Governor’s FY ’21 budget encourages more privatization of DDS programs

January 30, 2020 1 comment

Continuing an ongoing pattern, Governor Baker’s proposed state budget for the coming fiscal year is far more generous to corporate provider-based programs overseen by the Department of Developmental Services (DDS) than to DDS state-run programs.

Last week, Baker unveiled his $44.6 billion state budget plan, which would provide $2.15 billion in funding to DDS-related line items.

We’ve been concerned for years that the Legislature and a succession of administrations have underfunded DDS state-run budgetary line items — a trend that only encourages further unchecked privatization of those services.

Some key details of our analysis of Baker’s proposed budget for DDS are below:

State-run program line items

A key state-run program to start with is the DDS network of state-operated group homes.

Under Governor Baker’s Fiscal 2021 budget, the state-operated group home line item would be increased by $6.4 million over the current year, which is only just above the rate of inflation. The increase would bring the state-operated group home line item to $237.8 million in Fiscal 2021.

State-run group homes provide a critical backstop of care due to their low staff turnover and relatively low per-client abuse rate. Yet, data also show the number of residents in state-operated group homes has been dropping as the administration and Legislature have targeted more funding to the much larger network of corporate provider-operated group homes. DDS also does not routinely offer state-run group homes as a residential option to individuals.

Meanwhile, the state-run developmental centers line item would be cut in the coming year, continuing the pattern over the past decade. The developmental centers also provide an important backstop of care for some of the most profoundly developmentally disabled residents of Massachusetts.

Under Baker’s Fiscal 2021 budget, the cut in the developmental centers line item would be $560,000, which would amount to an inflation-adjusted cut of almost 3%. That would drop the line item to $104.3 million in Fiscal 2021.

The DDS administration line item, which includes critically needed DDS service coordinators, would actually get a modest increase under the governor’s budget. That line item would be raised by $5.3 million over current-year funding, to $80.2 million. That would amount to an increase of 4.6% when adjusted for inflation.

But among those three state-run program line items (state-operated group homes, developmental centers, and DDS administration), the average overall increase from the current year would be less than 1% when adjusted for inflation.

Moreover, since Fiscal 2012, those three line items will have been cut by an average of about 1.3% in inflation-adjusted terms. The developmental center line item alone will have been cut by $73.5 million, or more than 40%, since Fiscal 2012.

The two charts just below illustrate the trend lines since Fiscal 2012 for key state and provider-run programs in the DDS system.

Chart on provider group home vs. developmental center funding

 

Chart on other provider vs. state-run program funding

The corporate provider line items

In contrast to the state-run programs, three key provider-based line items — corporate provider group homes, provider-run day programs, and transportation services — would be increased on average by 4% from the current fiscal year, under Baker’s budget. Since Fiscal 2012, those three line items will have been increased, on average, by almost 90%.

Baker’s Fiscal 2021 budget proposes increasing the provider group home line item by $9.5 million, to $1.287 billion. That is a relatively small increase, given the size of the line item, and actually would amount to a cut of 1.7% when adjusted for inflation. However, funding for that line item has risen dramatically since Fiscal 2012. If Baker’s budget proposal is enacted, funding for provider group homes will have increased by $407 million, or 46%, over the past 10-year period.

Meanwhile, other provider-based line items would be increased by significant amounts next year, under Baker’s budget plan.

Under the governor’s budget, the provider-run transportation line item would be increased by $3.8 million, to $33.3 million over the current year, which is more than a 10% increase when adjusted for inflation.The provider-run day program line item would be increased by $14.4 million, to $253.9 million. That would amount to a 3.5% increase over the current year.

Since Fiscal 2012, the provider-run day program line item will have been increased by 75%, and the transportation line item by 146%, if the governor’s Fiscal 2021 budget is enacted.

Chart shows some clear trends

These funding trends can be seen in the two charts above. For instance, the first chart shows the opposite directions in which funding has gone regarding provider group homes and state-run developmental centers. We’ve long expressed concerns about the closures of four of the state’s six remaining centers between 2008 and 2014.

At nearly $1.3 billion, the provider group home line item now dwarfs every other DDS line item in the budget.

Similar trends can be seen in the second chart for other provider versus state-run line items. For instance, funding for state-operated group homes peaked in Fiscal 2016 at $238.3 million, in Fiscal 2021 dollars. Baker’s proposed funding for Fiscal 2021 for state-operated homes is still less than what was appropriated by the Legislature in Fiscal 2016.

Meanwhile, funding for provider-run day programs caught up with the funding level for the state-operated group homes in Fiscal 2019 and surpassed the latter line item in the current year. Baker’s proposed Fiscal 2021 budget would continue that upward trend for the day program line item.

While the combined state-run DDS administration and service coordinator line item would get a 4.6% increase next year under Baker’s plan, the funding trend for that line item has been essentially flat after peaking in Fiscal 2016 at $77.4 million.

In contrast, the provider-run transportation line item, while dipping slightly in Fiscal 2017, has continued to rise since then.

Other DDS line items

Overall, the DDS budget would be increased by just under 0.2% under the governor’s Fiscal 2021 budget proposal. It reflects a mixed level of increases and cuts for a number of other line items that don’t fall as clearly into the state-run or provider categories, but are a combination of the two.

The Turning 22 line item would get a very small increase of under $2,000 under the governor’s budget. That would amount to an inflation-adjusted cut of 2.4%. Interestingly, Baker’s budget message touted that he has been “fully funding” Turning 22 for the past four years.  It’s not clear on how that squares with the actual budget proposal.

Respite and Family Supports would be increased under the governor’s budget by $7.8 million, or 8.4%.

The Adult Autism line item would be increased by $7.8 million, or 22.5%.

Disabled Persons Protection Commission (DPPC)

The DPPC line item is not under the DDS budget, but the DPPC performs a key role as the state’s only independent agency that investigates abuse and neglect of disabled adults. Yet this agency is chronically underfunded.

Baker’s Fiscal 2021 budget would increase the DPPC line item by a very modest $129,000, which would amount to an inflation-adjusted increase of well under 1%. Since Fiscal 2012, DPPC’s budget will have been increased by 94%; but the agency is still unable to afford more than a handful of staff to investigate abuse complaints, and must hand most of those investigations off to DDS and other line agencies to investigate.

We hope, in upcoming meetings with key legislators, to impress upon them the importance of a more equitable funding allocation between state-run and provider-run programs.

If current trends continue, state-run services will continue to wither away through declining funding and attrition, and we will end up with a fully privatized system of DDS-funded services. We are concerned that that is a prescription for a race to the bottom in care.

A newspaper’s coverage of abuse and the enactment of Nicky’s Law are steps in the right direction

January 21, 2020 2 comments

One newspaper in Massachusetts has been shining a spotlight lately on the problem of abuse and neglect of persons with developmental disabilities in the state.

Meanwhile, the state Legislature took a strong step last week in barring abusive caretakers from working for providers in the system.

Yet these two positive developments also highlight the fact that the media in Massachusetts in general and the Legislature as a whole have to do more than they have been in recognizing ongoing problems in the care of persons served by the Department of Developmental Services (DDS).

As we have long maintained, these problems have gotten steadily worse as functions and services for the developmentally disabled have been steadily privatized over the years without sufficient oversight of the corporate provider-based system.

One newspaper’s systematic coverage and one important legislative victory appear to be the exceptions to the rule, which has generally been one of benign neglect on the part of the media and Legislature.

The media exception has been The Springfield Republican, which published an in-depth report on January 10 about a DDS corporate provider, Guidewire, Inc. The newspaper revealed, among other disturbing facts, that at a Springfield group home operated by Guidewire, staff encouraged residents to fight each other and awarded prizes including money, cigarettes, marijuana and alcohol.

Perhaps not coincidentally, the article ran just a few days before the Massachusetts House unanimously approved a bill that would create a registry of caregivers found to have committed abuse or neglect. Such persons would be banned from future employment in DDS-funded facilities. The bill known as “Nicky’s Law,” which was passed by the Senate in October, is expected to be signed into law by Governor Baker within the next 10 days.

A few days before the Springfield Republican article ran, the same newspaper published a follow-up to COFAR’s blogsite report about the termination of a DDS contract with another DDS provider, the Center for Human Development, to operate two group homes in which care was found to be substandard. In that case, COFAR had first reported allegations of poor care raised by the foster mother of a resident of one of the group homes.

Last year, the Republican followed up on COFAR’s initial reporting on CHD, and ran a comprehensive article about the failure of DDS’s licensure inspection process to identify ongoing problems in the two CHD group homes.

Both the reporting by the Republican and in COFAR’s blog posts helped to spur an internal investigation of CHD by DDS. Last fall, the DDS Bureau of Public Integrity cited potential “systemic issues” across CHD group homes.

Guidewire details underscore the need for Nicky’s Law

According to the Republican. eight employees of Guidewire were fired after the “fight club” details were brought to the attention of DDS in 2011. But the employees were given the right to return to work at other DDS-funded facilities in 2018. And while Guidewire was subject to a corrective action plan and staff were retrained, no criminal charges were filed in the case.

To that extent, the Guidewire case underscores the need for Nicky’s Law, which would potentially have prevented DDS from continuing to employ those caregivers.

Persons applying for caregiver positions in the DDS system currently must undergo criminal background checks, which disclose previous convictions for abuse and other crimes in Massachusetts and other states. However, even when abuse against persons with developmental disabilities is substantiated by agencies such as the Disabled Persons Protection Commission (DPPC), it does not usually result in criminal charges. As a result, those findings of substantiated abuse are not made known to providers or other agencies seeking to hire caregivers. That’s why an abuse registry is needed in Massachusetts.

The Springfield newspaper cited COFAR’s own findings last September in which we identified Guidewire as one of the service organizations in the state with the most abuse complaints filed, substantiated and referred for criminal prosecution.

More recently, we analyzed DPPC data on a per-client basis to control for size of each provider, and found that between Fiscal 2010 and 2019, Guidewire was third highest out of 75 providers surveyed in the number of substantiated abuse cases per client. Guidewire was third as well in complaints referred per client for criminal investigation.

But abuse and poor care are problems that go far beyond one provider. COFAR analyzed the outcomes of more than 14,000 abuse complaints in the Fiscal 2010-2019 period.

Rest of the media needs to examine these issues

The Springfield Republican’s reporting shows the good things that can happen when the media shines a light on issues and activities that are causing harm. But it usually takes a commitment and cooperation among several media outlets to place these matters on the agenda of politicians and policymakers in order to bring about real change.

Unfortunately, with the exception of the Republican, the mainstream media in this state has shown little interest in systematically reporting on the serious problems that afflict the care of persons with developmental disabilities in the DDS system.

Major investigations have been undertaken of abuse of the developmentally disabled in group homes by newspapers in other states in recent years. Those reports include multi-part exposes starting in 2011 by The New York Times, in 2013 by The Hartford Courant, and in 2016 by The Chicago Tribune.

The mainstream media in Massachusetts has yet to to pay more than passing attention to the DDS system. We have also not had any success in getting a response from The Boston Globe to our concerns about currently proposed legislation that would make the state’s process of investigating abuse of the developmentally disabled far less transparent.

Children and Families Committee has yet to demonstrate a serious concern about the issues

We are also trying to persuade the state attorney general and the Legislature’s Children, Families, and Persons with Disabilities Committee to begin seriously looking at these issues. While we applaud the role played by the Children and Families Committee in getting Nicky’s Law enacted, the committee has yet to demonstrate a sustained commitment to examining and addressing the problems within the DDS system.

In 2018, the Children and Families committee held two informational hearings on abuse and neglect in the DDS system. But members of the general public were not permitted to present verbal testimony at either hearing, and the committee never followed up on those hearings with a report. It’s not clear what, if any, the purpose of those hearings was.

In the final analysis, media attention and the attention of legislators and policymakers are linked. Legislators, in particular, are not likely to act to address society’s problems if the media isn’t focusing on those problems. It seems we’ve entered an age in which the media’s attention is more fractured than ever before.

The enactment of Nicky’s Law is one example of a piece of legislation that the media did get behind. Yet, the enactment of that law is just a first step in what needs to be a comprehensive reform of the system.

Every now and then, a media outlet like The Springfield Republican gives us hope that there still are journalists out there who will go further than reporting on one bill and will examine the issues underlying the legislation.

Once the media focus is there, we think legislators and policymakers will act more systematically on issues of concern to those people they are supposed to protect — the most vulnerable people in society.

 

 

A disability abuse investigation agency bill has two words in it that could authorize the agency to seal all its investigative records

January 15, 2020 Leave a comment

We are expressing concern over two words in a bill concerning the state Disabled Persons Protection Commission (DPPC) that could authorize the agency to seal all of its investigative records regarding abuse of persons with disabilities in Massachusetts.

In an email we sent this week to state Representative Aaron Michlewitz, chair of the House Ways and Means Committee, and other key lawmakers, we pointed out the potential problem inherent in the language of Section 17 of what is now H.4231. The bill section would change the DPPC’s enabling statute to state that “all confidential information” in the DPPC’s possession shall not be a public record.

The DPPC is the state’s only independent agency charged with investigating allegations of abuse and neglect of adults under the age of 60 with developmental and other disabilities. The DPPC has jurisdiction over a wide range of investigations done by its own staff and the staff of a variety of other agencies.

Those are the two problematic words in Section 17 of H.4231: “confidential information.”

We have no objection to a separate portion of the same sentence in the section stating that “all personally identifying information” shall not be public. But the “confidential information” phrase is poorly defined and so overly broad that we think it would give DPPC the discretion to label virtually anything it wants as confidential and therefore secret.

We are asking people to call the House Ways and Means Committee at (617) 722-2990, and simply urge them to take the words “confidential information” out of Section 17 of H.4231.

As we understand it, Section 17 was recently reworded by the Children, Families, and Persons with Disabilities Committee to respond to concerns we raised last year that the section would potentially make most of the records of the DPPC non-public. The reworded language would be fine with us if the House Ways and Means Committee would simply take out those two words.

Here’s our reasoning for this, in a nutshell:

Right now, DPPC’s enabling statute (M.G.L. Chapter 19C) simply says that the Commission should “…disclose as little personally identifiable information as possible.” There is no reference in the enabling statute to “confidential information.” The enabling statute, moreover, invites the presumption that the agency’s records overall are public. Nowhere does the enabling statute state that the DPPC’s records, in general, are not public.

The DPPC’s regulations, however, do refer to “confidential information,” and define it as including “personal data” and “any and all notes, papers, documents or other investigative materials, including but not limited to interview summaries, collected or compiled by personnel duly authorized by the Commission during the course of an investigation.”

This DPPC regulation (118 CMR 9.03) also specifically states that: “The records of the Commission shall not be considered ‘public records'” (my emphasis).

So, there are at least two inconsistencies between the DPPC’s regulations and its enabling statute, and it would seem that what DPPC is trying to do is make its enabling statute consistent with its regulations in stating at anything that it considers “confidential” is not a public record. As we’ve said before, though, this is a bad direction for DPPC to go. It should change its regulations to be consistent with its enabling statute, not the other way around.

It would seem that what DPPC wants to do is to be able to say that all investigative materials of any kind are potentially confidential and therefore not public records. That is bad news for the public’s right to know.

We actually don’t think Section 17, as a whole, of H.4231 is necessary for reasons I’ll get to below. But, as noted, what we are recommending is that, at the very least, the House Ways and Means Committee remove the words “confidential information” from the section.

Our argument with respect to Section 17 and to DPPC’s secrecy regarding its records in general has always been about the public’s right to know. Complaint-specific information can be a key window into the nature of problems of abuse and neglect in the care of persons with disabilities and in how the state deals with those problems.

Section 17 isn’t necessary

As noted, we don’t think Section 17, as a whole, of H.4231 is needed. The DPPC’s enabling statute, as currently written, gives DPPC the discretion to block “personally identifiable” information, and so does the state’s Public Records Law itself.

The Public Records Law (M.G.L. Chapter 4, Section 7, Clause 26) specifically exempts from disclosure  “data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Public Records Law further exempts “investigatory materials…the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”

The Public Records Law presumes state agency records are public

As the Secretary of the Commonwealth has opined, the state’s Public Records Law presumes all state agencies’ records are public unless a specific exemption in the Public Records Law applies to those records. The first exemption listed in the Public Records Law, known as “exemption (a),” is the enactment of another statute that exempts records of any kind from disclosure.

If Section 17 of H.4231 is enacted as currently drafted, it would change the DPPC’s enabling statute to specifically prevent the disclosure of any material deemed “confidential.” As a result, if any member of the public were to ask for any information that DPPC considered confidential, DPPC could invoke Exemption (a) of the Public Records Law without having to demonstrate that the information was personally identifiable or that it would prejudice effective law enforcement.

DPPC could simply refer to the vague “confidential information” phrase in its enabling statute, and the agency could forever seal those records from public disclosure. The state Public Records Supervisor’s hands would be tied in those cases if anyone were to file an appeal of the denial of the records by DPPC.

So, once again, we believe the potential problem we have described can be avoided by the simple removal of the words “confidential information” from Section 17 of H.4231.  We hope the House Ways and Means Committee does that, or, better yet, removes Section 17 altogether.

DDS terminates contract with provider to operate two problematic group homes

January 7, 2020 7 comments

The state Department of Developmental Services (DDS) has terminated a contract with a corporate provider to run two problematic group homes in East Longmeadow for persons with developmental disabilities.

The contract termination with the Springfield-based Center for Human Development (CHD) was confirmed to COFAR on Monday (January 6) by the provider.

The DDS action, which appears to be relatively unusual for the department, came after Mary Phaneuf, the foster mother of a resident of one of the group homes, alleged poor care in her son’s residence. She said she was told by DDS that due to the contract termination, her son, Timothy Cheeks, and other residents in his home will have to move this month to another residence operated by another provider in Longmeadow.

Starting in 2018, Phaneuf alleged a lack of proper medical care for Tim, including no documented visits to a primary care physician or dentist for seven years. She also said there were no documented visits to a cardiologist for six years despite Tim’s having been born with a congenital heart defect.

Phaneuf’s allegations led to DDS investigations last year, which found “potential systemic issues” throughout CHD’s residences, according to a DDS summary document obtained by COFAR. Her allegations also led to the adoption of new management policies by CHD.

Mary Phaneuf and Tim Cheeks2

Tim Cheeks with his foster sister Nicole Phaneuf Sweeney

COFAR’s blog posts in July and in August concerning Phaneuf’s allegations, and coverage by The Springfield Republican, led to the DDS investigation of the provider.

No comment yet from DDS

As of today (January 7), DDS had not responded to an email from COFAR on December 18 seeking comment on the status of CHD’s contract to operate the residences or the results of its investigations.  In the same email, which was addressed to DDS Commissioner Jane Ryder, COFAR also requested completed reports and action plans in the case, under the state’s Public Records Law. 

As required by the Public Records Law, DDS did respond on January 3 to the public records request in COFAR’s email, saying that the department expected to produce the requested documents by January 10.

COFAR also sought comment on December 18 from CHD. In an email in response on January 3, Ben Craft, vice president of community engagement for CHD, stated the following:

CHD is fully engaged in comprehensive changes in policy and operations to return and sustain the quality of our DDS services to the high standards that we have upheld across our organization for nearly fifty years. Substantial implementation of these improvements has already occurred, and that work continues.

CHD will continue to work hand in hand with DDS to help ensure that our system of care for people with disabilities is meeting their needs while at the same time empowering them to live with the highest degree of independence possible. CHD will actively participate in continuing dialogue with DDS and other state partners about opportunities to improve public-private partnership in service delivery and policy.

Regarding the continuing operation of the two residences, Craft said in the email that CHD, which owns one of the two homes in question, had entered into a lease arrangement for that residence with the new provider, Mental Health Association, Inc. (MHA), “to ensure a smooth transition as MHA prepares homes to accept individuals now being served by MHA.” MHA is also based in Springfield.

Phaneuf said she was told the lease is temporary and that is why her son and the other residents of his home will have to move later this month to an MHA-run group home in Longmeadow. Phaneuf said she was told that two CHD employees from the original house would transfer to her son’s new residence, but would be employed by MHA.

DDS found “potential systemic issues” with CHD

In December, Phaneuf forwarded to COFAR an untitled and undated summary document from DDS about the investigations by its licensure office and its financial investigation unit of CHD. The DDS summary document appears to contradict previous statements by CHD that the problems Phaneuf raised were largely the result of mismanagement by a single staff member – a former house manger of Tim’s group home.

The summary of the review by the DDS Bureau of Program Integrity, which appears to date from September, specifically stated that:

While some of the issues (raised by Phaneuf) can be attributed to the former house manager, the lack of oversight and control procedures are indicators of potential systemic issues across CHD homes.

The DDS summary document also cited a “significant volume of missing and erroneous records provided by CHD” for DDS’s review, and recommended that a full audit of client funds records for all of CHD’s DDS-funded group homes be done by an external agency or firm. The document also said that the “complete independent audit” should cover a two-year period.

In addition, the DDS document stated that while there was no direct evidence of fraud by CHD, the agency must provide complete restitution of the personal funds “for which they cannot provide validation of appropriate expenditure.”

The DDS document also cited a failure by the former house manager to maintain financial transaction  records, and a lack of communication between the corporate business office and house manager around financial transactions.

CHD did not fully implement new policies

According to the DDS document, a review by the DDS Office of Quality Enhancement, the department’s provider licensure unit, found that as of September, CHD had not fully implemented new policies, oversight, or checks and balances that were adopted in January. The OQE recommended that CHD “improve its service delivery, with a focus on training and supervision of staff, healthcare coordination, and management of individuals’ benefits and personal spending money.”

The OQE also noted in the summary document that:

  • Despite heightened focus over past 7 months, some individuals’ medical needs were still not being met.
  • CHD’s Social Security representative payee and funds management procedures needed to be “thoroughly examined and modified.”
  • Promising oversight mechanisms such as quality assurance audits had not been fully implemented.
  • CHD needed to ensure that staff in key management and supervisory positions in Tim’s and the second CHD group home were “thoroughly knowledgeable of DDS regulations, policies, and licensing standards.”

Tim’s weight gain and subsequent medical diagnosis not reported

In August, in the wake of COFAR’s blog posts about the case, CHD announced that it had adopted a series of new policies to better manage and track care in its group homes, including a system to automatically inform family members and guardians of medical appointments and their outcomes. That new family information system was scheduled to be implemented in that same month, according to CHD.

However, Phaneuf said that in September, she noticed Tim had gained a considerable amount of weight in a short period. She said she met with Tim’s primary care doctor on September 10th and learned only then that in late July, Tim had been found to have gained 20 pounds and that medical lab tests had been ordered.

In an email sent to CHD officials on September 11, Phaneuf said the doctor told her the lab tests showed Tim was prediabetic and had hypothyroidism, and that he needed to be placed on a low-carbohydrate diet with daily exercise immediately. “I was not aware of any of this (prior to speaking to Tim’s doctor),” Phaneuf said.

Phaneuf said that after she contacted DDS and CHD about the situation, CHD failed to provide her with an outline of a proposed  food or exercise plan. And at Tim’s Individual Support Plan (ISP) meeting in October, Phaneuf said she was informed that as of that date, no trainings had been scheduled for the staff regarding a low-carb diet or exercise plan for Tim.  

Phaneuf said that while CHD said it would pay for Tim to see a nutritionist  since his insurance would not cover one, Tim does not have the cognitive ability to adequately process nutritional counseling nor does he have control over his own food. CHD shops, cooks and serves food to Tim, she said.

In his January 3 email, Craft said that CHD could not comment “on specifics of individuals’ medical care.” His email added that, “however, CHD program and leadership staff have maintained regular communication with family members and guardians about medical care, and CHD has done everything possible to ensure all individuals’ health needs are met.”

Phaneuf never received written notice from DDS of the pending closure 

Phaneuf said that in December, she was informed verbally by a DDS official of the termination of the CHD contract for Tim’s group home and the need for him to move to another residence. She said that as of Monday (January 6), she still had not received a written notice from DDS about either of those developments.

CHD a “large, multifaceted organization”

According to its online 2017 DDS licensure report, CHD is “a large, multifaceted organization” that “continues to maintain services throughout western Massachusetts as well as Connecticut.”

As of the start of the current fiscal year, CHD operated 23 DDS-funded group homes in Massachusetts, serving 76 clients, according to data from DDS.

CHD’s most recent online fiscal report to the state, which was for Fiscal 2018, showed that CHD received total operating revenues of $98.4 million primarily from a variety of state agencies, including $9.7 million from DDS.

Questions remain

While the contract termination action by DDS is welcome, it still raises a number of questions, including why the department’s provider licensure system itself did not identify the problems.

Little or nothing was initially done by DDS in response to Phaneuf’s concerns, and no investigations occurred until after COFAR posted about the case last July and there was subsequent coverage about it in The Springfield Republican.

COFAR has never gotten an answer from DDS as to why the normal DDS licensure review of CHD in 2017 did not flag any of the issues that Phaneuf subsequently raised. DDS, as ususal, appears to have reverted to its usual mode of not commenting or issuing any information in response to our queries that isn’t specifically required under the Public Records Law.

As we’ve said many times before, the problems finally identified regarding CHD are not unique to this one provider, but appear to be systematic across the entire DDS provider network. Over the past year, we have met with key lawmakers and with several state agencies, including the offices of the attorney general, inspector general, and state auditor to suggest the need for a comprehensive investigation of the DDS group home system.

A tribute to Tom Doherty and to the Wrentham Developmental Center

December 25, 2019 Leave a comment

(Note: We are reprinting a recent letter to Department of Developmental Services Commissioner Jane Ryder from Mary Ann Ulevich, a cousin and sole guardian of Thomas Doherty. Tom, who was a resident of the Wrentham Developmental Center, died on October 24 at the age of 68.

Mary Ann is a COFAR member and a member of the Wrentham Board of Trustees and of the Wrentham Family Association.)

November 15, 2019

Jane F. Ryder, Commissioner
Department of Developmental Services
500 Harrison Avenue
Boston, MA 02118

Dear Commissioner Ryder,

Thank you for your letter of condolence following the death last month of my cousin Thomas Doherty, for whom I was guardian, at Wrentham Developmental Center.

I want you to know how pleased I, and Tom’s family, have been with Tom’s care throughout his more than 46 years as a client of DDS. When Tom returned home to Woburn, MA, from more than 10 years at Devereux Center in Pennsylvania, he was placed at Templeton Developmental Center (then part of Fernald Center). He enjoyed frequent visits with his parents in Woburn, and thrived in the Templeton community.

Following his mother’s death in 1997, I was named co-guardian with his aunt. Since 1998, I have been his sole guardian. When Templeton was closing in 2011, I had the daunting task of deciding upon an alternate placement for him. Recognizing that he had been in care facilities for almost 40 years and was thriving and happy, and in consultation with DDS staff, I decided to place Tommy at Wrentham Developmental Center. I believe this decision honored his mother’s wishes for him to be cared for, challenged to develop his many talents, and to be safe in his home and community.

Mary Ann Ulevich and Tom Doherty

Mary Ann Ulevich and Tom Doherty

The Wrentham staff welcomed Tom in December 2011. His transition was smooth, thanks to the sensitive, professional care extended him and to me, his guardian. Tom lived with six other residents in Oak Grove 1 cottage on the grounds of Wrentham, where he had his own room, enjoyed listening to his Beatles, Lennon Sisters and other much loved record albums.

He watched General Hospital, westerns, and the Red Sox on TV. Tom worked Monday through Friday in the dining room, enjoyed group activities including shopping trips to Patriots Place, eating out at local restaurants, and outings to ball games (including two trips to Spring Training), visits to Cape Cod, apple picking and local fairs. The folks at the town bank, drugstore, and coffee shops knew him by name and mourned his death, along with the WDC community of residents and staff. He loved getting mail, especially if pictures of family were enclosed.

Tom delighted in seeing cousins, however distant, and his affection for them was disarming. His memories of his parents and family were filled with happiness. Tommy’s pleasures were simple…the Red Sox, the Beatles, his family picture albums, a good day at work, coffee, a cigar now and then, and his time with friends and staff.

Tom died last month of esophageal cancer. His care at WDC was outstanding. His diagnosis was made at Dana Farber, and treatment was coordinated with the talented medical staff at WDC. More than once, medical staff at Dana Farber commented on how well Tom was physically cared for at WDC and how professional the WDC medical team was in working with them.

I and WDC caregivers accompanied Tom to his medical appointments, and I too can attest to the professional and compassionate care that flowed naturally from this outstanding WDC staff. Tom’s WDC social worker provided consistent support for all of us – Tom, the WDC staff, the hospice team, and family. Tom’s wish to remain in his home, with his friends and staff, was gracefully accommodated with a beautiful team effort. His final weeks saw him celebrated with music, a trip to Fenway Park, and a party in his honor attended by scores of friends. In his last days, he was visited by employees of every department at WDC, by retired employees, and members of the community.

Tom’s funeral, held at WDC with a funeral Mass celebrated by the local church pastor, was a testament to the caregivers/staff at WDC. Together with family, the staff and residents planned and participated in every detail, down to the last song, Let it Be. Yes, Tom was loved by his family, but he was cherished by those who lived and worked at Wrentham. His funeral was attended by more than 120 mourners, prompting my brother to ask me, “Who are these people?”  The vast majority were the loving, compassionate folks who work at WDC.

I could go on. But I just want you to know how proud you can be of the work carried out at WDC. I know that the philosophy of care for those with intellectual disability is to provide support to remain in their community with their families, with guidance and services.  I fully support this contemporary approach, but acknowledge that there are many who because of their history and challenges, and/or because of the progression of their needs combined with diminished family and community resources, can and do thrive in facility-based care.

Our experience affirms the quality of life that is possible in a facility like WDC. And it was made possible by the community that is WDC – its staff. I could list countless staff providing extraordinary, creative care under the leadership of the director, Judi Lydon-Ruby. Every department, from administration through maintenance and medical teams and social services and contracted services and direct care staff and volunteers, has as their focus the care and safety of the vulnerable people entrusted to them. Their compassion, longevity, and commitment affirm the accumulated wealth of experience that defines the care at WDC.

On behalf of Tom and our family, I thank you and the exemplary staff at Wrentham for ensuring Tom’s rich and rewarding life.

Sincerely yours,

Mary Ann Ulevich

Per-client abuse data demonstrate relative safety of state-run residential facilities

December 9, 2019 1 comment

A new per-client analysis by COFAR of abuse data from the state shows that state-run residential facilities for persons with intellectual and developmental disabilities have had below-average substantiated abuse allegation rates and referrals for criminal investigations among providers in Massachusetts.

COFAR first reported in September on our ranking of residential service providers based on raw data from the Disabled Persons Protection Commission (DPPC). That data concerned more than 14,000 allegations of abuse of persons with intellectual and other developmental disabilities.

Since then, we received information from the Department of Developmental Services (DDS) on the number of clients served in both state-run and corporate provider-run group homes and other facilities.

As a result, we have analyzed the DPPC data on a per-client basis. We’ve also combined total abuse data for those providers operating in more than one region of the state.

The per-client data corrects for larger providers, including the regional system of state-operated group homes. The state-operated residences in total serve more clients than any individual corporate DDS provider.

The data show that the total network of state-operated homes, with 1,118 clients, had more abuse allegations in total than other individual providers between Fiscal 2010 and 2019. But on a per-client basis, the state-operated homes dropped down the list of providers, and were well below average in terms of both substantiated allegations and criminal referrals between Fiscal 2010 and 2019.

Also, the Wrentham and Hogan developmental centers were at or near the bottom of the list of total providers in every measure except for number of clients. In Fiscal 2018, both developmental centers still had well above the average number of clients among providers.

Wrentham and Hogan are the state’s only two remaining developmental centers that meet federal standards for Intermediate Care Facility (ICF) services.

The chart below lists our rankings of the top 10 and bottom 10 providers in terms of numbers of substantiated abuse allegations per client and referrals for criminal investigation per client from Fiscal Years 2010 through 2019.  State-run facilities are highlighted to show their relative placements on the list.

(Complete results of our findings can be found in spreadsheets at this link: DPPC abuse data per client FY 10 to FY 19 sorted.)

 

Total subst. complaints and DA referrals per client chart

These findings are in line with our reporting that state-run residential centers and group homes tend to employ staff with higher levels of training and lower rates of turnover than do corporate-run facilities.

Despite that safety record, the Baker administration and administrations prior to it, have reduced funding for state-run facilities in the DDS system, and boosted funding for corporate, provider-run residences.

In addition, DDS routinely fails to offer state-operated homes as an option for people waiting for residential care, and instead directs those people only to openings in the privatized residences.  As a result, those facilities are slowly dying by attrition.

Ranking by number of residential clients

In COFAR’s latest analysis, we re-examined data from DPPC concerning 79 residential providers, 75 for which DDS provided data on the number of clients served. The total providers analyzed included the Wrentham and Hogan Centers.

The total number of clients served in all residential facilities for which DDS provided data was 8,218 in Fiscal 2018.  (Fiscal 2018 was the middle year in the range of years of client data provided by DDS, which was from Fiscal 2016 to 2020.)

As noted, DDS state-operated group homes, combined from all regions of the state, had a total of 1,118 clients in Fiscal 2018, according to DDS records. That is nearly three times the size of the next largest provider, Seven Hills, which had 397 clients.

The total number of clients in provider-run group homes in Fiscal 2018 was 6,692, according to the DDS data. (Data were not analyzed for providers that had relatively few clients.)

At 272 residents and 136 residents respectively, the Wrentham and Hogan Centers had well above the average number of 92.9 residents served by individual corporate providers in Fiscal 2018.

Ranking by number of abuse allegations 

As noted, the entire network of state-operated group homes had the highest number of abuse complaints among providers from Fiscal 2010 through 2019, according to DPPC data.

There were a total of 2,045 complaints involving the state-operated group homes, which was nearly three times higher than for the individual provider with the next largest number of complaints, Vinfen.  But that would normally be expected given the state-operated network is so much larger than any single provider.

The total number of complaints among all residential providers was 14,088 in the period reviewed. The average number of complaints per provider was 178.

Ranking by number of substantiated abuse allegations per client 

When ranked by total allegations of abuse per client substantiated after investigations either by DPPC or DDS, the state-operated group home network fell to 48th on the list, with a per-client substantiation rate of 0.07. That was well below the average rate among providers of 0.13 substantiated abuse allegations per client.

The Hogan and Wrentham Centers were ranked 71 and 72, with rates of 0.01 and 0.00 substantiated abuse allegations per client respectively.

The Judge Rotenberg Center rose to No. 1 on the list, with a rate of 0.55 substantiated allegations per client.

The average rate among providers of substantiated abuse per client was 0.13. (See chart above.)

Ranking by number of allegations per client referred to DA’s

When ranked by the number of allegations referred per client to district attorneys for criminal investigation,  the DDS state-operated group home system fell even further, to a ranking of 50 out of the 75 providers.

The state-operated group home referral rate was 0.12 allegations per client, well below the average among all providers of 0.21 referrals per client.

The Hogan Center was ranked 70th at 0.03 referrals per client, while the Wrentham Center was ranked 75th, at 0.00 referrals.  That was the lowest among providers for which per-client data were available.

The Judge Rotenberg Center stayed at the top of the list, with a rate of 1.5 criminal investigation referrals per client.  That was more than double the provider with the second highest ranking — Becket Family of Services.

Continuing need for transparency

As we’ve said before, we think this type of provider-based data should be made easily available and accessible online by DDS and DPPC. We have continued to urge the Legislature’s Children, Families, and Persons with Disabilities Committee to approve a bill (H.93), which would require DDS to post online information about provider-based abuse data and performance.

We are urging people to call the Children and Families Committee at (617) 722-2011 (for Rep. Kay Khan, House chair) and (617) 722-1673 (for Senator Sonia Chang-Diaz, Senate chair), and ask the committee to vote favorably on the bill.

We also hope that this data will underscore the need for state legislators to recognize the importance of state-run residential care for persons with intellectual and developmental disabilities.

The state-run residential facilities provide an essential backstop of care for persons who are subject to abuse or are simply not able to cope in the corporate-run group home system. Families and guardians should be routinely informed about state-run care as an option, and should certainly not be forced to fight DDS in order to get that option.

When it comes to investigating abuse of the developmentally disabled, it all appears to go around and around

November 25, 2019 2 comments

Charles Dickens named his ultimate bureaucratic agency the Circumlocution Office because the public’s business just got passed around in circles in the department.

At least some of that appears to be going on among state agencies when it comes to investigating abuse of persons with developmental disabilities in Massachusetts, according to a review of public records of three state agencies by COFAR.

It appears to be the case with all forms of abuse that the referral and investigation process starts and ends with the Department of Developmental Services (DDS).

In fact, one of the agencies involved – the Executive Office of Elder Affairs (EOEA) –  referred 25 years ago to the process of investigating abuse involving DDS and Department of Mental Health clients as “circuitous,” and stated that attempts to change it through legislation had not been successful in the previous two years. That memo, which we recently received from EOEA, was written in 1994.

COFAR requested and reviewed data and other information on investigations from DDS, the Disabled Persons Protection Commission (DPPC), and EOEA of financial and other types of abuse. We requested the information from each agency under the state’s Public Records Law.

How the circular process appears to work

The circularity appears to start with the fact that DDS is required by state regulations to report all abuse allegations to DPPC, the state’s only independent agency for investigating abuse of disabled adults. But DPPC lacks jurisdiction to investigate financial abuse, in particular, according to the agency’s assistant general counsel, so it refers those cases back to DDS to investigate.

DPPC also lacks jurisdiction to investigate abuse of the elderly, so it refers allegations of all types of abuse involving persons over the age of 59 to EOEA. But EOEA then also refers those same allegations to DDS to investigate if they involve persons living in DDS facilities, according to EOEA officials we talked to and to the 25-year-old memo.

In the May 6, 1994 memo, then Secretary of Elder Affairs Franklin Olivierre stated that under a then newly effective policy, EOEA would send all abuse allegations referred to it from DPPC to EOEA’s “protective service agencies” for investigation. However, if an allegation involved anyone living in either a DDS or DMH-funded residence, the protective service agencies were advised to contact either DDS or DMH, and, in either case, to “screen out” the allegation, meaning not to investigate it themselves.

“Although both Elder Affairs and DPPC recognize that this system is circuitous, attempts to change the statute through legislation have not been successful in the past two years,” Olivierre wrote.

A bill filed by DPPC at that time would have allowed the DPPC to investigate all reports of abuse of persons in DDS and DMH facilities. That bill never passed, and the circuitous referral process continues to exist to this day.

In other words, while abuse of the developmentally disabled largely occurs in DDS-funded facilities, it is DDS that ultimately ends up investigating most of the cases.

Our diagram below depicts the circular flow of referrals of abuse allegations involving victims with developmental disabilities, according to the records we reviewed.

Abuse referrak flow chart3

Beyond the apparent conflict of interest that DDS has in investigating fraud in its own funded and managed programs, it isn’t clear that DDS has the resources to adequately investigate those cases and all of the other forms of abuse that get referred to it.

No centralized record keeping or tracking

It’s not easy to track the circularity of the abuse referral and investigation process because there appears to be no central record keeping or tracking system for abuse complaints and investigations, whether financial or other forms of abuse. Each agency keeps some of the records regarding the abuse investigation process, but no agency appears to have them all.

For instance, while DDS, as noted, is required to refer all abuse allegations it receives to  DPPC, that latter agency tracks the outcomes of investigations only of those allegations that fall under its jurisdiction.

If DPPC receives an allegation of abuse involving a victim with an intellectual disability 60 years old or older, or receives any allegation involving financial abuse, the agency keeps records of the referral of those cases, but not the outcomes.

DDS has two investigative divisions, only one of which even keeps records on the number of abuse allegations reported to it or referred by it to DPPC, according to a response we received from DDS to a Public Records Request.

EOEA, meanwhile, has no records on the number of abuse allegations it receives involving people with intellectual or developmental disabilities, according to a response from an official in that agency regarding a Public Records Request.

Also, EOEA only began keeping records on the number of abuse cases referred to it by DPPC in Fiscal 2018. Similarly, EOEA only began keeping records in Fiscal 2018 on the number of cases it refers to DDS.

DDS, for its part, said it has no records on cases referred to it by EOEA. 

Tracking financial abuse referrals

Within DDS, it appears there are two separate divisions or units that are concerned with  abuse issues – the Investigation Division, which was established in 1993, and the Bureau of Program Integrity (BPI), which was established in 2018.

According to DDS records, the Investigation Division has a staff of 33, including 26 full-time staff investigators.

The DDS BPI only has 3 people on its staff — a director of internal controls, a senior manager, and a risk analyst. The purpose of the BPI is to support the Investigation Division in its financial abuse investigations, develop internal control procedures for DDS, manage a “DDS Theft and Fraud Hotline,” and related matters.

In response to a Public Records Request that we filed specifically seeking data on financial abuse from Fiscal 2016 to the present, DDS informed us that the department does not keep records on the number of financial abuse allegations received by the Investigation Division. The reason given was that all of those allegations must be reported to the DPPC.

However, DDS does apparently keep those records regarding the BPI. DDS stated that the BPI, which is also required to report all allegations to DPPC, received 62 complaints of financial fraud either directly or via its Fraud Hotline since the BPI was established in Fiscal 2018.

DDS did not explain that apparent inconsistency in record-keeping between the Investigation Division and the BPI.

According to DPPC’s own records, from Fiscal 2016 through 2019, DPPC received 1,172 allegations of financial abuse involving DDS clients. It appears that many, if not most, of those allegations were referred to DPPC either by DDS, DDS-funded facilities, the DDS Investigation Division, or the BPI (after the start of Fiscal 2018).

Between Fiscal 2016 and 2019, DPPC, due to its lack of jurisdiction, reported that it referred 895, or 76%, of those 1,172 financial abuse allegations back to DDS to investigate. DPPC also referred an additional 261, or 22%, of the financial abuse allegations it received to EOEA.

EOEA then appears to have referred those 261 allegations back to DDS as well, although we were not able to verify that number through any of the three agencies’ records.

In any case, it would appear that in cases of financial abuse of elderly persons in DDS facilities, those cases are first routinely referred by DDS to DPPC, which then refers them to EOEA, which then refers them back to DDS.

Text for abuse referral blog post6

Low level of completed financial abuse investigations

Although DDS did not have records on the number of allegations referred to or received by the Investigation Division, DDS did state that the Division “completed” a total of 96 investigations of allegations of “financial misconduct” referred by DPPC to DDS from Fiscal Year 2016 to the date of COFAR’s Public Records Request in September 2019.

It was not clear why DDS would have records of the number of referred investigations that the Investigation Division completed, but would not have records of the number of cases referred by DPPC to the Investigation Division. Given the staffing of each of the two DDS investigative divisions, it would appear that the Investigation Division would or should have investigated most, if not all, of the 895 referrals.

If the DDS Investigation Division completed a total of only 96 out of 895 financial fraud investigations referred to it by DPPC in that 4-year period, that would amount to a completion rate of only about 11% of the cases. DDS substantiated a total of 12 of those 96 allegations.

EOEA and DPPC records may not line up 

Of the 1,172 financial abuse allegations it received from Fiscal 2016 through 2019, DPPC referred 261 of them, as noted, to EOEA, according to DPPC’s response to our Public Records Request. Given that those cases all involved DDS clients, it would appear that EOEA, according to its 25-year-old policy, would or should have referred all of those cases to DDS.

It was actually not possible for us to verify, based on DDS and EOEA records, that all of those 261 cases referred by DPPC to EOEA were, in fact, subsequently referred by EOEA to DDS.

As noted, DDS said it has no records of the number of abuse cases referred to it by EOEA. EOEA, as noted, only began tracking the number of cases referred to DDS in Fiscal 2018.

In fact, DPPC’s and EOEA’s records don’t appear to line up in that respect. EOEA responded to us that in Fiscal 2018, it referred zero abuse cases to DDS. However, according to DPPC’s records, DPPC referred 42 allegations of financial abuse involving DDS clients to EOEA in Fiscal 2018. According to EOEA’s policy, it should have referred those 42 cases to DDS that year.

The solution to the circular referral process lies with DPPC

Our recommended solution to the overall referral and investigation problem is to revive and enact the legislation that DPPC proposed 25 years ago.  DPPC should have the resources and authority needed to investigate all forms of abuse of the developmentally disabled, including persons over 60 years of age.

Right now, the investigative process involving abuse and neglect of persons with developmental disabilities is split among at least three agencies. It is a circuitous system rife with potential conflicts of interest and one in which record-keeping and apparently cooperation in undertaking investigations among the agencies is dispersed and spotty.

We plan to share these findings and our recommendation with the Legislature’s Children, Families, and Persons with Disabilities Committee. The current abuse investigation and referral system appears to be set up for failure and needs to be reformed.