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Family is shut out of contact with special needs daughter
Maryann Duzan and other members of her family lost their guardianship of Maryann’s intellectually disabled daughter, Sara, in 2009, based on an admission by Maryann that she once slapped her daughter on the cheek, and the apparent perception that the family has been too aggressive in advocating for her.
As a result, a series of increasingly restrictive limits has been placed by court-appointed guardians and residential providers on family communication with Sara. Since June, the family has not been allowed to see Sara, who is currently living in a group residence in Westminster, MA, run by a state-funded, corporate provider.
As of late November, the family was prohibited even from talking with Sara over the phone. The family is afraid she is being subjected to what they consider abusive “restraints” by the group residence staff, but they have no way of determining what is actually going on.
Maryann contends her daughter, who is now 22, has been kept a virtual prisoner in the residence run by Becket Family of Services since late July. Sara has a condition known as Smith Magenis Syndrome, a genetic disorder characterized by intellectual disability and behavioral outbursts. The family maintains that the use of restraints to control those behaviors actually makes them worse.
According to the family, the restrictions on their contact with Sara and the removal of their guardianship occurred because they called attention to what they termed abusive restraints placed on Sara in previous residential programs in Northfield, NH, and New Marlborough, MA. Their claims about the New Hampshire facility, the Spaulding Youth Center, were corroborated by an attorney for the federally funded Disabilities Rights Center in that state, who found that Sara was repeatedly restrained by staff in the facility between 2008 and 2010.
According to Aaron Ginsberg, the DRC attorney, Sara was often restrained at the Spaulding Youth Center while naked or partially clothed for hours at a time, and male staff were often involved. She frequently suffered bruises and other injuries from what are known as prone restraints, and was subjected to hours of enforced seclusion, Ginsberg stated in an internal DRC memo. In addition, staff at the facility joked about Sara and other residents of the facility on Facebook, Ginsberg wrote.
Sara Duzan (fourth from left) celebrates a birthday for her grandmother with her family. Pictured are (from left) Erin Hachey, Sara’s sister; Maryann, her mother; Virginia Herrity, her grandmother; Sara; David, her brother; Paul, her father; and Tyler, her nephew. The family has not seen Sara since June and is currently not permitted even to communicate with her by phone.
Ginsberg further noted in the memo, dated November 8, 2010, that Sara’s behavioral outbursts appeared to be largely in response to physical restraints or the threat of their use from the staff at Spaulding. In his memo, Ginsberg stated: “In most incidents, Sara would not become aggressive until staff approached her or became physical with her.” Her family believes her aggressiveness in those situations was an attempt to protect herself.
A full investigation of Ginsberg’s findings was apparently never done by the DRC, however. Now, the family is concerned staff in Sara’s current residence run by Becket Family of Services are once again using excessive restraints on her.
The use of restraints to control behavior has become increasingly controversial. In an online paper written for the Minnesota Governor’s Council on Developmental Disabilities, attorney David Ferleger maintained that there “is a proven risk of death and other injuries” from the use of restraints, and that “programmatic and planned restraint is not therapeutic or educational.” He noted that prone restraints involve “the prone positioning of a patient, following which their wrists are secured behind their back, their ankles are tied, and their wrists and ankles are subsequently secured together by pulling the shoulders back and bending the legs towards them.” In a series of 214 cases of people subjected to prone restraints while in agitated delirium, death occurred in nearly 12 percent of the cases, Ferleger stated. Ferleger contended that only vertical person-to-person restraints should be allowed, and only for “a very limited time.”
Excessive restraints as well as communication and visitation restrictions could violate Massachusetts state regulations that require that people with intellectual disabilities receive humane and adequate care and treatment as well as the “least restrictive” level of care, and that they have the right to be visited. There may be violations as well of regulations governing the use of restraints.
For the Duzan family, all communication with Sara was cut off on November 26, two days before Thanksgiving, when Maryann received an email from attorney Lynn Turner, Sara’s current guardian, announcing that all further contact either by phone or in person was being “suspended indefinitely” and that the police would be called if anyone from the family or “an agent of the family” attempted “to come onto the program,” meaning the Becket Family of Services residence. Turner stated that this cutoff in contact was being instituted “as per agreement between the program staff and me.”
A few months earlier, a document provided to the Duzan family from Sara’s current residential program stated that the family would be allowed to make one 15-minute call a week to Sara, and that no one was allowed to discuss visits home or whether Sara was unhappy at the facility or its treatment of her. All calls were to be monitored by staff, and the family was to give a two-minute warning to Sara after 13 minutes that the call was coming to an end. Sara was specifically prohibited from talking to her family about any “dislikes about staff, residence, Becket,” or about restraints.
Maryann contends the family was allowed seven phone calls with Sara since the end of July, and during five of these phone calls, Sara made statements about being assaulted, punched, restrained and living in poor conditions. In those instances, Maryann said, the phone was disconnected shortly after Sara began making those claims.
Similar restrictions on family contact were imposed while Sara was at the Spaulding facility. The latest restrictions on family contact were put into effect despite the fact that a probate court judge in 2010 described the family’s “undeniable love” for Sara. The family’s apparent problem, as characterized by Norfolk County Probate Judge George Phelan, was that the family as a whole was uncooperative with providers and appointed guardians, and felt “only they know what’s best for Sara.” Phelan termed the family “ill-suited” for guardianship and “inartful.”
Colleen Lutkevich, COFAR Executive Director, maintains that the Duzan case illustrates the danger a family can face in caring for a disabled loved one if they lose guardianship of the person. Not only has the Duzan family lost all contact with their daughter, but they say they have spent their life savings on legal costs in their so-far unsuccessful effort to regain their guardianship. Their legal battle has been a byzantine one that has involved a succession of guardians and even a Special Master in July who is supposed to resolve disputes between the family and Sara’s current guardian. During this time, the state has paid at least three attorneys to fight the family efforts to regain guardianship, Maryann said.
Andrea Barnes, the Special Master, wrote in July to Maryann that she agreed that “it is important for Sara to know that contact with her family will be a normal part of her life…” But it does not appear that Barnes has acted on the family’s behalf to restore that family contact. Maryann wrote to Barnes on November 24 to ask her to get Sara out of the current residence because she thought she was being harmed there, but Barnes responded the next day that she had no reason to believe Sara was being harmed. Barnes promised only that she would visit the residence to check on Sara “sometime in the next few weeks, and will certainly let you know if I have concerns.”
Maryann Duzan and other family members initially gave up their guardianship of Sara in the wake of a December 2009 investigation by the Massachusetts Disabled Persons Protection Commission (DPPC) into allegations of abuse of Sara against the Duzans themselves, including an admitted instance in which Maryann slapped Sara on the cheek. Maryann contends Sara was browbeaten by the Spaulding staff to implicate her family in abuse.
Maryann said she slapped Sara on one occasion because Sara was acting aggressively while at home and was threatening to throw a radio at her. She said Sara was acting out because she was due to be returned to Spaulding the next day following a weekend visit home. Maryann said Sara did not want to go back to the New Hampshire facility because she was being physically abused there, but did not communicate that verbally to her family at the time.
The eventual DPPC report noted that aside from the slap by Maryann, the allegations of beatings of Sara by one or more members of the family were all the result of a statement given on one occasion by Sara to staff at Spaulding. The report concluded that the DPPC could not substantiate the allegations of abuse other than the slap by Maryann, and that Sara had never spoken negatively of any of her family members until the single occasion on Sept. 1, 2009.
While the abuse allegations against the family were under investigation, Maryann and her husband, Paul, agreed on the advice of their then attorney to temporarily relinquish their guardianship of Sara. The DPPC then filed numerous motions for co-guardianship arrangements in probate court that would limit the family’s involvement with their daughter. In October 2010, Judge Phelan ruled that none of the family members were suitable to be either guardians or co-guardians, and that Daniel Smith, the executive director of the Arc of Greater Fall River, should be Sara’s sole guardian. Phelan noted in his ruling that Smith had served as guardian for 24 other persons.
The major concern Phelan raised in his ruling regarding the family was not any alleged abuse by Maryann or other family members, but the difficulty that provider staff, guardians, attorneys and others allegedly had in dealing with the family as a whole. But despite the judge’s criticism of the family for acting as if they knew best about Sara’s treatment, the federal Developmental Disabilities Assistance and Bill of Rights Act states that families shall be the “primary decision-makers” in the care of their loved ones with developmental disabilities.
Meanwhile, in September 2009, allegations of excessive restraints used by Spaulding were reported by the Duzans to the Massachusetts DPPC. Maryann contends the family has tried for four years to report abuse and neglect of their daughter to the state. She says she sent graphic photos of injuries of Sara while at Spaulding to the DPPC’s deputy general counsel.
But, unlike the attorney for the New Hampshire DRC, no one from the Massachusetts DPPC investigated the family’s claims of abuse at Spaulding, Maryann and other family members maintain. “They (the DPPC) have made it clear they simply don’t care (about the alleged abuse of Sara by Spaulding staff),” Maryann’s son David, who was temporarily a co-guardian of Sara, stated in a detailed timeline that he wrote about Sara’s treatment from 2006 through 2010.
In June 2011, the Duzans’ new attorney, Michael Turner, alleged the use of excessive restraints on Sara at the Kolbourne School in New Marlborough, MA, where Sara was sent after Spaulding. Turner’s motion alleged that Smith did nothing about either the alleged abuse at Kolbourne or the previous alleged abuse at Spaulding, and that Smith cut off the family’s contact with Sara while she was at Kolbourne. Turner then proposed his wife, Lynne, as Sara’s new guardian. The family wanted other “options” for guardianship examined, but that apparently never happened.
In December 2011, Smith stepped down as Sara’s guardian and the Duzans agreed on Turner’s advice to accept Lynne Turner as Sara’s sole guardian and to sign a stipulation in probate court that they would never sue the DPPC, DDS, Smith, or their previous state-appointed attorney, George Marlette. They further agreed to sign a stipulation that no family member would even apply for guardianship of Sara for five years. Maryann said the family felt forced into signing the agreement to hold the parties harmless out of a fear that the family would never see Sara again otherwise. To avoid the appearance of a conflict of interest, Michael Turner stepped down at that point as the family’s attorney.
Today, the family considers Lynn Turner to be acting contrary to their and Sara’s best interests because she has upheld the Becket program’s restrictions on their communication with Sara. Once again, the family is unable to contact Sara, despite the assessment by a probate judge that they are a loving family to her. And once again, they fear Sara is being subjected to abusive restraints.
“All we want is Sara safely back home, never to be hurt again, and state agencies to stop retaliating against our family,” Maryann says.
We share the Duzans’ concerns about the situation Sara may be facing in her current residence. We hope the probate court will act quickly to return her to her home. We urge people to call their legislators to ask for their help in getting Sara back home. And we think this case merits an independent legislative investigation of all of its aspects.
The phone numbers for the Legislature’s Children, Families, and Persons with Disabilities Committee are (617) 722-1572 (Senate staff), and (617) 722-2011 (House staff). You can email the co-chairs of the Committee: Senator Michael Barrett at Mike.Barrett@masenate.gov and Representative Kay Khan at Kay.Khan@mahouse.gov.
In addition, you can contact: Governor Patrick constituent services at constituent.services@state.ma.us; DDS Commissioner Elin Howe at elin.howe@state.ma.us; and Attorney General Martha Coakley at ago@state.ma.us.
The system continues to fail the most vulnerable in the Templeton case
It seems that as events unfold in the wake of the alleged fatal assault of an intellectually disabled man at the Templeton Developmental Center in September, the system continues to fail everyone it was intended to protect.
Last week, Anthony Remillard was found competent to stand trial in connection with the death of Dennis Perry whom Remillard allegedly assaulted while both were in the Templeton Center’s dairy barn. As of this week, Remillard was being held without bail in the Worcester County House of Corrections.
We’ve already written here a number of times about our concern that Remillard was inappropriately placed at Templeton due to his apparently high level of dangerousness, and was not under sufficiently close supervision while there. However, given that Remillard is himself intellectually disabled, it seems to us that the Worcester County House of Corrections is an equally inappropriate place for this 22-year-old man.
Bonnie Valade is the mother of Tony Welcome, a Templeton resident who has himself had some previous scrapes with the criminal justice system and spent time at the same county jail facility now housing Anthony Remillard. She maintains that jail was wrong for her son, who she said was abused there, and will be equally wrong for Remillard. In an email, Valade had this to say:
My son was badly beaten (at the Worcester County House of Corrections) simply because he put his arm around an inmate saying ‘hello.’ The other inmates took everything we brought for him including his radio. He was sexually abused. They put him in a suicide cell just to keep him away from the population. If anyone knows about a suicide cell…it contains nothing not even clothes, only their underwear.
People with intellectual disabilities need clinical and other therapeutic services. They don’t tend to receive those services when they end up in correctional facilities. And they do end up in correctional facilities more often, it seems, than people of normal intelligence.
A recent article on the website Disabled-World.com notes that intellectually disabled people constitute “a small but growing percentage” of suspects and offenders within the American criminal justice system. While they comprise between 2 and 3 percent of the general population in the country, they represent between 4 and 10 percent of the population in prison and an even larger portion of the population in juvenile facilities and jails.
Intellectually disabled people like Anthony Remillard and Tony Welcome need to be in places that provide them with supportive supervision, structure, and security. In many key respects, prisons provide none of those things. It’s hard to imagine that the behavioral issues that Anthony Remillard apparently had that led to the alleged assault on Dennis Perry are going to be dealt with in a positive way where he is now. And the fact that he has been found competent by a judge to stand trial in the alleged fatal assault means he could end up in prison for the rest of his life.
As has been pointed out by others in this case, the system failed Dennis Perry, and now it is failing Anthony Remillard. In both cases, it does not appear that sufficient supportive supervision, structure, or security were or are being provided.
Unfortunately, we see the potential for more of these systemic failures as Massachusetts and many other states continue to cut staffing at facilities such as Templeton, which currently meet strict federal standards of care. We’ve asked for a legislative hearing to examine, among other things, whether a major phase-down in staffing at Templeton in recent years resulted in the apparent failure to adequately supervise Remillard there.
Templeton and countless other facilities like it are being closed around the country in the name of deinstitutionalization. The closure process has not resulted in better lives for everyone, however. We are creating a largely privatized system of care in this country that in many respects provides less supervision, structure, and security than before.
Even the most ardent proponents of privatized, community-based care acknowledge that the community system isn’t working very well. In a recent op-ed piece, the president of the Massachusetts Association of Developmental Disabilities Providers, referred to the “funding disaster that has governed private programs” that now serve most of the people with disabilities in the state. The quality of the care provided by these private programs reflects that funding disaster. The programs are rife with poorly trained and poorly compensated staff and with the consequent problem of abuse and neglect.
And what then happens to the Anthony Remillard’s who are caught up in a system of care that cannot adequately serve them or protect others from them? In more and more instances, they end up in a much worse institutional system — the prison system.
It is now well known that deinstitutionalization of the mentally ill since the 1960’s has led to a continued increase in the population of mentally ill people in the nation’s prison system. We are only starting to realize that the same thing is happening with respect to people with intellectual disabilities.
Update: new claims cast doubt on a cover-up of alleged assault at Templeton
Many concerns have been raised about the state’s oversight of care of the developmentally disabled in the wake of the alleged fatal assault of Dennis Perry on September 16 at the Templeton Developmental Center.
But a failure to notify investigating authorities about the incident may not be one of those issues.
It seems there is some disagreement between the Worcester County DA’s office and the Disabled Persons Protection Commission as to when and by whom the DA was notified of the alleged assault. The assault was allegedly committed by Anthony Remillard, a resident at Templeton who had been admitted there despite an apparent record of previous assaults and other crimes.
As you may know, The Worcester Telegram reported on October 27 that the DA’s office was never notified by Templeton Center officials about the alleged assault of Perry, and only learned of it from the chief state medical examiner’s office. Paul Jarvey, a spokesman for the DA’s office, confirmed that account to me after the Telegram & Gazette story broke and again when I spoke with him on November 6. He said it was only after Perry died on September 27 that the chief state medical examiner contacted Templeton Police who then contacted the state police detective unit attached to the DA’s office.
As a result, I posted here on October 30, asking whether the Patrick administration covered up a serious crime at a Department of Developmental Services facility.
However, Emil DeRiggi, DPPC deputy executive director, emailed me on November 6 that the DPPC was in fact notified of the alleged assault on September 17, one day after the incident occurred. DeRiggi later contended that according to the DPPC’s database, the DPPC’s state police unit notified the Worcester DA’s office that same day – September 17 – about the alleged assault.
Sgt. Timothy Grant of the DPPC state police unit said to me yesterday that he has a copy of a September 17 email that his office sent to the DA about the alleged assault, along with a copy of the DPPC intake form regarding the incident. Thus, according to the DPPC’s account, the Worcester DA was notified about the alleged assault one day after it occurred, and at least 10 days earlier than the Worcester DA claims to have been notified. DeRiggi said he could not reveal who notified the DPPC about the alleged assault.
So, while it is not absolutely clear who reported the case, it would seem that if the DPPC’s account of the manner and timing of the notification is correct, it would have been impossible for DDS to have covered the matter up.
On November 6, Jarvey had told me he could not comment on the DPPC’s assertion that the DPPC had been notified of the incident on September 17th. When I called him yesterday morning to discuss Sgt. Grant’s claim that the DPPC’s state police unit notified the DA of the alleged assault on September 17, Jarvey said he would “double check” the DA’s records and get back to me.
I sent an email yesterday to DDS Commissioner Elin Howe, asking whether she would comment on whether and when DDS notified either the DPPC or the DA, or both, about the alleged incident.
I would note that none of this addresses the DA’s additional claim that Templeton administrators also failed to report the alleged assault directly to the DA, as required by law. And it does not address an alleged failure by DDS to report an incident eight months earlier in which Remillard allegedly assaulted a Templeton staff worker. That incident was supposed to have been reported to the district court judge who had ordered Remillard sent to Templeton.
In any event, as we’ve said before about this case, there are many other questions and concerns about DDS’s management and oversight that are raised by this case — in particular, why Remillard was admitted to Templeton and whether the supervision of him there was adequate.
In a November 7 letter sent to Bonnie Valade, the mother of a Templeton resident, Howe said the circumstances surrounding the assault of Perry and the process under which Remillard was admitted to Templeton are under review by DDS. Howe maintained in the letter that while staffing at Templeton has been reduced in recent years as the residential population there has been phased down, the ratios of staff-to-residents are currently at “the highest level they have ever been.”
Howe’s letter added that: “(Templeton) has been an excellent program and has supported individuals with challenging behaviors successfully for many years.” She maintained that the center’s residential admissions practices “have remained consistent historically including throughout the closure period.”
All of that may be the case, but, as Valade has pointed out, many of the best and most experienced staff at Templeton have left the center since it was marked for closure by the administration in 2008. Despite the rosy cast that Howe’s letter has placed on the staffing and admissions situation at Templeton, the fact that an intellectually disabled man was assaulted and killed, allegedly by a resident at the center who was supposedly under close supervision, indicates that something is wrong there.
We believe an independent and comprehensive review of the circumstances surrounding Dennis Perry’s death is needed, and have asked the Legislature’s Children, Families, and Persons with Disabilities Committee to conduct that review and hold a hearing as part of it.
Did the administration cover up an alleged fatal assault at the Templeton Center?
Did the Patrick administration cover up a serious crime last month at a Department of Developmental Services facility?
That question is certainly raised by a story on Sunday in The Worcester Telegram & Gazette about the death of Dennis Perry, an intellectually disabled man, who was allegedly assaulted at the Templeton Developmental Center.
In what has been described by witnesses as an unprovoked attack, Anthony Remillard, 22, allegedly shoved Perry, 64, into a boiler on September 16 while the two men were working at the Templeton facility’s dairy barn. Perry suffered a head injury in the incident and died at UMass Memorial Medical Center on September 27.
We’ve raised a number of questions about the admission and supervision of Remillard at Templeton, but Sunday’s Telegram & Gazette article reveals many new facts about the case, based on court records. Among them was that Templeton administrators never reported the alleged attack on Perry by Remillard to police or the district attorney.
According to the newspaper, investigators learned of the alleged assault from the state medical examiner. When state police arrested Remillard on October 2 — more than two weeks after the alleged assault — he was still living at the Templeton Center.
In failing to report the alleged assault on Perry, the administration appears to have violated a state law (M.G.L. Chapter 19B, Section 10), which requires the superintendent of any DDS facility to report any serious crime at that facility to the district attorney within a week. It seems questionable that the superintendent of a state facility should be given even that much time to get around to reporting a serous crime to police. But, in this case, more than two weeks apparently went by with no report.
Moreover, as a spokesman for the Worcester County District Attorney’s Office confirmed to me, by the time investigators learned of the alleged assault, Dennis Perry was already dead, meaning this case involves a potentially unreported homicide. It seems unlikely that top administrators at DDS were not informed about both the alleged assault when it happened and Dennis Perry’s death 11 days later. Why did they not report either one?
But that’s not the only thing the administration apparently failed to report about this case.
According to the Telegram & Gazette story, a Worcester Superior Court judge had set conditions in sending Remillard to Templeton last year, one of which was that any incidents involving him be reported to the court. Eight months before he allegedly shoved Perry in the barn, Remillard allegedly punched a Templeton staff member in the chest and had to be restrained. Templeton never reported that incident, the newspaper reported, quoting investigators. (The D.A. spokesman confirmed to me that alleged reporting failure as well.)
As the newspaper previously reported, Remillard had been charged prior to his admission to Templeton in a May 2012 arson in a vacant building in Worcester. At his arraignment on that charge, the Worcester County D.A. had recommended that he be evaluated at either Bridgewater State or Worcester State Hospital. But the recommendation was rejected by the judge, and Remillard was allowed to enter a “pre-trial release commitment” at Templeton, a less secure facility.
On Sunday, The Telegram & Gazette reported that Remillard was developmentally disabled and repeatedly found not competent to stand trial in previous criminal cases. His history includes charges that he hit his 12-year-old brother in the face with a baseball bat in May 2011, and that four months later he threatened someone with a knife and punched him in the face. In addition, in June 2012, one month after he allegedly set fire to the vacant building in Worcester, Remillard was admitted to a psychiatric facility due to a “psychotic break,” and cut off a GPS bracelet.
Remillard did have a treatment plan at Templeton, which required that he be monitored by staff at all times except when in his room with his door alarm on, the newspaper reported. Among the many questions raised by this case is how he could have been in a position to allegedly assault and fatally injure Perry if he was under close staff supervision.
“My concern is that a man is dead, and there were things that were supposed to happen that could have prevented this, and they didn’t happen,” District Attorney Joseph Early told the Worcester paper.
Thomas Frain, COFAR’s president, is quoted in the article as noting that the administration is moving to close and privatize intermediate care facilities such as Templeton. As a result, most of the residents remaining in these state facilities are elderly. “This population is old, frail and medically needy,” Frain said. “Why were they holding someone violent and dangerous with a docile 64-year-old man? Someone is dead for no apparent reason. If you’re going to take someone like that, you have an obligation to keep everyone safe. I think they should answer for what happened there.”
The only answer the Telegram & Gazette was able to get from the administration in response to all of these questions is the same one-paragraph response we received when we asked for DDS’s policies and procedures regarding admissions and supervision of people with behavioral problems at Templeton. That response reads as follows:
In response to your basic questions about admission criteria and policies at Templeton Developmental Center, all individuals referred to TDC for admission must be eligible for supports by the Department of Developmental Services. Staffing and clinical services are individualized for each person and DDS works to promote the health and safety of all residents.
At the very least, we hope that state legislators will hold a hearing on the apparent administrative failures that allowed this tragedy to happen and the alleged failure on the part of the administration to report a serious crime to police.
It would be one thing if Dennis Perry’s death had happened out of the blue. But Remillard was well known to be dangerous and prosecutors were concerned enough about him that they didn’t want him sent to Templeton. DDS knew about Remillard’s background and apparently did not do enough to protect those around him. Coupled with this is the fact that the administration has been steadily downsizing staffing in facilities like Templeton and exposing remaining residents there to increasingly dangerous conditions.
On top of all of that, it appears there may be a policy in place of not reporting violent incidents even to police, and it’s hard to believe that policy does not come from the top at DDS and perhaps even at the Executive Office of Health and Human Services.
It looks an awful lot to us like a cover-up was put in place in this case. Certainly, so far, no one at DDS or in the administration as a whole is publicly accepting any responsibility for what happened to Dennis Perry. There seems to be no accountability.
Bedford group home resident’s injuries raise disturbing questions
We don’t yet know what happened to cause the serious injuries suffered in late August by Paul Stanizzi, a resident of a group home for the intellectually disabled in Bedford.
The incident is currently under investigation by the Bedford Police Department, which, as of Friday, was declining comment on the matter and would not even issue a police report. But whether Stanizzi was assaulted or whether the injuries were somehow self-inflected or an accident, the incident raises serious questions about the operation and management of the residence.
Fox25 TV news reported on September 9 that Stanizzi, who is non-verbal, was found lying on the floor in his room by a staff worker at the group home, which is run by the Edinburg Center, Inc., a nonprofit provider that is funded by the state Department of Developmental Services.
After Paul Stanizzi’s mother was called by the staff worker, the family rushed to a hospital and found Paul unresponsive in a hospital bed. His brother Joe pointed out to Fox25 reporter Mike Beaudet that Paul had a black eye, a bloody nose, bruises on his fingers, scratches on his arm, what appeared to be fingerprint bruises on his arms, two larger bruises on his leg, a cut on his knee, and other abrasions.
Despite all that, the hospital was about to discharge Paul, Beaudet reported. But when Paul’s father tried to raise him from the bed, his head flopped down. An MRI subsequently revealed damage to the vertebrae around his neck. According to the Fox report, medical records noted “possible recent injury” as a cause. The doctors performed emergency surgery. It is apparently not clear whether Paul, who remains in the hospital, has been permanently paralyzed from that injury.
In a statement, Edinburg CEO Ellen Attaliades told Fox25 she could not discuss Stanizzi’s medical condition because of patient confidentiality rules. But she added, “Unfortunately there are instances when individuals with severe developmental disabilities can injure themselves through their own physical actions. To allege abuse without any evidence and without considering all factors is both wrong and unjust to his devoted caregivers.”
It’s certainly true that developmentally disabled persons, like anyone else, can injure themselves, although the extent of Paul Stanizzi’s injuries in this case points strongly toward the possibility of abuse. But even if it turns out to be the case that Paul Stanizzi somehow injured himself, what does that then say about the staffing and management of the group home? If Attaliades believes that the scenario under which Paul injured himself lets her agency and the residence entirely off the hook in this case, we think she’s mistaken.
DDS regulations require that facilities funded for the care of the developmentally disabled must be safe environments. We hope the Bedford police and the Disabled Persons Protection Commission are asking questions to determine just how safe this particular environment could have been. Did Paul haven a history of self-injurious behavior? If so, how carefully was he supervised? How long was he lying on the floor before he was discovered? Was he physically capable of injuring himself to the extent described? Were background checks done on all of the staff there? What kind of training was provided to the staff?
An online DDS licensing report on the Edinburg Center states that Edinburg’s two-year license to operate residential group homes was being “deferred” because of problems with medication administration. Other problems were noted in the report that required a 60-day follow-up by DDS, although there were no references to specific problems with abuse or neglect there.
The licensure report also stated that Edinburg had been experiencing growth since 2008 and yet was “dealing with economic decline and its ongoing impact on agency services.” The report added that the provider had lost clinical and emergency services and yet had opened two new 5-person homes in FY 2010. It seems strange that a provider would be cutting services and yet opening new homes at the same time.
Opening new facilities at the same time that services are being cut may indicate that this provider may be stretched thin on its staffing, or was stretched thin as of December 2010. (The posted licensure report was dated December 2010, which would make it about 9 months out of date. DDS licensure reports and operating licenses are valid for two years, meaning that a new report should have been posted on the website in December 2012. We have pointed out in the past that many of the licensure reports posted on the DDS website are out of date.)
Fox25 stated that Attaliades, the Edinburg CEO, told them that Paul Stanizzi is considered “part of The Edinburg Center family and his health and well-being are their primary concern.” We hope that is the case, but a thorough investigation is the only way to be at all certain of that.
We and others have long pointed out that care in widely dispersed group homes in this and other states is very difficult to monitor. Earlier this year, U.S. Senator Chris Murphy of Connecticut called for a federal investigation “into the alarming number of deaths and cases of abuse of developmentally disabled individuals in group homes.” Unfortunately, the Massachusetts DDS, in particular, does not appear to have placed a high priority on the safety of the provider-run care system that the Department funds.
The community-based, group home system in Massachusetts needs to be more tightly overseen, and the experience of Paul Stanizzi is one more in a long line of disturbing incidents that demonstrate that need.
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.
Trial in DDS abuse case caps two years of frustration
Sheila Paquette’s two-year quest to obtain justice in the alleged assault of her intellectually disabled brother came to a crushing end on July 30 as a jury in Falmouth District Court took less than half an hour to acquit the alleged assailant.
We have no desire to use the media to convict the man who was found innocent in this case. What we do want to point out here is how this case illustrates the nonstop frustration that intellectually disabled victims of crimes and their advocates are likley to encounter as they deal with a bureaucratic system that is supposedly intended to help them. In reality, it does nothing of the sort.
Here is a reprint of my op-ed on this case, which ran on Sunday in The Springfield Republican:
Viewpoint: State must protect its most vulnerable
By David Kassel
The jury did its job on July 30 in a trial of a care giver in a West Springfield group home who was alleged to have assaulted an intellectually disabled man more than two years ago in Falmouth on Cape Cod.
But did the government do its job? After less than half an hour of deliberation, the jury acquitted John Saunders of assaulting John Burns while they were on a weekend trip to the Cape from the group home operated by the Center for Human Development.
Burns suffered two black eyes and other injuries in the alleged assault.
Certainly, this was a difficult case to prove. The key witness was an intellectually disabled man who is Burns’ roommate in the West Springfield residence. When the case finally did come to trial on July 30, the witness’s account of the alleged assault had substantially changed.
What concerns us about this case is not the outcome, however, but rather the overall performance of the District Attorney’s office and other agencies entrusted with the protection of some of the most vulnerable members of our society.
Those agencies did not appear to demonstrate a strong commitment to working together in pursuit of justice for the alleged victim.
For instance, Sheila Paquette, of Westfield, Burns’ sister and guardian, ultimately ended up filing the assault charge against Saunders herself in July 2010 when she became convinced no law enforcement agencies were going to do so.
It was only after she filed the charge that the state Disabled Persons Protection Commission sent a state trooper to her house to investigate, she said.
After that, the case languished for months at a time, beset by bureaucratic snafus and witness no-shows that caused the trial to be postponed four times.
When the trial finally took place, the D.A.’s prosecution effort seemed half-hearted. Among other questions we have was why no one from the DPPC or its state police unit was called to testify at the trial.
The DPPC had issued a comprehensive report on the incident in February 2011, which found sufficient evidence to conclude that Burns was “seriously injured” by Saunders.
Assistant Cape & Islands District Attorney Kerry Whalen, who headed the criminal investigation of the case, contended to us that any testimony given by either the DPPC or state police investigators in the trial would have been considered hearsay because those investigators had not interviewed Saunders.
The DPPC report, however, stated that a DPPC investigator did interview Saunders by telephone. It is concerning to us that there appears to be no communication process in place to ensure that DPPC investigators testify in criminal proceedings such as this case.
Moreover, even if testimony from the DPPC would have been considered hearsay, that would raise a further question about the D.A.’s performance.
Why did none of the staff of Burns’ group home testify at the trial, other than Saunders and one other caretaker who had been on the Cape Cod trip?
The DPPC report stated that other staff in the West Springfield residence had observed Saunders to be “speaking in a derogatory manner” about Burns in his presence later on the day of the alleged assault. This never came out at the trial either.
If nothing else, this case has shown that there is a potentially serious lack of communication and cooperation between the key agencies that are charged with protecting the safety of some of our state’s most vulnerable citizens.
It also raises the question for us whether prosecutors take criminal cases involving abuse and neglect of disabled persons seriously enough.
We hope lawmakers and other policy makers will consider changes that are badly needed to ensure that the disabled in Massachusetts have adequate access to justice when crimes are committed against them.
(More information about the July 30 trial in this case and the questions it raises can be found in the August 2012 issue of The COFAR Voice newsletter and a special August edition of The Advocacy Network News, the newsletter of the Advocacy Network, a COFAR member organization.)
Update: Assistant D.A. blames trial delays on administrative mistakes
Three of the four postponements in the scheduled trial of a former West Springfield group home care worker charged with assaulting an intellectually disabled man were due to separate scheduling mistakes by court personnel, the prosecutor in the case said last week.
In a phone call on Thursday, Kerry Whalen, an assistant district attorney in Falmouth District Court, who is prosecuting the case against John Saunders, took responsibility for one of the scheduling mistakes and contended that the court clerk’s office was responsible for two others.
We reported that Saunders’ trial had been delayed last week for the fourth time since January, resulting in several fruitless trips from western Massachusetts to the Cape for several prosecution witnesses. Among those witnesses is Sheila Paquette, the sister and co-guardian of the alleged victim, John Burns. Paquette has expressed growing frustration with the delays and had gotten seemingly conflicting answers to her questions about them. The trial has now been scheduled for July 30.
Paquette has been pursing the case against Saunders since June 2010, when Saunders allegedly hit Burns in the face while toileting him during an outing on the Cape. Burns suffered two black eyes and other injuries in the alleged assault. Paquette, who is president of the Advocacy Network, a COFAR member organization, personally filed charges against Saunders in July 2010.
For nearly two years, Paquette has dealt with a state and court system whose progress in bringing about justice in a case involving a disabled victim has seemed glacial. The case has finally reached the trial stage, but the trial never seems to start. The trial was originally scheduled for January 9, but was postponed until March 27 when Saunders failed to appear on the January 9 date, and then was postponed for the second time until June 4 when a defense witness failed to appear on the March 27 date. It was postponed for the third time until June 5, and for the fourth time until July 30.
Whalen said the postponement in March was due to the fact that the defense witness had not been properly notified of the March 27 trial date. She said she personally caused the third postponement in the case when she mistakenly assumed there would be jurors available in the court on June 4th to hear the case. There were no jurors convened that day, requiring a one-day postponement until June 5.
Whalen blamed the fourth postponement in the trial until July 30 again on the court clerk’s office, saying that this time the office failed to issue new summonses to witnesses for both the prosecution and the defense with the new June 5 trial date.
“The clerk’s office failed to do this (notify the witnesses in that instance). I don’t think it was intentional,” Whalen said. The result was that one witness for the defense and one for the prosecution later said they never received any notice of the new trial date and that they wouldn’t be available that day.
I left a message with the court’s clerk magistrate last week to ask if he had a response to Whalen’s account. I haven’t received a call back.
Whalen contended it would be impossible to schedule a new trial date earlier than July 30. I asked her if this case will now be treated as a priority on July 30 because three of the four postponements were the result of the court personnel’s own mismanagement; and I asked whether anyone could guarantee that the trial will go forward at that time.
Whalen’s response was that the Saunders case “will take precedence over other cases,” but there is no way to guarantee it will go forward in July. Because Saunders is out on bail, she said, his case could be subordinated to another case on July 30 if the defendant in that other case happened to be in custody. That is due to rules limiting the length of time defendants can be kept in custody prior to their trials.
Whalen did not apologize for any of the mistakes leading to the postponements of the trial.
Paquette was angry when told of the reasons given by Whalen for the postponements in the case. “This is gross incompetence, a waste of taxpayer dollars,” she said. “I feel like I’m in a foreign country trying to get justice.”
Justice delayed is justice denied
Sheila Paquette has now traveled from her home in western Massachusetts to Falmouth District Court on Cape Cod three times to testify in an assault trial involving her brother that never seems to start.
Today (Tuesday) was the fourth scheduled trial date in the case against John Saunders, who is charged with assaulting Paquette’s brother, John Burns, an intellectually disabled group home resident, while they were on an outing on the Cape in June 2010. Saunders, a care worker at Burns’ residence in West Springfield, was subsequently fired from the job.
On Monday afternoon, after Paquette had made the three-hour, one-way journey to Falmouth from her home in Westfield for the sixth time, counting the pre-trial proceedings in the case, she learned there would be yet another postponement. The trial, which had first been scheduled for early January, was now being rescheduled until July 30. (The previously scheduled trial dates were January 9, March 27, June 4, and today, the 5th.)
“This has become a travesty,” Paquette said this morning as she was on her way back home after yet another fruitless trip to the Cape. “It’s gotten to the point where I don’t believe anything anybody is telling me about this case.”
Paquette said the victim advocate at Falmouth District Court gave her three different reasons for the latest postponement. One was that there was only one judge scheduled to be on duty today to handle all of the cases. The second was that the court was not able to round up a jury for today. And the third was that one witness for the prosecution and one for the defense indicated they would not be available to appear today.
“What is the excuse going to be next time?” Paquette said. “Is it possible this trial will never go forward? Will my brother ever receive justice as every other citizen does?”
Saunders is accused of hitting Burns in the face while toileting him during the June 2010 outing. Burns suffered two black eyes and other injuries in the alleged assault. Paquette, who is president of the Advocacy Network, a COFAR member organization, personally filed charges against Saunders in July 2010.
Saunders failed to show up at his first trial date this past January 9. He was reportedly arrested by police a couple of days after the January trial date and was released after posting bond that had been set by a judge at $1,000.
In late March, after a judge had postponed the trial for the second time, the reason given for the postponement was that a defense witness had failed to appear. At that time, Paquette was explicitly assured by the assistant district attorney prosecuting Saunders that the judge would not grant another postponement based on the failure of a witness to appear. (I know that’s the case because I heard the assistant D.A. say it to Paquette.)
Now, that assurance has gone out the window. Paquette is also left wondering why the postponements are so lengthy. “Why did they wait from January until March, and then from March until June, and now from June until the end of July to re-schedule this trial?” Paquette asked. “Why can’t they schedule it for the next court session each time?
We had those same questions for the District Court and the District Attorney’s Office. I spoke today to Ed Teague, the clerk magistrate for the Falmouth District Court, who said that while the court schedules jury trials on two days each week, it is not unusual for it to take a month or more to reschedule a trial.
Teague said, in fact, that several trials are often scheduled for the same day in the court, and that there are only enough jurors to hold one of those trials per day. Another trial was ongoing today, he said, and for some reason took precedence over the trial scheduled for Saunders. The same thing may well happen on July 30, he acknowledged.
Teague said I should ask Cape & Islands District Attorney Michael O’Keefe’s Falmouth Office for the specific reasons for the continual postponements of the Saunders case. However, when I called the D.A.’s office, I was told no one there would speak to me about it.
DPPC faults care plan in group home resident’s death
A state investigative agency has concluded that a Tyngsborough group home resident died last year as a result of having ingested an inedible object, and that there was sufficient evidence to conclude that his death was due to a lack of adequate supervision by caregivers.
The 50-year-old man, who had formerly lived at the Fernald Developmental Center, had reportedly ingested a plastic bag
The March 29, 2012 report by the Disabled Persons Protection Commission, which was obtained by COFAR, concluded, however, that there was insufficient evidence to identify when or how the man had obtained the material he ingested, or whether he was in his group home, day program, or being transported between the two when he ingested it. The report also appeared to place the blame for the lack of supervision on the fact that the man’s plan of care, also known as an Individual Support Plan or ISP, had no requirement that he be kept in sight by staff at all times.
The 50-year-old man had lived in the group home for about a year after having been transferred there from the Fernald Center. According to sources, the man had a history of ingesting foreign objects, a condition known as pica.
The July 6 death of the resident is one of two cases of sudden death involving former developmental center residents, both men in their 50s, which COFAR first reported about last August. COFAR also reported about the case of another man who died suddenly of a blood clot in his lung in a Tewksbury group home on July 24, four days after having been transferred there from the Templeton Developmental Center. An investigation of that death is apparently still ongoing.
Both Fernald and Templeton are among four developmental centers that have been targeted by the Patrick administration for closure.
The March 29 DPPC report leaves many questions unanswered about the Tyngsborough group home resident’s death, including whether the man’s ISP was changed in a significant way after he left the Fernald Center, and whether his level of supervision in the group home was less than the level he had received while at Fernald. There is an indication in the report that the man’s ISP was changed in September 2010, apparently after he moved to the group home, to remove “target (presumably inedible) items” from mention in the plan. Much of this discussion, however, is redacted in the report.
…the appropriate DDS designee review the above noted additional finding of risk pertaining to (blank) and ISP language and determine what, if any, action should be taken to identify within a person’s ISP those specific items known to be ingested by the person, as a means to minimize or eliminate the risk they pose.
In a third case about which COFAR recently reported, a 51-year-old resident of a Northeast Residential Services home died on February 7, 2012 after having been sent back to his residence twice by Lowell General Hospital. That man had formerly lived at the Fernald Center as well.
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