COFAR blog

Retired U.S. District Court Judge Joseph L. Tauro, who oversaw the upgrade of the institutional system of care for the intellectually and developmentally disabled in Massachusetts for decades starting in the 1970s, died on November 30 at the age of 87.

Tauro changed the course of history for persons with developmental disabilities in Massachusetts. His many rulings in the landmark Ricci v. Okin class action litigation over conditions in the institutional system in the 1970s and 1980s improved the lives of thousands.

The Honorable Joseph L. Tauro

“Judge Joseph L. Tauro treated developmentally disabled individuals and their families with dignity and compassion, and he listened when no one else would,” said Colleen Lutkevich, COFAR executive director. “In 1972 and for the next twenty years, he took a disgraceful system of care where people were warehoused in overcrowded facilities with minimal services, and he used the power of his office and the law to bully and cajole the state and federal government into doing the right thing.”

Tauro ruled in the case of Ricci v. Okin, a combined class-action lawsuit first brought by activist Ben Ricci over the conditions at the Belchertown State School.  Those conditions were chronicled in Ricci’s book, Crimes Against Humanity, and later in books such as You’ll Like it Here, a 2016 account  by Ed Orzechowski of the life of Donald Vitkus, a survivor of the former Belchertown State School.

In 1972, separate lawsuits were initially filed on behalf of the residents of five state schools: Fernald, Dever, Monson, Wrentham, and Belchertown. The lawsuits charged that the facilities were understaffed and that conditions in them were inhumane.

Tauro, who visited the facilities to observe the conditions first hand, noted two decades later in his 1993 disengagement order from the case that the legal process had resulted in major capital and staffing improvements to the facilities and a program of community placements. Together, those improvements and placements had “taken people with mental retardation from the snake pit, human warehouse environment of two decades ago, to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.”

“Services in the facilities were turned around through increased funding and staffing,  and the community system of the Department of Developmental Services was also built, allowing appropriately placed residents to find new homes and jobs in cities and towns all across Massachusetts,” Lutkevich said.  “For those who remained in the facilities, their days also became meaningful, with clinical services, and therapeutic, recreational and work opportunities never before thought possible.”

Involvement in the effort in the 2000s to keep Fernald open

Despite his official disengagement from the Ricci case, Tauro’s involvement in the case did not end after 1993. Eleven years after his disengagement order, he went on to play a dramatic role in an effort by the original plaintiffs in the case to keep the then Fernald Developmental Center open in the face of attempts by the then Romney and later Patrick administrations to close it along with other remaining developmental centers in Massachusetts.

Ultimately, Tauro’s 2007 ruling in the case that the Fernald Center should remain as a residential option to its residents was overturned by the First Circuit U.S. Court of Appeals.

The Appeals Court ruling dealt an enormous blow to the decades of work that Tauro had done in the Ricci case, in part, because the appeals court’s decision included no deference to Tauro’s rulings and expertise. Nevertheless, Tauro’s re-involvement in the case after 2004 demonstrated his caring and humanity as clearly as his earlier involvement had in the 1970s and 1980s.

Speaking about the residents of the Fernald Center during a November 2004 hearing in his courtroom on the potential reopening of the case, Tauro noted that many of those residents were elderly. “In the remaining moments of their lives,” he said, “they ought to be treated with great dignity.”  His remark drew strong applause from the close to 200 observers in the courtroom, many of whom were family members of the residents.

Successive administrations undercut Tauro’s rulings in the Ricci case

Efforts to chip away at Tauro’s legacy in the Ricci case began in the early 1990s under then Governor William Weld, who moved to close nine state-run human services facilities in Massachusetts, including three developmental centers serving the developmentally disabled.

Then in 2003,  then Governor Mitt Romney announced plans to close at least four of the six remaining state-run developmental centers. All of those facilities had undergone upgrades in care and conditions as a result of Tauro’s involvement in the Ricci litigation. Hundreds of millions of dollars had been spent on the upgrades.

Starting with Fernald, those remaining facilities slated for closure included the Glavin, Monson, and Tampleton centers.

Plaintiffs charge that Tauro’s disengagement order had been violated

In 2004, Beryl Cohn, an attorney for the original Ricci plaintiffs, charged that the Romney administration was trying to close Fernald in violation of Tauro’s 1993 disengagement order.  Cohen cited the administration’s planned closure of Fernald in conjunction with
“unprecedented” personnel reductions and budget cuts in the then Department of Mental Retardation system.

According to the plaintiffs, some 30 years after the Ricci class action lawsuit had been filed, the Romney administration had allowed a recurrence of some of the same conditions at certain of the state facilities that had sparked the original case, including insufficient staffing, lack of equipment, delayed maintenance,  infestation of vermin, and other problems.

Tauro’s disengagement order had also required that before anyone could be transferred out of a state-run facility, care in the new location must be certified as equal or better.

In July 2004, the then Fernald League and other plaintiffs filed a motion in U.S. District Court to seek Tauro’s renewed involvement in the Ricci case.

During a contentious hearing in his courtroom in November of 2004,  Tauro appeared to accept the argument that a rush to close Fernald and the other facilities without adequate plans for the welfare of their current residents could violate his disengagement order. He also noted that many communities had not accepted group homes for the developmentally disabled, and that it could be difficult to find placements for Fernald residents.

“What’s the advantage in hurrying to speed up the closing (of Fernald) if it’s going to speed up litigation that’s going to last for five years?” Tauro said in pointed remarks to counsel for the Department of Mental Retardation and DMR Commissioner Gerald Morrissey, who was in attendance. “I don’t know if I’ll accept this case. If I do, I’ll come up with a solution…Let’s get it done right so everyone applauds it.”

Tauro forbids discussions of transfers from Fernald 

In January 2005, Tauro stated that he was prepared to step back into the case if Cohen were to demonstrate that care and services to transferred individuals were being cut. He ordered DMR officials to provide Cohen with Individual Support Plans (ISPs) for all Fernald residents, including those who had been transferred elsewhere.

Over the next six months, Tauro continued to hold hearings. In June of that year, he warned the administration not even to discuss transferring residents out of Fernald with families unless the ISPs stated the moves were appropriate. “If there is no ISP in place, then
there will be no discussions on transfers (out of Fernald),” Tauro said, as DMR Commissioner Gerald Morrissey and his legal staff sat before him in the courtroom. “If that’s not going to happen, then we are going to have a little trouble.”

Tauro appoints U.S. attorney as court monitor in Fernald closure 

In February 2006, Tauro appointed then U.S. Attorney Michael Sullivan as Court Monitor in the case and asked Sullivan to review the transfers by DMR of 49 residents from Fernald since 2003.  Pending the completion of Sullivan’s review, Tauro ordered a halt to all further transfers from Fernald to other locations.

In March 2007, in a stunning blow to the Fernald closure advocates, Sullivan recommended to the newly installed Patrick administration that Fernald remain open.

In making the recommendation that Fernald remain open, Sullivan maintained in his report to Tauro that while the level of care there might be able to be duplicated elsewhere, the loss of familiar surroundings and people “could have devastating effects [on the residents] that unravel years of positive, non­abusive behavior.” Nevertheless, Sullivan concluded that the state had followed the letter of Tauro’s 1993 disengagement order in that administration officials had technically certified that persons transferred from Fernald would receive equal or better care.

Sullivan also told Tauro that he found two areas of “significant concerns” in community-­based care. One involved the delivery of medical services in the community, and the second involved the potentially higher risk of abuse and neglect in community­-based residences than in the facilities and other state-­operated residences.

Final ruling that Fernald must be offered as a residential option

Despite Sullivan’s recommendation, the Patrick administration did not back away from the Romney administration’s position on the developmental centers, and continued to press ahead to close Fernald.

That led to Tauro’s final ruling in August 2007 that Fernald residents and their families and guardians must be offered the option of remaining at Fernald. The ruling was seen by the administration as preventing the closure of Fernald, and the administration appealed the ruling to the First Circuit U.S. Court of Appeals.

Tauro’s final ruling is overturned

Without considering the merits of Tauro’s reasoning in his 2007 ruling, the three-judge federal appeals court panel ruled in October 2008 that Tauro never had jurisdiction to reopen the Ricci case. As such, the appeals court allowed the Patrick administration to proceed with Fernald’s closure. That closure, however, was not completed for another six years as more than a dozen families and guardians of the remaining residents exercised their right to administrative appeals of the transfers of the residents.

Tauro seals the records

After the First Circuit Court of Appeals overturned his 2007 ruling that Fernald remain as a residential option, Tauro closed the Ricci case and sealed the documents. Among those documents was a report that Sullivan had provided to Tauro on what appeared to be the involuntary removal from Fernald of Anna Tross,  a 91-year-old resident of the facility.

According to testimony at a March 2008 hearing held by Tauro into the circumstances surrounding Tross’s removal from Fernald, Tross had told several people that she didn’t want to leave Fernald.

Appeal to U.S. Supreme Court to restore Tauro’s Fernald order fails

In February 2009, the Fernald plaintiffs, represented by Hofstra University law professor Leon Friedman, filed a petition for Certiorari with the Supreme Court, seeking to restore Judge Tauro’s 2007 order keeping Fernald open as a residential option.

The petition also sought to resolve the issue of whether Appeals Courts should give deference to district court decisions in consent-decree cases.  In this instance, the First Circuit Court acknowledged that it had not given any deference to Judge Tauro, despite his 35 years of expertise in overseeing the Ricci case.

The Supreme Court declined without comment to issue a Writ of Certiorari to consider the Fernald plaintiffs’ appeal.

Created national models

The Boston Globe noted that in his 41 years on the bench, Tauro “crafted decisions that created national models not only for the care of the developmentally disabled, but also for the rights of the mentally ill to refuse unnecessary medication and avoid solitary confinement except in emergency situations.”

“Whatever powers the Constitution has granted our government, involuntary mind control is not one of them, absent extraordinary circumstance,’’ Tauro wrote in a decision in the 1970s that established what are known as “Rogers Orders,” protecting the rights of the mentally ill.

“Judge Tauro was a fearless judge and a moral humanitarian who made the ‘impossible’ possible,” Lutkevich said. “He nearly single-handedly changed the lives of thousands of individuals with intellectual disabilities and their families.  COFAR families are forever grateful to him.  May he rest in peace.”

After three years, a state employed guardian is at least partially lifting a ban on family contact with a developmentally disabled woman, and is allowing the woman’s father and sister to visit her.

In a November 6 email to Ashley Barr, the disabled woman’s sister, Dorothy Wallace stated that she was granting permission to Ashley and to David Barr, the woman’s father, to visit the 30-year-old woman for the first time since November 2015. The woman has been diagnosed with an intellectual disability and mental illness.

Wallace has never clearly explained the reason for her family separation policy, which has nevertheless been upheld by the Department of Developmental Services. DDS pays Wallace to serve as a guardian to the woman and to other departmental clients.

David and Ashley Barr. They have been prohibited, for unclear reasons, from contact with their developmentally disabled family member for the past three years.

In her email, Wallace wrote that she would now allow visits because the woman’s mother, Nancy Barr, has been sentenced in a criminal case involving the sexual assault of the disabled woman by Nancy Barr’s boyfriend, John Leone. Nancy and David Barr have been divorced since 2003.

Nancy Barr pled guilty on November 6 to sexual assault charges and was sentenced to two years in prison. Leone pled guilty to similar charges in May and is serving a three to five-year prison term. The sentencing of both Leone and Nancy Barr had repeatedly been delayed during the past year.

During the period of the assaults, the woman had been under the care of her mother and had been living in her mother’s home. David Barr said that Nancy has also been diagnosed with mental illness.

Neither David nor Ashley, nor any other members of the family were involved in the abuse of the disabled woman or were ever charged in the case.

Yet, for the past three years, Wallace prohibited all members of the family other than an aunt from having any contact with the woman, and had not even informed the family as to where she has been living. We are withholding the woman’s name because she was a victim of sexual assault.

Ashley, whose first visit with her sister following the lifting of the ban was today at a DDS area office, said her sister appeared alert and happy to see her and her father. Regular weekend visits will be scheduled for the foreseeable future at a group residence in Haverhill in which her sister is now living.

Ashley also said she intends to apply in court to become her sister’s guardian and that David is supporting her in that.

Ashley told COFAR that in the months prior to the November 2015 ban on visitation, her sister appeared drugged when they were allowed to visit her, and, in one instance, did not appear to have been bathed.

COFAR has repeatedly asked Wallace and DDS for an explanation for the family contact ban specifically on David and Ashley. In an email to both Wallace and DDS Commissioner Jane Ryder on November 9, I also asked what the sentencing of Nancy Bar, in particular, had to do with the family separation policy.

David and Ashley had been among the most involved family members in the woman’s life and care, and have led the family’s effort to resume contact with the woman. To date, neither Wallace nor Ryder have responded to our queries about the case.

In her November 6 email, Wallace implied that she is stepping down as the woman’s guardian, stating that, “With the completion of the sentencing (of Nancy Barr), I have fulfilled my obligation to (the disabled woman) and as promised to Ashley and Mr. Barr they can now coordinate visits with (the woman).”

We have never seen another case in which such a complete and lengthy prohibition on contact was imposed on family members who were not charged or, as far as we know, accused of any serious misconduct with regard to a disabled individual. As we’ve said before, we think this ban has been enforced in violation of DDS regulations, which state that people in the Department’s care have the right …“to be visited and to visit others under circumstances that are conducive to friendships and relationships…”

We think there is a fairly universal consensus that family separation in social services should be imposed only as a last resort, and then should be used sparingly and for as short a time as possible. If family separation is imposed, authorities should be transparent about it and communicate as much information as possible to those family members affected. In our view, none of those criteria were met in this case.

During the past three years, different reasons have been given to the Barr family for the separation policy:

• In an August 2015 hearing in probate court, Wallace testified, according to the hearing transcript, that she was imposing restrictions on contact between the woman and her father and sister because David and Ashley became overly emotional when they had been allowed to visit her.
• Wallace contended that those visits, which took place in hospital settings after the arrests of John Leone and Nancy Barr on the assault charges, caused the woman to exhibit psychotic symptoms afterwards.
• Last February, Ashley was told by DDS General Counsel Marianne Meacham that there was concern on someone’s part that a visit from David and Ashley would somehow make the woman “lose focus” in preparing to testify in the trial of Leone and Nancy Barr. Meacham told Ashley that visits would be permitted once the trial, which was originally scheduled to be held in April, was over.
•  Despite Attorney Meacham’s contention that the ban on family contact was related to the then ongoing criminal case, a spokesperson for the D.A.’s office told COFAR in February that the D.A. was not responsible for the ban, and that it had been ordered by Wallace.
• And despite the assurances given to Ashley, visits with her sister were not scheduled even after Leone pled guilty to sexual assault last May. David and Ashley were now told they would not be allowed any contact with the woman until Nancy Barr was sentenced in the case. That sentencing occurred only last week.

DDS officials appeared to be biased against the family

As COFAR reported, Wallace and other DDS officials made a number of statements about Ashley and David during the August 2015 probate court hearing that appeared to indicate a bias against them.

Many of the statements appeared to be hearsay or to lack  foundation, including Wallace’s statement that hospital clinicians told her the woman exhibited psychotic symptoms after visits from David and Ashley. At the time of her testimony, Wallace had been appointed as the woman’s temporary guardian.

The court hearing concerned a request by David and Ashley that they resume regular contact with the woman and that David be appointed as her permanent guardian. The judge, however, ruled instead in favor of the appointment of Wallace, the candidate recommended by DDS, as the woman’s permanent guardian. David Barr had tried without success to gain guardianship of the woman after his divorce from Nancy Barr in 2003.

Despite the judge’s ruling in 2015, the court does not appear ever to have issued an order banning any members of the family from having contact with the woman.

Ashley acknowledged she and her father did become emotional during visits with her sister prior to the complete visitation ban in November 2015 because she appeared upset at being kept isolated from them and often appeared to be over-medicated.

“For several visits we did cry in front of (her sister), I mean how could we not?” Ashley said in an interview in 2016. “She was alone, scared, by herself, and just went through a horrific thing for about two years. So yes, my father and I did cry, and I was an emotional mess for a very long time.  Watching my sister all drugged up, she could barely talk, and given the state she was in, it was very hard to keep it in. I walked out of the room most of the time so my sister wouldn’t see me.”

In one of the last instances in which they were allowed to visit the woman, Ashley said it appeared she had not been bathed.  Ashley said she personally gave her a shower at the hospital. Her hair was so dirty and matted, Ashley said, that she had to use an entire bottle of shampoo and conditioner to untangle it.

Little information and little help from legislators

After the woman told a family friend about the alleged abuse in 2014, the friend reported the matter to police, and the woman was immediately removed from her mother’s care. She was apparently placed in a shared living arrangement, but that location was not disclosed at the time to any other members of the family.

In the months that followed, the family was only sporadically informed about their family member’s whereabouts.  Ashley and her father said that virtually no information was provided to them for the first month after her removal. They were then allowed to visit her only a handful of times, either at a DDS area office or in Massachusetts hospitals to which she was admitted, reportedly after psychotic episodes.

David and Ashley said they tried for months after the ban on further contact was imposed to get answers from DDS and from Wallace, and got little or no response from them. They also contacted their local legislators and got little help, and even went to the media, but were unable to get any news outlets to report their story.

Ashley said the ban on contact was so complete that when she found out in May 2016 that she was pregnant, Wallace denied her request that her sister be allowed to come to the baby shower. She said Wallace also told her that her sister would not be informed that she was pregnant.

One aunt allowed visits, another blocked

For unknown reasons, the only family member who has been allowed to visit the woman has been a maternal aunt who apparently agreed not to reveal the woman’s location to Ashley or David. The aunt told COFAR, however, that she thought David and Ashley should be allowed to visit the woman.

In the meantime, another aunt of the woman’s as well as a family friend were blocked from visiting her.

In an interview with COFAR in August of this year, Susan Zeytoonian, a paternal aunt of Ashley’s, said she had accompanied Ashley to visit the woman shortly before Wallace banned all family contact. Zeytoonian said that prior to the removal of the woman from her mother’s care, the woman had frequently spent time at her house.

According to Zeytoonian, the woman was happy to see them during their 2015 visit and “came runnng down the hall.” She said she had not seen her niece since that visit.

The family friend who initially reported the alleged sexual abuse of the woman to police had initially been allowed to visit her. However, the friend told COFAR that when she tried to visit the woman at Tewksbury State Hospital in April 2016 on her 28^th birthday, she was told that she was no longer there.

The friend said she was also told by a staff member at the hospital that she too had been placed on a no-visitor list.  She said she was not given a reason for that prohibition.

Disability Law Center tried to find a solution in the case

In early 2017,the Boston-based Disability Law Center temporarily intervened in the case to ask a state-appointed attorney who is representing the woman, to support family visits if the woman wished that. However, that effort was not successful.

The attorney, Melissa Coury Cote, told COFAR in March 2017 that she would not support court permission for visits to the woman by David or Ashley Barr, despite the DLC’s request. Cote provided no reason for opposing family visits other than to say that the woman had not specifically asked her to allow visits from her father and sister.

However, Ashley Barr said at the time that her sister had recently called her father on two occasions and said she missed her family and wanted to see them. The calls were apparently unauthorized. Ashley said she and her father didn’t know whose phone the woman used to contact them.

While we are glad that a step toward reuniting the family has finally been taken by Wallace and DDS, we remained concerned that the Department and its professional guardians do not appear to operate in accordance with the Department’s own regulations on the rights of its clients and their families.

This case, moreover, illustrates the need to make reforms to the DDS-probate court system that ensure that clients and families are treated fairly and their rights and wishes are respected. Among the reforms we have proposed are the following:

• Passage of legislation requiring probate court judges to presume that family members are suitable guardians of persons with intellectual and developmental disabilities.
• The provision of free legal assistance to family members and guardians who been barred from contact with their loved ones in the DDS system or who have otherwise faced retaliation from the Department or from providers.
• The provision of free legal assistance to family members whose guardianships are challenged by DDS.
• A policy statement by DDS that the Department will make every effort to comply with the federal Developmental Disabilities Assistance and Bill of Rights Act, and, in particular, the statement in the law that individuals with developmental disabilities and their families are “the primary decision makers.”
• Increased financial oversight of the corporate provider system and the DDS/probate guardianship system.

Without reforms such as these, we are afraid cases such as this one will happen again and again.