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EOHHS emails show apparent consensus on reducing public reporting of COVID-19 data in congregate care facilities
Internal emails in June among the Baker administration’s top human services administrators reveal an apparent consensus to reduce public reporting of COVID-19 test results in congregate care facilities.
That consensus appears to have led to decisions to stop publicly reporting cumulative COVID testing data and not to report test data on provider staff working in group homes for persons with intellectual and developmental disabilities. For reasons that are unclear to us, the administration publicly reports only the number of staff testing positive in state-run group homes.
In one email, a senior manager at MassHealth appears to have wanted to “sunset” congregate care reporting in general. That was apparently just as Governor Baker was signing legislation into law that would increase reporting requirements about COVID-19 infection rates in congregate care facilities.
COFAR received a total of eight emails last week in response to a Public Records Request filed with the Executive Office of Health and Human Services (EOHHS) on June 25. Our request was for records bearing on an apparent decision to change the reporting in EOHHS’s online Weekly State Facility Reports from cumulative or historic COVID data to “current cases.”
As a result of that change, only a handful of DDS clients are now reported as being COVID-19 “positive” in each EOHHS weekly report, and the number of deaths is only listed for patients who died in the previous seven days. This version of the EOHHS weekly report from May listed cumulative testing data and a cumulative total of deaths.
The current EOHHS weekly reports do list numbers of clients who have “recovered” from COVID-19, but the notes to the reports indicate that this is not cumulative data. As noted below, it does not appear to be possible to compare the public EOHHS data with data provided to us directly by the Department of Developmental Services (DDS) in response to email queries.
The June EOHHS email discussion is concerning to us because it appears indicative of an overall lack of transparency by the administration in its response to the pandemic, particularly with respect to DDS clients.
On August 3, I emailed Health and Human Services Secretary Marylou Sudders, inviting her to respond to a series of questions we have about the emails. Among our questions is why, in the midst of a pandemic, would administrators at EOHHS be discussing and agreeing on ways to reduce reporting about the pandemic to the public?
Sudders has not responded to my email.
The eight emails we received covered four-day period from June 10 through 13. Sudders herself was not included in the email thread, which included close to a dozen officials in some cases.
The people on the thread include Monica Sawhney, who is MassHealth chief of staff, and Daniel Tsai, who is assistant secretary for MassHealth. Others include Catherine Mick, EOHHS undersecretary for human services, Lauren Peters, undersecretary for health policy, and Alda Rego, assistant secretary for administration and finance.
All of the EOHHS emails concern what Sawhney described as a “proposal for our public data reporting going forward.” She didn’t specify on the thread that the data reporting specifically referred to COVID information. However, we are assuming that’s what this was all about because the emails were provided to us in response to our request for internal documents concerning COVID reporting.
The emails include the following:
- A June 11 email in which Sawhney wrote the following to nearly a dozen EOHHS officials:
Thanks all for the feedback. Below is an updated list with a couple of open questions. I’m also attaching here a proposal for the dashboards starting next week. You’ll see we are moving away from cumulative data and toward snapshot/weekly. This is how we are already reporting the inpatient psych data. Please review and provide any feedback by tomorrow. We can also discuss on our call tonight. Thanks! (my emphasis)
The dashboard proposal was not included in the documents provided to us by EOHHS. There is no explanation given in the above email or any of the other emails as to why EOHHS was moving away from cumulative data.
- An email dated June 13 in which Sawhney stated that all EOHHS agencies “should continue to collect vendor staff and client-level data (outside of facilities/congregate care) internally, but do not need to report it to EOHHS” (emphasis in the original)
Both the recommendation to stop reporting cumulative data and to exempt test results of vendor staff from public disclosure appear to have been adopted.
That changeover in reporting apparently occurred sometime in late June, apparently just about the time the emails referred to above were being sent.
- An email, dated June 10, in which Sawhney stated:
I would like to clear up for each agency what data we want them to continue to report to us, what they should be collecting internally but do not need to report up, and which reports they can stop completing altogether. (my emphasis)
- A June 10 email in response to Sawhney in which Martha Farlow, ACO Policy and Contracts senior manager at MassHealth, wrote:
I have also gotten questions about whether agencies need to continue the “congregate care” report (I believe the one Joan Clowes was compiling). I think that could be sunsetted.
As noted, Governor Baker signed legislation into law on June 8 that would add requirements for reporting COVID data in congregate care facilities, although DDS group homes are not included in those requirements.
- A June 11 email In response to Farlow’s email, in which Catherine Mick, EOHHS undersecretary for human services, wrote:
In lieu of the congregate care reporting, could we ask each agency to just submit agenda topics for cross discussion?
- A June 11 email, in response to Mick, in which Sawhney stated:
I think as long as they’re still reporting the qualitative information, they don’t need to report the congregate care quantitative information through this report any more.
- The same June 13 email in which Sawhney stated that, “Agencies do not submit daily tracker to EOHHS going forward.” (emphasis in the original).
In my query on August 3 to Sudders, I also asked what the purpose is of moving away from reporting cumulative data and why the administration would not continue to present cumulative data in addition to current data.
How, I also asked, can epidemiologists draw conclusions about the progress of the state’s response to the pandemic without cumulative data?
Also, why would reporting on congregate care data need to be eliminated or sunsetted? And why is data on staff working in corporate provider or vendor-run group homes not reported?
DDS data is different from EOHHS State Facility Weekly Reports
As a result of reporting changes made and differing reporting policies within the administration, the data we have gotten as a result of direct requests to DDS is different and, in many cases, not comparable to the data provided in the EOHHS Weekly State Facility Reports.
For instance, the latest EOHHS Weekly State Facility Report, as of July 28, lists a total of 10 “current (COVID-19) positive client cases” in all DDS-funded group homes, and a total of 1,355 “current clients recovered.” It also lists zero deaths in the past seven days.
However, data provided by DDS as of the same date, July 28, lists a cumulative total of 1,606 group home residents as having tested positive for COVID-19. There is no clear way to compare the cumulative total of the 1,606 positive-testing clients in the DDS data with the 1,355 “recovered” and 10 currently positive clients in the EOHHS data.
Also, the DDS data notes that a cumulative total of 1,864 state and provider staff have tested positive in DDS-funded group homes as of July 28, and that there have been a total of 104 COVID-related deaths in the DDS system.
The EOHHS data, as noted, does not report the cumulative total of deaths or the number of positive-testing staff in provider-run DDS group homes. The July 28 EOHHS Weekly State Facility Report states only that less than five staff are currently positive in state-run group homes.
We suggest that people to call their legislators and urge them to push for better public reporting of COVID-related data in the DDS system. You can refer to our blog post here at cofarblog.com. You can find your local legislators at this site.
For too long, DDS clients have been treated as an afterthought in the administration’s response to the COVID pandemic.
Administration keeping records hidden and declining comment on COVID-19 in DDS system
The Baker administration seems to be going out of its way to avoid providing information to us regarding the impact COVID-19 has had on persons with intellectual and developmental disabilities in Massachusetts.
We have four outstanding Public Records Requests with three state agencies – the Executive Office of Health and Human Services (EOHHS), the Department of Developmental Services (DDS), and the Department of Public Health (DPH). In none of the cases have we received responsive documents.
Administration officials also don’t appear even to want to talk about their response to the pandemic. Neither HHS Secretary Marylou Sudders nor DDS Commissioner Jane Ryder have responded to our repeated questions over the past several months about the lack of mandatory testing of staff in the DDS system for COVID-19.
A key state lawmaker also declined to clarify her apparently erroneous remarks recently made to a COFAR member about why mandatory testing of staff isn’t being done. (More about that below.)
Ryder also has refused to respond to our questions about the administration’s apparently haphazard policy on retesting of persons in the system or the slow pace of testing of both residents and staff.
For instance, one parent of a resident in a state-operated group home said his daughter has been tested four times in her group home since April, and has been negative each time. Meanwhile, approximately 1,400 residents in the DDS system haven’t even been tested once.
We are concerned that if a second wave of the virus hits Massachusetts, DDS’s lack of a coherent policy on retesting could be tragic.
No mandatory testing records provided
Our longest-running Public Records request to the administration is for internal emails and other documents relating to the topic of mandatory testing of staff in the DDS system. As we have reported, DDS does not require staff to be tested even though it is likely that much of the spread of the virus in group homes has been caused by asymptomatic staff.
I first asked EOHHS, DDS, and DPH on May 26, more than a month and a half ago, for emails and other records regarding mandatory testing, and so far none have been provided. The stories keep changing from EOHHS as to whether they have any such records.
First, EOHHS said in early June that they had so many records that the cost could potentially be prohibitive to provide them to us. But after I narrowed down my request at their suggestion, they said earlier this month that they have no responsive records. I filed an appeal with the state Public Records Division on July 14.
EOHHS has also failed to provide us records I requested on June 16 relating to a contract with Fallon Ambulance Service, which is carrying out the testing in the DDS system.
Among the records I asked for were records showing how much Fallon had been paid since they started the testing work on April 10, and copies of daily reports, which the contract requires Fallon to submit to EOHHS.
We have also have not yet received any records, which I asked for on June 25, concerning the online reporting system used by DPH regarding COVID test results in the DDS system. We want to know why the reporting system has been changed from cumulative data to current data, and why the site shows only currently positive cases.
DDS itself has provided cumulative COVID testing data to us, but the Department refuses to display the data on its website where the public could access it on a daily basis.
No indication whether administration has discussed mandatory testing
To date, no one in the administration has given us a reason for the decision not to make testing of staff mandatory in the DDS system.
On May 26, I asked EOHHS, DDS, and DPH for internal emails, memos and other records relating to internal discussions of the topic.
To date, I have received zero documents in response to my request. As a result, on July 14, I filed an appeal with the state’s Public Records Supervisor.
It’s hard to believe that there have been no such internal discussions at the highest levels in EOHHS.
EOHHS story keeps changing on the records it has
On June 9, when a response was legally due under the Public Records Law to my May 26 request for documents, an EOHHS records officer told me initial searches of emails of all EOHHS personnel using the term “mandatory testing” resulted in such a voluminous number of documents that the cost of reviewing and reproducing them would be potentially prohibitive.
As a result, I agreed to the records officer’s suggestion that I narrow the requested communications to Secretary Sudders and her executive team, and narrow the time frame to a period between April 1 and June 1, 2020.
About a month went by, and I received no further word or documents from EOHHS or from DDS or DPH. On July 9, after I queried EOHHS, the records officer said he had a “responsive record” and would provide it by July 13. When no response was forthcoming by July 14, I appealed to the Public Records Division.
The next day, the EOHHS records official emailed me to say that he had been mistaken about the responsive record, and that EOHHS actually had no records that were responsive to my narrowed request.
So, in the month and a half since my original Public Records Request, EOHHS had gone from having a voluminous number of records in response to it, to having zero records after I narrowed the request according to their suggestions.
So, I asked on July 15 if EOHHS could redirect their search to the highest-level personnel in the agency whose emails did include references to mandatory testing in the agreed-upon time frame.
Secondly, I asked for an explanation as to why it had taken more than a month since our June 9 agreement on narrowing my records request to do a search of the emails of the secretary and her team, which then came up empty. To date, I have received no response to those follow-up questions.
DPH wanted to charge us for records … then did not respond to us
On June 17, DPH responded to my May 26 Public Records request regarding mandatory testing records with a letter stating that that agency had identified more than 2,700 emails that might be responsive to my request, and that providing all of them would cost us more than $1,600.
In a June 18 email to the DPH records officer, I offered to similarly narrow my request to communications involving DPH Commissioner Monica Bharel and her executive team and to a time period from April 1 through June 1. To date, I have not received a response from DPH to my offer, nor have I received any records.
State lawmaker declines to support claim that mandatory COVID testing is prohibited by statute
In a July 7 email to a COFAR member in response to a question about mandatory testing of staff, state Representative Kay Khan stated that she has been advocating for increased testing in the DDS system.
Khan, who is House chair of the Children, Families, and Persons with Disabilities Committee, said it was her understanding, however, that requiring mandatory testing of staff is not allowed by statute and that the Massachusetts General Laws would need to be changed through legislation for this to become policy.
We at COFAR are not aware of any such statute that would prevent mandatory testing. In an email to Khan on July 8, I asked if she could provide a citation of the statute she was referring to. Khan has not responded to my query.
No new records provided regarding Fallon COVID testing contract
On June 16, I asked EOHHS for documents relating to a contract with Fallon Ambulance Service to test residents and staff in the DDS system. We had previously received the contract itself from EOHHS.
Among the documents I asked for on June 16 were records showing how much Fallon had been paid since they started the testing work on April 10, and copies of daily reports, which the contract specifically required Fallon to submit to EOHHS.
In its response on July 16, a month later, EOHHS provided only the same contract it had provided earlier. The EOHHS response stated that the agency had no daily reports from Fallon, but that we should ask DPH for those.
As far as payment to Fallon, the EOHHS response stated that I should go to the Comptroller’s online database at https://www.macomptroller.org/cthru. This database, however, does not make it clear how to determine payments made to contractors.
For instance, when I did a search for Fallon Ambulance, the Comptroller’s site appeared to indicate that the last time Fallon Ambulance was paid was in Fiscal Year 2018. When I checked it, the site listed $0 paid to the company in the previous and current fiscal years.
I emailed the EOHHS records officer about the problem with his agency’s response to my Public Records request yesterday (July 20.) I have not received a reply.
DPH ignores Public Records Request regarding its reporting system
On June 25, I asked EOHHS, DDS, and DPH for documents concerning the weekly online data reporting system used by DPH for testing results in the DDS system. We wanted to know why the reporting system had been changed from cumulative data to current data, which shows only currently positive cases.
Both DDS and EOHHS stated they would provide a response by July 17. To date, however, I haven’t received that response from either agency. I have received no communication from DPH since filing my June 25 Public Records request.
As a result, I appealed to the state Public Records Supervisor on July 16, specifically regarding the lack of response from DPH.
It’s not clear to me what, if anything, the Public Records supervisor is going to do about any of these matters.
In any event, maybe it’s just us, but is anyone else sensing a pattern here? After initially seeming responsive to our information and records requests when the viral pandemic first appeared in March, the administration has become increasingly secretive.
We are at a loss to explain this apparent lack of transparency. Overall, the administration has been getting high marks for its response to the pandemic. Massachusetts is one of the few states in the nation in which the rates of infection have been declining.
But when it comes to the DDS system, the administration just doesn’t want to answer any questions.
A disability abuse investigation agency bill has two words in it that could authorize the agency to seal all its investigative records
We are expressing concern over two words in a bill concerning the state Disabled Persons Protection Commission (DPPC) that could authorize the agency to seal all of its investigative records regarding abuse of persons with disabilities in Massachusetts.
In an email we sent this week to state Representative Aaron Michlewitz, chair of the House Ways and Means Committee, and other key lawmakers, we pointed out the potential problem inherent in the language of Section 17 of what is now H.4231. The bill section would change the DPPC’s enabling statute to state that “all confidential information” in the DPPC’s possession shall not be a public record.
The DPPC is the state’s only independent agency charged with investigating allegations of abuse and neglect of adults under the age of 60 with developmental and other disabilities. The DPPC has jurisdiction over a wide range of investigations done by its own staff and the staff of a variety of other agencies.
Those are the two problematic words in Section 17 of H.4231: “confidential information.”
We have no objection to a separate portion of the same sentence in the section stating that “all personally identifying information” shall not be public. But the “confidential information” phrase is poorly defined and so overly broad that we think it would give DPPC the discretion to label virtually anything it wants as confidential and therefore secret.
We are asking people to call the House Ways and Means Committee at (617) 722-2990, and simply urge them to take the words “confidential information” out of Section 17 of H.4231.
As we understand it, Section 17 was recently reworded by the Children, Families, and Persons with Disabilities Committee to respond to concerns we raised last year that the section would potentially make most of the records of the DPPC non-public. The reworded language would be fine with us if the House Ways and Means Committee would simply take out those two words.
Here’s our reasoning for this, in a nutshell:
Right now, DPPC’s enabling statute (M.G.L. Chapter 19C) simply says that the Commission should “…disclose as little personally identifiable information as possible.” There is no reference in the enabling statute to “confidential information.” The enabling statute, moreover, invites the presumption that the agency’s records overall are public. Nowhere does the enabling statute state that the DPPC’s records, in general, are not public.
The DPPC’s regulations, however, do refer to “confidential information,” and define it as including “personal data” and “any and all notes, papers, documents or other investigative materials, including but not limited to interview summaries, collected or compiled by personnel duly authorized by the Commission during the course of an investigation.”
This DPPC regulation (118 CMR 9.03) also specifically states that: “The records of the Commission shall not be considered ‘public records'” (my emphasis).
So, there are at least two inconsistencies between the DPPC’s regulations and its enabling statute, and it would seem that what DPPC is trying to do is make its enabling statute consistent with its regulations in stating at anything that it considers “confidential” is not a public record. As we’ve said before, though, this is a bad direction for DPPC to go. It should change its regulations to be consistent with its enabling statute, not the other way around.
It would seem that what DPPC wants to do is to be able to say that all investigative materials of any kind are potentially confidential and therefore not public records. That is bad news for the public’s right to know.
We actually don’t think Section 17, as a whole, of H.4231 is necessary for reasons I’ll get to below. But, as noted, what we are recommending is that, at the very least, the House Ways and Means Committee remove the words “confidential information” from the section.
Our argument with respect to Section 17 and to DPPC’s secrecy regarding its records in general has always been about the public’s right to know. Complaint-specific information can be a key window into the nature of problems of abuse and neglect in the care of persons with disabilities and in how the state deals with those problems.
Section 17 isn’t necessary
As noted, we don’t think Section 17, as a whole, of H.4231 is needed. The DPPC’s enabling statute, as currently written, gives DPPC the discretion to block “personally identifiable” information, and so does the state’s Public Records Law itself.
The Public Records Law (M.G.L. Chapter 4, Section 7, Clause 26) specifically exempts from disclosure “data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Public Records Law further exempts “investigatory materials…the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”
The Public Records Law presumes state agency records are public
As the Secretary of the Commonwealth has opined, the state’s Public Records Law presumes all state agencies’ records are public unless a specific exemption in the Public Records Law applies to those records. The first exemption listed in the Public Records Law, known as “exemption (a),” is the enactment of another statute that exempts records of any kind from disclosure.
If Section 17 of H.4231 is enacted as currently drafted, it would change the DPPC’s enabling statute to specifically prevent the disclosure of any material deemed “confidential.” As a result, if any member of the public were to ask for any information that DPPC considered confidential, DPPC could invoke Exemption (a) of the Public Records Law without having to demonstrate that the information was personally identifiable or that it would prejudice effective law enforcement.
DPPC could simply refer to the vague “confidential information” phrase in its enabling statute, and the agency could forever seal those records from public disclosure. The state Public Records Supervisor’s hands would be tied in those cases if anyone were to file an appeal of the denial of the records by DPPC.
So, once again, we believe the potential problem we have described can be avoided by the simple removal of the words “confidential information” from Section 17 of H.4231. We hope the House Ways and Means Committee does that, or, better yet, removes Section 17 altogether.
Legislators and the media should be concerned about secrecy in investigations of abuse of persons with disabilities
A bill in the state Legislature, which would draw an ever-tighter cloak of secrecy around investigative reports on abuse and neglect of persons with disabilities in Massachusetts (H.117), appears to be going relatively unnoticed on Beacon Hill and by the media.
Section 17 of the bill would effectively exempt all investigative reports and records of the Disabled Persons Protection Commission (DPPC) from public disclosure. Under the section, the DPPC’s records could be kept entirely secret even if all personal information in them were redacted.
At a certain point, laws and other initiatives that are ostensibly enacted or undertaken to protect privacy cross the line into secrecy and provide a curtain for agencies to hide behind. That is what we think is happening with Section 17 of this bill.
The DPPC is the state’s only independent agency charged with investigating allegations of abuse and neglect of adults under the age of 60 with developmental and other disabilities. Without access to the agency’s investigative reports, the public will have much less understanding, not only of the scope and nature of the problem of abuse and neglect, but what the DPPC and other agencies are doing about it.
Overall, H.117 and its counterpart in the Senate (S.53 ) propose making a number of changes to the DPPC’s enabling statute that seem helpful, such as replacing the term “disabled person,” with “person with a disability.” That latter term avoids the stigma associated with describing an individual totally in terms of their disability.
COFAR member Richard Buckley (left) and Vice President Anna Eves testify Tuesday at the State House about abuse and neglect of the developmentally disabled. At the hearing, COFAR offered testimony against proposed DPPC secrecy language in Section 17 of H.117.
However, Section 17 is not at all innocent, in our view. It would add language to the DPPC’s enabling statute stating that the agency’s records containing confidential or personal data “shall not be public records.” (my emphasis)
That proposed language is not needed to protect the personal privacy of victims of abuse and neglect or others involved in those investigations. The DPPC’s enabling statute currently states that the DPPC should disclose “as little personally identifiable information as possible.” That language gives the DPPC the discretion to protect the privacy of all parties involved.
The presumption of the state’s Public Records law is that all state governmental records are public documents unless they are explicitly exempted from disclosure by statute, or they fall under an exemption to the Public Records law itself.
At a legislative hearing this past Tuesday on H.117 and other bills concerning abuse of persons with disabilities, DPPC Executive Director Nancy Alterio touted the anti-stigmatizing aspects of H.117, but did not mention Section 17. Both Anna Eves, COFAR’s vice president, and I testified before the Children, Families, and Persons with Disabilities Committee against the section.
The committee members didn’t ask us any questions about our objection. We may have caught them by surprise about it.
The House and Senate versions of the bill were filed by Representative Sean Garballey and Senator John Keenan.
In February, Garballey got back to me and said he wasn’t aware of the implications of the Section 17, and would ask the DPPC about it. He said he agreed with us that the enabling statute should not completely restrict the disclosure of the DPPC’s records.
The chief of staff for Sen. Keenan was more noncommittal about the bill, but also said she would look into and ask about our concerns.
The mainstream media don’t seem to be paying attention this year
On March 21, I emailed Boston Globe Editor Brian McGrory, laying out our concerns in detail and asking whether the Globe might take a position against the language in Section 17. To date, McGrory has not responded to that or to a subsequent email I sent about the bill on April 5 and again on April 8 to The Globe and other news organizations around the state.
The New England First Amendment Coalition published our email to mainstream media outlets on its blogsite on April 8. But we have gotten little or no response from the rest of the media either.
Our media list includes current editors and other staff on 24 newspapers, including the Globe and Herald; major chains such as the North of Boston Media Group; the Associated Press, the State House News Service; CommonWealth Magazine; major Boston television news outlets; and NPR radio affiliates WBUR and WGBH.
The Globe in the past has taken strong stances in favor of the public disclosure of state records. In 2015, the paper organized coordinated editorials among several media outlets criticizing the state’s Public Records supervisor for rulings allowing the withholding of records from public disclosure by state agencies.
The Globe’s 2015 editorial maintained that the state’s criminal-records law, in particular, “was never intended to open up a memory hole to conceal unflattering information about the police.”
That is similar to the argument we have made in seeking to obtain investigative records from the DPPC. And now, Section 17 would make that cloak of secrecy even more opaque.
DPPC heading in the direction of the Elder Affairs office
Unfortunately, with the introduction of Section 17 in H.117, it appears that the DPPC is seeking to emulate the Executive Office of Elder Affairs (EOEA), which investigates abuse and neglect of persons 60 and older. The EOEA’s enabling statute does state that the agency’s records are not public.
On its website,the DPPC states that the reason for the non-public records provision in H.117 is to make the DPPC’s enabling statute conform to the EOEA’s statute in order to give persons with developmental disabilities “the same safeguards provided for the records of elders.” (Please note that the bill numbers on the DPPC website appear to be from the prior legislative session.)
But that only raises further concerns for us about the potential secrecy of the EOEA’s records.
As noted, the enabling statute of the EOEA, M.G.L. c. 19A, s. 23, explicitly states that departmental records containing confidential information are not public. The EOEA statute goes even further, giving the Elder Affairs Department the authority to actually destroy investigative records about abuse allegations if the department finds that the allegations are unsubstantiated. This seems to us to be bad law and not one that the DPPC should be emulating.
The DPPC’s regulations go further than the enabling statute in exempting records from disclosure
While the DPPC’s regulations explicitly state that the DPPC’s records are not public , the agency’s enabling statute, as noted, says only that the DPPC should disclose “as little personally identifiable information as possible.”
The DPPC’s regulations go further in shielding the agency’s records from public disclosure than does the enabling statute, and we think the regulations should therefore be changed to conform to the enabling statute. H.117, however, would do the opposite by making the statute conform to the regulations.
We hope The Globe and other media outlets in Massachusetts wake up to the threat this bill poses to transparency in state government. The DPPC receives tens of thousands of allegations of abuse and neglect each year, and “screens in” several thousand of those for investigation.
It is already extremely difficult to obtain those records from the DPPC even in redacted form. H.117 would make it virtually impossible to obtain those records, and would move state government that much further away from operating with openness and transparency.
Illinois transparency laws could be a model for programs providing care to disabled in Massachusetts
When it comes to the public’s right to know, Massachusetts state government has not been in the forefront in recent years, and issues concerning the developmentally disabled appear to be no exception.
Not only are investigative reports on abuse and neglect of the developmentally disabled largely kept secret in this state, but those reports are primarily done by the same agency that provides and manages services for the disabled. In those situations, there appears to be little incentive to let the public in on what the investigations have revealed.
As the new two-year legislative session begins in Massachusetts, COFAR will push for legislation that would make information about the care in the Department of Developmental Services system more available to the public. One place to start appears to be the adoption of online information about performance of DDS provider agencies and abuse and neglect in that system.
Such information, which exists in Illinois, could help families and guardians in making the difficult decision on placement of their loved ones in DDS-funded facilities.
Illinois abuse data on providers could be a model for Massachusetts
Illinois has both a human services “provider scorecard,” which offers comparative information about group home provider performance, and an online database that allows comparisons of numbers of abuse allegations and abuse substantiations among individual providers in the state. One caveat about Illinois is that these information sources appear to be extremely difficult to locate on that state’s Department of Human Services website.
The Illinois database appears to be a response to a series of articles in 2016 by The Chicago Tribune, which had described a system of privatized group homes in that state in which “caregivers often failed to provide basic care while regulators cloaked harm and death with secrecy and silence.” The relative lack of coverage of these issues by mainstream media outlets in Massachusetts, and the relative lack of interest as well in the Legislature, may explain why few if any of these sources of online information are available in this state.
The DDS in Massachusetts does provide online provider licensure reports. But these reports on individual providers tend to contain vague and generic findings and recommendations that make comparisons among providers difficult. The licensure reports, which are also difficult to find on the DDS website, don’t reveal or discuss findings of abuse or neglect within the residential or day program facilities.
At least some of that comparative information that is missing in Massachusetts can be found on the Illinois Human Services Department website.
Provider Scorecard
Among the comparative online information available about the Illinois human services system are licensure scores for providers in the state known as BALC scores. As the website notes, the BALC scores are divided into several categories:
A (BALC) score of 100% indicates the provider is in full or acceptable compliance;
93-99% is considered an acceptable standing;
80-92% results in a written “Notice of Violations” and requires an acceptable plan of corrections;
70-79% indicates the agency is minimally compliant and will be on probation for up to 90 days; and
69% and below results in the disallowance of new admissions.
While the DDS licensure system in Massachusetts provides ratings for providers on dozens of individual measures, the ratings are difficult to understand, and there is no way for the public to compare providers on overall performance as there is on the Illinois provider scorecard site.
Also potentially important on the Illinois provider scorecard are comparative ratings of the average health risk and average maladaptive behavior of the residents of provider residences. No such information is available in Massachusetts.
The Chicago Tribune stated that the Illinois provider scorecard includes group home inspection results and links to online copies of investigative findings involving abuse, neglect or financial exploitation. We were not able, however, to locate those links.
Disclosure of data would supplement an abuse registry
The types of online information available or reportedly available in Illinois would be something that would potentially supplement a proposed registry in Massachusetts of caregivers who have had abuse charges substantiated against them.
The proposed registry in Massachusetts came close to enactment last year, but ultimately was not approved. Even that registry, however, would itself not be transparent in that the names of the persons listed in it would not be made public under the legislation that was under consideration in the just-concluded 2017-2018 legislative session. So it is important that there be information about DDS-funded programs that individuals, families, and guardians can consult to judge the performance of providers for themselves.
The Illinois abuse data list needs to be viewed cautiously, but we think most people looking for residential placements would do that.
For instance, in the Illinois substantiated abuse database, the most important column in the data appears to be the number of substantiated abuse allegations per 100 people served for each provider.
That data can vary widely from year to year, even for the same provider. As the charts we developed from the data for two of the providers show, the Village Inn Cobden had a higher rate of substantiated abuse than the Royal Living Center in Fiscal 2017, but the Village Inn had zero substantiated abuse allegations in Fiscal 2015 and 2016. In both cases, the number of allegations of abuse rose substantially over the three-year period.
Public disclosure needed of abuse investigation reports
According to the Chicago Tribune, Illinois Human Services Secretary James Dimas told Senate and House lawmakers that his department had launched reform measures to heighten enforcement of group homes statewide and increase public transparency of the system.
The Tribune stated that:
…one of the most sweeping reforms outlined by Dimas would provide limited public access to previously sealed investigative files. The department is working with the Illinois attorney general’s office to provide group home addresses and full enforcement histories to families and guardians.
“I’m committed to transparency,” said Dimas, who was appointed in May 2015 by Illinois Gov. Bruce Rauner.
We think similar transparency is needed for investigative reports done by the Massachusetts Disabled Persons Protection Commission (DPPC). As we have reported, the DPPC’s regulations seem to go well beyond the agency’s enabling statute in stating that “the records of the Commission shall not be considered ‘public records’…” (my emphasis).
The DPPC regulations exempt from disclosure all “investigative materials” compiled by the agency. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”
We maintain that the DPPC’s enabling statute does not state that DPPC records are not public or that all investigative materials are exempt. Additional legislation may be needed clarifying this.
Finally, we would argue that DDS itself should not be involved either in investigating abuse or neglect within its own system, or even in licensing provider-run facilities. Both of those ongoing practices lead to conflicts of interest for DDS and to reduced transparency.
That’s why we will support legislation in the new session along the lines of a bill proposed by Representative Angelo Scaccia,which would take the group home licensing function out of DDS and make it an independent function. That legislation could be combined or paired with legislation to take abuse and neglect investigative functions away from DDS and put them into the DPPC.
Ultimately, we want to see a system of care for persons with developmental disabilities in Massachusetts that is both transparent and free of serious conflicts of interest. We hope the media and the Legislature are truly interested in those goals as well.
COFAR renews request for DPPC report on woman’s death in wake of Boston Globe court ruling
Although the state’s Public Records Supervisor ruled in April that the state Disabled Persons Protection Commission (DPPC) can keep all investigative reports on the sudden death of a developmentally disabled woman secret, we believe a recent state Superior Court ruling has provided a basis for renewing our request for the records.
The decision by Superior Court Judge Douglas H. Wilkins in December 2017 upheld an appeal by The Boston Globe, which has been seeking mug shots and incident reports of police and other public officials who have been arrested on various criminal charges.
In our view, the Globe’s argument that the records it is seeking are public applies equally to the DPPC report and related records in the case of Karen McGowen, which COFAR has been seeking.
Ms. McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at her Pittsfield-based day program funded by the Department of Developmental Services.
The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, confirmed it was investigating Karen McGowen’s death. On February 13, the DPPC denied COFAR’s request for the records in the case.
In her decision on our records appeal on April 20, Rebecca Murray, the state public records supervisor, focused on one exemption to the Public Records Law [known as “Exemption (a)”], which appears to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.
We are arguing in our renewed bid for the DPPC records that the DPPC’s enabling statute does not actually explicitly state that all of the Commission’s regulations are exempt from disclosure.
In her April 20 determination, Murray focused on the DPPC’s regulations, which, contrary to the enabling statute, do explicitly state that the Commission’s records are not public. The regulations would therefore appear to exempt all or most of the Commissions records from public disclosure.
But that apparent inconsistency between the DPPC’s enabling statute and regulations was not noted in Murray’s determination.
That appears to be the crux of the matter because a similar apparent inconsistency between a statute and regulations regarding the state’s CORI law is the basis of Judge Wilkins’ December decision in the Globe’s public records case. In his ruling, Wilkins upheld the Globe’s argument that the CORI law does not permit public officials to block the release of mug shots or police reports.
Wilkins also upheld the Globe’s argument that a regulation issued by the state agency that administers the CORI law is inconsistent with the law in that the regulation appears to justify withholding the records from disclosure.
“The regulation is invalid because ‘its provisions cannot in any appropriate way be interpreted in harmony with the legislative mandate,'” Wilkins’ decision stated.
State Attorney General Maura Healey and the City of Boston have appealed Wilkins’ ruling. Oral arguments in the appeal have not yet been scheduled, according to a reporter we talked to at the Globe.
With regard to the DPPC’s records, the Commission’s enabling statute states that: “The Commission shall promulgate regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.” (my emphasis)
However, the DPPC regulations seem to go well beyond that, stating that “the records of the Commission shall not be considered ‘public records’…”
The regulations go on to exempt from disclosure all “investigative materials” compiled by the DPPC. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”
Our argument is that the DPPC’s statute does not state that DPPC records are not public or that all investigative materials are exempt. And the statute doesn’t give the DPPC the discretion to determine that the agency can withhold all records because removing identifiable information would not protect privacy interests. The statute simply says the Commission should disclose as little identifiable information as possible.
As a result, it appears to us that the DPPC regulations are similarly invalid because their provisions cannot be interpreted in harmony with the DPPC’s legislative mandate.
In his decision in the Globe’s case, Judge Wilkins wrote that if any doubt remained about that type of inconsistency, the CORI statute “establishes a clear ‘presumption that the record sought is public’ and places a burden on the record’s custodian ‘to prove with specificity the exemption which applies’ to withheld documents.”
Similarly, we argue that the DPPC’s enabling statute establishes a clear presumption that the Commission’s records are public and that the Commission has the burden of proving with specificity the exemption that applies to withheld documents. In stating that the records of the Commission are not public, the regulations contradict the plain language of the statute.
So it is the burden of the DPPC to prove that any of the exemptions to the Public Records Law apply to the information we are seeking — particularly to completed reports. To the extent that personally identifiable information exists in those documents, the Commission can redact it.
Given that we think the DPPC is still likely to deny our renewed request, we hope that the Public Records Supervisor will then take Judge Wilkins’ decision into account in making a new determination in the matter. In doing so, the Public Records Supervisor should at least seek to review the materials we are requesting to determine the level of redactions that would be needed to comply with the DPPC’s enabling statute.
As we’ve stated before, it’s disappointing that to the extent the DPPC does get involved in crucial investigations of abuse and neglect in the state’s human services system, it has taken the position that the products of its work must be kept secret.
DDS stonewalling on cost, care information
(Part 2 of 2-part series on transparency issues in the Patrick administration)
The Patrick adminstation contends it is striving to be “transparent” in the way it conducts the public’s business, and touts its Open Checkbook website among other initiatives.
But when it comes to getting public information from individual agencies within the administration, the record of transparency doesn’t always live up to the billing. We think our own recent experience with the Department of Developmental Services is a case in point.
We’ve been fighting with DDS for several years over public information requests, but the agency’s disinclination in recent months to provide requested information seems to have gotten worse.
It now takes months to get even the most minimal public records in response to our requests. And DDS recently cited the letter of the Public Records Law in claiming they have no obligation to answer any questions about records that they have provided to us. Also, in two cases in the past year, DDS cited confidentiality requirements in refusing to release what we think, in at least one of the cases, are clearly public documents.
Meanwhile, even a state lawmaker has been unable to get information out of DDS on deaths in the agency’s system. State Rep. Anne Gobi, a Democrat from Spencer, wrote to DDS Commissioner Elin Howe in mid-October, asking for information on the number of residents who had been transfered from the developmental centers to community-based group homes and how many of those residents had died after the transfers. As of this month, Gobi’s staff said she had not received any response to her inquiry.
Here are some more details about our efforts to get records and information from both DDS and the Executive Office of Health and Human Services:
- In October, COFAR submitted a request similar to Gobi’s to DDS for information and public records concerning the number of developmental center residents who have been transferred to group homes since 2008 and the number of those residents who have died.
In that request, COFAR also asked for the number of community-based group homes that have been built to house former developmental center residents. In early November, a DDS attorney responded that the agency was in the process of searching for the requested records. There has been no further word since then. We wrote to DDS on January 17, seeking an update on the status of our request, but have received no response to it.
- In October, the DDS general counsel denied a request COFAR had first made in July for records detailing the costs of medical, nursing, clinical, and therapeutic services for individuals in a group home program operated by the May Institute, Inc.
COFAR initially filed the request for the records concerning the May Institute with both DDS and EOHHS. In August, an EOHHS official responded that that agency was in the process of searching for the records. Then, in September, a DDS attorney stated that DDS was searching for the same documents.
There has been no further word from EOHHS since August regarding the records. In October, however, the DDS general counsel appeared to reverse the Department’s September position by stating that documents detailing funding for medical or clinical services for individuals would be part of their individual client records and therefore exempt from disclosure under the Public Records Law.
COFAR appealed the denial to the Supervisor of Public Records in October, suggesting that DDS redact any names or any other information that might identify individual clients. In the October appeal, COFAR maintained that it was seeking only to find out the total cost to taxpayers of care for community-based clients such as those in the May Institute program. Should DDS refuse to provide that information, “the public will have no way of knowing basic details about the provision and funding of these kinds of public services,” COFAR’s appeal added.
To date, the Public Records supervisor has not ruled on COFAR’s appeal.
DDS similarly denied a request in July from COFAR for information about the death of a man in a group home earlier that month, four days after he had been transferred there from the Templeton Center. In that case, the Public Records Supervisor upheld DDS’s denial, accepting the Department’s argument that the information was private.
- In July, COFAR asked DDS for detailed budgetary information regarding the Monson, Templeton, and Glavin developmental centers, which have been targeted by the administration for closure. In response, DDS in August provided only a single line item amount for each facility, representing the total spending for that facility. There was no budgetary breakdown of the line item for any of the facilities.
After COFAR appealed to the Public Records Supervisor, DDS, in late October, provided an “aggregated” spreadsheet containing numerous line items for all three developmental centers. However, this time there was no separate breakdown for each facility. Moreover, the total aggregated spending amounts for each of three fiscal years in the October response did not correspond with the totals provided in the August response.
As a result, COFAR sent an email to DDS asking why there was such a big difference, in particular, between the $176.3 million in total spending listed in the October spreadsheet for the three facilites in FY 2009, and the $57.8 million listed in the August response for the same three facilities.
In a letter sent to COFAR in response, a DDS assistant general counsel wrote that the agency “is not required to answer questions…” under the Public Records Law. So much for letting us, and the public, in on the inner workings of the state’s finances.
Earlier this month, an attorney with the Public Records Division, sent us a nice email, apologizing for the delay in responding to our October appeal regarding the May Institute documents, and saying:
I know that you are working very hard to help those in the Commonwealth who are the most in need, and that receiving records from custodian’s, like DDS, is a crucial part of assisting those individuals.
Now, if only DDS wouldn’t balk at simple requests for information, and showed a dedication to following through on the administration’s claims of transparency.
Open Checkbook could be more open
(Part 1 of a 2-part series on transparency issues in state government)
Despite its promises of greatly increasing government transparency, the Patrick administration’s new Open Checkbook website seems to me to fall a little short of the hype.
Open Checkbook was launched in December with lots of claims made about how it was going to give the average Internet user a powerful new lens into the inner workings of public finances. The state budget office in conjunction with the Comptroller and Treasurer jointly instituted the website in response to legislation that sought to upgrade the state’s relatively low ranking in a state-by-state transparency survey by MassPIRG.
Open Checkbook is divided into two major sections, State Vendor Spending and Payroll & Pension Spending. I found the vendor spending section to be disappointing in one major respect. It displays a lot of about where the money to vendors comes from, which is very good, but no information on where the money goes, i.e., how the vendors spend it. (I haven’t yet tried out the Payroll & Pension Spending section.)
I used the vendor portion of Open Checkbook to look up one specific company, the May Institute, Inc., for Fiscal Year 2010. This is the same nonprofit provider for which COFAR has unsuccessfully sought cost information lately from the Department of Developmental Services.
I clicked on one particular category of funding for that vendor and got a long list of dates followed by payment amounts. By clicking on July 14, 2009, for instance, I was able to find out that DDS paid the May Institute $367,000 on that date for residential and day services. It doesn’t appear to be possible to find out much more detail about that payment.
What is good is that I was able to do a refined search, based on the residential and day services account, and find that a total of $26.9 million was paid to the May Institute under this account by DDS in FY 2010.
The bad news, as noted, is there is no way to track where the money goes after it gets to the vendor. For instance, there there appeared to be no way to view administrative expenses for the May Institute or to find data on the compensation of executives of the agency. It would seem that a checkbook should tell you about both incoming and outgoing funds.
Also, the site doesn’t display contracts, as some similar state sites do; and the data on Open Checkbook doesn’t go back before Fiscal Year 2010. An official with the state budget office said displaying actual contracts is “on our list” for improving the site, but that hasn’t been decided yet.
It’s also worth noting that much of the information available on Open Checkbook is available as well on the state’s longstanding Uniform Financial Report website for vendors. In fact on the UFR website, you can find total payments to vendors broken down by government agency as well as spreadsheets that do show where the money is going, including amounts paid to executives of the vendor agencies. (That salary information may be incomplete, in several cases, as we have reported. But at least some of it is available.)
The UFR site, for instance, shows that a total of $30.29 million was paid by DDS to the May Institute in FY 2010 as part of a total of $104.4 million in revenue to the vendor. Admittedly, the information on the UFR site isn’t nearly as up to date as the Open Checkbook site. But you can find a lot of information on the UFR site that isn’t available on Open Checkbook, such as the fact that the May Institute had $101.6 million in expenses in FY 2010, including $396,716 in compensation to its CEO and $56 million on direct care salaries. Also the UFR information goes back to FY 2002.
What the UFR site doesn’t appear to show, which Open Checkbook does, is a breakdown of funding going to vendors per budgetary account, such as the Residential and Day Services account.
One other problem I had with Open Checkbook has to do with its presentation of a large amount of abbreviated or otherwise highly techical information. For instance, the the funding listed for the May Institute was broken down into five categories on the site, including Grants to Nonpublic Entities, Legal Support Services, Medicaid, Purchased Human and Social Services for Clients/Non Medical, and a fifth and largest category dollarwise, titled “PurchH&Ss For Clit.Med/HC Rel (MM3).” Spending under this category was listed as $23,047.235.83. What exactly does “Clit.Med/HC Rel (MM3)” stand for?
I was able to hover my cursor over the acronym, and up came the following definition, which didn’t clear up the confusion very well. The definition was:
Payments pursuant to contracts with organizations to purchase social services or programs with medical or healthcare related components on behalf of specifically identified clients or a specific target group. Includes services rendered by an individual with payment to a corporate entity. Federal funds are reported as sub-recipient payments.
The “MM3” part of the acroym is an object code classification for the payments. The Open Checkbook site FAQ page states that individual object codes are defined in the “Expenditure Classification Handbook” maintained by the Comptroller’s Office. But unfortunately, the link on Open Checkbook FAQ page to the Comptroller’s Handbook didn’t work.
As administration officials have said, Open Checkbook is a work in progress.
COFAR blog 