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DDS IQ score regulations ruled invalid

August 1, 2012 7 comments
In what has the potential to be a big win for people with intellectual disabilities who have been denied services from the state, the Massachusetts Court of Appeals has invalidated state regulations cutting off eligibility if a person scores above a 70 on an IQ test.
 
The three-judge appeals court panel overturned a ruling by Superior Court Judge Kimberly S. Budd, which had upheld the regulations, which DDS adopted in 2006.
 
The case against the regulations was argued by Thomas Frain, an attorney who is also president of COFAR. 
 
In its July 23 decision, the appeals court ordered DDS to redraft the regulations to conform to a state law that requires the department’s definition of intellectual disability to be based on “clinical authorities” and not solely on an arbitrary IQ score measurement.
 
The case concerns a woman who scored a 71 on an IQ test when she was 18, and who was subsequently denied services by DDS on that basis.  Frain, who represented the woman, said he believes the appeals court ruling could have far-reaching implications for eligibility for DDS services.   He maintained that since 2006, “the message from DDS has been ‘don’t bother to apply if you score above a 70.'” 
 
An undetermined number of people have been denied DDS services since 2006 as a result of the absolute cut-off above a 70 IQ score.  Frain said he believes the ruling “could trigger a flood of re-applications for benefits.”
 
The appeals court ruling has been hailed by a range of advocacy groups for the disabled, including the Disability Law Center and the Arc of Massachusetts.   Those organizations along with COFAR opposed the 2006 regulations before they took effect, arguing that they would give the department wide latitude to deny eligibility to persons who were clearly in need of services.
 
Frain described his client, who is now 45, as “a very disabled person” who lives with her mother and depends on her for many basic living functions.  The woman’s mother, who is 72, said she has to cook for her daughter, take her to medical appointments, handle her finances, and supervise  her medication. “She doesn’t function as an adult,” she said of her daughter.  
 
The appeals court ruling stated that there was also evidence the woman “may have placed herself at risk in her dealings with strangers,” and that she has “an ill-defined sense of sexual boundaries.”
 
The Globe reported that state officials maintain that their evaluation criteria go “far beyond IQ test results” to include how well individuals function in society.  The newspaper said the woman in this case had graduated from high school and had attended Middlesex Community College.
 
The woman’s mother told me, however, that her daughter graduated from a small parochial school after having been “pushed through” by the administration there, and that she took only a clerical course for people with intellectual disabilities at Middlesex Community College.    
 

The woman scored 71 on an IQ test at age 18, 69 at age 40, and 71 at age 42.  The appeals court stated that DDS determined that the woman’s score at age 18 was “determinative” and that a standard error of measurement of plus or minus 5 points should not be applied “in view of (the woman’s) education and work history.”   Moreover, DDS determined that it was not necessary to consider the woman’s adaptive functioning because she had scored above the cutoff of score of 70.  
 
Prior to 2006, DDS regulations stated that determinations of intellectual disability had to be consistent with the clinical authority of the American Association on Intellectual and Developmental Disability (AAIDD).  The AAIDD definition of intellectual disability does not establish an absolute cut-off at an IQ of 70.
 
The appeals court ruled that DDS’s prior regulations were consistent with a state law, which defines intellectual disability as something that is “determined by clinical authorities.”  The court stated that the 2006 regulations, however, “fail to describe the clinical authorities upon which the clinical judgments regarding intelligence are made.”
 
It was not clear whether DDS would appeal the ruling to the Supreme Judicial Court. 
 
A bill was pending in the Legislature that would tie the definition of intellectual disability in Massachusetts to the AAIDD’s definition.  The measure (H. 4252) was passed by the House in its final formal session of the year on Tuesday night, but was not taken up by the Senate.
 
The Disability Law Center was planning to try to get the bill through the Senate in an upcoming informal session.
 
During a hearing on the bill last year, a number of people provided emotional testimony about having been denied DDS services for their children who tested just above the 70 cut-off.   One woman, Linda Boucher, whose son had scored a 75 and who was consequently denied services, said it was as if he was under house arrest. 
 
“Where do I go? I need help,” Boucher told the lawmakers, her voice cracking with emotion.
 
Frain said he hopes that the appeals court ruling combined with the pending legislation will ensure that DDS provides services in the near future to intellectually disabled people such as his client and Boucher’s son.
 
 
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Gov’s budget continues the cuts

January 30, 2012 Leave a comment

With a few exceptions, Governor Patrick’s proposed budget for the coming fiscal year, which he unveiled last week, appears to continue the trend in recent years of cutting funding for care for the intellectually disabled.

We see little to change our longstanding contention that the Department of Developmental Services community-based system, in particular, is not benefiting from the closures of four developmental centers.   A few years ago, Health and Human Services Secretary JudyAnn Bigby promised that as a result of the phasedowns and closures of the Fernald, Monson, Glavin, and Templeton developmental centers, some $45 million a year was going to be plowed back into the community-based system of care.

There’s no question but that the developmental centers line item (5930-1000) has been cut deeply as the state facilities have been phased down in recent years.  Under the governor’s FY 13 budget, this line item would be cut by an additional $20 million next year, a 13.1 percent reduction.  This brings the total cuts in funding for the developmental centers to $55 million since FY 09. 

But that found money does not appear to have benefited key community-based accounts such as Adult family supports, Turning 22, and the Salary Reserve to increase the static wages of direct-care human services workers in the community system.

First, let’s look at what would be increased in the governor’s FY 13 budget proposal for DDS and related accounts:

  • The  Community Day and Work line item (5920-2025) and the previous Transportation line item (5911-2000) would jointly be increased by $9.6 million under the governor’s proposal over current year spending.  It’s hard to compare these line items with last year, however, because they have been merged together for some reason in the governor’s budget for next year.  The Massachusetts Arc and the Association of Developmental Disabilities Providers are saying that the transportation component of the new line item is “short” by $3.1 million.  We’re not exactly sure what they mean by that.
  • The Community Residential Supports line item (5920-2000) would be increased by $31.6 million or 4.2 percent, while the State-Operated Group Home line item (5920-2010) would be increased by $12.9 million or 7.8 percent.  As we understand it, however, the increases in these line items are intended primarily to accomodate residents being transferred from developmental centers targeted for closure.  It’s unclear that anyone else in the community system will benefit from the increases.  The Arc/ADDP are saying the state-operated group home account is still “short” by $4.1 million.  Again, not sure what they mean.
  • The DDS Administrative line item (5911-1003) would be increased by $2 million or 3.4 percent.  This line item funds service coordinators, who arrange for services for clients in the community system.  But it’s not clear whether there would be any benefit in that increase to the service coordinators, who have faced layoffs in recent years as their caseloads have skyrocketed.  According to SEIU Local 509, a state employee union, the $2 million increase will cover negotiated salary increases within the DDS administration as well as office rental increases, while essentially level-funding staffing.

The rest of the DDS and DDS-related line items appear to be either cut or level-funded, which amounts to a cut relative to inflation.  They include the following: 

  • The Adult Family Supports line item (5920-3000) would be cut by $5.5 million or 11.8 percent.  This comes on top of cuts totaling 26.9 percent since FY 09.  Those cuts were only partially restored last year through supplemental funding.  The governor’s FY 13 proposal would wipe out that restoration.  We’re not sure why this account always gets cut so badly because it would provide funding for families to keep people at home, which was a critical component of the governor’s Community First initiative, as we understand it.  The Arc/ADDP are saying this reduction will hurt 2,000 families.
  • The Turning 22 line item (5920-5000) would be level-funded at $5 million.  This program has been cut by $2.7 million since FY 09.  The ARC/ADDP are saying the program needs $10.5 million (more than double its current appropriation) to fully serve 710 additional intellectually disabled students expected to graduate from school next year.
  • The Autism line item (5920-3010) would be essentially level funded at $4.6 million next year.
  • The Salary Reserve line item (4000-0017) to boost the pay of direct-care workers would once again receive zero in funding under the governor’s FY 13 budget.  The Arc/ADDP are calling this situation “devastating.”
  • The Department of Education/DDS line item (5948-0012) would be cut by $50,000 from current-year spending.  This is a joint program for youths with disabilities.
  • The Massachusetts Rehabilitation Commission Supported Employment line item (4120-3000) would be cut by $369,400 or 15.1 percent. 
  • The Massachusetts Day Habilitation and Adult Foster and Family Care accounts (4000-0700), which are funded by MassHealth, would be “funded at maintenance,” according to the Arc/ADDP.   This appears to mean that these programs would be maintained at their current levels next year.  They have both been sharply cut in recent years.

The bottom line line is that while the administation has seen the need to  continue its policy next year of cutting a wide range of community-based programs for the intellectually disabled, it hasn’t helped matters with its single-minded policy of closing the developmental centers.  Not only hasn’t the closure policy provided more community-based funding, but it has clearly delayed community-based placements for thousands of people waiting for that care.

 
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Van crash highlights DDS oversight and protection loopholes

August 4, 2011 3 comments

A van crash this week in Newton, which injured 12 adults with intellectual disabilities, highlights a lack of adequate oversight of the state’s community-based system of care.

The incident, involving a driver for a state subcontracted transportation company, also points to some apparent loopholes in the state’s current Criminal Offender Record Information (CORI) system.

News organizations around the state reported that  Addis Gabriel Woldeguiorguis allegedly drove a passenger van into a parked garbage truck on Monday as he was transporting the special needs adults to a day services program in Newton.  Police said they found a broken crack pipe and a plastic bag containing suspected crack cocaine in the van.  Woldeguiorguis also reportedly told police he had taken two oxycodone pills four hours before the crash for foot pain.

According to The Boston Globe, Woldeguiorguis, who was charged Tuesday with driving under the influence of drugs and with drug possession, has “a traffic history three pages long in New York, with violations dating back to 1980, and a 2005 notation for possession of drugs.”

This seems similar to a situation we reported about in May in which a convicted sex offender in California violated a five-year probation there and fled to Massachusetts where he took a job driving people with intellectual disabilities to day programs.

Both cases appear to result from the fact that Massachusetts requires special needs transportation companies to check drivers’ records only in this state and to administer a CORI background check, which does not identify criminal arrests or convictions in other states.  State agencies are, moreover, not currently authorized to require vendors to make use of the FBI’s national criminal background check system.  Woldeguiorguis’s driving and CORI records did not indicate any problems, according to the Globe, since all of the violations occurred in New York.

There are other potential problems with the current background check system in Massachusetts.  If the potential penalty for a criminal offense does not include incarceration, it does not appear on a CORI record, according to Georgia Critsley, general counsel of the Massachusetts Department of Criminal Justice Information Systems.  Critsley said Massachusetts motor vehicle offenses such as OUI and Operating to Endanger appear on the CORI, whereas civil motor vehicle offenses such as speeding do not.  Further, after reforms were enacted in 2009, CORI regulations appear to exempt existing state and vendor employees, who were not previously subject to CORI checks,  from any additional CORI checks.

These seem like big loopholes when it comes to hiring people to care for and drive DDS clients.  Meanwhile, a bill in the state Legislature, which has been repeatedly filed by Rep. Martin Walsh of Boston and which would authorize the use of national FBI background checks for people hired by DDS and its vendors, has remained in the Judiciary Committee for months.

There may be other loopholes as well.  We asked Howe yesterday whether the CORI background check regulations actually apply to transportation companies that drive clients under subcontracts with either EOHHS brokers or DDS vendors.  We also asked whether DDS has any policies or regulations requiring drug testing for employees of transportation companies, DDS vendors, or other DDS programs. We haven’t yet heard back.

Jennifer Kritz, communications director for the Executive Office of Health and Human Services, told the Globe her department is “conducting a thorough review of the transportation provider’s actions and performance (in the Newton crash), as well as the hiring practices related to this specific driver, in order to determine whether any action is necessary.’’

This reaction by EOHHS seems inadequate.  EOHHS’s review should extend beyond the actions and performance of this particular transportation provider and beyond its hiring practices related to this specific driver.  EOHHS should be looking at this point at all of the state’s background check policies and regulations, and whether all of the clients in its agencies are protected from persons unsuited to be caring for and driving them.

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