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.

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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.

The system failed Dennis Perry, and it has also failed his killer

Paula Perry Smith is still grieving for her brother, Dennis Perry, who was fatally assaulted in a state-run facility for persons with developmental disabilities in 2013; yet she believes that the system not only failed to protect her brother, it has failed the man who killed her brother.

Perry, who was 64, died in September 2013 after having been allegedly shoved into the side of a boiler at the former Templeton Developmental Center’s dairy barn by Anthony Remillard, then 22, a resident of the center, who had a history of violent behavior.

After spending more than four years in the Worcester County House of Correction, Remillard pleaded guilty to manslaughter in March of this year, and was sentenced to seven years in prison. He received credit for time already served, so will spend close to three more years in prison. Remillard is intellectually disabled as was Perry.

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The dairy barn at the former Templeton Developmental Center, the site of the fatal assault of Dennis Perry by Anthony Remillard

Remillard was found competent to stand trial for the crime last year; but in 2015, he had been found by a different Superior Court judge to be not competent. The judges were confronted with opposing opinions by clinicians on that matter.

In a recent interview, Paula Perry Smith said that if Remillard was indeed competent to stand trial, then the seven-year sentence imposed in March by Worcester Superior Court Judge Daniel Wrenn was “a disgrace” because it was far too light.

But Perry Smith said she doesn’t actually believe Remillard was competent to stand trial. For that reason, she doesn’t believe he belongs in prison, but rather should be in a secure Department of Developmental Services facility that would provide treatment to him.

The problem, as we have noted, is that the Templeton Center was, at one time, just the sort of secure DDS facility that would have been appropriate for a man with behavioral issues such as Remillard.

But during the time Remillard was at Templeton, the Center was being phased down from a secure Intermediate Care Facility (ICF), which must meet strict federal care standards, to a group-home level facility, with much looser standards for care and supervision.

Perry Smith said that during the sentencing of Remillard, she gave a victim impact statement to Judge Wrenn in which she tried to make the point that prison was not an appropriate place for Remillard.

In her impact statement, Perry Smith referred to an investigative series that had been published in 2016 by The Boston Globe, which noted that after closures of state-run hospitals in Massachusetts for persons with mental illness, those people were similarly ending up inappropriately in emergency rooms and prisons, and many of them were committing homicides because they were not getting treatment.

But Wrenn was not swayed by Perry Smith’s argument, and sentenced Remillard to further prison time. “I don’t think he (Wrenn) got all of what I was saying,” Perry Smith said.

In a portion of Perry Smith’s impact statement that was reported by The Worcester Telegram, she said, “We have spent years looking for answers as to how and why this (murder) happened. A man with explosive anger issues and a history of violence was housed with our brother, who was an elderly, intellectually disabled man incapable of defending himself. We have been trying to learn how and why the system failed our brother,” she said.

We have long been trying to find the answer to that question as well.

DDS dodges questions about supervision of Remillard at the Templeton Center

In 2014, DDS largely cleared itself of responsibility in the matter of Dennis Perry’s death, concluding in an  investigative report  that there wasn’t evidence that the staff at the Templeton Center could have prevented Remillard’s alleged “spontaneous and unpredictable assault” on Perry.

We believe, however, that the fatal assault of Perry raises many questions about the Department’s policies and procedures involving care and supervision of clients with behavioral issues.

Among the questions raised by the Perry case that were not considered in the DDS report was whether the overall level of supervision at the Templeton Center was declining as the Center was being phased down from its ICF-level status.

No apparent questioning of the appropriateness of prison

While Paula Perry Smith has questioned the wisdom of placing Remillard in prison, it is not clear whether anyone in the state’s criminal justice system or executive branch ever asked that same question.

As we’ve stated before, intellectually disabled people like Anthony Remillard need to be in places that provide them with supportive supervision, structure, and security.  It’s hard to imagine that the behavioral issues that Remillard had that led to the alleged assault on Dennis Perry are dealt with in a positive way where he is now.

Perry Smith said she understood that Remillard had been placed in isolation many times at the Worcester prison facility because “he keeps getting in trouble” there.

The Globe’s 2016 investigative series did not come as a surprise to many working in the field of mental illness who have known that deinstitutionalization since the 1960s has led to a continued increase in the population of mentally ill people in the nation’s prison system.

What the case of Dennis Perry and Anthony Remillard tells us is that many of the same problems have resulted from the parallel deinstitutionalization, starting in the 1980s, of people with intellectual and developmental disabilities.

It appears that while many political and governmental leaders and many in the media have begun to recognize the problems caused by the deinstitutionalization of the mentally ill, few of those policy leaders realize that similar dynamics have occurred in the field of developmental disabilities.

Until policy makers and other leaders recognize that unchecked deinstitutionalization and privatization have created problems throughout our system of care for people with disabilities of all kinds, that system will continue to fail people like Dennis Perry and Anthony Remillard.

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In accordance with his wish, Donald Vitkus is laid to rest in cemetery of the former Belchertown State School

June 24, 2018 2 comments

“We are powerless to consecrate this ground. The people laid to rest here have all consecrated it.”

Those were the words of Donald Vitkus’s grandson, William, as Donald’s ashes were interred Saturday following a memorial service at the Warner Pine Grove Memorial Cemetery for residents of the former Belchertown State School.

It was Donald’s wish that he be buried along with his “brothers and sisters” in the “Turkey Hill” cemetery.

Beneath the tall pines that protectively ring the small cemetery enclosure, some 70 people gathered for the memorial service in which family, friends, and fellow advocates for the developmentally disabled spoke with eloquence about the impact Vitkus had on their lives.

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Members of Donald Vitkus’s family at Saturday’s memorial service. His wife, Patricia, is in the center.

Vitkus, who died of a brain tumor in January at the age of 74, lived a life that took him from the notorious state school to a tour of duty in Vietnam, a first marriage that failed because he was unable to relate emotionally to his wife and children, and a later reconnection with his son, David, and other members of his family.

Vitkus was married in 1995 to his second wife, Patricia, who was in attendance at Saturday’s ceremony. In his later years, he became a passionate advocate for the developmentally disabled.

At the age of six, Vitkus was sent to Belchertown by foster parents, and remained there until he was “paroled” at the age of 17. The institution, which was closed in 1992, was one of many such facilities in Massachusetts that became the targets of a federal class-action lawsuit, Ricci v. Okin, which brought about significant upgrades in care and services in facilities throughout the state.

At Saturday’s memorial service, the speakers included Vitkus’s son, David, granddaughter, Helena, and grandson, William. Among the others who spoke were Department of Developmental Services Commissioner Jane Ryder, and Edward Orzechowski, who became a close friend of Vitkus’s while writing You’ll Like it Here, a book about Vitkus’s life at Belchertown and afterward, as Vitkus struggled to overcome the scars left from his experience at the institution.

In March of this year, Vitkus was posthumously given the Benjamin Ricci Commemorative Award at an annual Statehouse award ceremony, which recognizes the accomplishments of individuals served by DDS and the dedication of caregivers and advocates.

In 2005, Vitkus received an associate degree in human services from Holyoke Community College. It was there that he organized a speaking event that same year for Ben Ricci, the original plaintiff in Ricci v. Okin and the author of Crimes Against Humanity, a landmark book about Belchertown and the filing of the lawsuit.

Orzechowski, who attended the 2005 speaking event, said Vitkus approached him there, and asked him to write a book about his experience at Belchertown. At Saturday’s ceremony, Orzechowski said Vitkus had later quipped that he had organized the speaking event for Ben Ricci in order to score “brownie points”  to boost his G.P.A. at the community college.

Ryder said she has provided a copy of Orzechowski’s book to every member of the DDS senior management. “We need to always be vigilant about the services and staff and to question the experts,” Ryder said. “We need to listen to the individuals and their families.”

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Friends and family at Saturday’s memorial service for Donald Vitkus

Orzechowski stood silently before speaking and then recounted several anecdotes about Vitkus, some of which are in Orzechowski’s book, and others that occurred when Vitkus and Orzechowski went on speaking and book signing tours together after You’ll Like it Here was published in 2016.

Orzechowski recalled how Vitkus had always resisted authority, even biting off part of an attendant’s finger at Belchertown after the attendant had tried to stuff anti-psychotic medications down his throat. Vitkus spent 34 days in solitary confinement as a result.

Orzechowski also recounted how Vitkus had escaped twice from Belchertown, and was picked up each time by the same police officer, who took him for ice cream the second time before returning him to the facility.

William Vitkus, who, like Helena, recalled Donald as a loving grandfather, said the question had “gnawed” at him as to why he had asked to be buried in a cemetery for residents of an institution that was an “ugly place with bad memories.”

“He (Donald) had spent his whole life trying to prove he never belonged (at Belchertown),” William said.  “Why should the state school now get to keep him?”

William said that he finally came to realize that it wasn’t the institution, but the residents there with whom Donald felt a life-long kinship, and that he felt he was “no different than the people buried here. They were his family.

“We’re here,” William added, “to help him (Donald) fulfill his last act of advocacy — a last stick in the eye to all who told him and his brothers and sisters that they would amount to nothing.

“There is no more sacred spot for my grandfather to rest,” William continued. “We are powerless to consecrate this ground. The people laid to rest here have all consecrated it.”

Donald Vitkus’s son, David , a former Northampton police officer, talked about how Vitkus had initially been unable to relate to his family because of the emotional scars from his childhood. “He was lacking in the nurturing we all got,” David Vitkus said. “He was aloof and couldn’t express his feelings.”

But David noted that Vitkus later overcame that inability to relate, and reconnected with him. The father and son then embarked on a literal search for Donald’s past, which took them to the Belchertown institution, which was then in the final process in the early 1990s of closing.

David described his father as a humble man who “was always keenly aware of the opportunities he received that others simply didn’t….I think he would want me to say one last thank you for being there for him. So thank you very much.”

Families tell legislators that work opportunity bill for the developmentally disabled is about choice

A few days ago (on June 12), Barbara Govoni and Patty Garrity took their case to Beacon Hill for passage of H. 4541, a bill that would ensure that developmentally disabled individuals get work opportunities in their community-based day programs.

Also testifying at the June 12 public hearing of the Legislature’s Children, Families, and Persons with Disabilities Committee in support of the bill was Robin Frechette, a legislative aide to Representative Brian Ashe, who had filed the bill on Govoni’s behalf.

As we noted earlier this month, time is running out in the current legislative session to pass this critically important bill. And many legislators appear to have misconceptions about the legislation.

Govoni, Garrity, and Frechette all pointed out that H. 4541 is needed to fill a gap in work activities for the developmentally disabled — a gap that opened up after all sheltered workshops were closed in Massachusetts in 2016.

We too submitted testimony, and I spoke on behalf of COFAR to the four legislators present on the panel — Senator Joan Lovely, Senate co-chair of the committee; Representative Kay Khan, House co-chair; and Representatives Carolyn Dykema and Shaunna O’Connell.

Supporters of H. 4541

Supporters of H. 4541 on June 12 following the Children and Families Committee hearing. They are (from left) Patty Garrity, Robin Frechette, Danny Morin, Barb Govoni, and John Govoni.

The bill is Govoni’s vision and was filed after she had spent months advocating for it.

“I would not be here had there been a realistic decision to incorporate a community-based support program (when the sheltered workshops were closed),” Govoni testified. That program, she said, should have included a work activity option at day program facilities across the state.

Frechette testified that not all developmentally disabled persons are able to work successfully in mainstream work environments. Garrity pointed out that her brother, Mark, is one of those DDS clients who is “not able to compete in a competitive market for a job.”

Garrity said that when Mark participated in a sheltered workshop at his same day program location in Braintree prior to the workshop’s closure, “the work would come in and Mark would get a paycheck at the end of the week that provided him with self-esteem.” That is no longer the case, and not only is Mark bored with his current day program activities, he tends to let everyone he meets know he misses the work he used to do.

It is not clear yet whether the Children and Family Committee co-chairs are in support of H. 4541. An aide to Representative Khan said on Friday (June 15) that Khan and Lovely were “having a discussion” on all bills still in the committee as formal business in the current legislative session winds down, and would make a decision this week on which bills to report favorably.

Misconceptions persist about the workshop closures

During the June 12 committee hearing, comments from some legislators implied that they may not fully understand the intent of H. 4541 or the problems that have occurred as a result of the workshop closures.

Senator Lovely said that a developmentally disabled client of a DDS provider in her district worked as an intern for her and went on to work successfully at a CVS pharmacy. Lovely added, though, in addressing Govoni, that, “We do recognize that CVS may not be a good match for you,” meaning Govoni’s son, Danny Morin.

We want the legislators to know that the promises made that people would be able to move easily from the sheltered workshops and into mainstream employment have not materialized.

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Barbara Govoni testifies during June 12 public hearing on H. 4541

As we reported in 2016, the number of participants in sheltered workshops dropped by 1,166 between August 2014 and August 2015 — a 61 percent reduction — while the workshops were being closed. In that same period, the number of developmentally disabled persons in corporate-run, community-based day programs increased by 1,116, almost the same number as the number of participants who had left the workshops.

Yet, the number of developmentally disabled people in “integrated employment” settings increased from August 2014 to 2015 by only 337, or about 6 percent.  Placing people in integrated or mainstream employment was supposed to be the reason for closing the sheltered workshops!

Studies in other states have found similar outcomes from sheltered workshop closures.

We also want the members of the Children and Families Committee to understand that while H. 4541 is intended to address that unkept promise of access to mainstream employment, the bill isn’t intended to bring the actual workshops back.

DDS providers pushed for the workshop closures

We further want the legislators to know that while the closures of the sheltered workshops in Massachusetts was a policy of the administrations of then Governor Deval Patrick and later of current Governor Charlie Baker, the closures were supported by corporate providers to the Department of Developmental Services as well. The providers stood to gain financially from the closures to the extent that the closures would mean more funding for the provider-run day programs.

We have  pointed out that organizations representing corporate DDS providers in Massachusetts co-authored at least two reports with DDS in the period leading up to and during the closures of the sheltered workshops in the state. The reports both called for the closures of the workshops and for more funding for day programs.

It seemed to us at the time, and still does, to be inappropriate for DDS to have allowed the providers to co-author a document that called for a public policy intended to ensure more funding for those same providers, particularly given that the policy was opposed by individuals and families who were benefiting from the workshops.

Misconceptions about the federal role in closing the workshops

As the then Patrick administration began closing the workshops in Massachusetts, the administration argued that the closures were mandated by the federal government and that Massachusetts had no choice but to comply with the federal order.

But the federal government was actually telling the states at the time that sheltered workshops were permissible for those who wanted to remain in them; the problem, according to the U.S. Department of Justice, was that some states were “over-relying” on the workshops. It also appears that unlike Massachusetts, many, if not most other states did not view the federal government as having issued a clear directive to close their workshops.

In remarks in late 2016, in fact, then DDS Commissioner Elin Howe stated that Massachusetts was only the fourth state in the country to have closed all of its sheltered workshops.

In comments made during the June 12 hearing of the Children and Families Committee, some of the legislators appeared to have the impression that the federal government had required the closure of all sheltered workshops around the country, and that the workshops no longer existed.

However, sheltered workshops are continuing to operate in other states, and there have been successful legislative efforts in some of those states to preserve the workshops as an option for those who desire them.

In Missouri, families mounted a successful effort last year to protect the workshops in that state, and that movement has reportedly spread to other states.  State legislators in New Jersey similarly passed legislation last year to preserve the state’s sheltered workshops.

As things currently stand, the federal government has not ordered sheltered workshops to close and has extended a deadline for removing Medicaid funding for them until 2022.

We hope the state Legislature will recognize that H. 4541 is in line with federal guidelines because it doesn’t prevent anyone who wishes to do so from seeking employment in the mainstream workforce. The bill simply ensures that work opportunities exist for those who don’t choose to participate in mainstream employment.

In the end, H. 4541 is about choice.

 

 

Mother wages uphill battle for work opportunity bill for her developmentally disabled son

June 6, 2018 3 comments

[Update: The Legislature’s Children, Families, and Persons with Disabilities Committee has scheduled a public hearing at the Statehouse on Tuesday, June 12, at 1 p.m. on H. 4541]

Barbara Govoni personally lobbied for months before a bill was finally filed in the state Legislature that would ensure that developmentally disabled individuals who are unable to function in mainstream work environments are provided with employment opportunities within their existing community-based day programs.

Govoni would now love to see H. 4541 move forward in the current legislative session. She believes it would ensure that meaningful activities are provided for her son, Danny Morin, and for many others like him.

But even though the bill has close to two dozen co-sponsors, time does not appear to be on Govoni’s side.

With the current two-year legislative session drawing to an end, a staff aide to Representative Brian Ashe, who filed the bill on Govoni’s behalf, acknowledged that the chances for passage of H. 4541 this year are slim. The bill was referred last month to the Children, Families, and Persons with Disabilities Committee.

Last September, we reported on Govoni’s efforts to reintroduce steady piecework activities in day programs for those who desire it. Danny had enjoyed the work he did in his Agawam-based sheltered workshop before that program and all other remaining workshop programs in the state were eliminated in 2016. After that, Danny was offered only day program activities in the same location, most of which he couldn’t relate to.

In recent months, Danny has been working once a week for about two hours at a time at an assembly and packaging company in Holyoke. It is a pale substitute for the steady work he enjoyed when he participated in the sheltered workshop.

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Barbara Govoni and her son Danny Morin

“People are suffering with not having enough work,” Govoni said. “This bill would have a monumental impact on the lives of these people if it were to pass.”

In addition to people such as Danny, there are many Department of Developmental Services clients who are either unable to function in mainstream work environments or are unable to work at a rate that those mainstream employers require.

H. 4541 specifies that the work program would be optional for day program participants and would allow them “an opportunity to work in a supportive employment environment which enhances productivity, safety and self-esteem.”

The work would be offered through the DDS-funded day programs for up to four hours a day. All participating individuals would receive a sub-minimum wage permissible under the federal Fair Labor Standards Act.

The Children and Families Committee had 30 days to act on the bill after it was referred there on May 21. But even if the committee were to act favorably on it within that time frame, the bill would probably still have to go through at least two additional committees including the House Ways and Means Committee before reaching the House and Senate floors.  After July 31, formal business in the current two-year legislative session comes to an end.

A staff aide to Representative Kay Khan, House chair of the Children and Families Committee, said the committee will schedule a public hearing on the bill this month. But the aide said there is only “a very low chance” that bill will reach the floor of the House prior to the July 31 deadline.

We strongly support this legislation and hope it doesn’t lose the momentum it has gained so far if, as seems likely, it has to be reintroduced when the new legislative session begins next January.

We understand the Baker administration and previous Patrick administration objected to sheltered workshops as  “segregated” settings because they offered work activities solely to groups of developmentally disabled persons.

What should make H. 4541 acceptable to people with those objections is that the employment program would be voluntary. In that sense, the bill mirrors  language that was inserted in the state budget in Fiscal Years 2015 and 2016 that stated that sheltered workshops would remain open for those who wanted to remain in them. That language, however, did not prevent the Baker administration from closing all remaining sheltered workshops in 2016.

The voluntary nature of the employment program under H. 4541 may be why the bill has garnered co-sponsors from across the state. We hope more legislators begin to realize that the closures of the sheltered workshops has caused problems for many DDS clients, and that this bill is a good first step in addressing those problems.

Even though the bill’s chances are slim in the current session, we encourage people to call the Children and Families Committee to urge them to act quickly on the measure. You can reach the office of Rep. Khan, House chair, at (617) 722-2011, and Senator Joan Lovely, Senate chair, at (617) 722-1410.

State Public Records supervisor reverses self, upholds secrecy of DPPC reports

May 23, 2018 2 comments

In a reversal of her earlier decision, the state’s Public Records Supervisor has issued a final determination that the state Disabled Persons Protection Commission can keep investigative reports about the abuse or neglect of any “identified individual” secret.

We were surprised and disappointed by the final decision by Public Records Supervisor Rebecca Murray, which was issued on April 20. It may become nearly impossible for the public to learn the outcomes of many, if not most, investigations of abuse and neglect of developmentally disabled persons as a result.

On May 16, Murray declined my request that she reconsider and restore her original March 22 order to the DPPC. That original determination had appeared to recognize at least some DPPC reports as public records.

In her final decision on April 20, Murray focused on one exemption to the Public Records Law [known as “Exemption (a)”], which appears to us to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.

Murray’s interpretation of Exemption (a), in our view, could establish a precedent under which blanket secrecy laws and regulations could be enacted on behalf of agencies throughout the state government. That would be the case even though the Public Records Law supposedly establishes a presumption that all governmental records are public and that exceptions to that rule must be considered on a case-by-case basis.

Murray’s two contradictory decisions stem from an appeal I filed in February based on my request to the DPPC for investigative records regarding the death of Karen McGowen, a client of the Department of Developmental Services.  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 DDS-funded day program in Pittsfield.

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.

DPPC HQ

DPPC headquarters in Braintree (Google Maps image)

On February 13, the DPPC denied my request for the records in the case, stating that the investigation was incomplete. But in denying the records, the DPPC’s assistant general counsel stated that even when the investigation was completed, any records the Commission had on the case would be exempt from public disclosure and that I would need permission from Ms. McGowen’s legal representative to obtain them.

The problem, as I stated, is that even if we were able to find Ms McGowen’s legal guardian, that individual, if he or she exists, would have to agree to authorize the release of the records in the case to us. That effectively nullifies these as public records.

In denying the records, the DPPC cited Exemption (a) as well as other exemptions to the Public Records Law, arguing that because I had sought records “regarding an identified individual and (because) redaction of personal data would be insufficient to protect existing privacy interests, … the responsive materials in their entirety cannot be disclosed.”

In her prior decision on March 22, Murray had determined that none of the exemptions cited by the DPPC applied in the case because the DPPC had provided no specifics to explain why it would not be possible to protect the various parties’ privacy interests through the redaction of names and other identifying material.

Murray had gone on to state that the DPPC “bears the burden to prove with specificity any exemption (to the Public Records Law) that applies.”

However, in her April 20 decision, Murray no longer noted the DPPC’s lack of specificity. She concluded, in  discussing Exemption (a), that the DPPC’s enabling statutes and regulations:

 …provide that the records of the Commission are not public records … Additionally, the regulations provide that the Executive Director, General Counsel and/or designee has the discretion to determine if records subject to disclosure should not be disclosed due to the specific nature of the request (my emphasis).

It seems to us that to the extent that Exemption (a) — or at least Murray’s interpretation of it — permits the enactment of statutes and regulations that classify all records of an agency as non-public, Exemption (a) creates a major loophole that circumvents the intent of the Public Records Law.

The absurd logic underlying the privacy argument in this case is that the supposed violation of Karen McGowen’s privacy in releasing the documents is somehow worse than revealing the actions that caused her death.

In this case, in fact, the “identified individual,” Karen McGowen, is deceased. Murray herself stated in a 2017 determination that privacy interests, other than in medical information, are “extinguished at death.” We are not seeking medical information in this case.

Moreover, we have to wonder why Murray didn’t seek to review the materials we are requesting to determine whether redactions to protect privacy interests would be possible.

As I 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.

Despite what the DPPC apparently thinks, the public has a strong interest in knowing the outcomes of the Commission’s investigations. If the Commission finds, for instance, that the wheelchair lift that Ms. McGowen used was defective, it would be important that the public know this.

If the DPPC finds that the staff of a particular facility failed to provide proper care to an individual because they lacked proper training, the public should know that too. As things currently stand, these are the types of things the public may never find out.