home of a family in Worcester whom Mercy didn’t know.

Mercy said she was kept in the Worcester residence for two days before Karen was able to locate her and return her to her home. She contends the experience caused her acute emotional distress. “I thought I would never see my home and Karen and my two cats that I love again,” she said.

Karen Faiola (left) and Mercy Mezzanotti

Mercy, 47, has a mild intellectual disability. But while she attended special needs classes in high school, her verbal skills were good enough for her to attend mainstream high school classes in English and to make the honor roll.

As her own guardian, Mercy has full legal authority to decide where to live, as well as to make other major life decisions.

In an email sent yesterday (October 17) to Nancy Alterio, executive director of the Disabled Persons Protection Commission (DPPC), we noted that an “Administrative Review” undertaken by DDS of the incident did not result in any findings about the appropriateness of Mercy’s removal from Karen’s home.

That incident and two other allegations of intimidation of Mercy were reported to DDS on May 26 by Karen, with whom Mercy has continued to live.

Under state regulations, DDS is required to report allegations of abuse to the DPPC, an independent state agency created to investigate “serious physical or emotional injuries” alleged to have been caused by caregivers to adults with disabilities in Massachusetts. However, due to a lack of resources, the DPPC refers the vast majority of abuse allegations it receives to DDS to investigate.

Both Mercy and Karen say they were not interviewed as part of the DDS review of Karen’s complaint.

Therapist corroborated claims of emotional injury

In a July 21 email to Mercy and Karen, Grishelda Hogan, Mercy’s therapist, stated that she had contacted DPPC to report the removal of Mercy from Karen’s home, and had relayed other concerns about Venture’s treatment of Mercy to DDS.

Hogan said that while Mercy was being kept in the Worcester family’s home, she “was reporting intense anxiety, difficulty sleeping, feeling sad and defeated, missing her home and her cat and her shared living monitor. She was reaching out to me consistently asking for help and advocacy to get home.”

DDS acknowledged, but did not assess allegations

In a Complaint Resolution Letter, dated September 30, in response to Karen’s complaint, DDS Area Director Denise Haley acknowledged that Karen had reported that Mercy had been removed from Karen’s home. Haley’s letter also stated that Karen had reported that a Venture job coach had previously threatened Mercy that she would be fired from her job, and that a second Venture employee had previously threatened to stop driving Mercy home from work.

The Complaint Resolution Letter stated that two Venture employees allegedly removed Mercy from Karen’s home on May 23, and brought her to the home of a “stranger.” The letter stated that Mercy “was very upset (at being removed from Karen’s home) and has been crying every day.”

However, Haley’s letter did not assess whether the alleged actions of the Venture employees were appropriate, or indicate that the allegations had been investigated.

The Complaint Resolution Letter concluded with a statement that Mercy told the DDS investigator that she “is doing fine and does not need any assistance (from DDS).”

In a letter to DDS, appealing the September 30 Complaint Resolution Letter, Mercy denied that she had said she was not in need of services. She also stated that her removal from Karen’s home had been traumatic for her.

“They moved me to a horrible place with strangers that didn’t speak English,” Mercy stated in her appeal letter. “I told (the DDS service coordinator) to get me out of there and bring me back home, that I was not going along with this.  I explained that I was happy where I was and no one would listen. No one from DDS did anything to get me home.”

Mercy added that she had stated repeatedly that she wanted to continue receiving shared-living services from Karen, but that Venture had terminated its payments to Karen.

Prior to May 23, Venture had been paying Karen to provide shared-living services to Mercy. But Venture terminated its contract with Karen on the same day Mercy was removed from her home. A notice of termination of Karen’s contract from Venture did not contain a reason for the termination.

Both Mercy and Karen contend that Venture was retaliating against them because they had complained to managers of the organization in April that two of its employees had been verbally abusive toward Mercy.

As a result of the contract termination, Karen said, she has not been paid since May for caring for Mercy in her home.

In July, COFAR first emailed DDS Area Director Haley and to Dorothy Cote, Venture executive vice president and CFO, raising concerns about the removal of Mercy from Karen’s home and the termination of Karen’s shared-living contract. To date, we have not received a response from either Ryder or Cote.

Full investigation should have been undertaken

According to letters dated May 27 to Mercy from DDS Area Director Haley, the allegations made by Karen were referred to the DDS area office to conduct “Administrative Reviews.”

Administrative Reviews don’t appear to be required to meet minimum standards for investigations under the DPPC’s enabling statute and regulations. Those standards for full investigations include requirements that both the alleged victim and reporter of the incident be interviewed by an investigator.

DPPC has a supervisory role to ensure that full investigations meeting minimum investigative standards are undertaken in instances over which the agency finds it has jurisdiction, according to the statute and regulations. A key factor in determining that jurisdiction is that the victim has suffered a “serious” physical or emotional injury. 

A serious emotional injury is defined in DPPC regulations as:

An injury to the intellectual functioning or emotional state of a Person with a Disability caused by either the verbal or nonverbal conduct of a Caretaker, including but not limited to, coercion; harassment; the inappropriate isolation of a Person with a Disability from family, friends or regular activity; and verbal assault, including but not limited to, ridiculing, intimidating, yelling or swearing (my emphasis).

In our email on October 17 to Alterio, the DPPC executive director, we argued that the agency does have jurisdiction in this case because we believe Mercy did suffer a “serious emotional injury” as a result of the Venture employees’ actions. As a result, we maintained that DPPC should either have undertaken a full investigation of Karen’s complaint, or should have referred the complaint to DDS for a full investigation meeting at least the minimum standards.

Mercy’s appeal letter additionally stated the following:

I have been treated so badly by DDS and so has Karen (Faiola).  My human rights were violated since I have the right to choose where I want to live and I have the right to change agencies. … I was threatened by my coordinator from Venture and my job coach was mentally abusive, yet nothing has been done.  Were they investigated? … My life has never been better and Karen is the best provider I ever had in the 20 years I’ve been with DDS and the 5 other homes I lived in.

Hogan, Mercy’s therapist, also stated that Mercy had “expressed consistently that she was happy in her home (with Karen)…It was clear in therapy,” Hogan stated, “that (Mercy) was making great strides in her life and I was able to see her self-esteem and self-worth develop as she finally felt seen and heard.“

We are hopeful that in addition to undertaking a full investigation of the allegations that Mercy was abused emotionally, the state will finally acknowledge Mercy’s wish to continue receiving shared-living services from Karen. We also hope Karen will finally be paid for providing those services.

DDS client, who had been denied all contact with his mother, suffers third head injury in group home

September 6, 2022 6 comments

Nick Alemesis, who has a developmental disability, was sent to a hospital on Friday from his Dracut group home with the third head injury he has suffered in the residence since March, his mother Cindy said.

The latest injury occurred just before Cindy was due to visit Nick at the end of a 14-day ban imposed on her contact with him.

Incompass, the corporate provider that runs the group home, had charged that Cindy’s previous phone contact and visits with Nick were causing him to act aggressively and injure himself.

COFAR last week raised concerns about the ban, contending that neither Incompass nor the Department of Developmental Services (DDS) had made a sufficient case for restricting family contact with Nick.

We noted that this case appears similar to at least two others in which providers and DDS blamed family members for inciting aggressive behavior in DDS clients, and subsequently imposed punitive bans on family contact with those persons.

The 14-day ban on all family and social contact with Nick had been at least temporarily lifted at the end of last week. But Cindy was unable to visit Nick in the residence on Saturday, as had been agreed, because Nick had been taken to Lowell General Hospital. She said she was leaving this morning to visit Nick in the hospital.

DDS is, meanwhile, continuing an effort in probate court to remove Cindy as her son’s co-guardian for reasons that have never been made clear. In 2018, Cindy saved Nick’s life after staff in the group home had failed to take him to a scheduled ultrasound appointment, which would have shown his brain shunt was leaking spinal fluid.

In a text message to Cindy, dated Saturday, the Incompass assistant program manager wrote that Nick had been sent to the emergency room at Lowell General for self-injurious behavior and threatening to kill himself. Cindy maintains that Nick has frequently said he would kill himself if he was forced to remain in the group home. She said Nick is afraid to be in the residence.

Cindy is one of two co-guardians of Nick. The other co-guardian, Donna Nolan, is paid by the Department of Developmental Services (DDS) to serve in that role. Nolan is not related to Nick.

Nolan, along with Jean Phelps, the CEO of Incompass, signed off on a provider document on August 17 that imposed the 14-day ban on all family and social contact with Nick.

COFAR has joined Cindy in urging DDS not to send Nick back to the Dracut group home. Cindy said she is concerned Nick has been abused in the residence.

We suggested last week that Nick be placed at the Hogan Regional Center where we think staff are better trained to care for clients who exhibit aggressive behaviors.

Even if Nick’s injuries have been self-inflicted in the group home, it appears to be clear that Cindy’s contact with Nick is not the primary cause of his aggressive behaviors.

Neither DDS Commissioner Jane Ryder nor Jean Phelps, the Incompass CEO, have responded to an August 25 email from COFAR raising concerns about the ban on contact.

Cindy said Nick was previously injured in the group home on March 16, and was injured again two to three weeks ago. Cindy reported that March 16 head injury to the Disabled Persons Protection Commission (DPPC) because the injury had not been reported by the staff.

DDS, which conducted a limited Administrative Review of the March incident, concluded that there wasn’t sufficient evidence to show that Nick’s injury was caused by staff of the group home, and that the injury had most likely been self-inflicted.

UPDATE: Ban on mother’s contact with son at least temporarily lifted

August 30, 2022 13 comments

[UPDATE TO YESTERDAY’S POST (BELOW): Cindy Alemesis was informed yesterday (August 30) that the ban on family contact with her intellectually disabled son Nick would be lifted as of today, at the end of a 14-day period specified by Nick’s group home provider and DDS co-guardian (see post below).

However, Cindy also said that in a phone call yesterday, the Incompass group home manager told her the ban on all contact could be re-imposed if Nick continues to display aggressive behaviors. Cindy believes Nick has been acting out because he may have been abused in the group home, and that he wants to leave it.

Cindy said she asked the group home manager whether the ban on family contact was actually a form of punishment of Nick. “I said to him, ‘so, as punishment, Nick loses his mom?’” Cindy said. “And he said, ‘well Nick has to learn.’”

In a text message to Cindy yesterday, the Incompass director of residential services, said Cindy will be allowed to visit Nick at the group home this Saturday. She will also be allowed one 10-minute phone call a day with Nick. But the Incompass director stated that the phone call would be terminated by staff, “if Nick begins displaying unsafe/inappropriate behaviors during the call.”]

 

Cindy Alemesis, who saved her intellectually disabled son Nick’s life in 2018, was subject to a ban on all contact with him for the past two weeks because Nick allegedly began behaving aggressively after her visits and phone calls.

The ban was imposed on August 17 by Incompass Human Services, a Department of Developmental Services (DDS) group home provider, and by a co-guardian of Nick, who is paid by DDS. The Department is, meanwhile, continuing an effort in probate court to remove Cindy as her son’s other co-guardian for reasons that have never been made clear.

Nick Alemesis and his mother Cindy

Cindy believes Nick acts aggressively because he doesn’t want to remain in his group home in Dracut, and may have been abused there. Cindy has reported at least two incidents of injury suffered by Nick in the Incompass residence.

Both Incompass staff and DDS have failed to report those injuries to the Disabled Persons Protection Commission (DPPC), as required by law.

Neither DDS Commissioner Jane Ryder nor Jean Phelps, the Incompass CEO, have responded to an email last week from COFAR raising concerns about the ban on contact and the alleged failure to report the injuries.

Similar to past bans on contact

The ban on family contact with Nick is similar to bans imposed in at least two other cases, which led to emotional pain and suffering for DDS clients and their families (see here and here).

As we noted in our email to Ryder and Phelps, cutting off family and social contact with DDS clients is an extreme measure that runs counter to their well being and rights under DDS regulations to support human dignity. Among those fundamental rights is the right to visit and be visited (115 CMR 5.04).

In Nick’s case, the ban on contact also follows from previous restrictions imposed by Donna Nolan, the DDS co-guardian, on Nick’s visits to his church and community.

Reason for latest ban on contact disputed

Records sent to us by Cindy show that Incompass has charged that Nick has engaged in “unsafe and self-injurious behaviors” after visits or phone calls from her and other family members.

In an Incompass document titled, “Human Rights Request for Approval of Restriction,” both Phelps and Nolan signed their approval on August 17 of a 14-day ban on all family communication and visitation with Nick as well as “access to social situations” for Nick. The document, which concerned both family visits to the group home and visits by Nick to Cindy’s home, left open the possibility of extending the ban indefinitely.

The document stated that after speaking with his mother by phone on August 9, Nick threw a phone and later a stone from his bedroom at staff, and refused to take his medications.The document alleged that Nick was taken that day to Lowell General Hospital where he exhibited similar aggressive behaviors after Cindy called him and then visited him there.

The Incompass restriction document, however, did not identify any statements or actions by Cindy or any family members that might have incited Nck to act out. Cindy contends Nick acts out because he does not want to live in the group home, or return to it when he is taken elsewhere.

We would echo Cindy’s concern that conditions in the residence itself may be causing his behaviors and injuries. We think the solution to the problem is to change his residential setting.

Text messages and statements from Nick indicate that he may be afraid of being hurt or injured by staff in the group home. Cindy said Nick has told her that staff have “hurt his head.” Cindy also forwarded a July 28 text message from Caitlyn Alekshun of Bridgewell Counseling Services indicating that there is uncertainty as to why Nick has been agitated and engaging in possibly self-injurious behaviors.

As discussed below, an earlier message from Alekshun to Nick’s service coordinator indicated that the group home staff were not providing timely information to her about the possible cause or causes of Nick’s behavior.

We haven’t seen any records that indicate that either Cindy or other family members have done or said anything to incite Nick to act out or injure himself. In a July 21 email, Nick’s DDS service coordinator wrote that he had “observed Nick become dysregulated. Staff report that it is like this every day.” That would appear to rule out Cindy as the sole, or even main cause of Nick’s behaviors.

However, the August 17 restriction document, signed by Phelps and Nolan, concluded that:

Due to these recent events and to Nicholas’ increasingly unsafe behavioral response to interactions with Cindy, both in person and by phone, it is proposed that Nicholas does not have any communication or contact with family members (including, but not limited to Cindy…) for a period of 14 days. This period of time will allow the program to work more effectively with Nicholas to keep him safe, unencumbered by external stimuli that may significantly impact his ability to regulate his emotions and subsequent behavior.

At the end of this initial 14-day period of no-family contact, the treatment team will revisit this restriction and assess whether continuing the practice is warranted for an additional 14-day period(s).

Staff not providing information to clinician

The restriction document did not make it clear how or why contact with Cindy or other family members would incite Nick to engage in aggressive behaviors. We think that without establishing a clear cause of those behaviors, Incompass has not made a case for restricting family contact.

Nick (right) and his pastor, the Rev. Keith Phemister, and Keith’s wife Gloria. Nick has been restricted at least twice this year from visiting his church.

In fact, records indicate that the group home staff have been uncooperative with at least one clinician seeking to determine the cause of Nick’s aggressive outbursts.

In response to the service coordinator’s July 21 email, Alekshun of Bridgewell wrote that she had requested “recent behavioral data from the residence a few times, but haven’t received anything more recent than May.” Such data, she wrote, might “help justify the need for an inpatient placement” for Nick at a hospital setting.

Failure to report injuries

We are also concerned that DDS and provider staff have failed to report potentially serious injuries that Nick suffered in the group home, as required by law. In the most recent case, Cindy said she was forced to report a head injury that Nick suffered on March 16 to the DPPC because the injury had not been reported by the staff.

Both the DDS Decision Letter and subsequent Action Plan resulting from the March 16 incident stated that the alleged abuser didn’t report the injury.

Cindy said the incident resulted in bleeding from Nick’s ear, which would classify the injury as a serious physical injury under DPPC regulations. Nick received emergency room treatment for the injury.

DDS declines full investigation

After Cindy reported Nick’s March 16 head injury, DDS apparently conducted a limited Administrative Review of the incident. Administrative Reviews do not meet DPPC standards for full investigations. The DDS Decision Letter, issued after the review was completed, acknowledged that a “regulatory investigation” had not been conducted.

Given, in particular, that the bleeding Nick suffered from his ear would classify the injury as serious under DPPC regulations, it would appear that either DPPC or DDS should have conducted a full investigation of the matter, and not an Administrative Review. The DDS Decision Letter did not explain why a full “regulatory investigation” was not done.

The DDS Decision Letter concluded that as a result of the limited review, there was insufficient evidence to conclude that Nick had been abused by a staff member, and that Nick had “acknowledged” his injury had been self-inflicted. However, the Decision Letter did not disclose who was interviewed by the investigator. Cindy said she was not interviewed, and it is not clear whether even Nick was interviewed, based on accounts in the Decision Letter and subsequent DDS Action Plan.

The Action Plan, in fact, stated that, “It was reported by the provider that (Nick) exhibited self-injurious behaviors (SIB) causing injury to himself and was restrained.” (my emphasis). This statement appears to imply that the DDS investigator may have relied on an account from the provider, possibly even from the alleged abuser, in concluding that Nick had injured himself.

Both the Decision Letter and Action Plan said only that “during the course of the investigation witness(es) were interviewed and relevant documents were reviewed.” There was no specificity as to which documents were reviewed, or which witness or witnesses were interviewed. In fact, it isn’t clear, based on the word “witness(es),” whether more than one person was actually interviewed.

DPPC regulations (118 CMR 5.02) require that in full investigations, the investigator interview the reporter of the injury — in this case, Cindy. Cindy said that never happened.

The regulations also require that the investigator provide an assessment of the “immediate protective services needs” of the alleged victim to prevent the risk of further harm. There was no indication in the Decision Letter or Action Plan that such an assessment was done in this case.

The Action Plan recommended only that Nick’s residential and day provider staff “create a communication log that documents such incidents so everyone is informed.”  There was no recommendation in the Action Plan relating to failure of the provider or DDS to report the injury to DPPC.

Similarly, DDS and DPPC declined to undertake an investigation of an incident in 2018 in which Nick contracted sepsis and spent eight months in a hospital because of the apparent negligence of staff in his group home. That incident was also not reported by the provider staff or by DDS to DPPC.

No response from DDS or Incompass

As noted, on August 25, I sent an email to both DDS Commissioner Ryder and to Phelps, the Incompass CEO, noting our concerns about the restriction on family contact and about reports of poor conditions and staff treatment of Nick that led him to state and text to his mother that he did not want to remain there. As such, I wrote, we are concerned the residence is potentially unsafe for Nick. To date, I haven’t received a response to my email.

We urge DDS and Incompass to reconsider the restrictions placed on family contact with Nick. We also urge DDS to conduct a full investigation of the injury that occurred to Nick on March 16, and to investigate the care and conditions in the residence.

Finally, we urge DDS to work with Cindy to identify another residential setting for Nick or a placement in an Intermediate Care Facility such as the Hogan Regional Center.

DDS client removed against her will from shared-living home in alleged retaliation for reporting abuse

July 26, 2022 3 comments

It was on a Monday in May that Mercy Mezzanotti, a client of the Department of Developmental Services (DDS), was taken against her will from the home of Karen Faiola, with whom Mercy had been living for four years.

The person who came to take her worked for Venture Community Services, a nonprofit contractor to DDS. Up to that time, Venture had been paying Karen to provide shared-living services in her home to Mercy.

“I told them (the Venture employee and later other managers of the corporation) this is against my human rights,” Mercy said in a phone interview. “I’m my own guardian. I’m not going along with this. But they wouldn’t tell me anything. This should be under investigation.”

Both Mercy and Karen contend that Venture was retaliating against them because they had complained to managers of the organization in April that two of its employees had been verbally abusive toward Mercy.

Karen Faiola (left) and Mercy Mezzanotti

Mercy, 47, has a mild intellectual disability. As she put it, she has “trouble processing certain things.” But while she attended special needs classes in her school district as a child, she took mainstream classes in English and consistently made the honor roll. “I constantly studied,” she said. “I loved school.”

As her own guardian, Mercy has full legal authority to decide where to live, as well as to make other major life decisions. In our view, Venture’s alleged action to remove her from her home against her will was arbitrary if not unlawful.

Mercy and Karen said that the Venture employee drove Mercy on May 23 from Karen’s home in Sutton to the home of a family in Worcester that Mercy didn’t know. She said none of the people in the home spoke English. The next two days and nights were filled with anxiety and emotional trauma for her, Mercy said.

“I thought I would never see my home and Karen and my two cats that I love again,” she said.

Karen said that she conferred with Mercy’s private therapist after getting calls from Mercy saying she wanted to come home. She said the therapist maintained that Mercy had the right to make that decision; so Karen picked Mercy up on May 25, and drove her back to her home.  She said Mercy told her that she no longer wanted to have anything to do with Venture or its employees.

Venture stops payments

On May 23, the same day that Mercy was removed from Karen’s home, Venture notified Karen that they were terminating her shared-living contract to care for Mercy in her home. Karen said DDS officials have subsequently refused to act on her request that her contract be referred to another shared-living manager. She said the organization she suggested to DDS is located near her house and is one that she has experience with.

As a result of the contract termination, Karen said, she has not been paid since May for caring for Mercy in her home. She said that she nevertheless intends to keep Mercy there as long as Mercy wants. “I’m not going to allow anyone to take Mercy to any place she doesn’t want to be,” Karen said.

Under Mercy’s shared living arrangement, DDS had paid Venture to contract directly with Karen for providing residential services to Mercy. Karen said Venture paid her $2,882 a month under the contract.

“Karen has helpd me grow and see my potential and find a voice,” Mercy said. “I feel confident speaking to people.” She said Karen regularly takes her to doctors’ appointments, for pedicures, and to visit her father and a friend of hers.

Mercy added that she and Karen have gone hiking together and go shopping together. She said Karen makes her meals and helps here take care of her cats, while she takes the trash out. “I love Karen,” she said. “She’s  such a dream, such a great person.”

No written reason given in shared-living contract termination notice

Karen said a Venture employee alleged in a Zoom meeting with her and other provider personnel on May 19 that Mercy was going to be removed from her home because she had neglected to take Mercy to doctors’ appointments for the previous three years. Karen said this charge was untrue; and she provided COFAR with a doctor’s summary indicating that Mercy’s doctors’ visits and medications were up to date as of March of this year.

In a May 23 letter to Karen, Dorothy Cote, executive vice president and CFO of Venture, gave notice of the termination of Karen’s shared-living contract, but did not include a reason in the letter for the termination.

Cote’s termination letter cited a provision of the contract, which stated that Venture “may terminate (Mercy’s) placement upon due cause, a suspicion of due cause, abuse or neglect.”  The letter also said Mercy could be removed from the home  “pending the outcome of an investigation.” The letter, however, did not allege due cause, abuse or neglect against Karen. Cote’s letter also did not indicate that an investigation of any kind was pending.

If Venture officials did believe Karen had been neglectful in her role as a caregiver, there appears to be no indication that anyone reported an allegation against Karen of omission of care to the Disabled Persons Protection Commission (DPPC), as they would have been required to do.

Retaliation alleged for reporting abuse

Both Mercy and Karen contend that the sudden removal of Mercy from Karen’s home and termination of Karen’s contract were acts of retaliation by Venture against the two of them.

Karen said Mercy had been living with her for the past four years without incident. But she said that a number of months ago, there were changes in management at Venture, and problems began to develop with the new personnel. One of those new employees, she said, was assigned as a job coach to Mercy.

Mercy maintained that the job coach often harassed her at her job at a Papa Gino’s restaurant by mocking her work ethic. In one instance, in April, she said, the job coach suggested to the Papa Gino’s manager that she should fire Mercy. In another instance, she said, the job coach threatened not to drive Mercy home from work.

Karen said that in addition, a Venture service coordinator assigned to Mercy further abused her emotionally by threatening to remove her from Karen’s home.

Karen said she reported the incidents to a supervisor at Venture, and that led to the removal of Mercy from her home.

Therapist corroborates claims of emotional abuse

Grishelda Hogan, a licensed clinical social worker, has been Mercy’s therapist since 2019. In a July 21 email to Mercy and Karen, Hogan wrote that Mercy had “expressed consistently that she was happy in her home (with Karen)…It was clear in therapy,” Hogan stated, “that (Mercy) was making great strides in her life and I was able to see her self-esteem and self-worth develop as she finally felt seen and heard.“

Hogan stated that Mercy “had been reporting ongoing concerns with her Venture job coach. She reported feeling trapped and unsupported…” Hogan added that Mercy felt she had been lied to, and that the job coach had violated her privacy by talking to another individual on the phone about Mercy’s personal information. She said she passed her concerns on to DDS.

Hogan stated that she contacted Mercy’s DDS service coordinator after she learned that Mercy had been “abruptly moved from her home without warning or discussion despite being her own guardian.

“I shared that Mercy was reporting intense anxiety, difficulty sleeping, feeling sad and defeated, missing her home and her cat and her shared living monitor (Karen),” Hogan stated in her email to Karen and Mercy. “She was reaching out to me consistently asking for help and advocacy to get home.”

Hogan said the service coordinator told her she didn’t know the reason Mercy had been removed from her and Karen’s home. Hogan said Mercy had told her neither Venture nor DDS had ever asked her about concerns in the home prior to the move.

In her email, Hogan wrote that she personally reported to the DPPC that Mercy had been improperly moved from Karen’s home. “Mercy has consistently stated she believes her rights were violated,” Hogan wrote, “and DDS should be held accountable. And she fully believes the move was retaliation due to herself and her shared living monitor (Karen) speaking up.”

DPPC decides against full investigations of emotional abuse allegations 

Karen said she also reported three allegations of emotional abuse against Mercy to the DPPC in May, just before Mercy was removed from her home. Those allegations include instances involving the job coach and the service coordinator, and the then pending removal of Mercy from her home.

Subsequent letters addressed to Mercy from DDS Area Director Denise Haley, dated May 27, indicate that Karen’s allegations were referred to DDS for an Administrative Review.

According to DDS regulations, an Administrative Review is undertaken when the DPPC “screens out” abuse and other allegations for full investigations by either the DPPC itself or DDS (115 CMR 9.11). It’s not clear to us why DPPC would have screened out Karen’s and Hogan’s allegations, as both Karen and Mercy stated that Mercy had suffered emotional injury as a result of the alleged abuse.

No response to COFAR query sent to DDS area director and Venture CFO

On July 19, I sent an email query to DDS Area Director Haley and to Cote, the Venture executive vice president and CFO, raising our concerns about the removal of Mercy from Karen’s home and the termination of Karen’s shared-living contract, apparently without written cause. I cc’d Anthony Keane, the DDS Worcester regional director.

In the email, I discussed Karen’s and Mercy’s allegations of retaliation by Venture against them for having alleged abuse by Venture employees. I asked for any comment Cote or Haley might have. To date, I have not received a response from any of those persons to my email.

DDS removes client’s eligibility for Medicaid funding for shared living services

In my email to Haley, Cote, and Keane, I said we were also seeking an explanation for the apparent disqualification by DDS of Mercy from eligibility for Medicaid Intensive Support Waiver Services. A July 6 legal notice from DDS stated that Mercy was being denied eligibility for the Intensive Support Waiver. No reason was given for that denial in the notice, other than an unsupported and unexplained statement that there were “no waiver services” available.

We agree with Mercy that a full investigation is warranted of Venture’s apparently unlawful removal of her from her home, and of the other alleged instances of emotional abuse against her. We also would urge DDS to immediately refer Karen to another shared-living contracting agency, and that she be reimbursed retroactively for having provided shared-living services to Mercy since May.

This case appears to fit a pattern in which family members or other individuals who report abuse or poor care of DDS clients are dismissed or find themselves subject to retaliation by corporate providers or by the Department itself. We are hoping that in continuing to shine a light on these cases that we can help one day break this pattern.

Mother protests state’s restrictions on son’s contact with church, and questions safety in his group home

April 7, 2022 26 comments

Note to Readers:

Last week, we reported here about Valerie Loveland’s fight against efforts to limit her co-guardianship of her son and evict her from her apartment.

This week, we are updating the case of Cindy Alemesis, the mother of another client of the Department of Developmental Services (DDS). As we have previously reported, DDS is continuing an effort to remove Cindy as her son’s co-guardian even though Cindy acted to save her son’s life in 2018.  

A hearing in Middlesex Probate Court on DDS’s guardianship removal petition against Cindy has been scheduled for May 5.

Cindy says that in addition to trying to remove her as her son’s co-guardian, the state is imposing unfair and punitive restrictions on her son’s contact with the community and with his church. She says the church, which she also attends, has been a “lifeline” for her 30-year-old son Nick.

Cindy also said she is concerned about Nick’s safety in a group home in Dracut in which he suffered an apparent head injury last month.  The group home is operated by Incompass, Inc., a corporate provider funded by the state.

In seeking to remove Cindy as co-guardian of Nick, DDS appears to be trying to give sole guardianship to the other co-guardian who is paid by the Department. Cindy contends that co-guardian, who has other wards, has rarely visited Nick.

Nick and Cindy Alemesis

In 2018, Cindy appears to have saved her son’s life after she discovered he was ill following a church service. She insisted he be taken to a hospital, where doctors discovered that a shunt in his brain had been leaking fluid into his stomach. Nick spent 10 months in the hospital with sepsis, and underwent numerous brain operations and other procedures as a result.

The 2018 incident was not investigated by the Disabled Persons Protection Commission (DPPC) even though Zaheer Ahmed, Nick’s doctor, charged that staff in the group home failed to bring Nick to a scheduled ultrasound appointment. According to the doctor, that ultrasound would have revealed the fluid leaking from the shunt.

Dr. Ahmed recently wrote a letter to the probate court, supporting Cindy and opposing DDS’s attempt to remove her as Nick’s co-guardian.

Recently injured in group home

Cindy contends that care and safety problems have persisted in Nick’s group home, and said she thinks Nick may have been physically abused in the residence on or about March 18.

Cindy has been out of the country since March 14 on a church-sponsored missionary trip to Nigeria. While there, she received a call from her mother that Nick was bleeding from his ears in his group home, and had been  taken by ambulance to a hospital. In addition, she said, his face was bruised.

Cindy said no one from the group home has responded to her questions about the incident, but that staff told her mother Nick’s injury was self-inflicted by banging his head against a wall.

Cindy said, however, that she has never witnessed Nick injure himself. She also said Nick is afraid of the group home, and has told her people are hurting him there.

No incident report apparently filed with DPPC

On Monday (April 4), Cindy called the DPPC to ask if a report was ever filed about Nick’s injury and hospitalization in March. She said the DPPC informed her on Wednesday that no report had been filed.

Under state law, the group home staff must report any case of suspected abuse or neglect to the DPPC.

Cindy said she called the DPPC hotline number this morning (April 7) to file a report herself with the agency about the March incident, but was told the wait time was 50 minutes due to a high volume of calls. She said she left a voicemail message asking for a callback, and planned to try to call again.

She was finally able to call in the report later on April 7.

According to a DPPC guidance document, even self-injurious incidents and unexpected hospital visits should be reported because they may indicate negligence of a caregiver or provider.

DDS Co-guardian writes letter restricting Nick’s visits to church; cites safety concerns

Rather than investigating or addressing conditions or care in Nick’s group home, Cindy said, DDS officials have moved instead to restrict her son’s contact with his church and community.

Following Nick’s injury in March, the DDS co-guardian wrote a letter to Cindy and the group home staff, which imposed a restriction on Nick’s attendance at his church in Londonderry in New Hampshire. The March 24 letter stated that,“Nick can go to church only if Cindy can take him and she provides supervision.”

The co-guardian’s letter also imposed restrictions on Nick’s contact with the community. The letter stated that, “Nick cannot go to church or access the community with (his) Uncle Danny or any friends from church due to issues of liability. They can visit him at the group home only. Incompass will find a local Baptist church where staff can supervise him.”

Given that Cindy has been out of the country, she said Nick has been unable for the past month to visit his church. She said she doesn’t understand why DDS would react to an injury to Nick that occurred in his group home by restricting his contact with his church and with the community.

For years, Cindy said, Nick has been taken to church services and functions from his group home either by family members or friends. Cindy herself doesn’t drive, and depends on those people for transportation to the church as well.

It is not clear what authority the DDS co-guardian has to restrict Nick’s church attendance. However, Nick’s DDS service coordinator texted Cindy on March 29, stating that the co-guardian’s “guidance” was “fair.”

Cindy said going to church is Nick’s principal social activity, and that his life revolves around church functions. He has been attending the church since he was five years old.

However, the DDS co-guardian’s letter stated that, “Nick presents a risk to the community, and is a risk to reoffend.” There was no explanation in the letter as to what type of risk Nick presents or what offenses Nick may have committed there.

In his March 29 text to Cindy, Nick’s DDS service coordinator stated that, “Nick is having an alarming increase in temper tantrums. He is exhibiting self-injurious behavior. He has a forensic history. There are concerns of him reoffending. There are issues of liability. He isn’t safe to go out into the community unsupervised. Period.”

Two incidents in 2014

Cindy said the references to Nick having a forensic history are apparently to two incidents that occurred in 2014. In one, she said, Nick “kissed a girl’s hand and wanted to walk her home.  He knew her from school.” That same year, she said, “he urinated outside.”

Cindy said that in the wake of those incidents, Nick was found by the probate court to be incompetent, and Cindy agreed to become his co-guardian. He was never charged criminally. Cindy said Nick was first placed at that time in a group home. She said there have been no similar incidents since 2014.

Cindy said Nick has never been violent with others in the community, and has never had a forensic history, which implies criminal activity.

Cindy says no basis for restrictions on church and communty contact

In her March 24 letter, the DDS co-guardian stated that Nick “can go to lunch with mother or walks with father if conditions met.” Among those conditions are that, “There must be no temper tantrums, property damage, or incdents of self injurious behavior for 48 hours prior to event.” The co-guardian’s letter added, “Behaviors documented after interactions with family.”

Cindy maintained, however, that Nick has never had any problems with safety or injury in his church or in the community.

Pastor confirms he never saw Nick cause problems in church

The pastor of Nick’s and Cindy’s church, the Reverend Keith Phemister, confirmed Cindy’s assertion that Nick has never caused problems in his church.

“We’ve never had a problem with Nick,” Phemister said. “He’s never hit or hurt anyone here.” He said that a few months ago, Nick expressed anxiety at having to return to the group home. “He doesn’t like it there for some reason,” he said.

Phemister confirmed that as a result of the DDS co-guardan’s letter, Nick has not been able to attend the church for the past month. “I know he looks forward to coming to church,” he said. It’s his lifeline.”

On March 29, Cindy texted the service coordinator, saying, “ When I die, Nick will have no more church. … Why. Why take it away.”

The service coordinator texted back, saying, “Nick’s family and church friends can visit him anytime at the group home. I will not respond to anymore emails at this time.”

DDS not providing supported resasoning for its actions

In our view, DDS is attempting to remove Cindy as her son’s guardian, apparently without regard for the fact that she is the one person who has clearly acted in his interest in saving his life and advocating for his safety.

Nick does not appear to be safe in his group home and has expressed a fear about being there. He was injured there last month. Yet, the response by DDS officials has been to restrict his contact with his family members, his friends and his church, and the community as a whole.

Nick does not appear to pose any risk of harm to himself or others in his church or the community.

The DDS response does not appear to make sense. That’s may explain why the service coordinator doesn’t want to respond to further email inquries from Cindy.

Mother fighting both removal of her guardianship rights and eviction

April 1, 2022 5 comments

The mother of a man with a developmental disability has found herself having to fight both an effort to limit her co-guardianship of her son and a move to evict her from her subsidized apartment.

For Valerie Loveland, whom we have written about before, this two-front battle is the latest chapter in her years-long struggle with a system that seems to be designed to override rather than uphold her and her son’s rights.

Valerie is co-guardian of her 24-year-old son who is non-verbal and needs 24-hour care. He has been a resident for the past six years in three separate group homes on Cape Cod run by the May Institute, a corporate provider funded by the Department of Developmental Services (DDS).

Valerie has asked that her son’s name not be published.

A motion to limit Valerie’s guardianship rights was filed in early March in Barnstable County Probate Court by her son’s other co-guardian – an attorney who is employed by DDS.

Valerie Loveland

This is one of a number of cases we have reported on in which DDS has sought, or is seeking, to limit guardianship rights of family members or remove their guardianships altogether. (See here, here, here, and here.)

Valerie said DDS had first attempted to remove her as her son’s guardian when he turned 18, but then agreed to the co-guardianship arrangement.  The other co-guardian has other wards as well.

Valerie contends that the DDS co-guardian virtually always sides with the May Institute, which she says has failed to provide adequate care for her son. The co-guardian also opposes Valerie’s use of prescribed natural medicines for her son’s care.

Emails show the DDS co-guardian also objected last year when Valerie temporarily removed her son from a previous May Institute residence after he was allegedly sexually assaulted there. More recently, the co-guardian opposed a decision by Valerie to remove her son temporarily from his current residence after she said she was informed he had suffered a head injury there.

Eviction notice based on apparent technicality

The eviction proceedings were launched against Valerie in December by her landlord, Lake Street Limited Partnership, and its managing agent, The Community Builders, Inc., a nonprofit corporation. The eviction notice is based on what appears to be a technical violation of the lease for her Chatham apartment.

Valerie said she has never failed to pay her rent on time. The issue raised by the landlord in the eviction notice is that Valerie is a full-time college student. The notice states that as a full-time student, Valerie is in violation of a provision of her lease stating, among other things, that a household with a full-time student must also include a single parent with children.

Valerie said that after receiving the eviction notice, she emailed the attorney for the landlord, asking whether her son’s weekly visits home satisfied the lease provision. She said she received no response to her query.

A DDS official even wrote to a housing official involved in the management of Valerie’s apartment complex on March 2, confirming that Valerie’s son needs to have a room maintained for him in the apartment. That message from DDS, however, apparently has had no effect on the decision to evict her.

Both issues are coming to a head this month. A Southeast Housing Court mediation session has been scheduled for April 11 in the eviction case; and a hearing on the motion to limit Valerie’s guardianship rights has been scheduled for April 19 in Barnstable County Probate Court.

Son’s care has taken a financial toll

Valerie estimates that it cost her thousands of dollars in lost income while she cared her son at home last year and drove him each day to his day program in Mashpee.

She works in grocery delivery and part-time in aromatherapy, Reiki, and low-carb diet counseling, and is pursuing an online college degree in alternative medicine.

Valerie and her ex-husband were divorced in 2002. She said her ex-husband has been completely uninvolved in her son’s life and hasn’t seen him since her son was about two or three years old. Valerie cared for her son at home until he was 18.  Her ex-husband owes her child support, she said, but has disappeared.

Valerie takes pride in her studies in alternative medicine. She is a sophomore in the online Bachelors in Alternative Medicine program at Everglades University of Boca Raton, FL. She is studying to become a qualified naturopath, and passed her ethics semester with high honors (597/600 points.)

DDS co-guardian seeking to and limit Valerie’s ability to make medical decisions

In a motion filed March 2 in Barnstable County Probate Court, the DDS co-guardian stated that he was seeking to transfer Valerie’s authority as “representative payee” regarding her son’s Social Security funds to either the May Institute or to himself.

The co-guardian’s motion also asked that Valerie’s medical decision making be limited to consenting to medical decisions made by others, and that Valerie be barred from removing her son from the May Institute home in the future.

The motion further stated that “it is believed” that Valerie’s “motivation” in bringing her son home to her “is primarily based on it being the only way for her to retain her present housing.” The motion referenced the eviction proceeding against Valerie.

Valerie said the co-guardian had been threatening for years to seek her removal as co-guardian of her son.

Not seeking financial remuneration

In a statement she sent to the Probate Court this week, Valerie said that she isn’t paid for caring for her son and isn’t seeking payment for that. “I want what everyone parent wants for her child. For him to be successful at his program, happy at his home life, and stable enough to mature,” she wrote.

Son’s behaviors and health are linked to his diet

Valerie said that while her son was at the first May Institute group home in Cotuit, his aggressive behaviors started to escalate, including banging his head against walls and tearing up his mattresses.

Valerie maintains that dietary changes that she insisted upon reduced the head-banging. Those dietary suggestions included giving him whole foods, including fresh vegetables, fruits, and whole-grains and essential oils supplements.

Last May, however, the DDS co-guardian stated to her in an email that her changes to her son’s diet constituted “a major step, especially if the reason is not medically required.”

Natural medicines and supplements are prescribed by doctor

Valerie said her son’s diet has been prescribed by his doctor, who has supported her request that the May Institute not feed him packaged processed foods. “The additives and chemicals are too much for his system,” she said.

Valerie added that alternative medicine has been her son’s primary medicine. She said he had strong allergies  as a baby, including an allergy to infant Tylenol. “It’s no secret that a child with autism already has a compromised immune system. I had to work very hard to build his system up to be tolerant of vaccinations, and antibiotics and over-the-counter meds,’ she said. “ I knew a day would come where I wasn’t going to be in his life.”

Removed son temporarily from home in February

Valerie said that this past fall, she was informed by her son’s doctor that her son had been banging his head frequently in his group home. She said she had not been made aware of that by the group home staff.

The situation has continued, she said. In late February of this year, she took him home after a repeat of the incidents last fall. She said she again received a message that her son had been banging his head and had not received medical attention for it. “No one was returning my calls, so I went and got him,” she said.

That was when the DDS co-guardian filed the motion in court limiting her guardianship and preventing her from removing her son from the group home. In response, she said, she returned her son to the May Institute residence.

In an affidavit attached to his motion to limit Valerie’s guardianship, the DDS co-guardian maintained that Valerie had indicated in emails that she intended to bring her son home permanently. The co-guardian alleged that she was doing this to avoid eviction from her apartment.

Valerie maintained, however, that her intention in bringing her son home was to protect him. “My son communicates with behaviors,” she said. “When he’s frustrated he bangs his head. When he’s sick he bangs his head. I’m very concerned that with six residents in his group home and with only three and sometimes two staff on hand, that it’s a safety issue.”

Co-guardian opposed removal from group home despite abuse allegation

In March 2021, Valerie said she was informed that her son had been abused sexually by a staff member. She has still not been provided with details of the abuse or information as to whether there have been criminal charges filed in the matter.

In the wake of that incident, Valerie said she took her son home with her and sought placement of her son in another facility. But the DDS co-guardian objected to an alternative placement to the May Institute residence.

In a May 25, 2021, email, the DDS co-guardian stated, “I trust the May Institute and its staff to be working for the best for (Valerie’s son). I am not in favor of looking for another residential placement… I am unaware of any other residential program that would accept (her son) or be in his best interests.”

As late as June 2, 2021, the co-guardian said he continued to “fully object to his (Valerie’s son’s) removal from May until a response from DDS is obtained.”

Valerie said the co-guardian finally relented regarding removing her son from the first group home, and later in June of last year approved his move to the new residence.

Disregarded and disrespected by co-guardian and staff

After Valerie’s son was placed in his latest May Institute residence in Cotiuit last year, it appeared things were getting better. The staff appeared to be making an effort to follow her requests to improve her son’s diet, and were carrying out his occupational therapy plan.

But Valerie said her son’s continuing head-banging incidents earlier this spring and the co-guardian’s motion to limit her guardianship rights have convinced her nothing has really changed.

Valerie maintains she has been continually “disregarded and disrespected” by the DDS co-guardian and by the group home staff. “My son needs someone in addition to me who is willing to educate themselves in occupational therapy and willing to listen about alternative medicine, and, if necessary, advocate for my son,” she wrote in her recent statement to the probate judge.

We hope that DDS will reassess this case and the track record and actions of its co-guardian. Valerie’s rights as her son’s guardian should not be limited. We also intend to advocate for Valerie in her fight to stay in her apartment.

As a parent whose interest is maintaining the wellbeing of her child, Valerie should not also have to fight a system that is apparently trying to make her homeless.

Lawsuit filed after Suffolk DA apparently declines to bring criminal charges in alleged rape of a woman with an intellectual disability

March 7, 2022 4 comments

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.

DPPC rescinds abuse charge against mother who gave her son prescribed Tylenol and cough syrup

February 28, 2022 9 comments

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 it’s 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.)

Two medical specialists say physical therapy needed for man allegedly isolated in group home

February 17, 2022 5 comments

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.

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