Connecticut has moved ahead of Massachusetts on direct-care worker wages

September 18, 2018 2 comments

It apparently took the threat of a major strike, but the Connecticut Legislature passed a bill and the Connecticut governor signed it earlier this year to raise the minimum wage of direct-care workers in that state’s Department of Developmental Services system to $14.75 an hour, starting January 1.

A similar effort fell short last year in Massachusetts when a budget amendment to raise direct-care wages to $15 was killed in a budget conference committee in the Massachusetts Legislature.

While Governor Charlie Baker signed separate legislation in June to raise the minimum wage across the board in Massachusetts to $15, that wage level won’t actually be reached until 2023. The minimum wage will rise to only $12 next year, whereas it will be close to $15 in Connecticut for human services workers as of January 1.

It seems that even though legislators and the administration of Governor Dannel Malloy in Connecticut are equally as tolerant of runaway privatization as they are here in Massachusetts, the Connecticut Legislature and governor have shown a greater recognition that increased privatization has resulted in low wages for direct care human service workers, and that low wages have had a negative impact on services.

In May, after the Connecticut Senate voted overwhelmingly in favor of setting the minimum direct-care wage at $14.75, Malloy made a statement that we have yet to hear Governor Baker make:

“For far too long,” Malloy said, “the people who provide care to our most vulnerable neighbors have been underpaid for their critical work.”

In fairness to Baker, Malloy made that statement only after 2,400 employees of nine corporate provider agencies in Connecticut voted in April to authorize a strike that was set to begin in early May. The workers in Connecticut are represented by the SEIU 1199 New England union.

Clearly hoping to avert that strike, the Malloy administration proposed raising the minimum wage for human services workers to $14.75 an hour and providing a five-percent raise for workers earning more than $14.75 an hour effective January 1.

The Malloy administration’s proposal, which was endorsed by the SEIU union and ultimately signed into law, applies to 19,000 union and non-union caregivers that staff some 170 group homes and other nonprofit agencies that receive Medicaid funding in Connecticut, according to The Connecticut Mirror.

As Connecticut Senate President Pro Tempore Martin Looney noted:

The work (those caregivers) do is among the most important in our state in terms of humanity.  If we are to consider ourselves a humane and caring society, at long last we should begin at least to recognize the value of that work.

In Massachusetts, SEIU Local 509 helped organize a five-day strike  for a living wage in July at CLASS, Inc., a DDS-funded day program provider based in Lawrence. The workers there were getting paid about $13 an hour and wanted a $1 increase. The company was offering an increase of only 40 cents.

The president of CLASS, meanwhile, was making about $187,500 a year, according to the state’s online UFR database.

In July, workers at CLASS, Inc. reached a settlement with management to raise the workers’ wages by 60 cents an hour. That would still leave the average worker there well below what direct-care workers will be earning in Connecticut.

The Massachusetts strike, moreover, didn’t have the impact on legislators and other policy makers here that the threat of the Connecticut strike apparently did in that state. Thus far, it isn’t apparent that there is any political will in Massachusetts to raise the minimum wage of direct-care workers to Connecticut’s level.

That is concerning because five years is a long time to wait for the minimum wage for direct-care workers to reach $15. Due to inflation alone, that $15 will be worth less to Massachusetts workers in 2023 than it would be if they were to receive it starting this January.

 

Advertisements

Our September newsletter questions the Children and Families Committee’s role in investigating DDS

September 10, 2018 1 comment

Each issue of our newsletter, The COFAR Voice, tends to have a theme that units most of the articles.

The theme running through the September issue, which we posted last week on our website, has to do with questions about the role of the state Legislature’s Children, Families, and Persons with Disabilities Committee in investigating care and conditions in the Department of Developmental Services system.

That role that the committee is playing is, to say the least, unclear. As the newsletter notes, the committee appeared to open its review of DDS last January when it scheduled an informational hearing on abuse and neglect in the DDS system. But while numerous family members and guardians of DDS clients showed up, ready to share their accounts of their experiences with the system, they weren’t permitted to testify during the public hearing.

Sen. Lovely and Barb Govoni cropped

State Senator Joan Lovely, Senate chair of the Children and Families Committee (left), and Barbara Govoni.

The committee invited only DDS Commissioner Jane Ryder and Nancy Alterio, executive director of the Disabled Persons Protection Commission, to testify publicly. Members of the public were allowed only to submit written testimony.

As we have noted to the committee, written testimony alone is limited in its accessibility to others and therefore in its impact and ability to inform the public at large.

As of late August, the committee was planning to hold a second hearing, but even then — seven months after the initial hearing — no decision had been made as to whether members of the public would be allowed to testify in public before the panel.

It’s unclear why the committee is so reluctant to allow public testimony on these critically important issues. In fact, we see no basis at all for that reluctance.

Also unclear, even at this juncture, is the scope of the committee’s overall review. We have not gotten an answer from the committee co-chairs when we have asked for specifics on that scope.

We have long sought a legislative investigation of the DDS-funded group home system, which is subject to continuing reports of abuse and neglect and inadequate financial oversight. Is the Children and Families Committee really interested in undertaking a comprehensive investigation? No clear answer to that question has been forthcoming.

We also raise questions in the September newsletter about the committee’s decision in June to effectively kill a bill that would have provided work opportunities for clients of DDS-funded day programs. To be fair, that decision was made amid continuing confusion over federal and state rules governing those work activities.

In mid-August, Barbara Govoni, a COFAR member who proposed the work opportunity bill, and I met with Senator Joan Lovely, Senate chair of the Children and Families Committee, to discuss the legislation, the DDS review, and related issues. We are hoping to continue to work with the committee to clear up the confusion over the work opportunity issue and to help get new legislation enacted and passed in the coming legislation session, which starts in January.

We have also offered on a number of occasions to provide information to the committee about care and conditions in the group home system.

Other important stories in our September newsletter concern:

  • The decision by the state’s Public Records supervisor to uphold the secrecy of virtually all reports done by the Disabled Persons Protection Commission, and
  • How direct-care workers at two DDS-funded day program agencies won at least partial victories in their fight for adequate wages and working conditions,

and more.

You can find the new newsletter on the home page of our website and on our newsletters page. Please check it out.

Has the Globe just shown a newfound, if inadvertent, support for the Pacheco Law?

August 20, 2018 Leave a comment

Although we are an advocacy organization that focuses on human services, we have at times waded into the ongoing controversy over the operation of the MBTA in Boston.

The reason for that has to do with a now decades-long debate over privatization of public services and the implications of the Pacheco Law in that regard.

On Sunday, The Boston Globe reiterated its support for the privatization of T functions with an editorial that defended the current contracted operation of the T’s problem-plagued commuter rail system.

As a supporter of privatization, the Globe has, in recent years, been at the forefront of the long-running criticism in political and journalistic arenas of the Pacheco Law. But in calling on Sunday for a cost-benefit analysis prior to any proposed move to bring the T’s commuter-rail system in house, it seems to us that the Globe is also endorsing, if inadvertently, the principles and intent of the law.

The Pacheco Law requires state agencies seeking to privatize existing operations to do a cost-benefit analysis that demonstrates that the cost of privatizing the service would be lower than continuing to do the service in-house, and that the quality of service would be equal or better if it were privatized.

The Pacheco Law, which was enacted in 1993, has been a lightning rod for political criticism and controversy over the years. Much of the state’s political establishment and prominent journalistic institutions have been harshly critical of it.

We have supported the law because we see it as providing a potentially important layer of oversight and analysis in the ongoing privatization of services for the developmentally disabled in Massachusetts.

In a 2011 editorial, the Globe called the Pacheco Law “an affront to common sense,” and charged that it was allowing public employee unions to place their “demands” above “the obligation to run government efficiently.”

But in its editorial on Sunday, the Globe actually put forth an argument that appears, without directly admitting to it, to endorse the precepts of the Pacheco Law. In criticizing calls by Democratic candidates for governor for in-house operation of commuter rail when the current contract with Keolis expires in 2022, the editorial states:

Whoever is in charge in 2022, though, here’s a suggestion: Since in-house management is an idea that refuses to die, [and I would add, so is privatization, for that matter!] the state should ask the T to submit a plan showing what it would entail. If nothing else, that would clarify for the public the costs and benefits, and bring some specifics to what is now little more than a vague applause line for Democrats. (my emphasis and insertion in brackets)

That is exactly what the Pacheco Law calls for when state agencies seek to privatize services. What the Globe is calling for is the same type of cost-benefit analysis, only in reverse — from privatized services to in-house. To me, it actually sounds like a good idea.

The Sunday editorial further states that while the state “can definitely do a better job with commuter rail after its current contract with Keolis expires in 2022…the goal of better service, not adherence to ideological precepts, should guide the next governor.” (my emphasis)

Agreed, and that is also the goal of the Pacheco Law, which is to ensure better service and lower cost rather than privatizing based on ideological precepts.

The editorial contends that:

…the T doesn’t have — and never has had — the in-house ability to operate the commuter lines itself, and dumping the commuter rail system directly into an already overburdened agency risks disruption. It could also raise thorny union issues, probably raising labor costs. And there’s no reason to expect running the commuter rail in-house would result in better service. (my emphasis)

Maybe not, but in-house operation of commuter rail might actually result in cost savings.

We reported in 2015 that the annual cost to the MBTA of contracting for commuter rail services had risen by 99.4 percent since 2000, compared with a 74.9 percent increase in the annual cost of the agency’s in-house bus operations, according to cost information we compiled from public online sources.

Finally, the Globe editorial suggests that rather than bringing management of commuter rail in house, the T should consider offering the next contractor “a longer-term deal, to better align the incentives of the contractor and the state and potentially bring in private-sector money for capital investments.”

I would note here that long-term contracts are not necessarily better deals for the state or consumers. It is difficult if not impossible to project financial risks over long periods of time. As a result, long-term contracts tend to have provisions that protect private contractors from those risks while transferring the risks to the public.

Also, private investments for capital improvements must be repaid by taxpayers and riders, and those deals can be very expensive to the public. Often there is little transparency in the terms and provisions of private investment arrangements in public infrastructure.

All of these are reasons why the Pacheco Law is necessary and important to the continued efficient and effective operation of government. The law provides for an open and detailed analysis and discussion of costs and benefits when public and private services and functions come together. 

Confusion reigns over employment of the developmentally disabled in Massachusetts

August 16, 2018 Leave a comment

When it comes to the crucial issue of employment of people with developmental disabilities in Massachusetts, the policies of both the federal government and the Baker administration appear to be unclear, confusing, and to contain a number of contradictions.

Yet, neither the Baker administration nor the Massachusetts Legislature, in particular, seem to be showing much interest in clearing things up.

Consider these facts:

  • Although the Patrick and Baker administrations stated that they were closing all sheltered workshops in Massachusetts in order to place developmentally disabled people in so-called “integrated” or mainstream work, those mainstream jobs have proven to be difficult for many, if not most, of those people to find.
  • An unknown number of former sheltered workshop participants, some of whom do not want mainstream work,  have been left without work of any kind in their Department of Developmental Services-funded day programs.
  • It is unclear what work arrangements are considered by both the federal and state governments to be legal. In one case, DDS has resorted to a creative, if jerry-rigged arrangement under which a developmentally disabled man has been placed on the staff of his day program so that he can continue to do piecework there in compliance with federal rules.
sen-lovely-and-barb-govoni-cropped.jpg

Barbara Govoni (right) with state Senator Joan Lovely, Senate chair of the Children, Families and Persons with Disabilities Committee, this week. The Committee did not approve a bill Govoni proposed that would ensure work opportunities for  her son and other developmentally disabled persons. But Lovely says she wants to work with Govoni on the issue.

Let’s look at each of these issues a little more closely:

Integrated work is apparently still unavailable for many who want it in the mainstream workforce

In 2014, the administration of then Governor Deval Patrick began closing sheltered workshops that provided developmentally disabled persons with piecework activities because those facilities supposedly segregated those persons from their non-disabled peers and paid them less than minimum wage. The Baker administration followed that same policy, ultimately closing all remaining workshops as of the fall of 2016.

The plan of both administrations was to provide training to those former workshop participants and place them in mainstream workforce settings along with supports that would help them to function in those settings.

We expressed concerns at the time, however, that the workshop closure policy was being pursued without knowing, among other things, whether sufficient jobs existed in the private sector for all of those former workshop participants and others who want jobs.  We also expressed concern that the Legislature wasn’t following through with funding needed for training.

Since 2014, data appear to have borne out our concerns.

DDS data provided to us last month show that despite the workshop closures, smaller and smaller numbers of people have actually entered the integrated or mainstream workforce in Massachusetts since Fiscal 2016.  During that fiscal year, a high of 509 clients in the DDS system newly started working in mainstream jobs.  That number dropped to 127 clients entering integrated employment during Fiscal 2017 and a net increase of 98 clients during Fiscal 2018.

We are assuming that demand for these mainstream jobs remains high, possibly in the thousands. That there was a net increase of less than 100 developmentally disabled persons in integrated employment in Fiscal 2018 appears to show that the administration has been unable to find jobs for people who want them.

Fiscal years 2015 and 2016 were apparently the years in which most of the population of the sheltered workshops left those programs and in which most of the increases in integrated employment programs took place. The problem is that the numbers of clients entering integrated employment in those years were much smaller than the numbers entering DDS-funded day programs.

Overall, the DDS day program population increased by 81% from Fiscal 2014 through 2018 while integrated job placements increased by only 19%. The chart below reflects this trend and illustrates the fact that the total day program population in the DDS system has caught up with and even surpassed the total number of departmental clients in integrated employment since Fiscal 2014.

Chart on DDS integrated employment vs. day program population

Source: DDS

When we asked DDS for any records indicating whether the Department is having a problem providing suitable work opportunities for those who want them, DDS referred us to two policy documents dated 2010 and 2013. But those documents obviously do not provide any information about the situation today.

One of those policy documents is the Department’s 2010 “Employment First” policy statement, which called for “integrated employment as a goal for all” DDS clients. The policy statement also called for a “consistent message” and an “infrastructure including prioritizing and directing of resources, that supports this effort.” (my emphasis)

To date, however, neither a consistent message nor an adequate infrastructure appear to exist to support that goal of universal integrated employment.

The DDS’s 2013 document, titled “Blueprint for Success,” stated that it was the Department’s goal to close all remaining sheltered workshops as of June 30, 2015.  (The last workshops were closed a little more than a year later.)

The title page of the Blueprint states that the document was prepared by DDS and by the Massachusetts Association for Developmental Disabilities Providers (ADDP) and the Arc of Massachusetts.  Both the ADDP and the Arc are largely supported by DDS-funded providers, which have benefited from higher DDS funding for the day programs to which most of the former sheltered workshop participants have been transferred.

Some DDS Employment First website links don’t work

In response to our request for documents and information, DDS also referred us last month to its Employment First website.  It isn’t apparent, however, that the website contains any information that indicates whether or not it is difficult for developmentally disabled persons to find mainstream employment.

In one case in which I clicked on the website and then went to the “Career Planning” section under the “Resource Library,” a link to a “Career Planning Guide” took me to an error page. Another link to a “Guide to Person-Centered Planning for Job Seekers” took me to a page with generic advice on seeking employment, but no information on current job prospects for people with developmental disabilities in Massachusetts.

Under a link called “Program Development and Management,” I clicked on another link labeled “Ensuring Excellence in Community Based Day Supports,” and got another error page message.

Barbara Govoni and Patty Garrity, two of the more active family members of former sheltered workshop residents, both said they had never been referred to the website by DDS.

Legislative committee kills work opportunities bill

Last year, state Representative Brian Ashe of Longmeadow filed a work opportunity bill (H. 4541) at the request of Govoni, the mother of Danny Morin, a former sheltered workshop participant. The bill would have required optional work activities in DDS-funded day programs for up to four hours a day.

Govoni is concerned that Danny has been provided with few activities that are meaningful to him after his workshop closed in 2016, and misses the steady work that the workshop provided. She terms this lack of available work opportunities for Danny and others a human rights issue.

But Govoni’s bill was referred to the Children, Families, and Persons with Disabilities Committee, which effectively killed the measure in June by sending it to a study. Earlier this week, Govoni and I met with state Senator Joan Lovely, the committee’s Senate chair, to discuss the bill among other DDS issues.

Lovely said the employment bill was filed late in the two-year legislative session. She noted there was little time to analyze the implications of the bill, so the committee decided to send it to a study. The problem with that is that no one in the Legislature actually does such studies. Sending a bill to a study is a euphemistic expression used for killing a bill.

But Lovely said the committee is concerned about the work opportunity issue, and said the committee has been in touch with DDS about it. One proposal being discussed is to hire an ombudsman in the Department who would help individuals and families locate existing day programs that offer work opportunities.

Another proposal under consideration is to establish new work opportunities programs in existing day programs without making such work opportunities a legislative requirement of DDS.

But it isn’t clear that DDS really is working to establish those programs or whether the Department even considers work activities in day programs to be legal.

A staff member for Representative Ashe said she was told by DDS officials that the Department is essentially hamstrung by federal rules that prevent DDS day programs from offering any work activities because such activities can only be offered in “integrated” settings.

DDS tries creative approach to comply with federal requirements

Despite that, we have heard of recent cases in which arrangements have been made to provide work activities in DDS day programs. Patty Garrity’s bother, Mark, is one of those cases.

As we reported last year, Mark, like Danny Morin, was bored in his day program after it had ceased operating as a sheltered workshop. He wasn’t interested in the classes on painting, cooking, or money management that had replaced the piecework he had enjoyed doing.

In March of 2017, Mark’s day program found paper shredding work for him that DDS determined was in compliance with federal rules.

Ashe’s aide queried DDS about Mark’s case and was told that in order to allow Mark to do the paper shredding work under the new federal rules, the provider agency running his day program has actually placed him on its staff and is paying him minimum wage. As a result, Mark is now considered to be working in an integrated setting.

Ashe’s aide told us that Mark’s work arrangement is considered a “unique circumstance.”

Federal rules regarding integrated employment are unclear

The problem with unique arrangements such as Mark’s, however, is that they don’t necessarily solve problems involving larger groups of people. And it may even be questionable whether Mark’s arrangement was actually necessary.

Despite what DDS told Ashe’s legislative aide, it does not appear clear that the federal rules strictly forbid work activities in day programs such as Mark’s.

In an informational bulletin issued in 2011, the federal Centers for Medicare and Medicaid Services (CMS) stated that federal Medicaid funding will not cover “vocational services delivered in facility based or sheltered work settings, where individuals are supervised for the primary purpose of producing goods or performing services.”

That would appear to preclude at least some work activities in DDS day programs. But it seems possible that what the CMS bulletin refers to as “pre-vocational services” do allow for at least certain work opportunities in those settings, although the guidance, as usual, is vague. It also isn’t clear which types of work activities DDS recognizes as pre-vocational services and which it considers vocational.

The CMS bulletin offers a rather vague and clunky definition of pre-vocational services as:

…services that provide learning and work experiences, including volunteer work, where the individual can develop general, non-job-task-specific strengths and skills that contribute to employability in paid employment in integrated community settings. (My emphasis).

The bulletin does state that persons doing pre-vocational activities can be paid for those activities “in accordance with applicable Federal laws and regulations.”

The bulletin implies that these pre-vocational work opportunities can be provided in “fixed-site facilities,” which we think would include DDS day programs, although this again is not clear. Also, the bulletin states that these work opportunities must occur “over a defined period of time,” which implies that the individuals are ultimately expected, as the bulletin says, to be placed in permanent integrated employment. Once again, the “defined period of time” isn’t defined!

It’s also unclear to us what the CMS bulletin means in stating (above) that while pre-vocational services can include “work experiences,” they must provide the person with “non-job-task-specific strengths and skills.” Does that mean that the individual can do work but can’t do specific tasks?

It seems that the paper shredding activity that Mark Garrity is doing could be considered a “work experience.”

As a result, it seems possible that when Govoni’s bill is refiled, as we hope it will be in the next legislative session in January, the bill should specify that all DDS day programs be required to offer pre-vocational activities to anyone who requests that.

When Govoni and I met with Senator Lovely, Lovely agreed that the current rules governing work opportunities are confusing and need to be clarified.

The federal and state models are ‘one size fits all’

 The CMS bulletin recognizes that work is vitally important to people with developmental disabilities in the same way it is important to non-disabled persons. As the bulletin notes:

Work is a fundamental part of adult life for people with and without disabilities. It provides a sense of purpose, shaping who we are and how we fit into our community.

Yet, after that acknowledgement, the CMS bulletin appears willing to ensure that fundamental part of life only for those who agree to work in the mainstream workforce. The bulletin states:

…Because (work) is so essential to people’s economic self sufficiency, as well as self esteem and well being, people with disabilities and older adults with chronic conditions who want to work should be provided the opportunity and support to work competitively within the general workforce in their pursuit of health, wealth and happiness.

Neither the federal government nor the Baker administration in Massachusetts appear to recognize that at least some persons with the most profound levels of disability are not able to participate in the mainstream workforce.

The CMS bulletin states the following: 

All individuals, regardless of disability and age, can work – and work optimally with opportunity, training, and support that build on each person’s strengths and interests. Individually tailored and preference based job development, training, and support should recognize each person’s employability and potential contributions to the labor market.`(my emphasis)

The DDS Employment First policy referred to above appears to go even further in that regard, stating that:

It has now been clearly demonstrated that individuals who were previously considered unemployable in integrated community settings can work successfully. Even for those individuals with the most significant level of disability, through careful job matching and support design, employment has been shown to be a viable option. (my emphasis)

These statements are unsupported by the evidence. That is probably why neither statement provides any evidence to support its claims.

Recently, however, the federal government proposed changes at least to rules that prevent developmentally disabled persons from working for less than the minimum wage.

We hope to work with the Baker administration and the Legislature to find ways to penetrate and clear up this dense thicket of confusion and contradictions that has grown up in the past several years over the vital issue of work for the developmentally disabled.

We hope Govoni’s work opportunity bill is enacted in the next legislative session. In the meantime, legislators, advocates, and policymakers need to get together to clarify and agree on what can and should be done.

Direct-care human services workers fight inch by inch for better wages and conditions

Two ongoing cases involving human services workers are illustrative of the challenges those workers face in getting decent wages and working conditions, particularly in privatized facilities funded by the state.

In both cases, the SEIU Local 509 human services union has either represented the workers or has tried to organize them to join the union.

In an interview, Peter MacKinnon, the president of the local, discussed the cases and the implications they have for care throughout the Department of Developmental Services system.

Earlier this month, workers at CLASS, Inc., a DDS-funded day program provider based in Lawrence, engaged in a five-day strike at the facility for a living wage.

MacKinnon said that although the CLASS strike ended on July 13, the contract dispute had not been resolved. The workers there are getting paid about $13 an hour and wanted a $1 increase. The company is only offering an increase of only 40 cents.

The president of CLASS made about $187,500 a year in Fiscal Year 2017, according to the state’s online UFR database.  The CFO made $132,900 that year.

Last month Gov. Baker signed a bill into law that would establish a $15 an hour living wage as of 2023.

In a second ongoing case, the National Labor Relations Board filed a complaint against Triangle, Inc., another DDS day program provider, over allegations that the provider had fired some of its workers for trying to organize a vote to join the SEIU.

MacKinnon said that Malden-based Triangle recently agreed to a settlement of that case under which the fired workers will be either reinstated or provided with financial compensation, and  a vote to unionize will be held early next month. He said the union is satisfied with the settlement.

We published a blog post in March noting that Triangle had received $10.2 million in revenue in Fiscal 2017, including $6.9 million in funding from DDS, according to the state’s online UFR database.  Coleman Nee, the Triangle CEO, was listed on the UFR database as having received $223,570 in total compensation in Fiscal 2017. That may not have covered  an entire year with the agency.

That year’s tax filing listed six executives as making over $100,000 at Triangle.

MacKinnon noted that human services workers:

…do some of the hardest work in the human service field, and these are folks who are getting paid the least…When you have pay that low and work that difficult, it causes difficulties in retaining and recruiting staff.

Both COFAR and the SEIU have reported on the huge disparity in pay received by provider executives and direct-care workers in the DDS system.  We reported in 2012 that workers for DDS-funded providers had seen their wages stagnate and even decline in recent years while the executives running the corporate agencies employing those workers were getting double-digit increases in their compensation.

In January 2015, a larger COFAR survey of some 300 state-funded providers’ nonprofit federal tax forms found that more than 600 executives employed by those companies received some $100 million per year in salaries and other compensation. By COFAR’s calculations, state taxpayers were on the hook each year for up to $85 million of that total compensation.

Nevertheless, much of the mainstream media still does not appear to understand this dynamic. The Lawrence Eagle Tribune quoted a spokesperson for CLASS, Inc. three days after the CLASS, Inc. strike began as saying the state had reduced rates to the providers to pay workers.

In fact, as the SEIU has reported, a 2008 law known as Chapter 257 enabled human services providers in the state to garner some $51 million in net or surplus revenues (over expenses) in Fiscal 2016.  Yet, while raising wages of direct-care workers was a key goal of Chapter 257, those workers were still struggling to earn a living wage” of $15 per hour as of 2016, according to the SEIU.

The SEIU report, which got minimal news coverage, noted that Chapter 257 helped boost total compensation for CEOs of the corporate providers by 26 percent, to an annual average of $239,500.

The struggle to make headway in bringing about better pay and conditions for human services workers is a painstaking one. “If you want to attract and retain qualified experts in direct care, you need education, training, and in some cases advanced degrees, so you have to compensate these people fairly,” MacKinnon noted. “The old adage that a bad boss is the best organizer really holds true.”

MacKinnon said Local 509 now represents about 6,700 human services workers in Massachusetts working for about 40 providers of DDS and the departments of Mental Health, Children and Families, and Elder Affairs. That’s a good number, but still only a small fraction of the providers out there.

Next month, we’re scheduled to meet with state Senator Joan Lovely, the Senate chair of the Legislature’s Children, Families, and Persons with Disabilities Committee. Among the messages we hope to convey in the meeting are that the Legislature needs to get involved in helping fight for better pay and conditions for those caring for some of the most vulnerable members of our society.

 

 

Questions remain as key disabilities committee kills work opportunities bill

July 13, 2018 4 comments

The Legislature’s family and disabilities rights committee has rejected H. 4541, a bill intended to ensure that developmentally disabled individuals get work opportunities in their state-funded day programs.

A staff member of the Children, Families, and Persons with Disabilities Committee said the committee understands many people cannot find those work opportunities and is therefore discussing other possible ways of providing for them. But details regarding the policies being considered by the Children and Families Committee are sketchy, and the committee hasn’t yet responded to written questions about those ideas.

Barbara Govoni, the mother of a developmentally disabled man, had pushed for months for passage of H. 4541, which would have established optional work activities in DDS-funded day programs for up to four hours a day.

Many people in community-based day programs funded by the Department of Developmental Services have not been able to find such work since all sheltered workshops were closed in Massachusetts in 2016.

H. 4541 had been referred to the Children and Families Committee in May, and the committee effectively killed the measure last month by sending it to a study. With formal business in the current two-year legislative session ending on July 31, any similar legislation will have to be re-filed next January and go through the legislative process all over again.

It isn’t clear what the committee’s objections were to H. 4541. We’ve noted that some committee members appeared to have some misconceptions about the bill, including the idea that it would bring sheltered workshops back to the state.

In fact, the bill would have simply provided work activities for individuals who continued to desire those activities in their day programs, and who either could not or did not want to work in “integrated” or mainstream work settings. As we have reported, many of these people miss the work they used to do in their sheltered workshops, and are unable to relate to most day program activities that replaced that work.

At the same time, it appears that some DDS-funded day programs are, in fact, continuing to offer work activities to some residents. It’s not clear how many such programs currently exist.

A legislative aide to Representative Kay Khan, House chair of the Children and Families Committee, said earlier this week that the committee had been in touch with the Department of Developmental Services about the work opportunity issue, and that one proposal discussed was to hire an ombudsman in the Department who would help individuals and families locate existing day programs that offer work opportunities.

Funding remains a question

Another proposal under consideration by the Children and Families Committee and DDS is to establish new work opportunities programs at additional day programs without making such work opportunities a legislative requirement of DDS.

No details are yet available, however, on the scope of the Children and Families Committee’s or DDS’s proposals. Also unknown is how funding would be appropriated for an expansion of existing work opportunities programs, and what the amount of that funding might be.

The Legislature, unfortunately, has previously shown a reluctance to fund job training and other programs as part of the effort to replace sheltered workshop programs with “integrated” or mainstream work opportunities for DDS clients.

The administration of then Governor Deval Patrick and the Legislature had set up a DDS line item in Fiscal 2015 to fund job training and other programs to help transfer clients from sheltered workshops into mainstream employment. That line item was initially funded with $1 million and was raised to $3 million the following year.

For Fiscal 2017, current Governor Charlie Baker, with the support of the DDS corporate providers, had proposed boosting the job development line item to $7.6 million; but the Legislature wouldn’t agree to the higher funding.

As of Fiscal 2018, the job development line item was eliminated and all funding for those efforts was transferred to the overall DDS Community Based Day and Work line item. It would seem the case needs to be made that additional funding is now needed for the day and work line item to fill the gap in work opportunity programs.

The solution needs to be comprehensive

Robin Frechette, an aide to Representative Brian Ashe, who filed H. 4541 on Govoni’s behalf, said she believes the Children and Families Committee co-chairs and other committee members “understand there is a gap in services to a particular group of individuals who are not able to work out in the community, and it needs to be addressed.”

But Frechette expressed a concern that simply having an ombudsman direct individuals whose day programs don’t offer work opportunities to different day programs that do offer those opportunities could be disruptive to those individuals.  She also said she was concerned that there may be few such programs available in the western part of the state where Barbara Govoni and her son live.

Earlier this week, we sent email queries to both the Children and Families Committee co-chairs and DDS to try to find out more about the proposals under consideration.

We have asked for records from DDS on the number of work opportunity programs that currently exist in DDS-funded, community-based day programs, and the number of work opportunity programs that DDS plans to establish.

We are also asking for the number of DDS clients who have been placed in “integrated employment” or mainstream workforce jobs and the number of DDS clients in community-based day programs since Fiscal 2014.

And we have asked DDS for its assessment as to whether there is a problem in providing suitable work opportunities for people in the DDS system who desire it, and whether some DDS clients are unable to function in mainstream work sites.

In addition, we’ve asked the co-chairs of the Children and Families Committee what the committee’s specific objections to H. 4541 were.

Despite the rejection of H. 4541, the opportunity remains for state legislators and policy makers to address the critical work opportunity problem facing developmentally disabled people across the state in an effective way.  We hope those legislators and policy makers will make a serious commitment to finding a workable solution; but we know from experience that deeds will be more important than words in that regard.

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.