Advocating for her daughter’s care got a woman banned from DDS-funded group home; and her daughter got an eviction notice

April 24, 2018 1 comment

When Susan Fernstrom got her developmentally disabled daughter, Holly Harrison, into a group home in Danvers in June of 2015, she thought it would lessen some of the growing burden on her of caring for members of her family.

Susan’s husband, Patrick, was terminally ill with a brain tumor and needed his own intensive care. He died in December of that year.

Holly, who is now 39, had been born with Galactosemia, a rare genetic disorder, that causes intellectual disability and other complications, including coordination issues, and requires a controlled diet.

The group home is run by Toward Independent Living and Learning, Inc. (TILL), a corporate, nonprofit provider funded by the Department of Developmental Services. The residence was brand new and beautiful, and centrally located in the downtown in Danvers, near the mall.

But almost immediately, Susan became concerned when she realized there were no meal plans for any of the five women in the house. Two of the women are diabetics, and, like Holly, require special diets.

Susan and Patrick Fernstrom

Susan Fernstrom and her late husband, Patrick.  They arranged for their daughter, Holly’s, admission to the TILL-operated group home six months before Patrick died.

Beyond that, Holly wasn’t getting fed regularly. She was not fed or given water for up to nine hours at a time, Susan said. On many occasions, the staff forgot to give her lunch, particularly on weekends. In one instance, Holly was given a sandwich by the staff to eat that contained uncooked bacon.

The home wasn’t kept clean. There was clutter left outside Holly’s bedroom door and mold on the bathroom shower curtain and on the floor of the shower. “The bathroom was often filthy,” Susan said. “The staff would clean it when they knew investigators were coming, mostly due to complaints from me,” she said. Raw meat was often left in the sink.

In addition to the mold and clutter, it took months to hook up a shower curtain rod to the bathroom wall.

There was only one working light in the basement even though that was an area set aside for storage of extra clothing for Holly, which Susan frequently had to retrieve. Also, there was furniture and a large carpet roll placed in way of the clothing bins.

But when Susan raised these issues, she never anticipated the push-back she would receive, not only from the staff, but from Dafna Krouk-Gordon, the president of TILL. As of last August, Susan found herself banned under a written directive from TILL from entering the group home and therefore from being able to check directly on the care there.

We believe that ban violates DDS regulations, which give DDS clients the right to receive visitors, and which specifically state that family members and guardians shall be permitted private visits “to the maximum extent possible.”

The regulations add that clients and their family members and guardians must be allowed to meet “under circumstances that are conducive to friendships and relationships,” and that the location must be suitable “to confer on a confidential basis.”

However, under the ban imposed by TILL, Susan has been required to wait outside the house to meet with Holly, even in the dead of winter. She said the situation has made her feel “humiliated and like a criminal.”

Then, on March 20, Krouk-Gordon notified Susan in writing that her daughter would have to move out of the residence as of the end of April. The written notice did not accuse Susan or Holly of causing any disruption in the operation of the residence, but rather stated that Holly must move because the group home could not accommodate her need for assistance during nighttime fire drills.

Susan believes the real reason for the eviction notice was that she had raised issues of inadequate care and poor conditions in the residence.

We believe the eviction notice violates additional DDS regulations, which require a 45-day notice and the guardian’s consent to any move.

“I feel sick all the time and can’t sleep or eat,” Susan said.

I attempted to contact Krouk-Gordon both by telephone and by email. My email message, which I had sent on April 16 to her email address listed on the TILL website, was blocked. I then resent my query to other officials at TILL, but to date, no one has responded to it.

Throughout the ordeal, Susan said she has felt a lack of support from DDS officials whom she believes have allied themselves with Krouk-Gordon. She contends that rather than addressing her concerns, Kelly Lawless, DDS northeast regional director, has appeared to support Krouk-Gordon’s intention of evicting Holly from the residence.

Susan said that Holly has a strong emotional attachment to the other women in the group home, and that she does not feel, as her guardian, that it would be in Holly’s best interest to be moved to a place she is not familiar with and in which many of the same problems might reappear. What she would like to see happen is strong pressure put on TILL by DDS to fix the problems in Holly’s current residence.

We have heard of no evidence that Susan ever acted in a disruptive way either inside the home or in any other location. It appears that the only reason for TILL’s prohibition against her from entering the home and subsequent notice of eviction of Holly is that Susan has pointed out deficiencies in the care and conditions in the residence on a number of occasions.

Susan said she has both met and had a conference call with DDS Commissioner Jane Ryder, and that Ryder seemed sympathetic, particularly to her concern about being banned from the residence and Holly’s potential eviction. She said Ryder assured her early this month that she would issue a directive to Lawless “to work on these issues,” and that the directive would address the ban on entering the residence.

However, Susan said that in a subsequent phone conversation she had with Lawless, Lawless told her that she wanted only to discuss moving Holly out of the residence, and referred several times to Susan’s relationship with TILL management and staff as “broken.”

Susan said that at one point in that conversation, Lawless stated that an alternative residence for Holly had been located in Gloucester. Susan told her that as Holly’s guardian, she wanted to live close to her and that the Gloucester location was more than an hour away.

But Susan said Lawless not only appeared unsympathetic to her concern, she admonished her for voicing it, saying she was “‘appalled that this is all about you, Susan, not wanting to drive.'” Susan responded that it was not about her, but about her need, as Holly’s guardian, to be near Holly.

Last Tuesday (April 17), I emailed Ryder, asking if she would respond to those and other concerns and questions we have raised about this case. To date, I’ve received no response from Ryder.

On Wednesday, April 18, the day after my email to Ryder, Susan received an email from Lawless in which Lawless stated that in response to concerns Susan had raised about the TILL residence, Lawless and other DDS officials have directed DDS’s human rights officer “to make an unannounced visits (sic) to the house, and asked the Area Office to increase their visits to the house.”

Lawless said she and other DDS officials have “also asked our Office of Quality Management to conduct a review of the home to determine whether conditions in the home meet DDS quality standards.”

In a response to Lawless, Susan said she was pleased to hear about the planned visits and review by DDS. But she told Lawless she remained concerned that many of the issues she has raised, such as the staff’s failures to feed Holly adequately and regularly provide water to her, may not be observed by the inspectors.

In her email, Lawless appeared to walk back Krouk-Gordon’s eviction notice, at least partially. Her email stated that, “as I previously reported, DDS staff have worked with TILL and there is no plan to discontinue Holly’s services with TILL as of April 30, 2018.”

But Krouk-Gordon has not rescinded the March 20 eviction notice to Susan, and Lawless’s email made no mention of that notice. Lawless’s message also appeared to imply that DDS is continuing to push for Holly’s ultimate removal from the home. Lawless stated that, “I encourage you to work with DDS and TILL on coming to an agreement as to how appropriate services can be provided to Holly going forward, including exploring other options available, such as the Gloucester residence.”

Lawless’s email also appeared to suggest that even further restrictions on Susan’s access to Holly in the TILL residence might be imposed. While acknowledging that Susan has “concerns” regarding “the current guidelines in place around your visitation with Holly,” Lawless stated that she had reviewed the TILL directive banning Susan from the residence and had determined that the directive was “reasonable and compliant with DDS regulations concerning visitation.”

Lawless’s email, however, did not mention that the directive from TILL prohibits Susan from entering the home (see details of the directive below). Lawless described the directive as simply requiring “coordination and notice of any visits to the home and that the scheduled visits are to be at a mutually agreeable time.”

Lawless then indicated that she would seek to enact restrictions on visitation times for Susan. “I would like to suggest establishing a set time each week for the visits,” Lawless stated. “Having a set time, or times, each week will minimize the challenges around scheduling and allow for consistent visits with Holly.  I’m happy to coordinate with TILL a standing schedule if you would send me your preferred days and times.”

Lawless’s email did not state that Susan would be allowed inside the residence during those visits.

Visitation ban appears to violate DDS regulations

The written directive banning Susan from entering Holly’s residence was presented to Susan following a meeting she had with the group home staff last August 11. The directive was headed “Ash Street (group home) Family Communication Guidelines.”

While labeled “guidelines,” the document’s provisions were presented as binding policy on Susan.  Among the statements in the directive were the following:

  • You (Susan) will not go into the residence to bring items to Holly’s bedroom or go into the kitchen. Anything you need to deliver to the residence must be given to the staff or the manager and they will see that it is properly put away.
  • We ask that you not go inside the home unless there is a planned event or meeting that has already been established with the manager ahead of time.
  • Susan and the Residence Manager will communicate by telephone once per week at a time that is mutually agreed upon.
  • It is essential that you speak to the manager rather than speaking to staff directly. Only the manager can make house plans and follow through with scheduling needs.
  • All supervision of Holly’s diet will be handled by the residence LPN and Nutritionist. All changes to the menu and/or grocery list will be made through the nutritionist and LPN for the house. (The LPN never has had anything to do with Holly’s diet, Susan said.)
  • We ask that you only communicate with the nutritionist by email given that the time is limited and she receives multiple calls daily from the house as needed.

Since receiving the directive, Susan said she has been banned even from waiting for Holly in the foyer of the house, and must stand outside, even in the winter. In addition, the weekly phone calls with the house manager have been canceled, she said. And she has been told not to contact the nutritionist at all.

As Holly’s guardian, it is Susan’s legal duty to oversee her care and advocate in her best interest. Blocking her from having contact with her daughter inside her residence impedes her ability to carry out her legal duties as guardian.

Also, contrary to Lawless’s contention, we believe the ban on entering the group home violates DDS regulations governing the rights of DDS clients, which include “the right to be visited and to visit others under circumstances that are conducive to friendships and relationships…”

The DDS regulations further state that a DDS client’s guardian or family members “shall be permitted to visit at all times, unless the individual objects, and shall be provided with a suitable place to confer on a confidential basis…” (My emphasis)

The same DDS regulations state that:

Reasonable restrictions may be placed on the time and place of the visit in order to protect the welfare of the individual or the privacy of other individuals and to avoid serious disruptions in the normal functioning of the provider.  Arrangements shall be made for private visitation to the maximum extent possible. (my emphasis)

Susan said she thinks the real reason for the draconian restrictions placed on her is that TILL’s management is “trying to keep me from knowing anything about what is going on in the home.”

Susan said she was told that her presence in the residence was making residents uncomfortable, but Susan doesn’t believe that is the case. “That’s a lie,” she said. “The other girls (in the house) gave me hugs and asked how I am. I would make them omelets, and I showed staff how to make fresh fish. Of course, I’m not allowed to do any of that anymore.”

Susan added that she personally purchased needed cooking equipment for the entire house, and brought the residents and staff fresh corn on the cob, strawberries and apples from a farm over the summer.

In other cases that we have investigated, we have found that the statement that a family member was making residents uncomfortable was often used as an excuse for restricting their access to persons living in provider residences.

Susan said that the directive banning her from the residence appeared to follow directly from checks she had been doing under an agreement with the staff of the cabinets and the refrigerator in the kitchen “to make sure the food they were buying for Holly was dairy free.” After doing the checks “for about three weeks and informing the staff that there was dairy in multiple food products, including food bought specifically for Holly,”  Susan said she received the directive denying her access to the kitchen and entire house.

With regard to the requirement that she communicate directly with the house manager, Susan said she usually attempted to phone or email the house manager, particularly in instances in which Holly had missed appointments, but her emails were often not answered and the manager’s voicemail was often full. She said she once talked to the house staff during a weekend visit because she found that no lunch had been given to Holly that day. “Our conversation was very polite,” she said. “There is no one you can reach in management on weekends. My daughter needed to eat.”

The ban on allowing her into the house has made it particularly difficult to get Holly ready for outings and trips home, Susan said. The staff would frequently forget to pack needed items such as underwear, pants, pajamas, and medication.

Recently, despite the visitation ban, Susan said she requested to be allowed into the basement to see what clothing Holly now has. “ I haven’t been allowed in so long I can’t remember,” she wrote in an email to us. “I know Holly is missing things and I know the staff doesn’t know everything she has. Do I sound frustrated?”

In her email response to Lawless’s April 18 message, Susan stated that:

I want the ability to visit Holly on any day of the week or (at any) time as long as it is not disrupting the functioning of the home, and set visitation times will not allow that flexibility nor does that allow for visitation to the maximum amount extent possible.

My daughter is not in a prison, this is her home and Holly has the right to visit with friends and family as the regulations clearly state.  I also want the ability to sit in the living room with Holly or if we choose or walk into the kitchen with her as any other house guest would do and as other family members are permitted to do.

When I drop Holly off after a visit outside the home I want to walk inside the front door and stand in the foyer area, as any other parents are allowed to do.  I think it’s also important to note that as Holly’s guardian, I have a legal duty to see Holly’s living conditions to ensure her wellbeing.

One-hour visit allowed in April

Susan said that on April 1, she was given permission to enter the residence for an hour because she needed to help pack Holly’s clothes for a trip to Florida. After being given a time for the visit that she couldn’t meet, she finally won approval for one hour on that Sunday.

Susan said she pushed back and said she needed two hours because Holly needed to try on clothes to see what fit.  She also needed to check to make sure Holly’s medication was correct.

Susan said that when she arrived that Easter Sunday at the residence, Krouk-Gordon arrived as well, and then spent some of her time right outside Holly’s room. Susan said Krouk-Gordon’s close presence made her feel uncomfortable and that she believes it was meant to intimidate her.

Eviction notice cites a fire drill policy that does not comply with regulations

Krouk-Gordon’s notice to Susan that Holly must leave the residence as of April 30 did not include any allegations that either Holly or Susan had acted in a disruptive manner. Instead, the March 20 eviction letter stated that Holly must leave because the home could not accommodate her need for assistance during nighttime fire drills at the residence.

Susan said that Holly needs assistance because her blood pressure drops significantly if she is woken up suddenly. As a result, she can suddenly faint and fall unless she is given water immediately after waking up.

Last November, Holly did fall after having been suddenly woken by the fire alarm, which had signaled a middle-of-the-night fire drill. She suffered a concussion and a black eye in the fall.

Susan said the staff made Holly finish the drill immediately after she regained consciousness, and did not take her to the emergency room. The incident and injury were not reported by the staff to the Disabled Persons Protection Commission, as required by law. And Susan wasn’t notified about the injury until  mid-morning the following day.

Susan contends that the danger posed by the fire drills could be solved either by adding a staff member to the group home at night to assist Holly, or by moving her bedroom to a currently empty room on the first floor in which she would have time to quickly drink a small bottle of water and still be able to exit with assistance within the required 2½ minutes. The front door to the residence is right outside that downstairs room.

Susan said, however, that neither TILL nor DDS have expressed support for her suggestions.

In failing to alter the existing fire drill policy, DDS and TILL would appear to be in violation of DDS regulations, which state that “providers of group homes “shall assure that …strategies are developed for meeting the specific and unique safety needs of each individual” (my emphasis).

In addition, the regulations state that “for sites where residential supports…are provided, safe evacuation is defined as assuring that all individuals can get out of the home in 2½ minutes, with or without assistance...” (my emphasis).

The implications of the regulations in this regard seem clear and unambiguous to us. The provider management cannot legally evict a resident because the home is not able to serve that resident in compliance with the regulations. The management instead needs to take steps to comply with the regulations.

Eviction notice did not comply with DDS transfer regulations

It also appears to us that Krouk-Gordon’s March 20 letter notifying Susan of Holly’s pending eviction did not comply with DDS transfer regulations, which require that Susan be provided with an official 45-day notice of a proposed transfer out of the group home.

Under the regulations, the written notice must include a statement explaining how the proposed move would result in improved services and supports and quality of life for Holly. The notice must also specify the location of the proposed home, include a statement that the parties may visit and examine the proposed home, and must further include a request for consent by Susan, as Holly’s guardian, to the proposed transfer.

None of those statements was included in the March 20 letter. As such, the letter does not, in our view, constitute a legal notice under the regulations to Susan of a pending transfer from the residence.

TILL never committed to addressing nutrition issues

Susan said that despite her efforts to work with TILL and with DDS to address the nutrition issues in the residence, TILL staff and management have not shown a consistent willingness to work with her.

Susan said that while the staff initially voiced agreement with her requests to improve Holly’s nutritional regimen, there was no follow-through. She personally developed recipes, grocery lists, and menus for all the residents covering six-periods. Yet, the items were often not purchased, and the recipes were not followed.

The group home at first agreed to allow a DDS nurse to work with Susan to put menus together. But then TILL management suddenly objected, and the nurse was taken off the project. “TILL didn’t like that she was doing the menus,” Susan said.

DDS then assigned a nutritionist to work with Holly, but the nutritionist’s approved hours were limited. Even with the system of checks that Susan and the nutritionist provided, the staff on more than one occasion bought a type of cheese for Holly that is strictly prohibited from her diet. “They weren’t following the recipes,” Susan said.

Susan said the staff recently took Holly to her primary care doctor for an exam, but had given her nothing to eat or drink that day. The doctor was so concerned, she recorded it in Holly’s medical record.

In another incident, the group home staff gave Holly a sandwich for lunch that included raw bacon. The manager at her work site, which is operated by The Northeast Arc, was so concerned, she wrote up a report of neglect, Susan said.

The September 5, 2017, report, which was provided to Susan by the work site, stated that, “During lunch, Holly had a BLT sandwich and she pulled the bacon from it ‘to save the best for last,’ and we noticed that it was raw.”  The worksite staffer who wrote the report stated that the worksite staff cooked the bacon in a microwave and monitored Holly for illness. Other than notifying Susan and the group home manager, the worksite took no further action in the matter.

Susan noted that she has been told that the families of the other residents in the group home are largely happy with the care there. But that may be, she said, because the other residents are higher functioning than Holly. The parents of one of the residents lives out of state, while another resident was working toward getting her driver’s license. Another resident is capable of using Boston’s MBTA system.

Unfortunately, this is the kind of case we hear about all too often. As we have said many times, the DDS group home system is broken. It is long overdue that the Legislature and its Joint Children, Families, and Persons with Disabilities Committee begin to address these issues.

In January, the Children and Families Committee held a hearing in which committee members gently queried Ryder about reports of widespread abuse and neglect in the DDS system. A large group of families and guardians attended the hearing, but none of those people were allowed to testify publicly.

We have to wonder what it will take to bring about needed action in this and so many similar cases.

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DPPC seeks to keep all investigative records in death case secret

April 12, 2018 2 comments

It would be nice if the Disabled Persons Protection Commission was on the side of the disabled and their families, but it often seems that the agency is more interested in protecting its turf.

We’ve been involved in a battle since February for the DPPC’s 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, has confirmed that it is investigating Karen McGowen’s death.

DPPC HQ

DPPC headquarters in Braintree (Google Maps image)

Little if any information has been publicly released about the incident. As a nonprofit advocacy organization for persons with developmental disabilities and their families, we have been  trying to determine the circumstances under which her death occurred.

On February 13, the DPPC denied my request for the records in the case, stating that the investigation was incomplete. But in his letter denying the records, Andrew Levrault, the DPPC’s assistant general counsel, added that even when the investigation is completed, any records the Commission has on the case would be exempt from public disclosure and that I would need permission from Karen’s legal representative to obtain them.

The problem is we don’t know who Karen’s legal representative might be or even if she had a legal representative.

We have often advocated for more funding for the DPPC, which operates with so few resources that it has to refer most of its investigations to the Department of Developmental Services. So it’s doubly disappointing that to the extent the Commission does get involved in these crucial investigations, it has taken the position that the work it does must be kept secret.

Rebecca Murray, the state’s Public Records Supervisor, sided with us in the matter in a decision on March 22.  Murray’s decision stated that the DPPC’s February 13 letter to us  “did not contain the specificity required in a denial of access to public records…” The DPPC, Murray said, had merely cited exemptions to the Public Records Law without further explanation. She ordered the Commission to provide me with responsive records within 10 business days.

We’re not sure if Murray’s decision is precedent setting, although it does appear to clear up some confusion we’ve had as to whether we are entitled to DPPC reports in cases in which we are not either the guardians of the victims in the case or the complainants.

The DPPC, however, has a different view of the Public Records Law than does the Public Records Supervisor. On March 29, the Commission asked Murray to reconsider her March 22 decision.

Levrault presented the Commission’s arguments in favor of withholding all records in the case in a 10-page letter to Murray.

But Attorney Levrault’s letter continues in our view to lack the specificity required by Murray to justify withholding documents, and unfortunately leads us to the conclusion that the Commission is more concerned about conducting its work in secret than in satisfying the public interest.

Attorney Levrault’s March 29 letter

In his letter to Murray, Attorney Levrault noted that the records in the possession of the DPPC include three “intakes,” an “initial response” in the case, and a draft investigation report. As of March 29, the DPPC investigation was still pending, he said.

Levrault first cited an exemption to the Public Records Law that allows agencies to keep records secret if existing statutes expressly provide for that. In this case, the DPPC’s enabling statute says the agency “shall promulgate regulations to exclude personally identifiable information regarding the subjects of investigations…”

Levrault argued that  it would be impossible for the DPPC “to protect the interests of all parties in the DPPC investigation through redaction of personally identifying information.”  As a result, he stated, the Commission has concluded that the entire record in the case must be kept secret.

However, Levrault’s letter provided no specifics, as required by Murray’s March 22 decision, to explain why it would be impossible to protect the various parties’ interests.

We would note, moreover, that the subject in this case is deceased. It has been our experience that when agencies argue for protection of the privacy of people who are deceased, it is usually a cover for unwarranted secrecy.

In fact, Public Records Supervisor Murray stated in a March 29, 2017, decision involving an appeal for records by The Cape Cod Times that “…it is generally held that one’s right to privacy is extinguished at death.” Murray noted that the only privacy interest that survives an individual’s death is their interest in their medical information.

Levrault’s letter did go on to cite an exemption to the Public Records law that concerns medical information relating to a “specifically named individual” and to any other materials that might constitute “an unwarranted invasion of personal privacy.”  Again, without providing any specific information in support of his claim, Levrault stated that the documents we are seeking contained information “that could significantly impact the reputations of the parties involved in the allegations…”

“There is no showing here,” Levrault continued, “that the public interest in the identities and actions of the alleged victim, alleged abusers, or other parties involved in the abuse investigation outweighs the strong privacy interests of the parties whose information would be disclosed.”

First of all, we are not seeking anyone’s medical information or any other information that might be personally embarrassing, but are seeking only investigative documents involving a fatal incident.

Secondly, it is a major stretch to argue that there has been no showing that there is a strong public interest in the circumstances of this case, particularly given that Karen’s death is the subject of an acknowledged investigation of possible abuse or neglect.

An attorney for the Public Records Division indicated that the DPPC will face a tall hurdle in attempting to demonstrate that it is entitled to withhold all records in their entirety from public disclosure just because those records refer to a specifically named individual. The DPPC would have to prove that “every single word in the records revealed an intimate detail” about that individual, the attorney said.

Levrault then cited another Public Records Law exemption relating to investigatory materials, the disclosure of which “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”

Levrault stated that the exemption is needed to allow investigators to provide witnesses with an assurance of confidentiality “so that they will speak openly and voluntarily about matters.”

However, this argument still lacks specificity given that Levrault did not even say whether there is an ongoing criminal investigation in this case. Moreover, the statement about providing witnesses with an assurance of confidentiality does not recognize that confidentiality of witnesses can still be maintained by redacting their names and other identifying characteristics.

Finally, Attorney Levrault argued that the investigation report itself was still in draft form and therefore could not be released. However, this statement did not address the DPPC’s position that all of the records we have requested should be withheld in their entirety.

In sum, what the DPPC actually appears to be arguing here is that the Commission has no obligation to ever publicly release any investigative report about the abuse or neglect of any “specifically named individual.” The absurd logic underlying this argument is that the supposed violation of an individual’s privacy in releasing the documents, even if the person died as a result of the abuse or neglect, is somehow worse than the actions that caused their injuries or death.

In her March 22 decision in the case, Public Records Supervisor Murray noted that the DPPC “bears the burden to prove with specificity any exemption (to the Public Records Law) that applies.”

It seems to us that in his March 29 letter to Murray asking for reconsideration of her decision, Attorney Levrault not only did not meet that burden of specificity, he did not even go any further in trying to meet it than in his original denial of our original records request in February.

 

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Donald Vitkus presented posthumously with Benjamin Ricci award

April 5, 2018 1 comment

Donald Vitkus, who survived a traumatic childhood at the former Belchertown State School and then went on to earn an associate’s degree and to become a direct caregiver, was posthumously presented with the 2018 Benjamin Ricci Commemorative Award late last month.

The presentation was made by Department of Developmental Services Commissioner Jane Ryder at a March 28 ceremony at the State House in Boston. The annual award celebration recognizes the accomplishments of individuals served by DDS, and the dedication of caregivers and advocates.

Ryder will attend Vitkus’s memorial service, which is planned for June 23 at the Warner Pine Grove Cemetery Belchertown, where many of the school’s former residents are buried.

Benjamin Ricci, who died in 2006, had been the lead plaintiff in Ricci v. Okin, the historic federal consent decree case in Massachusetts in the 1970s and 1980s, which resulted in major upgrades in care at Belchertown and other institutions for the developmentally disabled around the state.

Ben Don report card

Donald Vitkus (right) presents Ben Ricci with a copy of an actual report card that Vitkus received while he was a child at the Belchertown State School in the 1950s.

Vitkus died last January at the age of 74. His life at Belchertown and afterwards was chronicled in a 2016 book, You’ll Like it Here, by Ed Orzechowski, vice president of COFAR and a founding member of the Advocacy Network, an organization for persons with developmental disabilities and their families in western Massachusetts.

Orzechowski accepted the award on Vitkus’s behalf at the March 28 State House event.

Among those attending the event were Benjamin Ricci’s son, Bobby, who was a Belchertown resident, and Bobby’s brothers, Jim and Tom.

“Without Ben (Ricci) and the other original plaintiffs, ceremonies like this very likely would never have come to pass,” Orzechowski said following the award ceremony.

Orzechowski noted, in accepting the award for Vitkus, that he had originally met him in 2005, a year before Ricci’s death, at a book signing at Holyoke Community College for Ricci’s book, Crimes Against Humanity. The book chronicled the Ricci legal case and the conditions at Belchertown in the 1950s and 1960s.

Donald Vitkus award ceremony photo2018

Ed Orzechowski (center) holds a plaque commemorating Donald Vitkus’ posthumous receipt of the Banjamin Ricci award on March 28 at the State House. From left are DDS Commissioner Jane Ryder and Ricci’s sons,  Jim, Bobby, and Tom.

After Ricci’s presentation at the book signing, Vitkus approached Orzechowski, who had been assisting Ricci at the event, and asked if he would help him write his life story. At the time, Vitkus was a 62-year-old human services student at HCC, the oldest student enrolled at the school. Orzechowski said he later learned that it was Vitkus, as president of the college’s psychology club, who had invited Ricci to speak.

Orzechowski also recounted that Vitkus was a six-year-old foster child when he arrived at Belchertown in 1949, where he was labeled a “moron” in an age when “idiot,” “imbecile,” and “moron” were clinical terms.

While Vitkus was growing up at Belchertown, “he stood up not only for his own rights, but also for other residents who were being abused or neglected,” Orzechowski said. “This ‘moron’ earned his associate’s degree and became a uniquely qualified direct caregiver, one who knew what it was like to be treated as less than human. Donald wanted his story told, ‘… so people wouldn’t forget—so it wouldn’t happen again.’”

Orzechowski maintained that “despite the scars of his upbringing, Donald persevered.” After Belchertown, he was drafted into the United States Army and served in Viet Nam. He married, raised a family, and held a job in the printing industry for more than 30 years.

Orzechowski said Vitkus told him that, initially, he resented Ben Ricci and what was originally the Belchertown Friends Association because the precedent-setting lawsuit brought changes long after Vitkus had left the institution. But, said Orzechowski, Vitkus “harnessed that bitterness, eventually became vice president of Advocacy Network, and a passionate spokesperson for the rights and care of developmentally disabled individuals.”

In recent years, Vitkus said he wanted to be buried in the Belchertown State School cemetery that had been known to the residents of the facility as Turkey Hill. “I want to be with the others because those people are my brothers and sisters,” he said.

Orzechowski said that while at HCC, Vitkus shared his experiences with the much younger students, “who had little or no idea about what conditions in state institutions used to be like—the squalor, the beatings and molestation, the regimented, de-humanizing environment.”

Orzechowski noted that Vitkus spoke to high school students about self-advocacy and spoke to newly hired DDS employees at orientation sessions in Northampton, always introducing himself: “Hello, my name is Donald Vitkus. I’m a former retard of Belchertown State School.”

“These were heart-filled, gut wrenching talks, always with the dignity of the individual uppermost in Donald’s mind,” Orzechowski said. “It wasn’t unusual to see tears in the eyes of those who heard his story.” Vitkus also traveled to Washington, D.C., to speak at annual VOR conferences with attendees from across the country. He was a panelist in a discussion of “The R Word.” He visited Congressional offices to lobby for supportive legislation and funding.

After earning his degree, Vitkus worked for Sullivan Associates in Springfield, providing direct care. “He wanted to help individuals make their own decisions, learn how to handle money, how to cross the street, how to shop, how to behave in restaurants—practical day-to-day living skills,” Orzechowski said. “He never talked down to them. He always sat with them at mealtimes, and beside them in transportation vans. He was firm when he had to be, but always mindful of their dignity, always kind in his words.”

 Orzechowski said many of those who attended Vitkus’s book events had aunts, uncles, and cousins who also had been Belchertown patients. Others had worked or volunteered there.

At one bookstore, he said, “I watched an elderly woman seated in the crowd, trying to hold back tears. Donald liked to ask people what had brought them there, and when he asked this particular woman, she was so emotional that words wouldn’t come. The room was silent. Donald walked over and embraced her with an empathy that didn’t need words to convey—this from a man who had shunned physical contact because of the beatings and physical restraints he had endured in the institution. It was a powerful moment.”

On another occasion, according to Orzechowski, a mother brought her middle-school son who was afflicted with autism. “The boy locked onto Donald’s comments,” Orzechowski said.

The next day, the boy’s mother told Orzechowski that her son, who is ordinarily non-communicative, couldn’t stop talking about Vitkus in the car on their way home. He told his mother “that he wanted to grow up to be like Donald, to stand up for others with intellectual disabilities, that Donald was his inspiration.”

Alleged union bashing by CEO of DDS provider confirms the plan is keep direct-care wages low

March 20, 2018 Leave a comment

We hope a federal investigation of Triangle, Inc., a corporate provider to the Department of Developmental Services for alleged anti-union activity brings public attention to the potential for privatization of DDS programs to result in low pay for provider staff and poor care.

In our view, the alleged efforts by Malden-based Triangle’s management to block staff from unionizing imply an implicit acknowledgement by the management that it wants to keep direct-care wages low. Low wages, in turn, result in lower-quality care.

In preventing their workers from organizing, providers like Triangle appear to be pitting themselves against the growing movement in Massachusetts for a $15 living wage for workers.

The Boston Globe reported earlier this month that the National Labor Relations Board has issued a formal complaint against Triangle after at least three former employees of the provider were allegedly fired for helping organize the agency’s staff to unionize with SEIU Local 509.  The union represents both state workers and staff of state-funded providers to agencies such as DDS.

Triangle’s chief executive, Coleman Nee, allegedly stated that anyone in the agency who even voiced support for the union could be fired. Nee is a former Cabinet secretary under then Governor Deval Patrick.

The relatively low level of pay and benefits to direct-care staff in human services has been a long-standing issue in Massachusetts and elsewhere around the country.

“Nonprofit DDS providers do not want to pay a living wage to their direct care workers because their CEOs are keeping the money for themselves,” COFAR Executive Director Colleen Lutkevich wrote in a comment on the Globe site. “It can only benefit people with developmental disabilities if unions help these workers to earn more money. The management is a disgrace and it’s not the people they serve that benefit, it is their own pocketbooks.”

COFAR and SEIU Local 509 have tracked both corporate provider executive and direct-care compensation in recent years. Last May, the SEIU released a report charging that major increases in state funding to corporate human services providers during the previous six years had boosted the providers’ CEO pay to an average of $239,500, but that direct-care workers were not getting a proportionate share of that additional funding.

As of Fiscal 2016, direct-care workers employed by the providers were paid an average of only $13.60 an hour, according to the SEIU report.

The SEIU further noted that the increases in funding to the providers, known as “Chapter 257” rate setting reforms, had actually allowed the providers to earn  $51.8 million in net or surplus revenues (over expenses) in Fiscal 2016.  As the report stated, those surplus revenues would have more than covered the estimated $34 million cost of boosting all direct-care workers’ wages to $15 per hour.

Based on that report, state Senator Jamie Eldridge filed a budget amendment last year to require human services providers in Massachusetts to spend some of their surplus revenues on raising direct-care wages to $15 per hour. The measure was rejected, however, by a House-Senate conference committee on the budget.

It was not clear whether Eldridge intends to refile his amendment this spring. The SEIU as well has turned its attention away from that proposal and toward proposed legislation and a proposed ballot question in November that would raise the minimum wage for all workers in Massachusetts to $15 per hour.

While we support the legislation and ballot question aimed at all workers, we would also hope that Eldridge’s amendment would be reintroduced given that the funding apparently already exists to fully fund a $15 per hour living wage for human services workers.

Privatized human services reflect larger inequities

The privatized human services system in Massachusetts, in fact, reflects income inequities and other problems with privatized services in other areas of the economy.

As state funding has been boosted to corporate providers serving DDS and other human services departments, a bureaucracy of executive-level personnel has arisen in those provider agencies. That executive bureaucracy appears to be suppressing wages of front-line, direct-care workers and is at least partly responsible for the rapidly rising cost of the human services budget.

Ironically, a key reason for a continuing effort by the administration and Legislature to privatize human services has been to save money. However, we think that privatization is actually having the opposite effect.

Triangle executives are lavishly compensated

Triangle Inc. appears to be a microcosm of the human services system in Massachusetts, and to reflect many of its problems.

The Globe reported that Triangle had some 3,900 people enrolled in various programs and services during Fiscal 2017. The agency received $10.2 million in revenue in Fiscal 2017, including $6.9 million in funding from DDS, according to the state’s online UFR database.

Coleman Nee, the Triangle CEO, is listed on the UFR database as having received $223,570 in total compensation in Fiscal 2017. That may not cover an entire year with the agency.

It appears Nee started with Triangle sometime in 2016. Prior to him, the CEO was Michael Rodrigues, who made $257,442, according to IRS Form 990 for Fiscal 2016. That year’s Form 990 lists six executives, including Rodrigues, as making over $100,000 at Triangle.

It is unconsionable that executives of nonprofit agencies who are making six-figure incomes paid for with state funds are engaging in efforts to supress the pay of their direct-care employees. The fig leaf offered by a nonprofit moniker does not protect those executives from either charges or the appearance of profiting inappropriately off the taxpayers.

Its’s time for the Legislature to take steps to reform the DDS system, starting with a concrete action to raise direct-care wages.

Wrentham Center supporters want you to to know: ‘It’s a community’

March 8, 2018 4 comments

As is the case with many of the staff at the Wrentham Developmental Center, John Maxell, supervisor of adapted physical education, sees his job as serving both the center’s residents and the surrounding community.

Maxell noted, for example, that he has been working at WDC with a man from the community who originally weighed more than 500 pounds and came to him for help in losing weight.

That man’s weight is now close to 300 pounds, Maxell said, and it is continuing to drop. Maxell made the comments to state legislators and others who were on a tour of WDC following a legislative breakfast there this past Tuesday.

The breakfast was hosted by State Senator Richard Ross of Wrentham and was co-sponsored by the WDC Board of Trustees and by a range of family-based groups including the Friends of Wrentham, COFAR, the WDC Family Association, and the SpeakEasy Advocacy Group at WDC.

“I invite you to look at WDC with new eyes,” Colleen Lutkevich, COFAR executive director, told the lawmakers, staff of the Department of Developmental Services, and family members who attended the legislative breakfast. “WDC is a true community.”

Lutkevich noted that she was speaking on behalf of her sister, Jean Sullivan, who has been a WDC resident for more than half a century.

In addition to Ross, legislators who attended the breakfast included Senator Paul Feeney of Attleboro; and Representatives Shawn Dooley of Medfield, Elizabeth Poirier of Attleboro, and Jeffrey Roy of Franklin.

Senator Ross speaks at WDC2

State Senator Richard Ross (at podium) speaks during legislative breakfast at WDC.

Maxell pointed out that other people and groups from the surrounding community also use the fitness center at WDC, including members of local high school and community basketball, volleyball, and badminton teams. In return, those groups provide the center with monetary donations, which are used to buy exercise equipment for use by the center’s residents.

Similarly, community-based groups and individuals, including senior citizens, regularly use the therapeutic swimming pool at WDC, according to Peter Cutting, the lifeguard there.

Peter Cutting at WDC pool

Peter Cutting, lifeguard at the WDC therapeutic pool. The pool is used regularly by members of the surrounding community.

Joanne Cummings, a member of the WDC Board of Trustees, who spoke at the breakfast, listed the services that are provided to the 263 residents at WDC, including clinical, medical services, nursing care, occupational and physical therapy, speech and language therapy, recreation therapy, and psychological counseling. The center also houses an acute care medical facility and a dental clinic.

Yet, while that array of centrally located services cannot be found in any community-based group homes in the commonwealth, WDC doesn’t necessarily have an institutional feel to it. The campus has a mix of larger buildings housing apartments and smaller, multi-bedroom homes.

As Cummings noted, “The facility of today is not the institution of the past.”

And yet, WDC and its community-based orientation are a “well-kept secret” by DDS, Lutkevich pointed out. Many family members and guardians have waited for residential placements from DDS for years without being informed that places like WDC, the Hogan Regional Center, and a network of state-operated group homes exist.

Lutkevich discussed the case of Alexa Horn, who was admitted to WDC only after the Marquardt skilled nursing facility on the grounds of the former Fernald Developmental Center, in which she had been living, closed. Prior to being admitted to the nursing facility, Alexa had suffered an unexplained broken leg and arm in a corporate-run group home funded by DDS.

Lutkevich recounted how Alexa’s parents, Pat and Michael Horn, told DDS while Alexa was at Marquardt that they did not want her sent back to the group home. But instead of promising to address and rectify the situation, a DDS official threatened the Horns with removing their daughter from DDS care and sending her back home. Luckily, that never happened. Pat Horn has described the care Alexa has received at WDC as “exquisite.”

Other parents have been able to get family members into WDC or into state-operated group homes only after hiring attorneys and engaging in legal action, Lutkevich said.

Since 2008, four of six remaining developmental centers in Massachusetts have been closed, leaving only WDC and the Hogan Regional Center in Danvers operating. A number of current WDC residents were transferred there from the closed centers, including Tom Doherty, who was on hand for Tuesday’s breakfast.

Doherty, who is 67, moved to WDC from the former Templeton Developmental Center in 2011. He now lives with four other men in a group home on the WDC campus.

Tom Doherty and John Hastings

Tommy Doherty (left), who became a resident of WDC in 2011, with his cousin, John Hastings, at Tuesday’s legislative breakfast.

The developmental centers, which are also referred to in federal regulations as Intermediate Care Facilities (ICFs), are required to comply with more strict federal requirements for staffing and treatment than are community-based group homes.  As a result, WDC and Hogan tend to have residents who are older and have more severe developmental disabilities and medical conditions on average than those in the community-based system.

The average age of the residents at WDC is 66. More than 90 percent of the residents there are over 55. Eighty-five percent of the residents at WDC are listed as having either a severe or profound level of intellectual disability as compared with 15 percent who have either a moderate or mild level of disability.

Due to that relatively old residential population and the fact that new residents are not routinely admitted to WDC or Hogan, the residential census in those facilities is dropping. At WDC, the residential census dropped from a peak of 323 in Fiscal 2013 to 272 at the start of the current fiscal year last July. Since July, that number has dropped by an additional 9 residents to 263 as of this month.

As Lutkevich stated in a message to the legislators who attended the breakfast this week, the push is on to change attitudes within the Legislature and administration about the continuing need for WDC, Hogan, and the state-operated group homes as part of DDS’s overall continuum of care. “Ultimately, we hope to find a way to persuade DDS and other policy makers to make WDC and other state-run programs available once again as options for care for people waiting for DDS services,” Lutkevich said.

Our March issue of The COFAR Voice discusses a plea from DDS families: ‘please listen to us’

The theme running through our new March newsletter is the continuing struggle by families to be listened to by state policy makers, legislators, service providers, probate court judges, and the media as those families work to ensure the wellbeing and safety of their loved ones in the Department of Developmental Services system.

It is a struggle that families must engage in constantly. And as a number of the articles show, the system is often not willing to listen. Families frequently encounter significant pushback from DDS, the courts, the providers, and other quarters.

David and Ashley Barr have been subjected to an outright ban for more than two years on contact with David’s daughter who is being kept isolated in a group home in an undisclosed location. The prohibition seems to us to clearly violate DDS regulations that give clients the right to be visited.

When the Tillys filed complaints about abuse and neglect of their son in a corporate-run group home, both the provider and DDS turned against the parents instead of putting their focus on investigating and addressing their complaints. The Tillys, too, faced restrictions and then bans on visits to their son.

Buckley case David and Richard photo3

David (left) and Richard Buckley circa 1970

When Richard Buckley and his family tried to seek justice and get answers from DDS and the Essex County District Attorney’s Office after Richard’s brother, David, was scalded to death in a DDS group home in 2001, they got only silence. Richard is still waiting for someone to listen.

The state Legislature’s Children and Families Committee, recently held an oversight hearing to consider DDS’s responses to these types of incidents and issues. But it seemed the committee wasn’t really interested in hearing from the families either.

Verbal testimony was permitted at the committee’s January 17 hearing only from DDS commissioner Jane Ryder and from Nancy Alterio, executive director of the Disabled Persons Protection commission. To date, the co-chairs of the Children and Families Committee have not given any indication when, if ever, they will listen to the families.

But it’s not only the Children and Families Committee that does not appear to be listening. We report in the March issue on the continuing failure of the Judiciary Committee to act on a bill that would boost family rights in guardianship cases.

We believe there is a connection between these issues and the continuing priority the administration and Legislature have placed on privatizing the DDS system. The March newsletter also reports on the governor’s budget for the coming fiscal year and how it continues to short-change state-operated group homes and other state-run DDS programs.

And we have a report on our concerns about new regulations proposed by the state auditor that might weaken the Pacheco Law, a state statute that requires state agencies to demonstrate a cost savings and quality improvement prior to privatizing existing services.

We do appreciate that at least one legislator has been listening to a constituent about the problems her developmentally disabled son has had since his sheltered workshop was shut down in 2016. As we report, Representative Brian Ashe’s staff is drafting a bill that would bring back work opportunities to day programs for DDS clients who are not able to function in mainstream work environments.

Finally, we discuss the passing of two key figures in the history of care for the disabled in Massachusetts — Donald Vitkus and Edward Stefaniak. Donald was a survivor of the former Belchertown State School who went on to become a committed advocate for persons with intellectual disabilities.

Ed Stefaniak, who served as COFAR’s treasurer for many years, was instrumental in the Ricci v. Okin class action lawsuit, which resulted in major upgrades to developmental centers in the state and opened the way to community-based care.

You can find all of this and more in the newsletter, which you can access on the home page of our website at www.cofar.org. Your feedback and comments are much appreciated.

Father and sister now told they must wait for long-delayed trial before they can visit disabled woman

February 13, 2018 2 comments

The state’s story keeps changing as to why the father and sister of a developmentally disabled woman have been banned for more than two years from having any contact with her.

The woman, whose name we are withholding, has been kept in virtual isolation by the Department of Developmental Services since her mother’s alleged boyfriend was charged in 2014 with sexually assaulting her. The woman’s mother has also been charged in connection with the alleged assault.

However, since November 2015, both David and Ashley Barr, the woman’s father and sister, have been prohibited from having any contact with her and have not even been told where she is living. Neither Ashley nor David has been charged with any crime. David has been divorced from the woman’s mother since 2003.

As of this past week, Ashley Barr was being told she and her father would not be able to visit the woman until her mother and her mother’s alleged boyfriend are tried in connection with the alleged sexual assault.  The trial, which has apparently been delayed at least once, is now scheduled for May 15, according to the office of Essex County District Attorney Jonathan Blodgett.

Ashley said the reason given her for waiting for the trial was unclear. She said DDS General Counsel Marianne Meacham told her last week that there was concern on someone’s part that a visit from her father and her would somehow make her sister “lose focus” in preparing for the trial.

Ashley said Meacham had initially told her the trial would be held in April.

Ashley and David Barr

David and Ashley Barr

In an email this week, Carrie Kimball-Monahan, director of communications for the Essex District Attorney’s Office, said the district attorney was not responsible for the ban on family contact. Kimball-Monahan said the ban was ordered by Dorothy Wallace, the woman’s DDS-paid guardian.

Kimball-Monahan added that the district attorney was not in a position to try to resolve the visitation issue with DDS. “We are prosecuting a criminal matter and that is our focus,” she stated.

In previous comments in probate court, Wallace stated that she was imposing restrictions on contact between the woman and her father and sister because David and Ashley became overly emotional when they had been allowed to visit her. Wallace made no mention during the probate court hearing, which was held in August 2015, to the ongoing criminal prosecution involving the woman’s mother and alleged boyfriend.

Ashley said she is not convinced anyone in the system cares whether she and her father ever see her sister again.

Wallace received $20,100 from DDS for guardianship services for an undisclosed number of persons in Fiscal Year 2016, according to DDS records. Yet, Wallace appears to have had relatively little contact with the disabled woman in this case over the past year, according to records and other information reviewed by COFAR.

A violation of DDS regulations

The continued isolation of the woman in this case appears to involve a violation of DDS regulations, which state that people in the Department’s care have the right …“to be visited and to visit others under circumstances that are conducive to friendships and relationships…” The only limitation on this right is if the individual “is ill or incapacitated to the degree that a visit would cause serious physical or emotional harm.”

Also, the right to visitation is a key aspect of family integrity in international human rights law. As an article in the Berkeley Journal of International Law states, “Sufficient consensus exists against particular types of family separation…to constitute customary international law.”

In an email sent February 10 to Meacham, Lutkevich asked whether DDS would provide a letter stating that Ashley “will in fact be able to see her sister after the trial…I truly hope there is a full intention of allowing these visits to occur,” Lutkevich added, noting that the probate court has not issued any orders barring visitation with the woman.

Meacham had not responded to Lutkevich’s message as of today (February 13.)

The Barrs have been unable to afford the cost of hiring a lawyer to pursue their case in probate court. As we have reported in another case, it is extremely difficult to prevail in any probate court proceeding in Massachusetts if you are not a legal guardian or appear without a lawyer.

David and Ashley have asked their local state legislators to intervene with DDS to allow visits, but have gotten little or no help from them. Despite requests from the Barrs and from COFAR, mainstream media outlets have not reported on the ban on family contact in the case.

As we reported in January 2017,  the Boston-based Disability Law Center temporarily intervened in the case that month to ask a state-appointed attorney, who is representing the woman, to support family visits if the woman wished that. However, the attorney didn’t agree to do so.

The attorney, Melissa Coury Cote, told COFAR in March 2017 that she would not support court permission for visits to the woman by David or Ashley Barr, despite the DLC’s request.  She provided no reason to us for opposing family visits other than to say that the woman had not specifically asked her to allow visits from her father and sister.

Ashley said, however, that her sister has, on occasion, surreptitiously tried to call her and her father from her undisclosed location.