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We’ve been in a nine month battle with DDS to view 8 emails about closures of state-operated group homes

Last week, we filed the second of two appeals with the state Public Records Division for eight internal emails from the Department of Developmental Services (DDS) that may concern plans to close or consolidate state-operated group homes.

After two months of negotiations with DDS last fall, we had narrowed our Public Records request to just those eight emails. But following the negotiations, DDS simply declined in December to provide them, contending they are exempt from disclosure under the state’s Public Records Law.

As of the filing of our second appeal last week, our battle with the Department for records concerning its state-operated group home policies had stretched to nearly nine months.

In denying our request for the eight emails in December, DDS cited what is known as “Exemption d” to the Public Records Law, which says that a state agency can decline to disclose internal records “relating to policy positions being developed by the agency.”

As I’ll explain further below, we have countered that Exemption d does not apply in this case because the policy in question was adopted by the administration last August, and was no longer being developed when we requested the emails. We have suggested that the state Public Records Supervisor Rebecca Murray inspect the emails herself to determine whether Exemption d does or does not apply to them.

We’ve been concerned about the future of the state-operated group home network for years. While those homes are likely to recieve a nominal increase in state funding in the coming fiscal year, it is clear that DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years. Yet the Department has not provided any public information about its intentions regarding the future of the state-run residental system.

State-operated group home network facing unique pressures

We view the state-run group home system as as a crucial backstop for care in the DDS system as a whole. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the corporate provider system.

Yet the state-operated system has been facing unique pressures, particularly since the start of the COVID crisis. Last October, we received a report from a COFAR member that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated for COVID.

Just weeks prior to that – in August — Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated. That vaccination mandate applies only to staff of state-run residential facilities. It does not apply to the much larger network of DDS-funded group homes that are run by corporate providers.

Baker administration would not provide information

We initially emailed DDS Commissioner Jane Ryder and the press office at the Executive Office of Health and Human Services (EOHHS) on October 14 with questions about the reports of closures and consolidations in the state-operated group home network.

Ryder never responded to our query. A spokesperson for EOHHS said in a response to our email that we would have to file a Public Records Request for that information.

Records request narrowed from more than 1,000 emails to just 8

Based on the EOHHS response, we filed a Public Records request with DDS on October 15 for internal records that concerned closures or consolidations of DDS state-operated group homes due to unvaccinated staff or for other reasons.

In an initial response to our request on October 29, DDS stated that there were potentially 1,600 emails responsive to our request, and that producing the documents would require us to pay a $1,000 fee.

We agreed to narrow our request. And in a December 13 written response to us, a DDS attorney said the narrowed search had turned up a total of eight emails that were determined to be responsive to our request.

DDS cites “implementation of” the governor’s executive vaccination order as an “ongoing and evolving” policy

But despite identifying the eight emails as responsive, the DDS attorney stated in the December response that all eight of those emails were being withheld because they fell under Exemption d to the Public Records Law.

The attorney described the “implementation” of the governor’s vaccination order as “an ongoing and evolving policy matter.”

Renewed request for the 8 emails

In May of this year, after an initial appeal that did not result in the production of any additional documents by DDS, we tried again. We renewed our request for just the eight emails with the intention of appealing for a second time if DDS once again cited Exemption d. That is, in fact, what happened.

In a June 13 response, the DDS attorney stated that the “implementation” of the governor’s executive order was “still an ongoing and evolving policy matter which is still subject to the deliberative exemption.”

This time, the DDS attorney stated that:

While the governor’s executive order was implemented on August 19, 2021, ongoing and evolving policy matters continue related to the Agency’s implementation of the Executive Order, and the deliberative exemption applies to those policy decisions.

The DDS attorney added that the governor’s executive order had:

…impacted the discussion about and process of handling staffing shortages at DDS. The vaccine policy is still impacting the Department’s staffing shortage. Therefore, the records are still exempt under (Exemption d). (My emphasis)

DDS conflates policy implementation with policy development

In our second appeal of DDS’s response — which we filed on June 23 — we argued that the Department was “conflating the separate steps of policy development and policy implementation.”  We noted that Exemption d refers to policy positions “being developed” by an agency. The exemption does not say that records relating to policy positions that are  “being implemented” are exempt from disclosure.

We pointed out that public policies or policy positions are normally implemented after they have been developed or formulated. The implementation of policies can go on for years or decades or more. As we put it:

Certainly, the intent of “Exemption d” was not to allow agencies to assert that so long as policies are continuing to be implemented, all records concerning those policies remain exempt from disclosure.

We added:

As of June 23, now more than 10 months after the governor signed Executive Order 595, (DDS) says the policy is “still impacting the Department’s staffing shortage,” and has “impacted the discussion about and process of handling staffing shortages at DDS.” Here again, (DDS) appears to be talking about problems or issues the Department is having in implementing the executive order.

Finally, we suggested that the Public Records Supervisor review the eight emails in-camera to determine whether or not Exemption d does or does not apply to them.

In sum, we don’t know what is in the eight emails or whether the emails might shed any light on DDS’s plans for the future of the state-operated group home network. But given the administration’s unwillingness to provide any public information about those plans, all we can do is to fight for documents that are legally available and that might disclose the administraton’s intentions.

The fact that DDS is fighting back so hard to prevent the release of just those eight emails leads us to believe we may be onto something in seeking their release.

Senate budget amendment for commission on history of state schools continues to raise concerns of bias against state care

June 20, 2022 1 comment

In what appears to be an end run around the legislative committee process, the state Senate last month approved an amendment to state budget legislation that would establish a state commission to study the history of institutional care of persons with developmental and other cognitive disabilities.

But as is the case with proposed legislation still in committee to establish the commission, the Senate amendment does not make it clear that the proposed commission would acknowledge major improvements since the 1980s in care and conditions in the state’s developmental centers or Intermediate Care Facilities (ICFs).

We have previously raised concerns about the legislation to establish the commission (S.1257, H.2090), which has been in the committee process for more than a year.

Given that the House did not adopt a similar budget provision to establish the commission, the proposal will be subject to a House-Senate conference committee that is currently meeting on the Fiscal Year 2023 state budget.

The Senate budget amendment addresses some concerns we previously raised about the proposed commission legislation, including language that indicates a bias against the state’s two remaining developmental centers – the Wrentham Developmental Center and the Hogan Regional Center in Danvers.

We do support efforts to study the history of the former state schools in Massachusetts for persons with developmental disabilities. Toward that end, we support proposed legislation to open up all historical state records to public inspection (S.2009, H.3150). But we want to ensure that the proposed commission considers the full history of these institutions, not just the darkest parts of that history prior to the 1980s.

Our concern is that proponents of further deinstitutionalizaton and privatization in the Department of Developmental Services (DDS) system could use the commission to call for the closures of the Wrentham and Hogan centers, and potentally other state-run residential facilities.

As we have pointed out many times, Wrentham and Hogan today provide state-of-the-art care, and are closely tied to their surrounding communities.

Budget amendment would provide four seats for residents and family members at Wrentham and Hogan

In one major improvement over the proposed legislation in committee, the Senate budget amendment would give residents and family members of the Hogan and Wrentham centers four out of what appear to be 16 seats on the commission.

But even in the Senate amendment, the makeup of the commission appears to still be largely dominated by opponents of the ICFs.

Also troubling is that pro-deinstitutionalization organizations such as the Arc of Massachusetts would specifically appoint at least three members of the commission. Meanwhile, the Hogan and Wrentham members would be appointed by the governor, who has also been a supporter of deinstitutionalization and the privatization of public services.

Commission proponent’s op-ed focuses on dark and early period of Fernald Center’s history

It is also troubling that some key proponents of the commission have continued to publicly express largely negative views of the history of the state schools without mentioning the significant upgrades that occurred starting in the 1980s in those institutions.

In discussing the Senate budget amendment in an op-ed in The Boston Globe on June 7, Alex Green, a major proponent of the commission, focused on the darkest years in the history of the state facilities in Massachusetts. Green specifically noted the connection of the former Fernald Center, in particular, to the eugenics movement in the late 19th and early 20th centuries.

Eugenics has been correctly characterized as a “scientifically erroneous and immoral theory of ‘racial improvement’ and ‘planned breeding.'” It gained popularity during the early 20th century.

In protests Green has organized against Fernald, and in petitions to Waltham Mayor Jeanette McCarthy, Green has similarly focused exclusively on  human rights abuses at Fernald in the first half of the 20th century. The Arc and other advocacy organizations have signed on to those petitions.

The early history of Fernald and the other state schools in Massachusetts is certainly a deeply troubling one. And the man for whom the institution was later named — Walter E. Fernald — was initially an active proponent of eugenics laws that were being adopted in the late 19th and early 20th centuries in the U.S. 

But by the 1920s, even Walter Fernald had come to reject the principles of eugenics, andbecame a supporter of community placement…” for persons with developmental disabilities, according to the Encyclopedia Britannica.

The commission legislation does not specify that the commission would examine the history of Fernald subsequent to Judge Tauro’s involvement

We have repeatedly objected to the commission legislation on the grounds that it doesn’t specify that the commission would consider the full history of the state schools.

The improvements at Fernald and the other institutions were undertaken as a result of the intervention of the late U.S. District Court Judge Joseph L. Tauro. Tauro noted those improvements when he disengaged from his oversight of a landmark consent decree case in 1993. He wrote that the improvements 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.”

The Senate budget amendment provides little specificity as to the historical focus of the commission. It does, however, contain this fairly convoluted sentence, which raises a number of questions about the commission’s focus. The sentence states that the commission will:

…design a framework for public recognition of the commonwealth’s guardianship of residents with disabilities throughout history, which may include, but shall not be limited to, recommendations for memorialization and public education on the history and current state of the independent living movement, deinstitutionalization and the inclusion of people with disabilities. (my emphasis)

Given the commission will be largely dominated by organizations in favor of deinstitutionalization, we are concerned any such study of that issue may be biased.

It is also curious that  the history and current state of the independent living movement and deinstitutionalization would be included in the commission’s charge, given the subject of the commission is the history of state institutions.

The Senate amendment doesn’t define the “independent living movement.” Also, a complete study of just deinstitutionalization would take the effort of a separate commission in itself.

In addition, we think it is unwise for the budget conference committee to adopt the commission idea as a budget provision. This is an idea that needs to work its way through the checks and balances of the committee process.

As part of that committee process, the concerns we’ve raised about the makeup and possible bias of the commission still need to be addressed. At the least, we think language should be added to the proposed legislation stating that the commission will examine the complete history of the state’s institutional facilities.

The full history of the state institutions for persons with cognitve disabilities in Massachusetts starts with the founding of those facilities, and it continues to the present day.

State budget language mistakenly implies Supreme Court ordered closures of institutions for persons with developmental disabilities

May 31, 2022 2 comments

COFAR is urging state legislative leaders to correct language in state budget legislation that mistakenly implies that the U.S. Supreme Court ordered the closures of institutions for persons with developmental disabilities.

The language in a budget line item cites Olmstead v. L.C., the Supreme Court’s landmark 1999 decision, which considered a petition by two residents of an institution in Georgia to be moved to community-based care. The Olmstead decision has been frequently mischaracterized as requiring the closure of all remaining state-run congregate care facilities in the country.

According to this characterization, Olmstead further required that all residents of those facilities, which include Intermediate Care Facilities (ICFs), be transferred to community-based group homes.

In one of three instances in which COFAR is seeking changes or corrections, the Massachusetts budget line item language states that the Department of Developmental Services (DDS) must report as of December 15 to the House and Senate Ways and Means Committees on “all efforts to comply with …Olmstead…and… the steps taken to consolidate or close an ICF…” (my emphasis)

However, in letters sent last week to the chairs of the House and Senate Ways and Means Committtees, COFAR noted that closing institutions was not the intent of the Olmstead decision, which was written by the late Justice Ruth Bader Ginsburg.

As our national affiliate, the VOR, has pointed out, “the Court’s determination in Olmstead supports both the right to an inclusive environment and the right to institutional care, based on the need and desires of the individual.” (my emphasis)

We are concerned that the misstatements in the ICF line item in the state budget each year could allow the administration and Legislature to justify continuing to underfund the line item, and possibly to seek the eventual closures of all remaining ICFs in Massachusetts. Those ICFs consist of the Wrentham and Hogan Developmental Centers, and three state-run group homes on the campus of the former Templeton Developmental Center.

The problematic language in line item 5930-1000 is included in both the House and Senate Ways and Means Committee versions of the budget for Fiscal Year 2023, which begins on July 1.

Declining funding in line item tracks budget language history

COFAR first identified the budget line item language last year, and reported that the language appears to have been included in the line item in state budgets going back as far as Fiscal Year 2012.

It is perhaps not coincidental that since Fiscal Year 2012, four of six remaining developmental centers in the state have been closed. And when the Fiscal Year 2023 budget is adopted, the ICF line item will have been cut since Fiscal 2012 by $78.2 million, or 42%, when adjusted for inflation. (Those numbers are based on the Massachusetts Budget and Policy Center’s Budget Browser app.)

Three of the DDS reports required by the line item language — for calendar years 2018, 2019, and 2020 — discussed a steadily dropping population or census at the Wrentham and Hogan centers, and practically zero admissions to those facilities after 2019 as well.

We have noted that the lack of admissions to Wrentham and Hogan indicate that the administration is unlawfully failing to offer those settings as residential options to indivdiuals with developmental disabilities who are seeking residential placements in the state.

Three mistaken or misleading statements

There are what appear to be at least three mistaken or misleading statements in the language in line item 5930-1000: (The first item below is simply a case of wrong terminology.)

1. The budgetary line item language mistakenly identifies ICFs as “intermittent care facilities.”  The correct term is “intermediate care facilities.”

2. As noted, language in the line item mistakenly implies that the Olmstead decision was intended to close ICFs. In fact, Olmstead held that:

We emphasize that nothing in the ADA (Americans with Disabilities Act) or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. (my emphasis)

3. A statement in the line item, which lists three conditions for discharging clients from ICFs to the community, leaves out one of the key conditions in Olmstead, which is that the client or their guardian does not oppose the discharge.

The House and Senate line item language states that in order to comply with Olmstead, DDS:

…shall discharge clients residing in intermittent care facilities for individuals with intellectual disabilities…to residential services in the community if:

(i) the client is deemed clinically suited for a more integrated setting;

(ii) community residential service capacity and resources available are sufficient to provide each client with an equal or improved level of service; and

(iii) the cost to the commonwealth of serving the client in the community is less than or equal to the cost of serving the client in an ICF/IID…” (my emphasis)

The first two of those conditions in the line item language are contained in the Olmstead ruling. The third condition about cost being less in the community actually isn’t contained in Olmstead.

The third condition in Olmstead for discharging clients from ICFs is that such a discharge is “not opposed” by the client and/or their guardian. That condition is not included in the House or Senate budget line item.

Here is the actual language from the Olmstead decision:

…we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. (my emphasis)

We have asked Senator Michael Rodrigues and Representative Aaron Michlewitz, the chairs of the Senate and House Ways and Means Committees respectively, to consider redrafting this line item language to correct these mistakes.

Questionable effectiveness and little progress appear to characterize state’s efforts and proposals to raise direct care wages

March 23, 2022 1 comment

With low pay a recognized cause of staffing shortages now endemic to the the state’s human services system, we are concerned about an apparent lack of urgency and effort by the administration and the Legislature in raising direct care worker pay.

We have called for a minimum wage for direct care workers in the Department of Developmental Services (DDS) system of $25 per hour.

Thus far, we haven’t been able to get key lawmakers or administration officials even to comment on our proposal. Those officials are similarly mum regarding the potential impact of their own proposals.

Meanwhile, as the staffing shortage problem drags on month after month, a lack of timely action by lawmakers and the administration to address it is especially frustrating given the state’s strong financial condition and projected surplus revenues.

Over the past several months, the Baker administration has distributed federal funding for only a one-time, 10% increase in wages under last year’s American Rescue Plan Act (ARPA). But those wage increases, which have been paid by at least some providers to workers in the form of bonuses, are not the basis of a permanent increase in their pay.

Questions about current bill to raise wages

A key bill in Massachusetts that is intended to boost direct care worker wages permanently is S.105, which was filed by state Senator Cindy Friedman. As Senate chair of the Health Care Financing Committee and vice chair of the Senate Ways and Means Committee, Friedman is one of the most influential and powerful members of the Legislature.

The intent of Senator Friedman’s bill appears to be good in that it would potentially boost the wages specifically of direct care workers in provider-run group homes and other facilities in the human services system.

But the bill doesn’t specify a minimum wage for those workers. Rather, it calls for an unspecified amount of state funding to close an apparently as-yet unquantified “disparity” in wages between provider-based workers and state workers.

I first contacted Friedman’s staff in early February to ask if they had an estimate of the amount to which her bill would raise direct care wages. I haven’t gotten an answer from her office on that.

Last week, after I renewed my query, Friedman’s communications director emailed me to say that Friedman “will be holding off on any official comment (regarding her bill) until the bill is finalized through committee.”

Friedman’s  bill was reported favorably by the Children, Families, and Persons with Disabilities Committee in February, and sent to the Senate Ways and Means Committee. Prior to that, the Children and Families Committee had sat on the bill for almost a year.

I’m not sure what “finalized through committee” means, but I assume it means that Friedman won’t comment on her bill unless and until it is reported favorably by the Senate Ways and Means Committee.

It’s not clear why Friedman won’t publicly comment on her bill while the Senate Ways and Means Committee is still considering it. Legislators are generally eager to comment on bills they have proposed unless they either don’t fully support the measures or possibly don’t have answers to questions about them.

I wrote back to Friedman’s communications director, Stephen Acosta, last week, listing what I think are potential problems with the bill, or at least unanswered questions about it. We think a bill that specifies and requires a minimum wage for direct care workers would be a potentially more effective piece of legislation.

Among the problems or questions we have about Friedman’s bill are the following:

“Disparity” apparently hasn’t been quantified                       

The “disparity amount” is defined in the bill as “the monetary calculation of the average difference in salary” between direct care workers in provider organizations that contract with the state, and workers who are employed directly by the state.

Friedman’s bill would require the Executive Office of Health and Human Services (EOHHS) and other agencies, in collaboration with the Council of Human Service Providers, Inc., to calculate the amount of the disparity, and report back to the Legislature as of July 1.

Those entities would also be required to calculate the amount of state funding that must be appropriated to the providers to reduce the disparity over a five-year period ending in July 2027.

Friedman’s bill is a tacit admission that state workers are paid more for direct care work than are workers in provider agencies. But it appears that no one in the administration or Legislature currently knows what the difference in pay is.

As we have previously reported, the amount of that disparity has apparently only been “guesstimated,” and the guesstimate is that the disparity is roughly 20 percent. That guesstimate came from a staff member of the Children and Families Committee.

The federal Bureau of Labor Statistics lists an average hourly wage for “personal care aides” in Massachusetts of $16.29. Personal care aides, according to the BLS, include workers in both group homes and private homes.

If the Children and Families guesstimate is correct, it appears that even after five years, Friedman’s bill would raise the wage of a worker making $16 an hour to roughly only $19 – a level nowhere near $25.

Disparity would take five years to eliminate

We’ve written frequently about the need to raise direct care wages in order to address the ongoing staffing shortage affecting the entire DDS system.

Under S.105, state agencies, including EOHHS, would be required to raise funding for human services providers to reduce the wage disparity amount to 50 percent by July 1, 2023, and to zero by July 1, 2027.

Given the state’s current surplus in revenues, it seems to make little sense to wait for five years to fully fund the solution to a problem that is affecting the system and people’s lives right now.

No method of ensuring the money would go to direct care workers

Friedman’s bill states that, “ All increases in the rate of reimbursement provided (to human services providers) shall be used to increase the compensation of human services workers.”

But there are no specifications in the bill of any amounts that individual providers would be required to pay those workers. There is also no requirement that the providers show that the additional funding they receive under the legislation has, in fact, gone to direct care workers.

Approach has been unsuccessful in the past

In 2019, State Auditor Suzanne Bump found that a major boost in state funding in previous years had resulted in surplus revenues for providers, but had led to only minimal increases in wages for direct care workers.

Bump’s audit concluded that the increased funding, which was at least partly intended to boost direct care wages, “likely did not have any material effect on improving the financial wellbeing of these direct care workers.”

Bill based on average wages, not a minimum wage.

S.105 refers to eliminating an “average difference in salary” between provider-based and state workers. That could allow some providers to pay less than the average if others pay more.

We are calling for a minimum wage for direct care workers of $25 per hour. So, even if S.105 were to achieve an average wage of $19 an hour after five years, it would still imply a minimum wage of less than $19. That is another reason why it doesn’t appear that Senator Friedman’s bill would raise the minimum direct care wage to the neighborhood of $25 an hour.

Sudders has suggested a different approach to raising direct care wages

According to a March 7 State House News Service article, Health and Human Services Secretary Marylou Sudders testified that, “it might be time for the state to consider mandating a percentage of rates paid to private providers be used for salary enhancements.”

The News Service then quoted Sudders as saying, “Maybe we need to say 75 percent of our rates have to go to direct care salaries.”

Sudders was testifying at a hearing before the Joint Ways and Means Committee, which Friedman was co-chairing, according to the News Service. During the hearing, Sudders acknowledged workforce shortages in the human services sector.

The 75-percent idea has also been proposed before. In 2020, a bill  would have required providers to use up to 75 percent of their total state funding to boost direct care worker salaries to at least $20 per hour.  State Sen. Jamie Eldridge proposed a similar measure in 2017.  Neither of those measures was enacted by the Legislature.

On Monday (March 21), I emailed EOHHS’s media relations manager, asking whether the agency had an estimate or projection of the amount to which such a 75-percent requirement would raise direct care wages. I also asked whether EOHHS had a figure regarding the current percentage of funding to providers that goes toward direct care wages.

Finally, I asked whether Secretary Sudders would support legislation to require a minimum wage for direct care workers of $25 per hour. I have also previously posed that question to Senator Friedman and the co-chairs of the Children and Families Committee.

So far, we haven’t gotten any responses to these questions. We urge people to call their state legislators and ask them to act on a $25 minimum wage for workers in the DDS system.

You can find your local legislators here.

More funding eyed for DDS state-operated group homes in governor’s budget, but less for ICFs and day programs

January 27, 2022 3 comments

State-operated group homes would receive an increase in funding in the coming fiscal year roughly equal to the inflation rate, according to Governor Charlie Baker’s proposed Fiscal Year 2023 budget, which was released Wednesday (January 26).

Overall, the budget contains mixed news for Department of Developmental Services (DDS) line items. The new fiscal year starts July 1.

While the state-operated group homes would get a much needed 6.17% increase in funding, the numbers don’t look as good under the governor’s budget for the developmental centers, community-based day programs, autism services, and transportation programs.

According to the governor’s proposal, state-operated group homes would receive $256 million in Fiscal 2023. That would amount to an increase of $14.8 million from the current-year appropriation. That is an increase roughly equal to the current inflation rate for New England. We are urging a minimum increase in state-run programs at least equal to the inflation rate.

Still, even with that increase, the state-operated residences would have a long way to go to catch up to the percentage increases in funding for provider-run group homes over the past decade.

Developmental centers, day programs, and transportation continue to see cuts

The Wrentham and Hogan Developmental Centers line item would receive $109.1 million under the governor’s Fiscal 2023 budget. That would amount to an increase of $5.4 million, or 5.2%. That is less than the minimum $6.3 million increase needed to keep pace with inflation.

The developmental center or Intermediate Care Facility (ICF) line item has, moreover, been cut by $68.4 million, or 39%, over the past decade, when adjusted for inflation.

Community-based Day and Work Programs would receive $227.4 million in Fiscal 2023. That would amount to a cut of $7.6 million, or 3.6%. We are urging a minimum increase of at least $13.4 million in that account to keep it even with inflation. The account provides funding for job skills training and other activities to help clients make the transition to the mainstream workforce. 

A DDS “Progress Report” last year showed a drop in total “integrated employment” of DDS clients in Massachusetts from a high in October 2019. The Progress Report indicated that the numbers of clients being placed in DDS day programs, where few meaningful work activities are available, has exceeded the numbers entering integrated employment in recent years.

Transportation funding would be cut for the second year in a row under the governor’s proposal for Fiscal 2023. The line item would receive $24.8 million in funding, which amounts to a $7 million, or 22%, cut from the current fiscal year.

The Autism Omnibus line item, which provides services and supports for people with autism and related disabilities, would also be cut. That line item would receive $36.6 million in Fiscal 2023, down $4 million, or 10%, from the current fiscal year appropriation.

Some line items would get increases

The DDS corporate residential providers would receive $1.44 billion under the governor’s budget plan. That would amount to an increase of $34 million or 2.4% from current year. While the increase would be less than the rate of inflation, the provider group homes will have gotten an increase of $563 million, or 64%, since FY 2012, when adjusted for inflation.

In contrast, funding for the state-operated group homes has been increased by about half that percentage over the past decade.

In addition, Baker has proposed a major increase in a reserve fund (1599-6903) intended to boost contractual payments by the state to the residential providers. His Fiscal 2023 budget would increase the size of the residential provider fund from $79 million to $230 million in the coming fiscal year.

The Turning 22 line item would also get a major increase under the governor’s budget plan. The line item would receive $84 million in Fiscal 2023. That would require a $59.5 million, or 242%, increase in funding from the current-year appropriation.

Respite and Family Supports would be increased by $5.2 million, or 6%, to $90.6 million.

The DDS administration line item would receive $87.8 million in Fiscal 2023, a 6.4% increase. The administrative line item includes funding for DDS service coordinators, a key departmental function.

Reasons for our funding increase requests

Flat or declining funding levels for state-run residential programs appears to be connected with an apparent policy by the administration not to offer those settings as options for people seeking residential placements.

Documents provided by DDS last September confirm that the census in the state-operated group homes has been declining since Fiscal Year 2015. We previously received information from DDS showing a decline in the census and virtually zero admissions in 2019 and 2020 to the Wrentham and Hogan Centers.

In turn, funding for these facilities has dropped or has remained flat for years. 

Unless families have the money for a lawyer or are politically connected, most people waiting for residential placements are never informed that state-operated group homes or developmental centers exist. Yet, as COFAR has reported, the federal Medicaid law requires that individuals and their families and guardians be informed of all the “feasible alternatives” for placement.

State-operated group homes and the Hogan and Wrentham centers are the backbone of the DDS system because they care humanely and efficiently for even the most profoundly intellectually disabled and medically involved people. They also provide jobs.

These decreases in funding and the census in state-run residential facilities have been ongoing while funding under the DDS corporate residential line item (5920-2000) has skyrocketed over the past decade to over $1.4 billion, an amount that dwarfs the funding for state-operated group homes and the two remaining developmental centers in Massachusetts.

In a survey we conducted in 2015we found that more than 600 executives employed by corporate human service providers in Massachusetts received some $100 million per year in salaries and other compensation. As just one example, the FY 2020 IRS filing by the Edinburgh Center, a DDS corporate provider, listed eight executives as each making over $100,000 that year, while the CEO received more than $230,000 in compensation.

Baker’s proposal to increase funding next year to the state-operated group homes, at least at the rate of inflation, is a positive step, albeit a minimal one. We hope over the next six months to see a turnaround in the declining funding trend for the developmental centers and day programs as well.

DDS corporate providers and their allies once again attack the former Fernald Center with a selective account of its history

December 21, 2021 4 comments

Yet again, the former Fernald Developmental Center in Waltham is being targeted politically by corporate human services providers that are selectively focusing on the Center’s dark history prior to the 1980s.

Fernald may have been closed for the past seven years, but it is still proving to be as potent a target as ever for proponents of the privatization of care in the Department of Developmental Services (DDS) system.

As was the case last year, the Arc of Massachusetts and other provider-based groups have signed a petition and letter to Waltham Mayor Jeanette McCarthy, protesting an annual holiday light show currently underway on the Fernald campus.

This year, the providers have been joined by the Mental Health Legal Advisors Committee (MHLAC), a legal advocacy entity located within the state Supreme Judicial Court.

Philip Kassel (no relation to this blog post writer), executive director of the MHLAC, wrote a letter on December 10 to a legislative commission on the status of persons with disabilities in which Kassel joined in the criticism of the light show as “disturbing and inappropriate.” Kassel described Fernald as as a place of “horrors” and “virulent dehumanization.”

Kassel’s letter further stated:

…residents with disabilities (at Fernald) were subjected to “scientific” experiments and other forms of physical and psychological abuse. Walter Fernald himself was a proponent of eugenics and forced sterilizations, which occurred at the institution. Students were fed radioactive oatmeal by esteemed Harvard and MIT professors in what they called research. And innocents were imprisoned in squalid conditions for much of their unhappy lives.

These things either occurred or were true of Fernald prior to the 1980s. But, as I stated in an emailed response to Kassel on December 16, significant changes were brought about at Fernald and in other institutions for persons with developmental disabilities from the 1980s onward. Those changes occurred as a result of class action litigation in the 1970s, which was overseen by the late U.S. District Court Judge Joseph L. Tauro.

Judge Tauro enabled the creation of a new model of care in both the institutions and the community system in Massachusetts that required the investment of hundreds of millions of dollars.  After years of improvements, Tauro concluded in 1993 that this state now had “a system of care and habilitation that is probably second to none anywhere in the world.”

There is no mention in Kassel’s letter of Judge Tauro or of the changes he oversaw at Fernald and at other institutions for persons with developmental disabilities. There is similarly no mention of Tauro or those changes in the petition or letter to Mayor McCarthy.

I also noted in my message to Kassel that the experiments at Fernald on children that he referred to took place between 1946 and 1953. It is, of course, necessary to know and understand that awful period in the history of institutional care of the developmentally disabled in this country.

But, as I stated to Kassel, “focusing public attention solely on the history of Fernald from the 1940s through the 1960s, and even before that, overlooks the full history of Fernald.”

That selective focus, I noted, also overlooks the human price paid for deinstitutionalization from the 1980s onward of both persons with developmental disabilities and mental illness. That is because such a selective focus diverts discussion and inquiry from events that happened subsequent to the 1980s and from current matters affecting people with disabilities.

That is an erasure of history, I said in my message, and its effect has been the facilitation of the ongoing and unchecked privatization of care in the DDS system, in particular.

In a response to my message, Kassel said he disagreed that the reforms at Fernald from the 1908s onward should necessarily be considered in discussing “the sordid history” of the institution.

Kassel said he also disagrees with our assessment of the history of deinstitutionalization. “If there are failures (with  deinstitutionalization),” he stated, “they may be attributed to inadequate efforts to replace places like Fernald with community-based alternatives.”

In a response to Kassel’s response, I said we agree that the efforts to replace Fernald and other institutions with community-based alternatives have been inadequate. I noted that in testimony in 2018 to a legislative committee, Nancy Alterio, executive director of the Massachusetts Disabled Persons Protection Commission (DPPC), stated that abuse and neglect of persons in the DDS system had increased 30 percent in the previous five years, and had reached epidemic proportions.

Alterio’s testimony came long after the state had begun to rely primarily on privatized, community-based group homes for residential care of persons with developmental disabilities, and long after the state had phased out and closed all but two state-run developmental centers comparable to Fernald.

So, in our view, I said, deinstitutionalization of people with developmental disabilities has been far from a success. And that failure hasn’t been due to a lack of funding. DDS’s corporate provider-run group home line item in the state budget (5920-2000) is now well over $1.3 billion — an amount that is 90 percent higher than what it was a decade earlier.

I added in my second response to Kassel that rather than investing that increased funding over the years in adequate wages and training of direct-care workers in the community-based system, the providers have enriched their own executives. In a survey we conducted in 2015, we found that more than 600 executives of providers in the DDS system in the state were receiving some $100 million a year in salaries and other compensation.

In fact, decades after closures have occurred of a significant portion of the institutional system for people with developmental disabilities around the country, it is now in community-based group home settings that abuse, neglect, and warehouse-like conditions appear to have become a problem of epidemic proportions. (See these multi-part exposes starting in 2011 by The New York Times, in 2013 by The Hartford Courant, and in 2016 by The Chicago Tribune.)

Our concerns remain over proposed commission on history of Fernald and other state facilities

Meanwhile, as the debate continues over the Fernald light show, legislation is pending in the Legislature that would establish a state commission (S.1257and H. 2090) to study the history of Fernald and other similar institutions. We are seeking changes in the language of the bill to ensure that the commission tells the accurate and complete story of those places.

I said to Kassel that we assume that the Mental Health Legal Advisors Committee supports this legislation, and we would hope the organization similarly desires that the story of Fernald be told accurately and completely.

In our view, the effort to revoke the permit for the light show at Fernald simply serves the purpose of those who have a vested interest in overlooking Fernald’s complete history.

DDS state-operated group homes facing a staffing and possible closure crisis

October 22, 2021 11 comments

State-operated group homes for persons in Massachusetts with developmental disabilities appear to be facing a perfect storm of staffing shortages, potentially unvaccinated staff, and a possible departmental effort to shut at least some of the residences down.

The staffing shortages are also affecting the much larger network in the state of corporate provider-operated group homes funded by the Department of Developmental Services (DDS). But we are increasingly concerned that the critically important state-run DDS group home network could be facing a crisis that could threaten its long-term existence.

We often advise families whose loved ones are experiencing poor care in provider-run residences to ask for placements in available state-run group homes. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the provider system.

Resident moved without notice

This week, we received a report that a state-run group home in western Massachusetts was being closed and that at least one of the residents was moved without written notice as of Thursday (October 21) to a location in another town.

Earlier this month and this week, we received reports from a COFAR member that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated for COVID-19.

We have not been able to confirm those reports about closures of homes in southeastern Massachusetts. A DDS official privately told a COFAR member that no state-operated group homes had yet been closed in the region as of mid-October, but that some closures could happen after October 17. The official referred to the possibility of “temporary consolidations” of group homes around the state.

In August, Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated. While the executive order apparently applies to staff in state-operated group homes and the Wrentham and Hogan Developmental Centers, the separate provider-operated DDS group home system is apparently not subject to the vaccination mandate.

It is not clear how many staff in the DDS group home system remain unvaccinated. As of last April, the last time EOHHS apparently tracked staff vaccinations, less than 50% of staff in state-operated DDS group homes were fully vaccinated, and only 51% of staff in provider-run group homes were fully vaccinated.

Administration officials not commenting

On October 14, we emailed DDS Commissioner Jane Ryder and the press office at the Executive Office of Health and Human Services (EOHHS) with questions about the reports of closures and consolidations in the state-operated group home network.

To date, Ryder has not responded to our query. A spokesperson for EOHHS said we would have to file a Public Records Request for that information.  On October 15, we filed a Public Records Request, and EOHHS responded that same day that that agency did not have any records relevant to our query.

DDS regulations may be violated by sudden closures

Under DDS regulations (115 CMR 6.63), DDS clients cannot be transferred without a 45-day notice and the opportunity for a hearing unless the the Department determines that the transfer is “an emergency involving a serious or immediate threat to the health or safety of the individual or others.”

Western Mass DDS staff urge Ryder to address staffing shortages

Meanwhile, on Wednesday (October 20), the Massachusetts Nurses Association, a union that represents nurses in the DDS system as well as hospitals around the state, reported that several DDS employees in western Massachusetts had sent a letter in late September to Commissioner Ryder “imploring her to intervene in a growing patient-care crisis that is unfolding in many of the region’s DDS group homes.”

The letter stated that staffing shortages in both state-operated and provider-operated group homes were causing “significant increases” in client injuries requiring emergency room treatment, and in the placement of untrained staff in homes.

The MNA letter said some staff were being forced to work overtime due to staffing vacancies, and that one staff worker was reportedly required to work 48 hours straight.

The MNA letter to Ryder was dated September 21. The union said that as of October 20, Ryder had not responded.

COVID rates in the DDS group home system continuing to climb slowly

In the midst of the continuing staffing and apparent vaccination problems, the latest online COVID testing report from EOHHS shows a slow, but continuing increase in individuals testing positive in DDS state and provider-run group homes. In state-operated group homes, the number of residents testing positive rose from 3 to 6.

Among staff in the state-operated group homes, the number of those testing positive rose from 11 to 12 between September 7 and October 5.

In provider-run homes, the number of residents testing positive jumped from 31 in September to 49 in early October. The administration, however, does not report the number of staff testing positive in the DDS provider-run system.

Census in state-ops and ICFs declining

Whether or not there are plans to close state-operated group homes or the Wrentham or Hogan Developmental Centers, the administration has nevertheless been letting the residential populations or census drop in these facilities. In addition, funding for these facilities has dropped or has remained flat for years. (See here and here.)

Documents provided by DDS on September 21 in response to a Public Records Request for records on the number of admissions to state-operated group homes, confirm that the census in those facilities has been declining since Fiscal Year 2015. We previously received information from DDS showing a decline in the census and virtually zero admissions in 2019 and 2020 at the Wrentham and Hogan Centers.

The census in DDS provider-operated group homes grew by an average of 124 residents per year between Fiscal Years 2008 and 2021. However, the census in state-operated group homes grew by an average of only 3 residents per year.

Moreover, since Fiscal 2015, the census in state-operated group homes has actually dropped by an average of 18 residents per year while the census in provider-operated group homes has continued to grow by an average of 83 residents per year. The number of residents in state-run group homes was almost 10% lower in Fiscal 2021 than in 2015.

The data show there have been admissions each year to the state-operated homes.  But those admissions have apparently been more than offset by deaths in those residences.

Future is concerning

In sum, all of these numbers and trends are concerning, as is the administration’s policy not to respond to questions either from us or from unions such as the Mass. Nurses Association.

We may learn a little more if DDS does provide records relevant to our Public Records Request concerning the reported state-operated group home closures.  But in the meantime, we are left to wonder what the administration is planning to do – or is actually doing — to address the staffing shortages in the DDS system.

At the very least, we hope the administration doesn’t view the staffing shortages and the problem of unvaccinated staff as opportunities to further downsize the state-operated group home system.

Video has a controversial and disturbing, but important message about autism

October 8, 2021 4 comments

Several advocacy organizations for people with autism have produced a disturbing video that conveys an important message.

The message, which is actually controversial, is that autism can be a debilitating condition for some people. Contrary to what has become a politically popular ideology, there are people with developmental disabilities who cannot function in mainstream society.

The video, sponsored by Act Now for Severe Autism, the VOR, the National Council on Severe Autism (NCSA), ICF Advocates for Choice, and other organizations, displays severe autistic behavior in graphic detail, and therefore may be difficult for some people to watch.

Many people, however, may not be aware that autism is a “spectrum disorder,” which the Autism Research Institute (ARI) describes as appearing “in a range of forms and levels of severity.”

The video shows children with very severe autism engaging in violent behavior, mainly against themselves. They scream and hit themselves repeatedly in the head, or bang their heads against hard objects – hard enough to cause serious injuries such as detached retinas. They physically attack caregivers and family members, leaving them injured as well.

It is difficult to watch, but videos like this are necessary to convey an inconvenient truth about developmental disabilities to the public and to policy makers and journalists, and even to misguided activists for the disabled. Many of these policy makers and activists have promoted the mistaken ideology that every individual has unlimited potential for achievement in mainstream society, and that autism is not even a disability.

As the NCSA stated in a letter to The New York Times, this viewpoint even led one author to advise parents of children with autism that their children are “perfect.”

And as noted below, this ideology has been associated with the closure and privatization of congregate care facilities for persons with developmental disabilities and with efforts to end guardianship of those persons by family members.

But as Lee Elizabeth Wachtel, medical director of the Neurobehavioral Unit at the Kennedy Krieger Institute, wrote:

When an autistic child has permanently blinded himself from self-injury, broken his teacher’s arm, or swallowed multiple toothbrushes and required emergency surgery, there is nothing perfect or magnificent about it, and it must be remedied.

What the video is getting at, in our view, is the importance of distinguishing between different degrees of disability in setting policy for people with disabilities.

We think the failure to make those distinctions is what is in common among the movements to further deinstitutionalize and privatize services to the disabled, end guardianship, and close sheltered workshops, among other programs and services.

Those movements have had a major impact, causing policy makers and the media to overlook the needs and, in some cases, even the existence of people with the most severe levels of autism and other disabilities.

Attacks on guardianship

The failure to recognize different levels of disability is behind a growing movement to replace guardianship with Supported Decision Making (SDM). SDM is an arrangement in which individual guardians are replaced by teams or “network supporters,” who enter into written agreements with disabled individuals to “help them make decisions” about their care, finances, and living arrangements, and in other areas.

In typical fashion, SDM bills currently pending in the Massachusetts Legislature (H.272 and S.124) avoid the question whether everyone is really capable of making their own decisions in those very important areas. SDM proponents don’t appear to recognize that there are some individuals who do not have the cognitive skills necessary to make reasonable decisions. Those people need guardians – preferably guardians who are family members.

It should be clear from the video on severe autism behaviors that the children engaging in those self-injurious actions are not in a position, and may never be in a position, to be able to make their own life choices.

Yet one of those SDM- promoting groups – the Autistic Self-Advocacy Network – states on its website that:

People with disabilities usually get put under guardianship because other people think we can’t make choices. This is bad. People with disabilities want to keep the right to make our own choices.

Integrated employment

The ideology that everyone can function in mainstream society led to the closures of all remaining sheltered workshops in the state in 2016.

The charge was that the workshops limited the potential of the clients by keeping them out of the mainstream workforce. But the result has been that hundreds if not thousands of clients of the Department of Developmental Services (DDS) have been left in DDS day programs with little or nothing to replace the work opportunities they previously had.

For a potentially significant number of DDS clients, mainstream work settings have never been a viable option. Those persons aren’t able to function in those settings or don’t desire to do so.

It’s all about money and privatization

The ideological position that the community-based system of care is working perfectly for everyone fits with a decades-long push by successive administrations in Massachusetts and corporate providers for more privatization of the DDS system. According to the ideology, all persons with developmental disabilities can reach their full potential in the community system, unlimited by institutional constraints.

But as the video narrator notes, people with severe autism need “a continuum of care that includes intensive and specialized services that are usually provided in disability-specific educational, vocational, and residential settings.”

As the narrator says, parents of persons with severe autism are looking for a “seat at the table” when it comes to setting policy for caring for persons with developmental disabilities. They want policy makers to recognize that given the wide range in the severity of autism and other developmental disabilities, one-sized policies don’t fit all.

DDS may be violating federal law in not offering Wrentham and Hogan Centers as options for care

August 18, 2021 4 comments

Recent reports from the Department of Developmental Services (DDS) to the state Legislature show a continually declining number of residents at the Wrentham Developmental Center and the Hogan Regional Center, and indicate there were no new admissions to either facility last year.

The reports have been submitted to the House and Senate Ways and Means Committees in compliance with a requirement each year in the state budget that DDS report on efforts “to close an ICF/IID (Intermediate Care Facility for individuals with intellectual and developmental disabilities).”

The reports appear to confirm that DDS is not offering ICFs/IID (or ICFs/IDD) as an option to persons waiting for residential placements in the DDS system.

If so, that would appear to be a violation of the Home and Community Based waiver of the federal Medicaid Law (42 U.S.C.1396n, s. 1915), which requires that intellectually disabled individuals and their guardians be informed of the available “feasible alternatives”  for residential placement and care.

In addition, the federal Rehabilitation Act (29 U.S.C., s. 794) states that no disabled person may be excluded or denied benefits from any program receiving federal funding.

The Wrentham and Hogan Centers, and three group homes at the former Templeton Developmental Center are the only remaining ICFs/IDD in the state. As such, they meet more stringent federal requirements for care and conditions than do other residential facilities, such as group homes, in the DDS Home and Community Based Services (HCBS) system.

The state budget language requiring reports on efforts to close ICFs/IDD appears to go back as far as Fiscal 2012, and it implies a bias in the Legislature against those facilities.

We were able to review the three most recent DDS reports to the Ways and Means Committees, for Calendar Years 2018, 2019, and 2020.

From 2018 to 2020, the reports state that the residential population or census at the Wrentham Center declined from 248 to 205, while admissions to the Center declined from only 2 in 2019, to 0 in 2020.

According to the DDS reports, the census at the Hogan Center declined from 119 in 2018 to 88 in 2020, while admissions declined from 18 in 2018, to 0 in 2020. (These census numbers don’t quite match up with other census data we have from the administration on the facilities, but all of the data show a continual decline in the census.)

Families largely satisfied with Wrentham and Hogan Center care

Based on the DDS reports, the decline in the census in both the Wrentham and Hogan Centers is largely due to deaths of residents in those facilities rather than discharges to the community system.

That would appear to support our observation over the years that parents and other family members of Hogan and Wrentham residents have been satisfied with the care at each of the Centers. If they were unsatisfied, they would have tried to seek community placements for their loved ones.

In our view, however, the DDS reports amount to a tacit admission by the Department that the Wrentham and Hogan Centers are eventually closing. The reports explicitly state that DDS will assure a “continuing ICF option” only for persons in the “Ricci class,” which are the dwindling number of people who are currently living in, or previously lived in, the state’s developmental centers.

Ben Ricci was the original plaintiff in the 1970s landmark federal class action lawsuit, Ricci v. Okin, that brought about upgrades in care for residents of the former Belchertown State School and other Massachusetts facilities for the developmentally disabled.

Those upgrades extended to the Wrentham and Hogan Centers. But the yearly DDS reports to the Legislature confirm our concern that DDS does not offer either the Wrentham or Hogan Centers as an option to people seeking residential placements for their loved ones with I/DD.

The declining census and admissions to the ICFs in Massachusetts are reflected in declining budget numbers for those facilities.  In the DDS budget for Fiscal Year 2022, the corporate provider-run group home line item has been funded at more than $1.4 billion. That represents a 91% increase over the funding appropriated for the same line item a decade previously.

In contrast, funding for state-operated group homes and the remaining ICFs has been on a relatively flat or downward trajectory respectively.

Lack of understanding of the role of ICFs

At both the state and national levels, there is a lack of understanding of the critical need for ICFs/IDD and the fact that they that house and serve people with the most severe and profound levels of disability and medical issues.

There is a pervasive and deep-seated ideology that ICFs are overly institutional and prohibitively expensive to operate. But that ideology is misguided.  As the VOR, an organization that advocates for persons with I/DD around the country, noted in a letter to the Senate Committee on Aging in Congress:

Community care does not provide the level or continuum of care needed by most of the I/DD population at the lowest level of these disabilities. Fewer necessary services are not proper care, and in the short-term (much less the long-term) do not provide necessary, life-sustaining care at the same cost level as ICFs.

Yet, the ideology at ICFs are no longer necessary can be found every year, as noted, in language in the Massachusetts budget.

Historical context of anti-ICF ideology

The anti-ICF stance of political leaders and policy makers and even many advocates for the disabled needs to be viewed in the historical context of the deinstitutionalization of people with mental illness and I/DD. That deinstitutionalization grew out of the warehouse conditions of the institutions prior to the 1980s.

Those anti-ICF advocates, however, have largely ignored upgrades in institutions, and particularly the efforts of the late U.S. District Court Judge Joseph L. Tauro, who oversaw the Ricci litigation that brought about improvements in institutional care in Massachusetts.

Deinstitutionalization has become a perfect storm of ideology and money that has kept a firm grip on our political system even though it has essentially been a failure for those it was meant to help. Deinstitutionalization has led to a tide of privatization of services for people with I/DD, and to skyrocketing salaries of executives of nonprofits that contact to provide residential and other care in the DDS system.

Proposed commission vulnerable to anti-ICF ideology

To this day, the anti-ICF ideology persists. At a June 21 legislative hearing in Massachusetts on a proposed state commission to study the history of state institutions for people with mental illness and I/DD, witness after witness denigrated ICF-level facilities as abusive and segregated from the wider community.

The hearing reinforced our concern that the makeup of the commission, as currently proposed, would provide fodder for those seeking to close the Wrentham and Hogan Centers.

As a result, we submitted testimony to a legislative committee considering bills to create the commission (S.1257 and H. 2090) that the commission should be reconstituted to recognize the significant upgrades in care and services that occurred in the state institutions as a result of the Ricci litigation overseen by Judge Tauro.

Calling for parity

That anti-ICF ideology is also reflected in President Biden’s American Jobs Plan, which includes $400 billion to expand access to Medicaid home and community-based services (HCBS) for seniors and people with disabilities.

In June, COFAR joined with AFSCME Council 93, a key Massachusetts state employee union, in warning that President Biden’s proposed $400 billion expansion of HCBS failed to provide any increase in funding for ICF-based care. As such, Biden’s plan could pose a threat to the future of ICF care and other state-run services.

In a jointly written letter to U.S. Senator Elizabeth Warren, COFAR President Thomas J. Frain and AFSCME Council 93 Executive Director Mark Bernard expressed overall support for the expansion of access to HCBS for people with I/DD and the elderly. But the letter noted that without the inclusion of additional funding for ICFs, Biden’s plan would create a strong incentive for Massachusetts to close the Wrentham and Hogan facilities.

As of mid-August, there has been no response to our joint letter from Senator Warren or her staff.

All of this shows how much of an uphill battle it has been to make the case for ICF-level care in Massachusetts and other states. We will continue to work to get the message get out, before it is too late, that ICFs provide a critical safety net of care for some of our most vulnerable members of society.

As the DDS reports to the Legislature show, however, time is running out.

Staffing shortages and low pay affecting care in DDS group homes

July 19, 2021 7 comments

As the Department of Developmental Services (DDS) system in Massachusetts emerges from the COVID crisis, a number of systemic problems are lingering, including reports of staffing shortages in group homes.

The staffing shortages may not be directly due to the pandemic, but the pandemic may have brought matters to a head.

Staffing shortages have long been a potential result of the low pay provided to direct care workers in the DDS system compared with high salaries provided to executives managing the nonprofits operating most of the group homes.

Even with a $4.2 billion surplus in state budget revenues projected for the current fiscal year, there appears to be no sign of urgency on Beacon Hill to address the direct care wage problem. Legislation (H.4171) that would have boosted minimum direct care wages in the DDS system to $20 per hour died at the end of the previous legislative session last December, and apparently hasn’t been revived.

We sent an email query on July 13 to state Health and Human Services Secretary Marylou Sudders and DDS Commissioner Jane Ryder, seeking confirmation of the staffing shortages and reasons for them. We sent a similar query to the Legislature’s Children, Families, and Persons with Disabilities Committee.

In our emails, we asked whether there are legislative efforts underway to boost direct care pay in the DDS system in order to recruit more caregivers and prevent others from leaving the system.

Neither Sudders nor Ryder has responded to our query.

A staff member of the Children and Families Committee did get back to us last week, saying a bill has been proposed for the second year in a row that would gradually raise the pay of direct care workers employed by DDS providers to the level earned by similar workers employed by the state.

Unlike last session’s bill, which would have raised direct care pay to $20 per hour, no actual hourly payment amount is specified in this year’s bill, H.237. The measure was referred to the Children and Families Committee on March 29.  A “tentative” vote on the bill isn’t scheduled by the Committee until this coming fall.

In response to a separate query we sent earlier this month to our membership, a number of family members maintained that staffing shortages exist and have caused problems in their loved ones’ residences. One parent said a DDS regional director had confirmed to her that “there is a staff shortage statewide and they are working to recruit people.”

In one case, a DDS official emailed a parent of a state-operated group home resident, saying DDS was “in touch with (the group home management) …to ensure proper staffing ratios are being met at all times.”

But a number of family members said they did not believe staffing has lately been adequate in the residences. One parent said her son needs two staff to assist him. She said, however, that there were only two staff available per shift in the entire residence, whereas there used to be five staff per shift. The parent termed the staffing situation “potentially dangerous.”

Another parent said several staff in her son’s residence were either on vacation, had resigned, or were in training elsewhere. She said the situation resulted in a recent incident in which a resident of the home left the residence unnoticed and was eventually found outside and brought back by staff.

Affecting quality of care

The parent cited above added that the shortage of staff in the residence has been accompanied by a shortage of hygienic supplies such as disposable wipes and body wash. “The lack of good personal hygiene is neglect,” the parent said.

Use of temporary employment agencies

Two family members said the providers running the group homes were using temporary staffing agencies to fill full-time positions. “They come into the house,” said one parent, “turn on the TV and sit down.” The parent said the temporary staff are not allowed to drive, so her daughter “is stuck inside the house all day, sometimes day after day, which is contributing to her health issues.”

A parent of a resident in a state-run group home said a number of the group home Occupational Therapy and Physical Therapy staff were also working in provider-run homes in order to supplement the staffing there.

Need for higher pay for direct care workers

A number of parents pointed out the connection between the staffing shortages in the group homes and low pay for direct care workers.

As one parent put it in an email to us, “Since the governor has a $4 billion surplus, maybe he could give DDS money,” specifically to increase group home staff wages.

A state budget fund was created a number of years ago, in part, to boost direct care wages. The problem is that while the fund has generated surplus revenues for many providers in recent years, little of the money has apparently gone to boost direct care pay.

In 2018, Governor Baker did sign legislation to raise the minimum wage of direct care and other workers to $15 an hour; but the minimum wage won’t reach that amount until 2023. In 2017, the Legislature rejected efforts to raise direct care wages to $15 as of that year, and rejected a bid in 2019 and again last year to raise direct care wages to $20 per hour.

EOHHS no longer tracking staff vaccinations

Also possibly due to the staffing shortage, the administration is not only not requiring working staff to be vaccinated for COVID-19, the administration is no longer tracking the number of staff who are vaccinated. EOHHS said it has never tracked the number of staff refusing vaccinations.

In a response to a June 28 Public Records Request we submitted for the latest numbers on residents and staff in the DDS system who have been vaccinated, EOHHS said they stopped tracking that information as of April 23. That was the last time they provided that information to us.

On April 23, EOHHS gave us information from early that month, indicating that about 50% of staff in DDS-funded group homes had been vaccinated, and 75% to 90% of residents in group homes had been vaccinated. So apparently with only half of the staff in the system vaccinated, EOHHS decided to stop tracking it.

Perhaps given the fact that the administration doesn’t require DDS staff to get vaccinated, the administration decided it isn’t necessary to know how many staff have actually done so. That seems to be a risky approach.

It also seems one of the administration’s biggest fears has been that the COVID crisis would lead to staffing shortages. As a result, the administration was slow to require testing of staff for COVID-19, and has declined to require that staff get vaccinated.

Despite that fear, the administration and Legislature apparently don’t seem to want to do the one thing that would go furthest to prevent staffing shortages — that is, ensure that direct-care staff are adequately paid for the difficult and important work they do.

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